Skip to main content

Full text of "A treatise on the constitutional limitations which rest upon the legislative power of the states of the American union"

See other formats 


Ledox  Library 


B  an  cva  ft  C  o  I  Uu-timt . 
.Vui-dTiun-CrmlSfU'. 


TREATISE 


CONSTITUTIONAL  LIMITATIONS 


WHICH    REST    UPON 


THE   LEGISLATIVE   POWER   OF   THE   STATES 
OF   THE  AMERICAN   UNION. 


BY 


THOMAS    M.   COOLEY,  LL.D., 

ONE    OF    THE    JUSTICES    OF    THE    SUPREME    COURT    OF    MICHIGAN,    AND    JAY    PROFESSOR 
OF    LAW    IX    THE    UNIVERSITY    OF    MICHIGAN. 


THIRD   EDITION, 

WITH   CONSIDERABLE   ADDITIONS,    GIVING  THE   RESULTS   OF   THE   SEQE^TS    OASIiS. 


BOSTON: 
LITTLE,   BROWN,  AND   COMPANY, 

1874. 


Che« 


Entered  according  to  Act  of  Congress,  in  the  3-ear  1674,  by 

LITTLE,    BROWN,    AND    COMPANY, 

In  tlie  Office  of  the  Librarian  of  Congress,  at  Washington. 


CAMBRIDGE: 
PRESS   OF  JOHN   WILSON  AND    SON. 


) 


PREFACE   TO   THE   SECOND   EDITION. 


In  the  Preface  to  the  first  edition  of  this  work,  the  author  stated 
its  purpose  to  be,  to  furnish  to  the  practitioner  and  the  student  of 
the  law  such  a  presentation  of  elementary  constitutional  principles 
as  should  serve,  with  the  aid  of  its  references  to  judicial  decisions, 
legal  treatises,  and  historical  events,  as  a  convenient  guide  in  the 
examination  of  questions  respecting  the  constitutional  limitations 
which  rest  upon  the  power  of  the  several  State  legislatures.  In 
the  accomplishment  of  that  purpose,  the  author  further  stated  that 
he  had  faithfully  endeavored  to  give  the  law  as  it  had  been  settled 
by  the  authorities,  rather  than  to  present  his  own  views.  At  the 
same  time,  he  did  not  attempt  to  deny  —  what  he  supposed  would 
be  sufficiently  apparent  —  that  he  had  written  in  full  sympathy 
with  all  those  restraints  which  the  caution  of  the  fathers  had  im- 
posed upon  the  exercise  of  the  powers  of  government,  and  with 
faith  in  the  checks  and  balances  of  our  republican  system,  and  in 
correct  conclusions  by  the  general  public  sentiment,  rather  than 
in  reliance  upon  a  judicious,  prudent,  and  just  exercise  of  authority, 
when  confided  without  restriction  to  any  one  man  or  body  of  men, 
whether  sitting  in  legislative  capacity  or  judicial.  In  this  sympa- 
thy and  faith  he  had  written  of  jury  trials  and  the  other  safeguards 
to  personal  liberty,  of  liberty  of  the  press  and  of  vested  rights  ; 
and  he  had  also  endeavored  to  point  out  that  there  are  on  all  sides 
definite  limitations  which  circumscribe  the  legislative  authority, 
independent  of  the  specific  restrictions  which  the  people  impose  by 
their  State  constitutions.  But  while  not  predisposed  to  discover 
in  any  part  of  our  system  the  rightful  existence  of  any  unlimited 
power,  created  by  the  Constitution,  neither  on  the  other  hand  had 
he  designed  to  advance  new  doctrines,  or  to  do  more  than  state 
clearly  and  with  reasonable  conciseness  the  principles  to  be  de- 
duced from  the  judicial  decisions. 


IV  PREFACE. 

The  unexpected  favor  with  which  the  work  has  been  received 
having  made  a  new  edition  necessary,  the  author  has  reviewed 
every  part  of  it  with  care,  but  without  finding  occasion  to  change 
in  any  important  particular  the  conclusions  before  given.  Further 
reflection  has  only  tended  to  confirm  him  in  his  previous  views  of 
the  need  of  constitutional  restraints  at  every  point  where  agents 
are  to  exercise  the  delegated  authority  of  the  people ;  and  he  is 
gratified  to  observe  that  in  the  judicial  tribunals  the  tendency  is 
not  in  the  direction  of  a  disregard  of  these  restraints.  The  reader 
will  find  numerous  additional  references  to  new  cases  and  other 
authorities ;  and  some  modifications  have  been  made  in  the 
phraseology  of  the  text,  with  a  view  to  clearer  and  more  accurate 
expression  of  his  views.  Trusting  that  these  modifications  and 
additions  will  be  found  not  without  value,  he  again  submits  his 
work  "  to  the  judgment  of  an  enlightened  and  generous  pro- 
fession." 

THOMAS  M.   COOLEY. 
University  of  Michigan,  j 

Ann  Aebor,  July,  1871.   ] 


PREFACE   TO   THE   THIRD    EDITION. 


The  second  edition  being  exhausted,  the  author,  in  preparing  a 
third,  has  endeavored  to  give  full  references  to  such  decisions  as 
have  recently  been  made  or  reported,  having  a  bearing  upon  the 
points  discussed.  It  will  be  seen  on  consulting  the  notes  that 
the  number  of  such  decisions  is  large,  and  that  some  of  them  are 
of  no  little  importance. 

THOMAS   M.   COOLEY. 
University  of  Michigan  ) 

Ann  Arbor,  December,  1873.  J 


TABLE    OF    CONTENTS. 


CHAPTER    I. 

DEFINITIONS. 

Page 

Definition  of  a  state,  nation,  people,  sovereignty,  and  sovereign  state  1 

"What  sovereignty  consists  in 2 

Apportionment  of  sovereignty  in  America 2 

Definition  of  constitution  and  constitutional  government 2,  3 

Of  unconstitutional  law 3,  4 

CHAPTER    II. 

THE    CONSTITUTION    OP   THE    UNITED    STATES. 

What  the  United  States  government  the  successor  of;   Colonial  con- 
federacies               5 

The  Continental  Congress 5,  6 

Limitations  upon  its  power  ;  the  Articles  of  Confederation,  and  the 

supersession  thereof  by  the  Constitution 7,  8 

Adoption  of  the  Constitution  by  North  Carolina,  Rhode  Island,  and 
the  new  States  ;  United  States  government  one  of  enumerated 

powers 9 

General  purpose  of  this  government 10 

Powers  conferred  upon  Congress 10,  11 

Executive  and  judicial  power  of  the  nation 11 

Constitution,  laws,  and  treaties  of   United   States   to  be  supreme ; 

final  decision  of  questions  under,  to  rest  with  national  judiciary       12 
Removal  of  causes  from  Suite  courts ;    decisions  of  State  courts  to 

be  followed  on  points  of  State  law 13 

Restrictions  upon  the  States 15-17 

Guaranty  of  republican  government 17 

Implied  prohibitions  on  the  States 18 

Reservation  of  powers  to  States  and  people ;  statutes  necessary  to 

jurisdiction  of  national  courts 19 


VI  TABLE   OF   CONTENTS. 

CHAPTER  III. 

THE    FORMATION   AND    AMENDMENT   OF   STATE   CONSTITUTIONS. 

Page 
State  governments  in  existence  when  Constitution  of  United  States 

adopted 21 

Common  law  in  force  ;  what  it  consists  in 21-25 

English  and  Colonial  legislation 25 

Colonial  charters  and  revolutionary  constitutions 26 

Constitutions  of  new  States 27 

Sovereignty  of  the  people 28-30 

Proceedings  in  the  formation  and  amendment  of  constitutions .  .  30-34 
Restraints  imposed  thereon  by  Constitution  of  United  States  ...  33 
What  generally  to  be  looked  for  in  State  constitutions  ....  31-36 
Rights  are  protected  by,  but  do  not  come  from  them 36 

CHAPTER    IV. 

CONSTRUCTION   OF   STATE   CONSTITUTIONS. 

Interpretation  and  construction 38 

Who  first  to  construe  constitutions 38-43 

Final  decision  generally  with  the  courts 43-46 

The  doctrine  of  les  ad  judicata  and  stare  decisis 47-54 

Construction  to  be  uniform 54 

The  intent  to  govern 55 

The  whole  instrument  to  be  examined 57 

Effect  to  be  given  to  the  whole 58 

Words  to  be  understood  in  their  ordinary  meaning 58-60 

Common  law  to  be  kept  in  view 60 

Words  sometimes  employed  in  different  senses 62 

Operation  of  laws  to  be  prospective 62 

Implied  powers 63 

Consideration  of  the  mischief  to  be  remedied 65 

Proceedings  of  Constitutional  Convention  may  be  examined     ...       66 

Force  of  contemporaneous  and  practical  construction 67-71 

Unjust  provisions  not  invalid 72 

Duty  in  case  of  doubt  on  constitutional  questions 73 

Directory  and  mandatory  provisions 74-83 

Constitutional  provisions  are  imperative 79-83 

Danger  of  arbitrary  rules  of  construction 83 


TABLE   OF   CONTENT8.  Vll 


CHAPTER    V. 

THE    POWERS   WHICH   THE    LEGISLATIVE    DEPARTMENT   MAY    EXERCISE. 

Page 
Power  of  American  legislatures  compared  to  that  of  British  Par- 
liament          85-87 

Grant  of  legislative  power  is  grant  of  the  complete  power  ...  87 

But  not  of  executive  or  judicial  power 87-90 

Definition  of  legislative  and  judicial  authority 89-92 

Declaratory  statutes 93-95 

Statute  setting  aside  judgments,  granting  new  trials,  &c.       ...  95 

Recitals  in  statutes  do  not  bind  individuals 96 

Statutes  conferring  power  on  guardians,  &c,  to  sell  lands     .     .     .  97-104 
Statutes  which  assume  to  dispose  of  disputed  rights    ....       103-106 

Statutes  validating  irregular  judicial  proceedings 107,108 

Legislative  divorces 109-114 

Legislative  encroachments  upon  executive  power 114-116 

Legislative  power  not  to  be  delegated      ........      116-125 

Conditional  legislation 117-125 

Irrepealable  laws  not  to  be  passed 125-127 

Territorial  limitations  upon  State  legislative  authority     ....  127 

Other  limitations  by  express  provisions 128 

Limitations  springing  from  nature  of  free  government     ....  129 

CHAPTER    VI. 

THE   ENACTMENT   OP   LAWS. 

Importance  of  forms  in  parliamentary  law 130 

The  two  houses  of  the  legislature 131,  132 

Contested   elections,    rules   of    proceeding,   punishing    disorderly 

behavior 133 

Contempts;  privileges  of  members 134 

Legislative  committees  ;  journal  of  proceedings 135 

Corrupt  contracts  to  influence  legislation 136 

Counsel  before  legislature ;  lobby  agents 136 

The  introduction  and  passage  of  bills 137 

Three  readings  of  bills 139 

Yeas  and  nays 140 

Vote  required  for  the  passage  of  a  bill 141 

Title  of  statutes .• 141-151 


Vlll  TABLE   OF   CONTENTS. 

Page 

Amendatory  statutes 151 

Signing  of  bills  by  presiding  officers 152 

Approval  of  bills  by  the  governor 153 

Other  legislative  powers  of  the  governor 155 

When  acts  to  take  effect 155-158 


CHAPTER  VII. 

THE    CIRCUMSTANCES   UNDER   WHICH   A   LEGISLATIVE   ACT   MAY   BE 
DECLARED    UNCONSTITUTIONAL. 

Authority  to  declare  statutes  unconstitutional  a  delicate  one      .     .         159 

Will  not  be  done  by  bare  quorum  of  court 161,162 

Nor  unless  a  decision  upon  the  point  is  necessary 163 

Nor  on  objection  by  a  party  not  interested 163 

Nor  solely  because  of  unjust  or  oppressive  provisions .     .     .     .      164-169 

Nor  because  conflicting  with  fundamental  principles 169 

Nor  because  opposed  to  spirit  of  the  constitution 171 

Extent  of  legislative  power 172 

Difference  between  State  and  national  governments 173 

A  statute  in  excess  of  legislative  power  void 174 

Statutes  invalid  as  encroaching  on  executive  or  judicial  authority  .         174 

Or  conflicting  with  the  bill  of  rights 175,  176 

Legislative  forms  are  limitations  of  power 177 

Statutes  unconstitutional  in  part 177-181 

Constitutional  objection  may  be  waived 181 

Judicial  doubts  on  constitutional  questions 182-186 

Inquiry  into  legislative  motives  not  permitted 186 

Consequences  if  a  statute  is  void 188 


CHAPTER    VIII. 

THE   SEVERAL    GRADES   OF   MUNICIPAL   GOVERNMENT. 

The  American  system  one  of  decentralization 189 

State  constitutions  framed  in  reference  to  it 190 

Local  government  may  be  delegated  to  citizens  of  the  municipality  191 

Legislative  control  of  municipalities 192 

Powers  of  public  corporations 194 

Strict  construction  of  charters 195 

Contracts  ultra  vires  void 196 


TABLE   OP   CONTENTS.  IX 

Page 

Corporations  by  prescription  and  implication 197 

Municipal  by-laws 198-203 

Delegation  of  powers  by  municipality  not  admissible 204 

Irrepealable  municipal  legislation  cannot  be  adopted 206 

Presumption  of  correct  action 208 

Power  to  indemnify  officers 209,  210 

Powers   to   be   construed   with   reference   to   purposes   of    their 

creation 211 

Authority  confined  to  corporate  limits 213 

Municipal  subscriptions  to  works  of  internal  improvement    .     .      213-219 

Negotiable  paper  of  corporations 215,  note 

Municipal  military  bounties 219-229,  234 

Legislative  control  of  municipal  taxation 230-235 

Legislative  control  of  corporate  property 235-240 

Towns  and  counties  . 240 

Citizens  of,  held  liable  for  corporate  debts 241-247 

Not  liable  for  neglect  of  official  duty 247 

Different  rules  govern  chartered  corporations 247 

In  what  respect  tbe  charter  a  contract 248-254 

Validity  of   corporate  organizations  not  to  be  questioned  collat- 
erally           254 


CHAPTER   IX. 

PROTECTION   TO    PERSON   AND   PROPERTY  UNDER  THE   CONSTITUTION  OP 
THE    UNITED    STATES. 

Bill  of  Rights,  importance  of 256 

Addition  of,  by  amendments  to  national  Constitution 259 

Bills  of  attainder 259-264 

Ex  post  facto  laws 264-273 

Laws  impairing  the  obligation  of  contracts 273-294 

"What  charters  are  contracts 279 

Contracting  away  powers  of  sovereignty 280-284 

Obligation  of  a  contract,  what  it  is 285 

Modification  of  remedies  always  admissible 287 

Appraisal  laws 290 

Stay  laws,  when  void 291,  292 

Validating  imperfect  contracts 293 

State  insolvent  laws 293,  294 

The  thirteenth  and  fourteenth  amendments 294 


TABLE   OF    CONTENTS. 


CHAPTER  X. 

THE   CONSTITUTIONAL   PROTECTIONS   TO    PERSONAL   LIBERTY. 

Page 

Villeinage  in  England 295 

In  Scotland 298 

In  America 299 

Unreasonable  searches  and  seizures 299-308 

Every  man's  house  his  castle 299-304 

Search  warrants 303-308 

Inviolability  of  papers  and  correspondence     ....  30G,  307,  and  notes 

Quartering  soldiers  in  private  houses 308 

Criminal  accusations,  how  made 309 

Bail  to  persons  accused  of  crime 310 

Prisoner  standing  mute 311 

Trial  to  be  speedy 311 

To  be  public 312 

Not  to  be  inquisitorial 313 

Prisoner's  statement  and  confessions 313-317 

Confronting  prisoner  with  witnesses 318 

Prisoner  to  be  present  at  trial 319 

Trial  to  be  by  jury 319 

Number  of  jurors  ;  right  of  challenge 319 

Jury  to  be  of  the  vicinage 319 

Verdict  to  be  unanimous  and  free 320 

Instructions  of  the  judge,  how  limited 320 

Power  of  jury  to  judge  of  law 321-325 

Accused  not  to  be  twice  put  in  jeopardy 325-328 

Excessive  fines  and  cruel  and  unusual  punishments      ....      328-338 

Right  to  counsel 330-334 

Protection  of  professional  confidence 334 

Duty  of  counsel 335 

Whether  to  address  the  jury  on  the  law 336 

Punishment  of  misconduct  in  attorneys 337 

Writ  of  habeas  corpus 338-348 

Legal  restraints  upon  personal  liberty 339-342 

Necessity  of  Habeas  Corpus  Act 342-345 

What  courts  issue  the  writ 345 

General  purpose  of  writ,  and  practice  upon 347,  348 

Right  to  discussion  and  petition 349 

Right  to  bear  arms 350 


TABLE   OP   CONTENTS.  xi 


CHAPTER  XI. 

OP   THE   PROTECTION   OF   PROPERTY   BY   THE   "  LAW  OF  THE   LAND." 

Pago 

Magna  Charta,  chap.  29 351 

Constitutional  provisions  insuring  protection  "  by  the  law  of  the 

laud" 351,  note 

Meaning  of  "due  process  of  law"  and  "law  of  the  land  "    .     .      353-357 

Vested  rights  not  to  be  disturbed 357 

What  are  vested  rights 358-3(31 

Interests  in  expectancy  are  not 359 

Legislative  modification  of  estates 3  GO 

Control  of  rights  springing  from  marriage 3 GO,  361 

Legislative  control  of  remedies 361 

Vested  rights  of  action  are  protected 362 

Confiscation  of  rights  and  property 363 

Statutes  of  limitation 364-3.G7 

Alteration  in  the  rules  of  evidence 367 

Retrospective  laws 369-384 

Curing  irregularities  in  legal  proceedings 371-374,  382 

Validating  imperfect  contracts 374-381 

Pendency  of  suit  does  not  prevent  healing  act 379 

What  the  healing  statute  must  be  confined  to 381 

Statutory  privilege  not  a  vested  right 383 

Consequential  injuries  from  changes  in  the  laws 384 

Betterment  laws 386 

Unequal  and  partial  legislation 389 

Local  laws  may  vary  in  different  localities 3y0 

Suspension  of  general  laws 391 

Equality  the  aim  of  the  law 393 

Strict  construction  of  special  grants 395 

Privileges  and  immunities  of  citizens 397 

Judicial  proceedings  void  if  jurisdiction  wanting 397,  398 

What  constitutes  jurisdiction 398 

Consent  cannot  confer  it 399 

Jurisdiction  in  divorce  cases 400 

Necessity  for  process 402 

Process  by  publication 404 

Courts  of  general  and  special  jurisdiction 406 

Effect  of  irregularities  in  judicial  proceedings 408,  409 

Judicial  power  not  to  be  delegated 410 

Judge  not  to  sit  in  his  own  cause 410-413 


511  TABLE   OF   CONTENTS. 

CHAPTER   XII. 

LIBERTY   OF   SPEECH    AND   OF   THE   PRESS. 

•  Page' 
Protection  of  by  the  Constitution  of  the  United  States    ....         414 

State  constitutional  provisions 414,  note 

Not  well  protected  nor  defined  at  common  law 417 

Censorship  of  the  press  ;  publication  of  proceedings  in  Parliament 

not  formerly  suffered 418 

Censorship  of  the  press  in  America 418 

Secret  sessions  of  public  bodies  in  United  States 419 

What  liberty  of  the  press  consists  in 420-422 

Common-law  rules  of  liability  for  injurious  publications  .     .     .      422-425 

Cases  of  privileged  communications 425,  42G 

Libels  on  the  government,  whether  punishable 426-430 

Sedition  law 427 

Further  cases  of  privilege ;  criticism  of  officers  or  candidates  for 

office 431-441 

Petitions  and  other  publications  in  matters  of  public  concern     .     .         434 

Statements  in  course  of  judicial  proceedings 441-445 

by  witnesses 441 

by  complainant,  &c 441,  442 

by  counsel 442 

Privileges  of  legislators 445 

Publication  of  privileged  communications  through  the  press      .     .  448 

Accounts  of  judicial  proceedings,  how  far  protected      ....      448,  449 

Privilege  of  publishers  of  news 451 

Publication  of  legislative  proceedings 457 

The  jury  as  judges  of  the  law  in  libel  cases 460 

Mr.  Fox's  Libel  Act 462 

"  Good  motives   and  justifiable  ends,"  burden  of   showing  is  on 

defendant 464 

What  is  not  sufficient  to  show 465,  466,  notes 


CHAPTER   XIII. 

RELIGIOUS     LIBERTY. 

Care  taken  by  State  constitutions  to  protect 467-470 

Distinguished  from  religious  toleration 467  and  note 


TABLE   OF   CONTENTS.  xiH 

Page 

"What  it  precludes 469 

Does  not  preclude  recognition  of  superintending  Providence  by 

public  authorities 470 

Nor  appointment  of  chaplains,  fast  days,  &c,  nor  recognition  of 

fact  that  the  prevailing  religion  is  Christian 471 

The  maxim  that  Christianity  is  part  of  the  law  of  the  laud  .     .      472-477 

Punishment  of  blasphemy 472 

And  of  other  profanity 47 g 

Sunday  laws,  how  justified 476  477 

Respect  for  religious  scruples 477  478 

Religious    belief  as    affecting    the    competency    or   credibility   of 

witnesses 473 


CHAPTER    XIV. 

THE   POWER   OP   TAXATION. 

Unlimited  nature  of  the  power 479-485 

Exemption  of  national  agencies  from  State  taxation  ....  480-484 
Exemption  of  State  agencies  from  national  taxation  ....  483,  484 
Limitations  on  State  taxation  by  national  Constitution     ....         485 

Power  of  States  to  tax  subjects  of  commerce 486 

Discriminations  in  taxation  between  citizens  of  different  States  .  487 
Elements  essential  to  valid  taxation  ;  purposes  must  be  public  .     .         487 

Legislature  to  judge  of  purposes 488-490 

Unlawful  exactions 490-494 

Necessity  of  apportionment 495 

Taxation  with  reference  to  benefits  in  local  improvements  .  .  .  497 
Local  assessments  distinguished  from  general  taxation      ....         498 

Apportionment  of  the  burden  in  local  assessments 498-511 

Taxations  must  be  uniform  throughout  the  taxing  districts    .     .      502,  504 

Road  taxes  in  labor 512 

Inequalities  in  taxation  inevitable 513 

Legislature  must  select  subjects  of  taxation 514 

Exemptions  admissible 514   515 

Constitutional  provisions  forbidding  exemptions 516 

Legislative  authority  requisite  for  every  tax 517-520 

Excessive  taxation 520 

The  maxim  de  minimis  lex  non  curat  in  tax  proceedings  ....  521 
What  errors  and  defects  render  tax  sales  void 521,  522 


xiv  TABLE   OF   CONTENTS. 

CHAPTER    XV. 

THE     EMINENT     DOMAIN. 

Page 
Ordinary  domain  of' State  distinguished  from  eminent  domain  .      523,  524 

Definition  of  eminent  domain 524 

Not  to  be  bargained  away  ;  general  rights  vested  in  the  States       .         525 

How  far  possessed  by  the  general  government 525,  526 

What  property  subject  to  the  right 526 

Legislative  authority  requisite  to  its  exercise 527 

Strict  compliance  with  conditions  precedent  necessary 528 

Statutes  for  exercise  of,  not  to  be  extended  by  intendment ;  pur- 
pose must  be  public 530 

What  is  a  public  purpose 531-536 

Whether  milldams  are 534 

How  property  to  be  taken 536-538 

Determining  the  necessity  for 538 

How  much  may  be  taken 539-541 

What  constitutes  a  taking 541-557 

Consequential  injuries  do  not 541-544 

Appropriation  of  highway  to  plank  road  or  railroad    ....      545-557 

Whether  the  fee  in  the  land  can  be  taken 557-559 

Compensation  to  be  made 559 

Time  of  making 560-564 

Tribunal  for  assessing 563 

Principle  on  which  it  is  to  be  assessed 565-571 

Allowance  of  incidental  injuries  and  benefits 566-571 

What  the  assessment  covers 570 

Action  where  work  improperly  constructed 571 

CHAPTER    XVI. 

THE  POLICE    POWER    OP   THE   STATES. 

Definition  of  police  power 572 

Pervading  nature  of 572-577 

Exercise  of,  in  respect  to  charter  contracts 574—581 

License  or  prohibition  of  sales  of  intoxicating  drinks  ....      581-584 
Payment  of  license  fee  to  United  States  gives  no  right  in  oppo- 
sition to  State  law 584 

Harbor  regulations  by  States 585 


TABLE   OF   CONTENTS.  XV 

Page 
Distinction  between  proper  police  regulation  and  an  interference 

with  commerce 586 

State  taxes  upon  commerce 586-588 

Sunday  police  regulations 588 

Regulation  of  highways  by  the  States 588,  589 

Control  of  navigable  waters 589 

"What  are  navigable 589-591 

Congressional  regulations  of 591 

Monopolies  of,  not  to  be  granted  by  States 591,  592 

Power  in  the  States  to  improve  and  bridge 592 

And  to  establish  ferries  and  permit  dams 593 

Regulation  of  speed  of  vessels ;  destruction  of  buildings  to  pre- 
vent spread  of  fire 594 

Establishment  of  fire  limits  and  wharf  lines ;  abatement  of  nui- 
sances, &c 595 

Other  State  regulations  of  police 595,  596 

Power  of  States  to  make  breach  thereof  a  crime 596,  597 

CHAPTER    XVII. 

THE    EXPRESSION   OF   THE   POPULAR    WILL. 

People  possessed  of  the  sovereignty,  but  can  only  exercise  it  under 

legal  forms  ;  elections  the  mode 598 

Who  to  participate  in  elections ;  conditions  of  residence,  presence 

at  the  polls,  &c  . 599 

Residence,  domicile,  and  habitation  defined 600 

Registration  of  voters 601 

Other  regulations 602 

Preliminary  action  by  authorities,  notice,  proclamation,  &c.  .     .      602,  603 

Mode  of  voting  ;  the  ballot 604 

Importance  of  secrecy  ;  secrecy  a  personal  privilege 605 

Ballot  must  be  complete  in  itself 606 

Parol  explanations  by  voter  inadmissible 607 

Names  on  ballot  should  be  full 608 

Abbreviations,  initials,  &c . 608,  609 

Erroneous  additions  do  not  affect 610 

Evidence  of  surrounding  circumstances  to  explain  ballot      .     .      611,  612 

Boxes  for  different  votes  ;  errors  in  depositing 613 

Plurality  to  elect 614 

Freedom  of  elections,  bribery,  treating  electors,  calling  out  militia, 
service  of  process,  betting  on  elections,  contracts  to  influence 
them,  &c 614,  615 


XVI  TABLE   OF   CONTENTS. 

Page 
Electors  not  to  be  deprived  of  votes ;   liability  of  officers  for  re- 
fusing votes 616 

Elector's  oatb  when  conclusive ;  conduct  of  election 617 

Effect  of  irregularities 617-621 

Effect  if  candidate  is  ineligible 620 

Canvass  and  return  of  votes ;  canvassers  act  ministerially     .     .     .  622 

Contesting  elections ;  final  decision  upon,  rests  with  the  courts  .     .  623 
Canvasser's  certificate  conclusive  in  collateral  proceedings ;  courts 

may  go  behind 624 

"What  proofs  admissible 626 

Whether  qualification  of  voter  may  be  inquired  into  by  courts  .     .  627 


TABLE   OF   CASES   CITED. 


The  figures  given  in  the  following  table  indicate  the  paging  at  the  top  of  the  page, 
and  are  sometimes  the  same  on  two  or  more  consecutive  pages. 


Abbott  v.  Lindenbower     367,  368,  382 

Abell  v.  Douglass  23 

Abendroth  v.  Greenwich  191 

Abercrombie  v.  Baxter  289 

Aberdeen  Academy  v.  Aberdeen      239 

Abington  v.  North  Bridgewater        600 

Ableman  v.  Booth  1,  346 

Adams  v.  Adams  348 

v.  Beale  867 

v.  Field  52 

v.  Hacket  283,  383 

v.  Hamel  596 

v.  Palmer  113,  284 

v.  People  127 

v.  Rankin  423 

v.  Rivers  557 

v.  Somerville  503 

o.  Vose  348 

v.  Wiscasset  Bank  240,  244,  246 

Ad  Hine  Steamer  v.  Trevor  18 

Ahl  v.  Glenn  223,  372 

Alabama,  &c,  Ins.  Co.  v.  Boykin    378 

Alabama  R.  R.  Co.  v.  Kidd  214 

Albany  Street,  Matter  of  164,  181,  357, 

530,  538,  540,  561,  568 

Alcock  v.  Cook  358 

Alcorn  v.  Hamer  118 

Aldrich  v.  Cheshire  R.R.  Co.  542,  564, 

570 

v.  Kinney  16,  404 

v.  Printing  Co.  436 

Aldridge  v.  Williams  66 

Alexander  v.  Alexander  422 

v.  McKenzie  276 

v.  Milwaukee    207,541,543 

v.  Taylor  49 

v.  Worthington  56,  65 

Allbyer  v.  State  62,  370 

AUeghanv  City  v.  McClurkan  216 

Allen  v.  Aldrich  339 

v.  Archer  371 


Allen  v.  Armstrong            367, 

368 

382" 

v.  Drew 

507 

509 

v.  Jay               212,  214, 

488 

494 

v.  McKeen 

251 

v.  Staples 

303 

v.  Taunton 

212 

Allen    County    Commissioners    v. 

Silvers 

179 

182 

Alley  v.  Edgcombe 

219 

Almy  v.  People 

486 

Alston  v.  Newcomer 

600 

Alter's  Appeal 

379 

391 

Alton  Woods,  Case  of 

358 

Alvord  v.  Collin 

521 

Amann  v.  Damm 

425 

Amberg  v.  Rogers 

367 

Amboy  v.  Sleeper 

200 

Ambrose  v.  State 

200 

American  Print  Works  v.  Lawrence 

594 

American    River    Water    Co 

.    v. 

Amsden 

590 

Ames  v.  Boland 

397 

v.  Port  Huron  Log  Driving 

and  Booming  Co. 

363, 

412 

Amey  v.  Alleghany  City 

119 

Amis  v.  Smith 

13 

Amy  v.  Smith 

15 

Anable  v.  Patch 

360 

Anderson  v.  Dunn 

133 

v.  Jackson 

50 

v.  Kerns  Draining  Co. 

532 

v.  Millikin 

394 

Andover  v.  Grafton 

215 

Andres  v.  Wells 

455 

Andrew  v.  Bible  Society 

471, 

473 

Andrews,  Ex  parte 

588, 

596 

v.  Insurance  Co. 

198 

v.  Russell 

375 

v.  State                168, 

318, 

350 

Annapolis  v.  State 

144 

Annis  v.  People 

317 

Anonymous  (2  Stew.) 

361 

XV111 


TABLE   OF   CASES   CITED. 


Antisdel  v.  Chicago,  &c,  R.R.  Co.  579 
Antoni  v.  Wright  163,  284 

Arbegust  v.  Louisville  500 

Arimond  v.  Green  Bay  Co.  526 

Armington  v.  Barnet  280,  479,  526,  537 


Armstrong  v.  Harshaw 

404 

v.  Jackson                177, 

387 

v.  State                    319, 

323 

Arnold  v.  Arnold 

477 

v.  Kelley 

392 

v.  Mundy 

590 

Arrowsmith  v.  Burlingim 

353 

Arundel  v.  McCulloch 

590 

Ash  v.  Cummings              536,  560, 

562 

v.  People                    202,  286, 

596 

Ashbrook  v.  Commonwealth 

584 

Ashley  v.  Peterson 

304 

Aspiirwall  v.  Commissioners 

192 

Astley  v.  Younge 

442 

Astrom  v.  Hammond 

187 

Atchison  v.  Bartholow 

192 

Atkins  v.  Plimpton 

484 

v.  Randolph 

232 

Atkinson  v.  Bemis 

198 

v.  Dunlap              96,  365, 

370 

v.  Marietta  &  Cincinnati 

R.R.  Co. 

529 

Atlantic  &  Ohio  R.R.  Co.  v.  Sul- 

livant 

529 

Attorney -General  v.  Barstow    622, 

623 

v.  Brown      114, 

151, 

152, 

187 

v.  Brunst 

52 

v.  Cambridge 

193 

v.  Detroit         & 

Erin  Plank 

Road  Co.  56,  57 

v.  Ely  606, 607, 

609, 

610,    618, 

622, 

623, 

625 

v.  Exeter 

243 

v.  Morris  &  Es- 

sex     R.R. 

Co. 

545 

v.  New  York 

206 

v.  Supervisors 

of  St.  Clair 

616 

v.  Winnebago, 

&c.,  Plank 

Road  Co. 

503 

Atwater  v.  Woodbridge            245 

280 

Atwood  v.  Welton 

477 

Auditor  of  State  v.  Atchison,  &c, 

R.R.  Co. 

89 

Augustin  v.  Eggleston 

619 

Auld  v.  Butcher                         286 

366 

Aurora  v.  West                             47 

119 

Austen  v.  Miller 

14 

Page 
Austin  et  al.,  In  re  336 

Austin  v.  Murray  200,  202,  204 

Austine  v.  State  314 

Aycock  v.  Martin  291 

Ayres  v.  Methodist  Church        471,  474 


B. 


Babcock  v.  Camp  47 

Bachelder  v.  Bachelder  401 

Backus  v.  Lebanon  279,  280, 410 

Bacon  v.  Arthur  593 

v.  Callender  361,  381,  387 

v.  Wavne  County  334 

Bagnall  v.  London  &  N.  W.  R.  Co.  564 

Bagg's  Appeal  96,  365 

Bailey's  Case  340 

Bailey  v.  Fiske  394 

v.  Milner  14 

v.  Miltenberger  526 

v.  New  York    239,  248,-  249,  278 

v.  Philadelphia,    &c,   R.R. 

Co.  47,  576,  578,  593 

Baines  v.  Atchison  498 

Baker  v.  Braman  163,  180 

v.  Cincinnati  499 

v.  Gordon  348 

v.  Johnson  558,  560 

v.  Kelly  366 

v.  Kerr  409 

v .  Lewis  590 

v.  Mattocks  23 

v.  People  402 

v.  Rand  47 

v.  State  327,  328 

v.  Windham  209 

Baldwin  v.  Bank  of  Newberry  294 

i?.  Green  198 

v.  Hale  293,  294 

v.  New  York  233 

v.  North  Branford       191,  219 
Ball  v.  Gilbert  614 

v.  Winchester  246 

Ballou   v.  York   County  Commis- 
sioners 622 
Baltimore  v.  Baltimore,  &c,  R.R. 

Co.  394 

v.  Cemetery  Co.  514 

v.  Eschbach  217 

v.  Pendleton  253 

v.  State        65,  68, 165, 171, 

182,  184,  186,  187,  391, 

572 

Baltimore,  &c,  R.R.  Co.  v.  Ma- 

gruder  526 

Baltimore,  &c.  R.R.  Co.  v.  Nes- 

bit  529 


TABLE   OF   CASES   CITED. 


XIX 


Bancroft  v.  Dumas  581 

v.  Lynnfield  211 

Bangs  v.  Snow  521 

Bank  v.  Supervisors  482 

Bank  of  Chenango  v.  Brown  119.  121, 

123 
Bank  of  Columbia  v.  Okely  355,  39-1 
Bank  of  Commerce  v.  New  York  482 
Bank  of  the  Dominion  v.  McVeigh  279 
Bank  of  Hamilton  v.  Dudley     13,  177, 

361 
Bank  of  Republic  v.  Hamilton  127 

Bank  of  Rome  v.  Village  of  Rome   119 
Bank  of  the  State  v.  Bank  of  Cape 

Fear  279 

v.  Cooper  392 

v.  Dalton  16 

Bank  of  United  States  v.  Daniel        13 

v.  Halstead     68 

v.  Norton       11 

Bank  of  Utica  v.  Mersereau  334 

Bank  Tax  Case  482 

Bankers'  Case  354 

Bankhead  v.  Brown  530,  536,  538 

Banks,  Ex  parte  310 

Banks,  The  v.  The  Mayor  482 

Banning  v.  Taylor  352 

Baptist  Church  v.  Wetherell     466,  467 

Barber  v.  Root  401,  402 

Barbour  v.  Barbour  361 

v.  Camden  223,  379,  381 

Barclay  v.  Howell's  Lessee  558 

Barker  v.  People  18,  328 

v.  Pittsburgh  276 

Barnaby  v.  State  587 

Barnard  v.  Bartlett  307 

Barnes  v.  Atchison  498 

v.  First  Parish  in  Falmouth     69 
Barnet  v.  Barnet  377,  379 

Barnett  v.  People  328 

Barrett  v.  Crane  406 

Barring  v.  Commonwealth  595 

Barron  v.  Baltimore  18 

Barronet,  Matter  of  309,  310 

Barrow  v.  Page  527 

Barry,  Ex  parte  346,  348 

v.  Lauck         602,  603,  604,  616 

v.  Mercien  14,  346,  348 

Barthelemy  v.  People  465 

Bartholomew  v.  Harwinton      222,  223, 

381 
Bartlet  v.  Knight  404 

Bartlett  v.  Crozier  246 

v.  Morris  57 

Barto  v.  Himrod        117,  120,  121,  123 
Barton  ».  Syracuse  208,  247,  253 

Bartruffv.  Remey  370 

Bass  v.  Fontleroy  127 


Page 

Bates  v.  Delavan 

404 

v.  Kimball 

46,  90,  96 

v.  Releyea 

50 

Bathold  v.  Fox 

290 

Batman  ».  M  ago  wan 

623 

Batre  v.  State 

323,  325 

Battle  v.  Howard 

146 

Baugher  v.  Nelson 

266,  359 

Baughton  v.  Carter 

526 

Baum  v.  Clause 

422 

Baxter,  Matter  of 

263 

v.  Winooski  Turnpike  246 

Bayard  v.  Klinge  598 

Bay  City  v.  State  Treasurer    215,  219, 

232 

Bayerque  v.  Cohen  14 

Baylis  v.  Lawrence  463 

Beach  v.  Ranuey  423,  424 

v.  Viles  13 

v.  Walker  369,  372 

Beal  v.  Nason  364 

Beals  v.  Almador  Co.  230 

Beard  v.  Beard  403,  405 

Beardsley  v.  Bridgeman  423 

v.  Smith  241,  245,  246 

v.  Tappan  425 

Beaty  v.  Knowler  193 

Beauchamp  v.  State  168 

Beauregard  v.  New  Orleans  13 

Bedle  v.  Beard  197 

Beebe  v.  State      91,  95,  167,  168,  175, 

582 
Beecher  v.  Baldy  181 

Beeching's  Case  344 

Beekman  v.  Saratoga,  &c,  R.R 

Co.  524,  530,  532,  537 

Beene  v.  State  336 

Beers  v.  Beers  410 

v .  Botsford  245 

v.  Haughton  286 

Beirne  v.  Brown  262,  264 

Bell  ».  Clapp  302,  304 

v.  Morrison  13,  14,  364 

Belleville  R.R.  Co.  v.  Gregory        57, 

147 
Bellinger  v.  New   York  Central 

R.R.  Co.  626,  542,  557,  570 

Bellows  v.  Persons  53 

Bellport,  Parish  of  v.  Tooker  466 

Benden  v.  Nashua  542 

Bender  v.  Crawford  292,  365 

Benedict  v.  Goit  545 

v.  Vanderbilt  586 

Bennett  v.  Birmingham  195,  201 

v.  Bull    '  168 

v.  Deacon  425 

v.  Fisher  370,  371 

v.  New  Orleans  208 


5X 


TABLE    OF    CASES    CITED. 


Bennett  v.  State 

Bensley  v  .  Mountain   Lake,   &c, 

Co. 
Benson  v.  Albany 

v.  New  York 


119,  171, 

166,  237, 

278,  576 


Benton  v.  Burgot 
Berlin  v.  Gorham 
Berry  v.  Carter 

v.  Ramsilell 
Bibb  County  Loan  Association  v. 

Richards 
Bidwell  v.  Whittaker 
Bigelow  v.  Randolph 

v.  W.  Wisconsin  R.R.  Co. 
57,  185, 
Biggs,  Ex  parte 
Billings  v.  Detten 
Billmeyer  v.  Evans 
Bimelar  v.  Dawson  16,  404, 

Binghamton  Bridge  Case  279,  281, 
394,  395, 
Bird,  Ex  parte  587, 

v.  Daggett 
v.  Smith 

v.  Wasco  County 
Birdsall  v.  Carrick 
Bishop  v.  Marks 
Bishop's  Case,  The 
Bissell  v.  Briggs 

v.  Jeffersonville 
v.  Penrose 
Black  v.  Black 
v.  State 
Blackford  v.  Peltier 
Blackwood  v.  Van  Vleet 
Blain  v.  Bailey 

v.  Ridgeley 
Blair  v.  Forehand 

v.  Milwaukee,  &c 
v.  Ridgeley 
Blake  v.  Dubuque 
v.  Rich 
v.  St.  Louis 
Blanchard  v.  Stearns 
Blandford  School  District  V 
Blanding  v.  Burr 
Blatchley  v.  Moser 
Bleakley  v.  Bk.  of  Greencastle  372, 
Blin  v.  Campbell 

Bliss  v.  Commonwealth  168, 

v.  Hosmer 
v.  Kraus 
Block  v.  Jacksonville 
Blocker  v.  Burness 
Bloodgood  v.  Mohawk  &  Hudson 
R.R.  Co.       160,  529,  530,  531, 


R.R.  Co. 


247, 

Gibbs 
119, 


Page 

477 

530 

172 
239, 
580 
16 
118 
423 
366 

140 

56 

247 

568 
337 
382 
292 
406 
384, 
396 
596 
216 
590 
151 
155 
512 
349 
401 
216 
68 
402 
327 
366 
290 
151 
273 
595 
575 
262 
563 
558 
253 
616 
620 
230 
200 
375 
397 
350 
526 
191 
584 
477 

537 
560 


125 
247 

14 
379 


371 
582 

433 
23 
523 
307 
347 
379 
339 
360 


Page 
Bloodworth  v.  Gray  422 

Bloom  v.  Richards      23,  467,  471,  476, 

596 
Bloomer  v.  Stolley   * 
Bloomington  v.  Bay 
Blossburg,  &c,  R.R.  Co.  v.  Tioga 

R.R.  Co. 
Board  of  Commissioners  v.  Bright 

v.  Brearss  223 
Board  of  Excise  v.  Barrie       283,  3s3, 

581,  584 
v.  Heister  584 

Board  of  Supervisors  v.  Heenan 
Boardman  v.  Beckwith 
Bode  v.  State  581, 

Bodwell  v.  Osgood 
Bogardus  v.  Trinity  Church 
Boggs  v.  Merced,  &c,  Co. 
Boliannon  v.  Commonwealth 
Bollman  &  Swartout,  Ex  parte 
Bolton  v.  Johns 

v.  Prentice 
Bombaugh.u.  Bombaugh 
Bonaparte    v.   Camden   &  Amboy 

R.R.  Co.  18,  214,  537 

Bond  v.  Appleton  52 

v.  Kenosha  499,  521 

Bonner  v.  McPhail  422 

Bonsall  v.  Lebanon  588 

Boom  v.  Utica         •  254 

Boon  v.  Bowers  50,  103 

Booneville  v.  Onnrod  562 

v.  Trigg  151 

Booth  v.  Booth  372 

v.  Woodbury  223,  226,  488,  558 

Borden  v.  Fitch  16,  401 

Bordeno  v.  Amperse  61 

Borough  of  Dunmore's  Appeal         193, 

233,  279 
Bosley  v.  Mattingley  54 

Bossier  v.  Steele  146 

Boston  v.  Cummins  168,  267 

v.  Shaw  588 

Boston,  Concord,  &  M.  R.R.  Co. 

v.  State  581 

Boston  &  Lowell  R.R.  Co.  v.  Sa- 
lem and  Lowell  R.R.  Co.  281 
Boston  Mill-dam  v.  Newman              537 
Boston  &  Roxbury  Mill-dam  Cor- 
poration v.  Newman                       536 
Boston   Water  Power  Co.  v.  Bos- 
ton &  Worcester  R.R.  Co.    281,  526 
Bostwick  v.  Perkins                               397 
Bourland  v.  Hildreth         129,  599,  618 
Bourne  v.  The  King                             329 
Bow  v.  Allenstown                      189,  197 
Bowdoinham  v.  Richmond         193,  289 
Bowen  v.  Byrne                                   484 


TABLE   OF   CASES   CITED. 


XXI 


Bowen  v.  Hixon 

622 

Bowman  v.  Middleton 

165 

175 

358 

Boyce  v.  Sinclair 

371 

375 

379 

Boyd  v.  State 

283 

314 

Boyland  v.  New  York 

249 

Boyle,  Matter  of 

129, 

157 

t*.  Arledge 

14 

v.  Zaeharie 

294 

Brackett  v.  Norcross 

361, 

389 

Braddee  v.  Brownfield 

168 

Bradford  v.  Brooks 

96 

v.  Gary 

277 

v.  Shine 

292, 

365 

v.  Stevens 

581 

Bradley,  Ex  parte 

337 

v.  Baxter 

117 

v.  Buffalo,  &c., 

R.R. 

Co. 

579, 
581 

v.  Fisher 

337 

v.  Heath       425 

,434, 

444, 

465 

v.  McAtee    191 

,  280 

506, 

507 

v.  New  York   &  N. 

H. 

R.R.  Co. 

391, 

531, 

537 

v.  People 

482 

Bradshaw  v.  Heath 

16, 

401, 

401 

v.  Omaha 

187, 

192, 

501 

v.  Rogers  560 

Bradt  v.  Towsley  423,  424 

Bradwell  v.  Illinois  11 

Brady  v.  New  York  216,  217 

v   Northwestern  Insurance 

Co.  591 

v.  Richardson  397 

Bragg  o.  Meyer  14 

Brainard  v.  Colchester  280 

Brandon  v.  Gowing  331 

v.  State  146 

Branham  v.  Lange  116,  134,  151 

Branson  v.  Philadelphia  578 

Braynard  v.  Marshall  12 

Breitenbach  v.  Bush  291 

Brent  v.  Chapman  365 

Brevoort  v.  Detroit  371 

Brewer  v.  New  Gloucester  213 

Brewster  v.  Hough  126,  280 

v.  Syracuse       144,  146,  379, 

381,  491 

Brick  Presbyterian  Church  v.  New 

York  126,  206,  283,  595 

Bridge  v.  Ford  406 

Bridge  Company  v.  Hoboken  Com- 
pany 279 
Bridgeport    v.    Housatonic    R.R. 

Co.  119,  359,  379 

Bridges  v.  Shallcross  114 

Bridgewater  v.  Plymouth  384 

Brig  Aurora  v.  United  States  117 

78 


Page 

Briggs  v.  Hubbard  359,  365,  370 

v.  Whipple  211 

Brigham  v.  Miller  70,  113 

Bright  v.  Boyd  387 

v.  McCulloch  114,  495 

Brighton  v.  Wilkinson  192,  193 

Brimmer  v.  Boston  283 

Brinkmeyer  v.  Evansville 

Brinton  v.  Seevers 

Briscoe  v.  Bank  of  Kentucky 


217 

378 
9,  14, 

162 
193,  237 
361,  381 

407 


Bristol  v.  New  Chester 

v.  Supervisors,  &c 
Britain  v.  Kinnard 
British  Plate  Manufacturing  Co.  v. 

Meredith  542 

Britton  v.  Ferry  68 

Broadbent  v.  State  394 

Broadfoot's  Case  299 

Broadway  Baptist  Church  v.  Mc- 
Afee 514 
Brock  v.  Milligan                               477 
Brockway  v.  Kinney  47 
Brodhead  v.  Milwaukee            223,  489 
Bromley  v.  People                               127 
Bronson  v.  Kinzie      286,  287,  288,  289 
v.  Newberry                 286,  287 
v.  Wallace  14 
Brook  v.  Montague                              443 
Brooker  v.  Coffin                                 423 
Brooklyn    Central    R.R.    Co.    v. 
Brooklyn  City  R.R.  Co.       198,  550, 

552 
Brooklyn  &  Newtown  R.R.  Co.  v. 

Coney  Island  R.R.  Co.  552 

Brooklyn  Park  Commissioners  v. 

Armstrong  533,  558 

Brooks  v.  Hyde  129 

v.  Mobile  School  Commis- 

missioners  57 

Brouse  v.  Cayuga,  &c,  R.R.  Co.     512 

Brower  v.  O'Brien  622 

Brown  v.  Beatty  524,  564 

v.  Buzan  181 

v.  Cayuga,  &c,  R.R.  Co.  52C), 

564 

v.  Chadbourne  589,  590 

v.  Commonwealth  593 

v.  Duplessis  554 

v.  Fifield  60 

v.  Foster  406 

v.  Grover  599' 

v.  Hummel  279 

v.  Maryland  486,  581,  586 

v.  Providence,    W.    &    B. 

R.R.  Co.  570 

v.  Scofield  589 

v.  Smith  500 


XXII 


TABLE   OF   CASES   CITED. 


Brown  v.  State  318,  319, 

v.  Storm 
v.  Wilcox 
v.  Worcester 
Browne  v.  Schofield 
Browning  v.  Springfield  247, 

Bruffett  v.  Great  Western  R.R.  Co. 
Brumagim  v.  Tillinghast 
Bruning  v.  N.  O.  Canal  &  Bank- 
ing Co. 
Bruns  v.  Crawford 
Brush  v.  Keeler 
Bryan,  Ex  parte 
v.  Cattcll 
v.  Walker 
Bryson  v.  Bryson  113, 

v.  Campbell 
v.  Philadelphia 
Buckingham  v.  Davis 

v.  Smith  527, 

Budd  v.  State 

Buell  v.  Ball  208, 

Buffalo  v.  Holloway 
v.  Webster 
Buffalo,  &c,  R.R.  Co.  v.  Burket 
Buffalo   Bayou,  &c,  R.R.  Co.  v. 

Ferris 
Buffalo  &  N.  Y.  R.R.  Co.  v.  Brain- 

erd 
Buffalo    &  Niagara  R.R.    Co.  v. 

Buffalo 
Buffington  v.  Day 
Buford  v.  Wible 

Bulkley  v.  New  York  &  N.  H.  R. 
R.  Co.  579,  580, 

Bull  v.  Conroe  383, 

v.  Read  117,  118,  123, 

Bullock  v.  Curry  212, 

Bumgardner  v.  Circuit  Court 
Bumpas  v.  Taggart 
Bunn  v.  Gorgas 
v.  Ricker 
Buonaparte  v.  Camden  &  Amboy 


R.R.  Co.  18,  214, 

Burch  v.  Newberry 
Burdeno  v.  Amporse 
Burdett  v.  Abbott 
Burgess  v.  Clark 

v.  Pue  68,  119, 

Burgett  v.  Burgett 
Buriihardt  v.  Turner 
Burke  v.  Gaines 

v.  Supervisors  of  Monroe 

Burkbolter  v.  McConnellsville 
Burley  v.  State 
Burlingame  v.  Burlingame 
Burlington  v.  Kellar  198 


399 
387 
62 
561 
589 
248 
279 
486 

530 
292 
614 
318 
276 
362 
114 
113 
208 
412 
530 
392 
501 
253 
596 
410 

560 

531 

578 
483 
423 

581 
391 
168 
215 
286 
484 
291 
615 

537 
96 
61 

133 

536 
190 
141 
360 
12 
620, 
622 
191 
318 
442 
518 


Co. 
498, 
200,  201, 


133, 


Burlington  v.  Putnam  Ins 
Burnet  v.  Sacramento 
Burnett,  Ex  parte 
Burnham  v.  Boston 
v.  Chelsea 
v.  Morrissey 
v.  Stevens 
Burns  v.  Clarion  County  193, 

Burrel  v.  Associated  Reform 

Church 
Burrill  v.  West 
Burson  v.  Huntington 
Burt  v.  Merchants  Ins.  Co. 

v.  Williams 
Burton  v.  Burton 
Bush  v.  Seabury 
v.  Shipman 
Bushell's  Case 
Bushnell  v.  Beloit 
Bushnell's  Case 
Butler  v.  Dunham 

v.  Farnsworth 

v.  Palmer 

v.  Pennsylvania 

v.  Porter 

v.  Putney 

v.  Toledo 
Butterfield  v.  Buffam 
Buttrick  v.  Lowell 
Buys  v.  Gillespie 
Byler  v.  Asher 
Byers  v.  Commonwealth 
Byrne  v.  Missouri 


96, 


277, 

119, 

119, 

286,  291, 


Page 
202 
5()7 
202 
254 
223 
134 
348 
232 

466 
49 
484 
526 
291 
422 
596 
279 
320 
219 
348 
219 
15 
381 
276 
522 
223 
370 
422 
253 
423 
601 
410 
14 


Cabell  v.  Cabell 

Calaveras  Co.  v.  Brockway 

Calcote  v.  Stanton 

Calder  v.  Bull  9,  89, 

v.  Kurby 
Caldwell  v.  Gale 

v.  Justices  of  Burke 
Calhoun  v.  McLendon 
California  Telegraph  Co.  v. 

Telegraph  Co. 
Calking  v.  Baldwin 
Calkins  v.  Sumner 
Call  v.  Chadbourne 

v.  Hagger  289, 

Callendar's  Case 
Callender  v.  Marsh 
Callison  v.  Hedrick 
Calvin  v.  Reed 
Cambridge  v.  Lexington 
Camden    &    Amboy  R.  R.  C 

Briggs 


113 

623 

12 

169,  264 

283 

51 

119 

94 

Alta 

281 

560,  561 

441 

119 

364,  366 

336,  462 

206,  542 

560,  561 

402 

193 

o.  v. 

577,  579 


TABLE  OP   CASES   CITED. 


XX1H 


Campau  v.  Detroit  179,  186 

Campbell  v.  Evans  364,  403 

v.  Morris     15,  396,  397,  487 

v.  Quinlin  52 

v.  Spottiswoode  463 

v.  State  328 

v.  Union  Bank  106,  168,  177 

Canal  Co.  v.  Railroad  Co.  106 

Canal  Trustees  v.  Chicago  498 

Cancemi  v.  People  319,  399 

Cannon  v.  Brame  47 

v.  Hemphill  146 

Canton  v.  Nist  198 

Cantwell  v.  Owens  56 

Capen  v.  Foster  601,  602,  616 

Caperton  v.  Martin  365 

Carew  v.  Western  Union  Telegraph 

Co.  200 

Carey  v.  Giles  106,  168,  182 

Cargill  v.  Power  180,  291 

Carleton  v.  People  187 

Carlslake  v.  Mapledorum  422 

Carman  v.  Steubenville  &  Indiana 

R.R.  Co.  543 

Carne  v.  Litchfield  317 

Carpenter   v.  Dane   Countv  334 

v.  Landaff       568,  569,  570 

v.  Montgomery        156,  187 

v.  Oswego  &  Syracuse 

R.R.  Co.  517 

v.  Pennsylvania       266,  377 

v.  People  323 

v.  Snelling  484 

Carr  v.  Georgia  R.R.  Co.  562 

v.  Northern  Liberties       208,  254 

v.  St.  Louis  198 

Carroll  v.  Olmstead's  Lessee  102 

v.  St.  Louis  212 

Carson  v.  Carson  266,  281 

v.  Coleman  560 

v.  McPhetridge  620 

Carter  v.  Dow  202,  595 

v.  Harrison  616 

v.  Walker  408 

v.  Wright  557 

Casborus  v.  People  328 

Case  v.  Dean  366,  368,  520 

v.  Reeve  49 

v.  Rorabacker  133 

v.  Thompson  560 

v.  Wildridge  56 

Cash,  Appellant  105 

Cash  v.  Whitworth  532 

Cass  v.  Dillon  119,  222,  228 

Castleberry  v.  Kelly  422 

Cates  v.  Wadlington  589 

Cathcart  v.  Robinson  23 

Catlin  v.  Smith  29 


Caulfield  v.  Bullock  616 

Cayuga  Bridge  Co.  v.  Magee  396 

Central    Bridge    Corporation    v. 

Lowell  279,  526 

Central  Ohio  R.R.  Co.  v.  Holler  570 
Central  Park  Extension,  Matter  of  533 
Central  Plank  Road  Co.  v.  Han- 

naman  147 

Central  R.R.  Co.  v.  Hetfield  547 

v.  Rockafellow     477 

Chadwick  v.  Moore  291 

Chagrin   Falls,   &c,  Plank   Road 

Co.  v.  Cane  545 

Chamberlain  v.  Lyell  181 

Chamberlain  of  London  v.  Comp- 

ton  200,  202 

Chambers  v.  Fisk  68 

v.  Satterlee  507 

v.  State  150 

Champaign  v.  Patterson  254 

Chandler  v.  Nash  89,  409 

Chapin  v.  Paper  Works  396 

Chapman  v.  Albanv  &  Schenectady 

R.R.  Co.  552 

v.  Calder  434 

v.  Morgan  397 

v.  Smith  47 

Chappee  v.  Thomas  402 

Charles  River  Bridge  v.  Warren 

Bridge  266,  384,  394,  562 

Charleston  v.  Benjamin  476 

Charlestown   Branch  R.R.   Co.  v. 

Middlesex  560,  561 

Charlton  v.  Alleghany  City  542 

v.  Watton  449 

Chase  v.  Chase  401 

v.  Cheney  467 

v.  Merrimac  Bank  244 

v.  Miller  599 

Chase's  Case  462 

Cheaney  v.  Hooser    118,  226,  488,  491 

Cheever  v.  Wilson  16 

Chenango  Bridge  Co.  v.  Bingham- 

ton  Bridge  Co.     279,  281,  384,  394, 

396 
Cherokee  Nation  v.  Georgia  1,  62 

Cherokee  Tobacco,  The  11 

Chesapeake  &  Ohio  Canal  Co.  v. 

Baltimore  &  Ohio  R.R.  Co.  526 

Chestnut  v.  Shane's  Lessee  377 

Chetwynd  v.  Chetwynd  348 

Chicago  v.  Lamed  498,  501 

v.  Robbins  14,  247 

v.  Wheeler  563 

Chicago,  Burlington,  &  Q.  R.R. 

Co.  v.  Wilson  541 

Chicago,  &c,  R.R.  Co.  v.  Adler      362 

v.  Barrie    579 


XXIV 


TABLE   OP   CASES   CITED. 


Page 
Chicago,  &c,  R.R.  Co.,  v.  Triplett  580 
Chidsey  v.  Canton  246 

Child  v.  Boston  253 

Child's  Case  347 

Childs  v.  Shower  186,  387,  389 

Chiles  v.  Drake  147 

v.  Monroe  147 

Chilvers  v.  People  201,  592 

Chisholm  v.  Georgia  5,  23 

Chrisman  v.  Bruce  616 

Christ  Church  v.  Philadelphia  280,  284, 

382 
Christmas  v.  Russell  16 

Christy  v.  Commissioners  277 

Church  v.  Chapin  47 

Cincinnati  v.  Bryson  201 

v.  Rice  476 

Cincinnati  Gazette  Co.  v.  Timber- 
lake  448,  449,  451 
Cincinnati,  &c,  R.R.  Co.  v.  Com- 
missioners of  Clinton  Co.      91,  117, 

119 
Cincinnati  Gas  Light  Co.  v.  State     202 
Cincinnati  Health  Ass'n  v.  Rosen- 
thal 15 
Cisco  v.  Roberts                         586,  587 
City  Council  v.  Benjamin                   596 
City  National  Bank  v.  Mahan              14 
Clack  17.  White                                    530 
Claflin  v.  Hopkinton                  212,  219 
Clapp  v.  Cedar  County     119,  216,  219 
v.  Ely                                            96 
Clark,  Matter  of                                    15 
v.  Baltimore                             370 
v.  Bridge  Proprietors               193 
v.  Buchanan                             622 
v.  Clark  111,  113,  284,  361,  370, 
401 
v.  Crane                                     75 
v.  Davenport                            518 
v.  Des  Moines        193,  197,  212, 
215,  216,  217 
v.  Ellis                                      177 
v.  Holmes                                 406 
v.  Irwin                                        73 
v.  Janesville    119,  156,  157,  219 
v.  Le  Cren                       200,  202 
v.  Martin                          286,  291 
v.  McCreary                            361 
v.  McKenzie                             622 
v.  People                   66,  182,  184 
v.  Sammons                                 47 
v.  Washington         205,  247,  251 
Clark's  Adm'r  v.  Hannibal  &  St. 

Joseph  R.R.  Co.  580 

Clarke  v.  Rochester  119,  185 

v.  Smith  13 

v.  State  267,  269 


Clarke  v.  Van  Surlay 
Clay  v.  Smith 
Clayton  v.  Hams 
Clegg  v.  Laffer 
Clemm  v.  State 
Clemens  v.  Conrad 
Clement  v.  Mattison 
Cleveland  v.  Rogers 
Cliffinger  v.  Hepbaugh 
Clifton  v.  Cook 


101 
294 
64 
423 
322 
484 
339 
406 
137 
618 


Clinton-v.  Cedar  Rapids,  &c,  R. 

R.  Co.  553 

v.  Diaper  146 

v.  Englebrecht  25 

Clough  v.  Unity  563 

Coates  v.  Muse  14 

Coats  v.  New  York  127,  206,  595 

Cobbett  v.  Hudson  347 

Cobbett's  Case  347 

Coburn  v.  Ellenwood  198 

Cochran  v.  Van  Surley      88,  101,  105, 

168,  172 

Cochran's  Case  339 

Cockagne  v.  Hodgkisson  425 

Cockrum  v.  State  350 

Coe  v.  Schultz  584,  595 

Coffin  v.  Coffin  "   134,  447 

v.  Tracy  397 

Coffman  v.  Bank  of  Kentucky  291 

v.  Keightley  223 

Cohen  v.  Barrett  141 

v.  Wright  263 

Cohens  v.  Virginia  11,  68 

Colburn  v.  Woodworth  .  47 

Cole  v.  Bedford  228 

v.  Medina  248 

v.  Muscatine  206 

v.  Wilson  465 . 

Coleman  v.  Carr  103 

Coles  v.  Madison  County         192,  278, 

362 

Collector  v.  Day  483 

Collier  v.  Frierson  30 

Colman  v.  Holmes  365 

Colony  v.  Dublin  370 

Colt  v.  Eves  18,  78 

Colton  v.  Rossi  560 

Columbia  Co.  v.  Davidson  187 

v.  King  187,  217 

Columbus  Ins.  Co.  v.  Curtenius        592 

v.  Peoria  Bridge 

Co.  592 

Commercial  Bank  of  Natchez  v. 

State  279 

Commissioners,   &c.  V.  Aspinwall 

119,  216 
v.  Bowie  560 

v.  Cox  216 


TABLE    OF    CASES    CITED. 


XXV 


Page 
Commissioners,  &c.  v.  Duckett       208, 

247,  252 
v.  Gas  Co.        200 
Commissioners,  &c.  v.    Holyoke 

Water  Power  Co.  575 

Commissioners,  &e.  v.  Martin  246 
v.  Mighels  •  241 
v.  Pidge  589,  593 
v.  Wallace  119 
v.  Withers  589 
Commissioners    of    Revenue     v. 

State  232 

Commonwealth  ».  Alderman  325 

v.  Alger  523,  572,  594 
v.  Anthes  323 

v.  Archer  309 

v.  Austin  336 

v.  Aves  348 

v.  Bacon  276 

v.  Bakeman  327 

v.  Billings  825 

v.  Bird  •    280,  3S3 

v.  Blanding  420 

v.  Blood  16 

v.  Bonner  464 

v.  Bowden  327 

v.  Breed  536,  592 

v.  Brennan  283 

v.  Brickett  341 

v.  Byrne  353 

v.  Chapin  589 

v.  Charlestown         590 
v.  Clap  424,  439 

v.  Clapp  176,179,581, 
582 
v.  Colton  596 

v.  Commissioners, 

&c.  '  361 

v.  Cook  325 

v.  County  Commis- 
sioners 618 
v.  Crotty  304 
v.  Cullen                   279 
v.  Cummings            320 
v.  Curtis          314,  315, 
316,  317,  588 
v.  Dailey                   319 
v.  Dana                     309 
v.  Dewey  147 
v.  Dorsey         272,  273 
v.  Duane          361,  381 
v.  Eastern  R.R.  Co.  580 
v.  Emery                   411 
v.  Erie  R.R.  Co.     486 
v.  Erie  &  North- 
east R.R.  Co.  194, 
198,  545,  547 
v.  Fells                     327 


Commonwealth  v.  Fisher  476,  558 

v.  Gamble  277 

v.  Goddard  327 

v.  Hall  273 

v.  Harm  an  316 

v.  Hartman  173 

v.  Hartnett  52 

v.  Hippie  89 

v.  Hitchings     177,  178 
v.  Holbrook  584 

v.  Howe  582 

v.  Hunt  23 

v.  Judges  of  Quar- 
ter Sessions       119 
v.  Kendall  582 

v.  Kimball       177,  309, 
361,  381 
v.  Knapp        316,  323, 
330 
v.  Kneeland    472,  473, 
475 
v.  Knowlton  .  23 

v.  Leech  624 

v.  Lisher  476 

v.  Lodse  23 

v.  Lottery  Tickets    303 
v.  Mann  276 

v.  Marshall     361,  371, 
381 
v.  Maxwell       168,  177 
v.  McCloskey  167 

v.  McCombs  187 

v.  McLane  411 

v.  McWilliams        117, 
119,  124 
v.  Meeser  624 

v.  Morey  316 

v.  Morgan  317 

v.  Mullen  317 

v.  New     Bedford 

Bridge  289 

v.  Newburyport       193, 
232 
v.  Nichols  455 

v.  Olds  327 

v.  Painter  119 

v.  Patch  198,  200,  584, 
596 
v.  Penn.  Canal  Co. 

526,  576,  577,  578 
v.  Pittsburg  233 

v.  Pittsburg,  &c, 

R.R.  Co.  394,  526 
v.  Pomeroy  177 

v.  Porter  323,  336 

v.  Putnam  402 

v.  Randall  341 

v.  Reed  411 


XXVI 


.  TABLE    OP    CASES    CITED. 


Commonwealth  v.  Richter  542 

v.  Roby  328 

v.  Rock  323 

v.  Roxbury  189 

v.  Ryan  411 

v.  Semmes  309 

v.  Snelling  465 

v.  Stodder      201,  588, 

596 

V.  Stowell  327 

v.  Taylor         314,  816 

v.  Tewksbury  572,  594 

v.  Towles  15 

v.  Tuck  325,  327 

v.  Tuckerman  316 

v.  Van  Tuyl  323 

v.  Waite  596 

v.  Webster  325 

v.  Wilkinson  545 

v.  Williams  366 

v.  Woelper  605 

v.  Wolf  476 

v.  Wood  325 

v.  Worcester   200,  588 

Commonwealth  Bank  v.  Griffith  12 

Company  of  Free  Fishers  v.  Gann  523 

Concord  v.  Boscawen  212 

Concord  R.R.  Co.  v.  Greeley  530 

Cone  v.  Cotton  404 

v.  Hartford  588 

Confiscation  Cases  362 

Conkey  v.  Hart         286,  288,  289,  292 

Connecticut  M.  L.  Insurance  Co.  v. 

Cross  26 

Connell  v.  Connell  377 

Conner  v.  Elliott  15 

v.  New  York         143,  146,  276 

Connor  v.  Fulsom  223 

Connors  v.  People  317 

Conrad  v.  Ithaca  247 

Conservators  of  River  Tone  v.  Ash  198 

Conway  v.  Cable        368,  369,  370,  382 

v.  Taylor's  Ex'r  592 

v.  Waverly  521 

Conwell  v.  O'Brien  198 

Cook  v.  Gray  290 

v.  Gregg  286,  364 

v.  Hill  434 

v.  Moffat  11,  294 

v.  Vimont  49 

Cooley  v.  Board  of  Wardens  486,  586, 

587 

v.  Freeholders  246 

Coolidge  v.  Guthrie  530 

v.  Williams  396 

Cooper  v.  Barber  457 

v.  Cooper  402 

v.  Greeley  424,  457 


Cooper  v.  McJunkin 
v.  Stone 
v.  Sunderland 
v.  Telfair 
v.  Williams 


340 
457 

406,  407 
89,  169,  182 

527,  530 


Coosa  River  Steamboat  Co.  v.  Bar- 
clay 581 
Copes  v.  Charleston  119 
Corbett  v.  Bradley  76 
Corbin  v.  Hill  368 
Corey's  Case  310 
Corfield  v.  Coryell  15,  396,  487 
Coriell  v.  Ham  286 
Corliss  v.  Corliss  78 
Corning  v.  Greene  118,  119 
Corwin  v.  New  York  &  Erie  R.R. 

Co.  578,  579 

Costar  v.  Brush  281 

Coster  v.  New  Jersey  R.R.  Co.        558 
Cotes  v.  Davenport  253 

Cotton  v.  Commissioners  of  Leon    119, 

168,  182 

Couch  v.  McKee  365 

Cougot  v.  New  Orleans  596 

Coutant  v.  People  66,  68,  182 

Cover  v.  Baytown  219 

Covington  v.  Bryant  247 

v.  Southgate    382,  491,  493, 

500 

Cowan  v.  Milbourn  472 

Coward  v.  Wellington  434 

Cowen  v.  West  Troy  198 

Cowgill  v.  Long  381 

Cowlcs  v.  Harts  49 

Cox  v.  Bunker  423 

v.  Coleridge  313 

v.  Cox  402 

v.  Lee  463 

Coxe  v.  Martin  291 

Coxhead  v.  Richards  425 

Coyner  v.  Lvnde  397 

Craft  v.  State  Bank  23 

Craig  v.  Burnett  200,  201 

v.  Dimmock  484 

v.  Kline  591 

v.  Missouri  14 

v.  Rochester  City  &  Brighton 

R.R.  Co.  547,  550 

Crandall  v.  James  47,  410 

v.  Nevada  486 

v.  People  316 

v.  State  15,  396 

Crane  v.  Mejjinnis  113,  405 

Crawford  v.  Delaware      207,  542,  543, 

556 

v.  Wilson  30 

Creal  v.  Keokuk  206,  253,  542 

Crenshaw  v.  Slate  River  Co.     168,  536 


TABLE    OF    CASES    CITED. 


XXV11 


Creote  v.  Chicago 
Crevey  v.  Carr 
Crone  v.  Angell 
Cronise  v    Cronise 
Ci'osby  v.  Hanover 
v.  Lyon 


501 
465 
422 
113,  284 
526 
515 


Crowell  v.  Hopkinton      219,  223,  490, 

494 
v.  Randell  12 

Crowley  v.  Copley  512,  588 

Crozier  v.  Cudney  307 

Cubbison  v.  McCreary  477 

Cumming  v.  Police  Jury  499 

Cuminings  v.  Missouri  '     33,  260,  263, 

266 
Cunningham  v.  Brown  441 

Cupp  v.  Seneca  Co.  403,  561 

Curran  v.  Arkansas  14 

v  Schattuck  _  560,  562 

Currier  v.  Marietta  &  Cincinnati 

R.R.  Co.  530 

Curry  v.  Walter  449 

Curtis  v.  Curtis  422 

v.  Gibbs  404 

v.  Leavitt  293,  362,  375 

v.  Mussey  436 

v.  State  311 

v.  Whipple      175,  491,  494,  536 

v.  Whitney  286,  288 

Cushman  v.  Smith  560 

Cusic  v.  Douglass  287,  361 

Cutlip  v.  Sheriff  147,  149 

Cutts  v.  Hardee  291 

Cuyler  v.  Rochester  397 

Cvpress    Swamp  Draining  Co.   v. 

"Hooper  488,  491 


1). 


Dade  v.  Medcalf  378 
Dailey  v.  Reynolds  423 
Daily  Post  Co.  v.  McArthur  457 
Dakin  v.  Hudson  406 
Dalby  v.  Wolf  190 
Dale  v.  Lyon  455 
v.  The  Governor  383 
v.  State  323 
Dalrymple  v.  Mead  589 
Dana's  Case  .  319,  410 
Dancaster  v.  Hewson  442 
Dane  County  v.  Dunning  410 
Daniel  Ball,  The  591 
Darcy  v.  Allain  393 
Dargan  v.  Mobile  248 
Darling  v.  Rogers  129 
Darrington  v.  State  Bank  of  Ala- 
bama 14 


Darst  v.  People  201 

Dart  v.  Houston  280 

Dartmouth  College  v.  Woodward    126, 
192,  214,  236,  237,  251,  276,  279, 
284,  353,  575 
Dash  v.  Van  Kleek  62,  63,  92,  94,  266, 

361,  369 
Davenport,  &c,  Co.  v.  Davenport  198 
Davidson  v.  Boston  &  Maine  R.R. 

Co.  541,  542 

Davies  v.  McKeeby  64,  358,  363 

v.  Morgan  200 

Davis  v.  Bank  of  Fulton  142 

v.  Holbrook  614 

v.  Minor  365 

v.  New  York  206,  207 

v.  Richardson  484 

v.  State    114,  143,  146,  151,  177 

v.  State  Bank  103,  372,  377 

v.  Wood  49 

v.  Woolnough  147 

Davis's  Lessee  v.  Powell  389 

Davison  v.  Duncan  459 

v.  Johonnot  103,  391 

Dawkins  v.  Pawlet  442 

v.  Rokeby  442 

Dawson  v.  Coffman  23 

v.  Duncan  455 

v.  Shaver  168 

v.  State  269 

Day  v.  Buffington  484 

v.  Gallup  12 

v.  Green  588 

v.  Jones  599 

V.  Kent  618 

v.  Munson  53 

v.  Savadge  410 

Dean  v.  Borschsenius  369,  379 

v.  Gleason  381.  515 

v.  Sullivan  R.R.  Co.        558,  564 

Dearborn  v.  Boston,  C,  &  M.  R.R. 

Co.  214,  570 

Deaton  v.  Polk  Co.  569 

Deblois  v.  Barker  588 

Debolt  v.  Ohio  Life  Ins.  &  Trust 

Co. 
De  Camp  v.  Eveland 
Decatur  v.  Fisher 
Dechastellux  v.  Fairchild 


De  Cordova  v.  Galveston 
Dedham  v.  Natick 
De  Jarnette  v.  Haynes 
Dekraft  v.  Barney 
Delaplaine  v.  Cook 
Delegal  v.  Highley 
Delmonico  v.  New  York 
De  Mill  v.  Lockwood 


126 
186 
249 
46,  91,  96, 
109 
370 
339 
164 
346 
367 
448 
253 
360 


xxvm 


TABLE    OP    CASES    CITED. 


Page 

De  Moss  v.  Newton 

366 

Dempsey  v.  People 

318 

Den  v.  Downam 

373 

v.  Dubois 

57 

v.  Reid 

57 

i    v.  Sehenck 

57 

Denham  v.  Holeman 

146 

Denison  v.  Hyde 

404 

Denning  v.  Corwin 

406 

Denny  v.  Mattoon 

107 

,  382 

Denton  v.  Jackson 

198 

212 

,  210 

v.  Polk 

568 

Depew  v.  Trustees 

3f    W.     & 

Canal 

26,  589 

,  592 

,  593 

Derby  v.  Derby 

314 

Derby  Turnpike  Co. 

v.  Parks 

168 

Dergan  v.  Boston 

499 

Detmold  v.  Drake 

181 

Detroit  v.  Blackeby 

247 

v.  Corey 

217 

252 

Detroit  Free  Press  v. 

McArth 

ur 

457 

Deutzel  v.  Waldie 

377 

De  Varaigne  v.  Fox 

558 

Devin  v.  Seott 

583 

Devon  Witches,  Case 

of 

341 

De  Voss  v.  Richinoiu 

216 

Devoy  v.  New  York 

186 

Devries  v.  Phillips 

317 

Dew  v.  Cunningham 

140 

Dewey  v.  Detroit 

249 

Dewolf  v.  Rabaud 

13 

Dexter  v.  Tiber 

422 

Dibdin  v.  Swan 

457 

Dick  v.  MeLaurin 

408 

Dicken's  Case 

337 

Dickenson  v.  Fitchbu 

■g    567, 

568, 

569 

Dickinson  v.  Hayes 

47 

Dickey  v.  Hurlburt 

619 

v.  Tennison 

530, 

562 

Dicks  v.  Hatch 

397 

Dickson  v.  Dickson 

113 

Dikeman  v.  Dikeman 

290 

Dillingham  v.  Snow 

197, 

521 

Dimes    v.    Proprietor 

5    of    G 

rand 

Juncrion  Canal 

411, 

412 

Dingley  v.  Boston 

533, 

558 

Dishon  v.  Smith 

603, 

618, 

623 

District  Township  v.  Dubuque 

56 

57, 

65,  74 

Ditson  v.  Ditson 

402, 

404 

Dively  v.  Cedar  Falls 

215, 

411 

Dixon  v.  Parmelee 

334 

Dobbins  v.  Commissionei's  of  Erie 

Co. 

482 

v.  State 

327 

Dodge  v.  County  Commissioners 

570 

v.  Gridley 

151 

v.  Woolsey 

11, 

126, 

280 

Doe  v.  Beebe  525 

v.  Braden  11 

v.  Douglass  26,  102,  168 

v.  McQuilkin  521 

Dole  v.  The  Governor  280 

v.  Lyon  455 

Done  v.  People  328 

Donkle  v,  Kohn  478 

Donnelly  v.  State  318 

Dorgan  v.  Boston  499 

Dorian  v.  East  Brandy  wine,  &c, 

R.R.  Co.  569,  570 

Dorr,  Ex  parte  345,  346 

Dorrance  Street,  Matter  of  588 

Dorsey,  Matter  of  64 

v.  Dorsey  402 

v.  Gilbert  103 

Doss  v.  Commonwealth  323 

Dothage  v.  Stewart  387 

Doughertv  v.  Commonwealth  318 

Doughty  v.  Hope  78,  402 

v.  Somerville  &  Eastern 

R.R.  Co.    566,  567,  569 
Douglass  v .  Placerville  191,  195 

v.  Turnpike  Co.  545 

Dover  v.  Portsmouth  Bridge  592 

Dow  v.  Norris  168,  182,  185 

Uow's  Case  15 

Downing  v.  Porter  304 

v.  Wilson  423 

Doyle  v.  O'Doherty  442 

Drake  v.  Philadelphia,   &c,  R.R. 

Co.  579 

Drehman  v.  Stifle      260,  262,  263,  289 
Drennan  v.  People  52 

Drew  v.  Davis  521 

Dronberger  v.  Reed  561 

Druliner  e.  State  605 

Drummond  v.  Leslie  423 

Dryfuss  v.  Bridges  78 

Dubois  v.  McLean  13,  104 

Dubuque  Co.  v.  Railroad  Co.  119,  219 
Ducat  v.  Chicago  15 

Duchess  of  Kingston's  Case  47 

Dudley  v.  Mahew  397 

Duffy  v.  Hobson  484 

Duke  v.  Rome  208 

Dulany's  Lessee  ».  Tilghman    376,  377 
Duncan  v.  Thwaites  449 

Duncaster  v.-  Hewson  442 

Duncombe  v.  Daniell  437 

v.  Prindle  146 

Dunden  v.  Snodgrass  371 

Dunham  v.  Chicago  515 

v.  Powers  441 

v.  Rochester        194,  200,  202 
Dunlap  v.  Glidden  441 

425 


TABLE    OF    CASES    CITED. 


XXIX 


Page 

Page 

Dunniore's  Appeal 

230 

233 

Elliott  v.  People 

329 

Dunn  v.  Sargeant 

361 

Ellis  v,  Jones 

287 

v.  State 

318 

v.  State 

391 

v.  Winters 

442 

Ellyson,  Ex  parte 

623 

Durach's  Appeal 

191, 

514 

Elmendorf  v.  Carmichael 

96 

Durant  v.  Essex  Co. 

51 

v.  New  York 

78 

v.  Kauffman 

494 

v.  Taylor 

13 

v.  People 

317 

Else  v.  Smith 

303 

Durham  v.  Lewiston 

96, 

168, 

392 

Elwell  v.  Shaw 

520, 

521 

Durkee  v.  Janesville 

145, 

392 

Ely  v.  Thompson                177 

L86 

350 

Duverge's  Heirs  v.  Salter 

151 

Embury  v.  Conner  163,  181, 

530, 

540, 

Dwyer  v.  Goran 

47 

541 

Dyckman  v.  New  York 

406 

Emerson  v.  Atwater 

50,  52 

Dyer  v.  Morris 

42.-; 

Emery  v.  Gas  Co. 

499 

v.  Tuscaloosa  Bridge 

Co 

396 

Emery's  <  !ase 

134, 

313 

E. 

Eakin  v.  Racob  66 

Earle  v.  Picken  314 

Easley  v.  Moss  425 

Eason  v.  State  182 

East  &  West  India  Dock,  &c.,  Co. 

v.  Gattke  564 

East  Hartford  v.  Hartford  Bridge 

Co.  205,  239,  277 

Eastman  v.  McAlpin  141 

v.  Meredith  241,  246 

East  Saginaw  Salt  Manuf.  Co.  v. 

East  Saginaw  280,  284,  383 

East  St.  Louis  v.  "Wehrung  205 

Easton  Bank  v.  Commonwealth         28'  I 
Eaton  v.  Boston,  &c,  R.R.  Co.      526, 
538,  542,  543,  545 
v.  United  States  361,  381 

Echols  v.  Staunton  530 

Eddings  v.  Seabrook  541,  542 

Edgarton  v.  Hart  408 

Edmonds  v.  Banbury  601 

Edwards  v.  Jaggers  279 

v.  James  78 

v.  Pope  104,  106 

Edward's  Lessee  v.  Darby  68 

Eels  v.  People  178,  179 

Eggleston  v.  Doolittle  467 

Egyptian  Levee  Co.  v.  Hardin  498,  512 
Eimer  v.  Richards  47 

Eitel  v.  State  129,  157 

Elam  v.  Badger  425 

Elder  v.  Barrus  589 

v.  Reel  402 

Eldridge  v.  Smith  526,  531 

Election  Law,  Matter  of  614 

Elijah  v.  State  327 

Elliot  o.  Ailsbury  423 

Elliott   v.  Fairhaven    &  Westville 

R.R.  Co.  550 


Empire  City  Bank,  Matter  of  402,  403 
Enfield  Toll  Bridge  Co.  v.  Hart- 
ford &  N.  II.  R.R.  Co.  281 
Engle  v.  Shurtz  362,  381 
English  v.  Chicot  Co.  195 
v.  New  Haven,  &c,  Co.  384 
Ensworth  v.  Albin  129,  601 
Entinck  v.  Carrington  302,  303,  307 
Erie  City  v.  Schwingle  254 
Erie  Railroad  Co.  v.  Commonwealth  280 
v.  New  Jersey  486 
Erie  &  N.  E.  R.R.  Co.  v.  Casey  106 
Erlinger  v.  Bousan  147 
Ernst  v.  Kunkle  507 
Ervine's  Appeal  91,  105,  106,  175,  352, 

353 
Esmon  v.  State 
Essex  Co.  ».  Pacific  Mills 
Essex  Witches,  Case  of 
Este  v.  Strong 
Estep  v.  Hutchman 
Esty  v.  Westminster 
Etheridge  v.  Osborn 
Eustis  v.  Parker 
Evans  v.  Montgomery 

v.  Myers 
Evansville,  &c.,  R.R.  Co 
Ewing  v.  Filley 
Exchange  Bank  v.  Ilines 
Eyre  v.  Jacob 
Ezekiel  v.  Dixon 


328 

70 

314 

49 

103,  104 

228 

47 

214 

266,  286 

69 

Dick   543 

618,  624 

177,  493 

182 

56 


F. 

Facey  v.  Fuller  406,  408 

Fairchild  v.  Adams  441 

Fairfield  v.  Ratclifie  499 

Fairhurst  v.  Lewis  339 

Fairman  v.  Ives  439 

Falconer  v.  Campbell  266 

v.  Robinson  151 

Fales  v.  Wadsworth  366,  367 


XXX 


TABLE   OP   CASES   CITED. 


Fanning  v.  Gregorie  593 

Farley  v.  Dowe  287 

Farmers    &    Mechanics    Bank    v. 

Butchers  &  Drovers  Bank  216 

Farmers    &    Mechanics    Bank   v. 

Smith  68,  182,  293 

Farney  v.  Towle  12 

Farnsworth  v.  Vance  291 

Farnum  v.  Concord  246 

Farr  v.  Sherman  61 

Fawcett  v.  Fowliss  406 

v.  York  &  North  Midland 

R.R.  Co.  579 

Fehr  v.  Schuylkill  Nav.  Co.  570 

Felton's  Case  313 

Fenton  v.  Garlick  16,  404 

Fenwick  v.  Gill  387 

Ferguson  v.  Landram       228,  389,  488 

v.  Loar  530 

Ferraria  v.  Vasconcellos  466,  467 

Fetter,  Matter  of  15 

Field  v.  Gibbs  16 

v.  People  64,  115 

Fifield  v.  Close  483 

Finney  v.  Boyd  47 

Fire  Department  v.  Holfenstein  15 

v.  Noble  15 

v.  Wright  15 

Fireman's  Association  v.  Lounsbury  145 

First  Parish,  &c.  v.  Middlesex        567, 

570 

v.  Stearns     620,  621 

Fish  v.  Kenosha  217 

Fisher  v.  Haldiman  14 

v.  Horricon  Co.  536 

o.  McGirr      177,  304,  305,  583, 

595 

Fisher's  Lessee  v.  Cockerell  12 

Fisher's  Negroes  v.  Dobbs  370 

Fishkill    v.    Fishkill    &   Beekman 

Plank  Road  Co.  145,  146 

Fiske  v.  Hazzard  219 

v.  Eramineham  Manuf.  Co.     536 
Fitchburg    R.  R.    Co.    v.    Grand 

Junction    R.R.  Co.  575,580 

Flanagan  v.  Philadelphia  593 

Fletcher  v.  Auburn  &  Syracuse  R. 

R.  Co.  560 

v.  Lord  Somers  50 

v.  Oliver  64,  142,  146 

v.  Peck  88, 169, 182,  260,  266, 

274,  560 

Flint  v.  Pike  448,  449 

Flint,    &c,   Plank    Road    Co.    v. 

Woodhull  106,  187 

Flint  River  Steamboat  Co.  v.  Fos- 
ter 167,  182 
Florentine  v.  Barton                   101,  102 


Flournov  v.  Jeffersonville  409 

Floyd  v.  Mintsey  49 

Foley  v.  People  310 

v.  State  146,  149 

Fonvard  v.  Adams  423 

Foote  v.  Fire  Department  595 

Forbes  v.  Halsey  367 
Ford  v.  Chicago  &  N.  W.  R.  R. 

Co.  538,  548 

Fordyce  v.  Goodman  135 
Fort  Dodge  v.  District  Township  616 
Forward  v.  Hampshire,  &c,  Canal 

Co.  526 

Foss  v.  Hildreth  464 

Foster  v.  Essex  Bank       182,  293,  361, 

378 

v.  Kenosha  518 

v.  Neilson  11 

v.  Scarff'e  603,  616 

Fowler  v.  Chatterton  367 

v.  Danvers  222 

v.  Halbert  387 

v.  Pierce  153 

Fox,  Ex  parte  299 

v.  State  of  Ohio  18,  200 

v.  W.  P.  Railroad  Co.  560 

Foxcroft  v.  Mallett  14 

Frain  v.  State  314 

Franklin  v.  State  335 

Franklin  Bridge  Co.  v.  Wood  168,  182 

Frankfort  v.  Winterport  137,  212 

Frary  v.  Frary  401 

Freeborn  v.  Pettibone  290 

Freedman  v.  Sigel  484 

Free  Fishers'  Co.  v.  Gann  523 

Free  Holders,  &c.  v.  Barber  201 

Freeland  v.  Hastings        175,  212,  228, 

488,  494 

Freeman  v.  Hardwick  614 

v.  Price  423 

Freeport  v.  Marks  208 

Frees  v.  Ford  163 

Freleigh  v.  State  283 

Frellson  v.  Mahan  512 

French  v.  Braintree  Manuf.  Co.       534 

v.  Camp  590 

v.  Edwards  77 

v.  Kirkland  510 

Freyer  v.  Kinnersley  425 

Friend  v.  Hamill  616 

Frisbie  v.  Fowler  423 

Frolickstein  v.  Mobile  477,  596 

Frost  v.  Belmont  136,  191,  211 

Fry  v.  Bennett  457 

v.  Booth  78,  618 

Fuller  v.  Dame  136,  137 

v.  Eddinga  541 

v.  Groton  209 


TABLE   OP    CASES   CITED. 


XXXI 


Fuller  v.  Hampton  245 

Fullerton  v.  Bank  of  United  States     13 
Fulton  v.  Davenport  501 

v.  McAffee  12 

Furman  v.  New  York  56 

v.  Niehol  284 

Furman  Street,  Matter  of        498,  542, 

567 
Furniss  v.  Hudson  River  R.R.  Co.  564 


G. 


Gabbert  v.  Railroad  Co.  145,  146 

Gaines  v.  Buford  385 

v.  Gaines  113 

v.  Robb  119 

Gale  v.  Kalamazoo  585,  596 

v.  Mead  78 

v.  South  Berwick  212 

Galen  v.  Clyde  &  Rose  Plank  Road 

Co.  246 

Galena  &  Chicago  Union  R.R.  Co. 

v.  Appleby  575,  580 

Galena  &  Chicago  Union  R.R.  Co. 

v.  Dill  580 

Galena  &  Chicago  Union  R.R.  Co. 

v.  Loomis  575,  580 

Gall  v.  Cincinnati  596 

Gallatin  v.  Bradford  200,  202 

Gantley's  Lessee  v.  Ewing  289 

Garbett,  Ex  parte  337 

Garcia  v.  Lee  11 

Gardner  v.  Collins  13 

v.  Newburg       526,  532,  557, 

560 

v.  Ward  616 

Garland,  Ex  parte    260,  262,  263,  266 

Garr  v.  Selden  441,  444 

Garrard  Co.  Court  v.  Kentucky 

River  Navigation  Co.  179 

Garrett  v.  Beaumont  370 

v.  Cordell  289 

v.  Doe  370 

v .  St.  Louis  506 

Garrison  v.  New  York  249 

v.  Tillinghast  486 

Gascoigne  v.  Ambler  423 

Gaskill  v.  Dudley  245 

Gates  v.  Neal  616 

Gathercole  v.  Mi  all  439,  457 

Gaulden  v.  State  337 

Geary  v.  Simmons  47 

Geebrick  v.  State  117,  123,  124 

Gelpecke  v.  Dubuque  14,  119,  215 

Gentile  v.  State  128,  593 

Gentry  v.  Griffith  133,  173 

George  v.  Gillespie  47 


Page 

Georgia,  &c,  R.R.  Co.  v.  Harris    397, 

399 
Gerard  v.  People  327 

German,  &c.,  Cong.  v.  Pressler         466 
German    Reformed     Church    v. 

Seibert  467 

Gerrish  v.  Brown  589 

Gibbons  v.  Mobile,  &c,  R.R.  Co. 

119   379 

v.  Ogden  9,  58',  591 

Gibbs  v.  Gale  367 

Gibson,  Ex  parte  348 

v.  Armstrong  467 

v.  Choteau  366 

v.  Emerson  89 

v.  Hibbard  378 

v.  Mason  356,  598 

Giesv  v.  Cincinnati,  W.  &  Z.  R.R. 

Co.  541,558,569 

Gifford  v.  Railroad  Co.  147 

Gilbert  t\  People  442,  444 

Gildersleeve  v.  People  402 

Gilkeson  v.  Frederick  Justices  190 

Gill  v.  Parker  582 

Gillespie  v.  Palmer  598,  616,  619 

v.  State  146, 149 

Gilliland  v.  Phillips  376 

v.  Sellers's  AdmV  397 

Gillinwater  v.  Mississippi  &  Atlan- 
tic R.R.  Co.  41,  528,  529 
Gilman  v.  Cutts  359 
v.  Lockwood                          294 
v.  Philadelphia        9,  586,  587, 
591 
v.  Sheboygan                         280 
Gilmer  v.  Lime  Point       525,  526,  530, 
537,  561,  562 
Ginn  v.  Rogers                                     397 
Girard  v.  Philadelphia  192 
Girard  Will  Case                                472 
Girdner  v.  Stephens                    33,  365 
Gladden  v.  State                                 318 
Gleason  v.  Dodd                          16,  404 
v.  Gleason                            402 
Gloucester  Ins.  Co.  v.  Younger  14 
Glover  v.  Powell                        545,  590 
Godard,  Petitioner            198,  200,  588 
Goddard  v.  Jacksonville                    581 
Goddin  v.  Crump                         119,  186 
Goenan  v.  Schroeder                           290 
Goetchens  v.  Mathewson                    616 
Goggans  v.  Turnispeed                      285 
Good  v.  Zercher                                  377 
Goodell  v.  Jackson          .                     50 
Goodenough,  In  re                            348 
Goodman  v.  State                               317 
Goodrich  v.  Detroit                             196 
v.  Winchester,  &c,  Co.     499 


xxxu 


TABLE    OF    CASES    CITED. 


Goodtitle  v.  Kibbee  525 

v.  Otway  50 

Gooselink  v.  Campbell  588 

Gordon  v.  Appeal  Tax  Court  126,  280 

v.  Caldcleugk  12 

v.  Comes  230,  232,  493 

v.  Farrar  616 

v.  Ingraham  91 

Gorham  v.  Campbell  618 

v.  Springfield  119 

Gormley  v.  Taylor  182 

Goshen  v.  Richmond  384 

v.  Stonington       167,  372,  375, 

379 

Goshorn  v.  Purcell  370,  377 

Goslin  v.  Cannon  426,  442 

Gosling  v.  Veley  200 

Goszler  v.  Georgetown  206,  542 

Gough  v.  Dorsey  89 

Gould  v.  Hudson  River  R.R.  Co.    541, 

544 
v.  Sterling       197,  215,  216,  379 
Gove  v.  Epping  219,  494 

Governor  v.  Porter  94 

Graham,  Ex  parte  61,  62,  370 

Grammar  School  v.  Burt  279 

Granby  v.  Thurston  192 

Grand  Rapids  v.  Hughes  194 

Granger  v.  Pulaski  Co.  240,  246 

Grannahan  v.  Hannibal,  &c,  R.R. 

Co.  575,  581 

Grant  v.  Brooklyn  253 

v.  Courter  119,  172 

v.  Erie  208 

v.  Leach  396 

Graves  v.  Blanchet  423 

v.  Otis  206,  542 

Gray  v.  First  Division,  &c.  547 

v.  Pentland  433 

v.  State  394 

Gray's  Lessee  v.  Askew  52 

Great  Falls  Manufacturing  Co.  v. 

Fernald  536 

Great  Western  R.R.  Co.  v.  Deca- 
tur 578 
Green  v.  Biddle  275 
v.  Chapman  457 
v.  Collins  397 
v.  Custard  404 
v.  Holway  484 
v.  Mayor,  &c.  146 
v.  Neat's  Lessee  13,  14 
v.  Portland  554 
v.  Reading  542 
v.  Sarmiento  16 
v.  Savannah  585 
v.  Slmmway  273,  599 
v.  Telfair                                   464 


Green  v.  Van  Buskirk  16 

v.  Weller  57,  58,  59 

Greencastle,  *fec,  Co.  v.  State         53, 

151 
Greencastle  Township  v.  Black  57,  58, 

72,  79 
Greene  v.  Briggs  305,  352,  410 

Greenlaw  v.  Greenlaw  401 

Greenough  v.  Greenough      90,  91,  94, 

106,  379 
Greensboro1  v.  Mullins  200 

Greenville  &  Columbia  R.R.  Co. 

v.  Partlow  568,  569,  570 

Grier  v.  Shackleford  633 

Griggs  v.  Foote  206 

Griffin  v.  Martin  544 

v.  McKenzie  365 

v.  Mixon  362 

v.  New  York  208 

v.  Ranney  484 

v.  Wilcox  289,  361,  362 

Griffith's  Ex'r  v.  Cunningham  109, 

382,  392 
Griffing  v.  Gibb  14 

Grim   v.  Weisenberg  School   Dis- 
trict 373,  490 
Grimes  v.  Coyle  426,  442 
v.  Doe  375 
Grogan  v.  San  Francisco           239,  275 
v.  State  327 
Grosbeck  v.  Seeley                    366,  368 
Grosvenor  v.  Chesley  286 
Grove  v.  Brandenburg                        441 
Guard  v.  Rowan  370 
Guenther  v.  People                             328 
Guild  v.  Rogers                          286,  288 
Guile  v.  Brown                                     410 
Guilford  v.  Cornell  145 
v.  Supervisors   of  Che- 
nango 211,226,  230,279, 
381,  490 
Guillotte  v.  New  Orleans                   596 
Gulick  v.  New                                     620 
v.  Ward                                   137 
Gunn  v.  Barry                                       287 
Gut  v.  State                                        273 


H. 


Hadden  v.  Chorn  467 

v.  The  Collector  141 

Hadduck's  Case  197 

Hadley  v.  Albany  622,  624 

Hadsell  v.  Hancock  209 

Hagan  v.  Hendry  465 

Hagerstown  v.  Dechert  178,  179 

Hawkins  146 


TABLE   OF    CASES   CITED. 


XXX111 


Page 

Haight  v.  Grist 

484 

Haines  v.  Levin 

410 

Hakewell,  Matter  of 

348 

v.  Ingram 

463 

Hale  v.  Kenosha 

499 

v.  Lawrence 

526 

594 

v.  Wilkinson 

484 

Haley  v.  Clark 

v.  Philadelphia 
v.  Taylor 

Hall  v.  Bunte 

94 

115 
370 
340 
144 

v.  Marks 

409 

v.  Thayer 

411 

412 

v.  Washington  County  334 

v.  Williams  16,  404 

Hallock  v.  Franklin  County  563 

v.  Miller  424 

Halstead  v.  New  York     193,  211,  212, 

216 

Ham  v.  McClaws  165 

v.  Salem  532 

Hamilton  v.  Carthage  254 

v.  Kneeland  23 

v .  St.  Louis  County  Court  37, 

65 

Hamilton  Co.  v.  Mighels  241 

Hanimett  v.  Philadelphia  283,  493,  498, 

507 

Hammond  v.  Anderson  50 

v.  People  348 

Hampshire  v.  Franklin  193,  491 

Hampton  v.  Coffin  563 

v.  McConnell  16 

Hamrick  v.  Rouse  127 

Hand  v.  Ballon  367 

Handy  v.  Chatfield  289,  292 

v.  State  323 

Haney  v.  Marshall  15 

Hannel  v.  Smith  53 

Hanover  v.  Turner  401,  402 

Hansen  v.  Vernon  215,  488 

Happy  v.  Morton  466 

v.  Mosher  403 

Harbeck  v.  New  York  186 

Harbin  v.  Chiles  16 

Hard  v.  Nearing  354,  356 

Hardenburg  v.  Lockwood  544 

Hardiman  v.  Downer  287,  288 
Harding  v.  Alden               402,  404,  405 

t>.  Goodlet  536 

Hardwick  v.  Pawlet  339 

Hare  v.  Hare  402 

v.  Mellor  433 

Harlan  v.  People  18 

Harmon  v.  Wallace  290 

Harmony  v.  Mitchell  594 

Harp  v.  Osgood  341 

Harpending  v.  Haight  153 


Harpending  v.  Reformed  Church        13 
Harper  v.  Richardson  560,  561 

Harrington    v.    County    Commis- 
sioners 563 
v.    State  325 
Harris  v.  Colquit  47 
v.  Dennie  12 
v.  Harrington                           433 
v.  Harris                                      47 
v.  Inhabitants    of    Marble- 
head                                  389 
v.  Morris                                   339 
v.  Roof                                      137 
v .  Rutledge                             378 
Harrison  v.  Baltimore                         584 
v.  Bridgeton       192,  193,  239 
v.  Bush                         425,  426 
v.  Harrison         402,  404,  405 
v.  Leach                                 60 
v.  State                                168 
Harrison  Justices  v.  Holland             192 
Harrow  v.  Myers                                    53 
Hart  v.  Albany                    205,  572,  594 
v.  Brooklyn                         249,  588 
v.  Evans                                      610 
v.  Henderson                               369 
v.  Holden                                   223 
v.  Jewett                                        47 
v.  State                                       273 
Harteau  v.  Harteau                            402 
Hartford    Bridge    Co.    v.    Union 

Ferry  Co.  168,  182 

Hartland  v.  Church  5U0 

Hartt  v.  Harvey  622 

Hartung  v.  People      270,  329,  361,  381 
Harvey  v.  Lackawana,  &c,  R.R. 

Co.  541,  542,  568 

v.  Thomas  168,  357,  530 

Harwood  v.  Astley  438 

Hasbrouck  v.  Milwaukee  213,  230,  232, 

379 

v.  Shipman  291 

Hastings  v.  Lane  62,  370 

v.  Lusk  444 

Hatch  v.  Lane  425 

v.  Vermont    Central    R.R. 

Co.  542,  557,  570 

Hathorn  v.  Lyon  361 

Hatsfield  v.  Gulden  137 

Haverill     Bridge     Proprietors    v. 

County  Comrs.  560 

Hawkins  v.  Barney's  Lessee  275 

v.  Jones  47 

Hawthorne  v.  Calef  279,  292 

Hay  v.  Cohoes  Company  536,  543 

Harden  v.  Foster  521 

v.  Noyes  200,  202 

Hayes  v.  Reese  47 


XXXIV 


TABLE  .OF   CASES   CITED. 


Haynes  v.  Burlington 

v .  Thomas 
Hays  v.  Brierly 
v.  Risher 
Haywood  v.  Savannah 
Hazen  v.  Essex  Company 
Head  v.  Providence,  &c,  Co. 
Heath,  Ex  parte 


526 
543 
464 
538 
198 
536 
216 
78,616,  618, 
621 

Hector  v.  State  327 

Hedges  v.  Madison  Co.  246 

Hedley  v.  Franklin  County  182 

Hedgeman  v.  Western  R.R.  Co.     575, 

576 

Henderson  v.  Griffin  13 

Henderson's  Distilled  Spirits  303 

Tobacco  151 

Hendrick's  Case  18 

Hendrickson  v.  Decow  467 

v.  Hendrickson     156,  187 

Henley  v.  Lyme  Regis  247,  252 

Henry  v.  Chester  515 

v.  Dubuque  &  Pacific  R.R. 

Co.  558,  562,  567 

V.  Henry  146 

v.  Tilson  65 

Henshaw  v.  Foster  83,  605 

Hensley  v.  Force  16 

Henton  v.  State  307 

Hepburn  v.  dirts  361,  373 

Hepburn's  Case  530 

Herber  v.  State  269 

Herrick  v.  Randolph  280,  479 

Hersey  v.  Supervisors  of  Milwau- 
kee 515,  521,  522 
Hershaw  v.  Taylor  406 
Hess  v.  Pegg                52, 129,  191,  192 
v.  VVertz  375 
Hewitt  v.  Prince  334 
Hewson  v.  New  Haven  208 
Heydenfeldt  v.  Towns  412 
Heyfron,  Ex  parte  404 
Hey  ward  v.  Judd                       286,  290 
v.  New  York     164,  181,  524, 
555,  558 
Hibbard  v.  People             304,  305,  583 
Hickerson  v.  Benson  615 
Hickey  v.  Hinsdale  78 
Hickie  v.  Starke  12 
Hickok  v.  Plattsburg                           248 
Hickox  v.  Tallman                     336,  367 
Higgins  v.  Chicago                             563 
High's  Case                                         599 
Hitbish  v.  Leatherman                        228 
Hildreth  v.  Lowell                     533,  588 
Hill,  Ex  parte                                    346 
v.  Boyland  82 
v.  Commissioners                         146 


Hill  v.  Higdon  498,  506,  507,  509,  514, 

518 

v.  Hill  622 

v.  Kessler  287,  288 

v.  Kricke  365,  366 

v.  People  319,  397,  399 

v.  Sunderland  96 

v.  Wells  411 

Hill's  Case  318 

Hillard  v.  Moore  289 

Hillyard  v.  Miller  ■      379 

Hinchman  v.  Paterson    Horse   R. 

Co.  555,  557,  593 

v.  Town  399 

Hinde  v.  Vattier  13 

Hindman  v.  Piper  106 

Hine,  The  v.  Trevor  18 

Hines  v.  Leavenworth  498,  507 

Hingham,    &c,   Turnpike  Co.   v. 

Norfolk  Co.  163 

Hingle  v.  State  141,  143 

Ilinman  v.  Chicago,  &c,  R.R.  Co.  579 
Hinsen  v.  Lott  486 

Hirn  v.  State  151,  283 

Hiss  v.  Bartlett  133 

Hitchcock  v.  Davis  68 

Hoag  v.  Hatch  422 

Hoar  v.  Wood  443,  444 

Hoare  v.  Silverlock  448 

Hobart  v.  Supervisors,  &c.        119,  168 
Hoboken  v.  Phinney  517 

Hodges  v.  Buffalo  193,  211 

Hodgson  v.  Mill  ward  362,  363 

v.  Scarlett  443 

Hoffman  v.  Hoffinan  16,  401,  402 

v.  Locke  409 

Hogg  v.  Zanesville  Canal  Manuf. 

Co.  26,  593 

Hoke  v.  Henderson  354 

Holbrook  v.  Finney  360 

v.  Murray  16 

Holden  v.  James       168,  365,  391,  392 
Holder  v.  State  322 

Holland  v.  Osgood  78 

Holley  v.  Burgess  422 

Hul  lings  worth  v.  Shaw  422 

Hollister  v.  Hollister  402 

Holloway  v.  Sherman         286,  287,  361 
Holman's  Heirs   v.  Bank  of  Nor- 
folk 101,  404,  405 
Holmes  v.  Holmes  284,  405 
v.  Jennison  12 
Holt  v.  Scolefield                                422 
v.  State                                       269 
Home  v.  Bentinck                                 442 
Home  of  the  Friendless  v.  Rouse     280 
Homestead  Cases                                 288 
Hood  v.  Finch                                      562 


TABLE   OF   CASES   CITED. 


XXXV 


Page 
Hood  v.  Lynn  212 

Hooker  v.  New  Haven,  &c,  Co.     541, 

543,  544 
Hooper  v.  Bridgewater  532 

v.  Emery  1£5,  488,  494 

Hoover  v.  Wood  163 

Hope  v.  Jackson  361 

Hopkins  v.  Beedle  422 

v.  Hopkins  401 

Hopple  v.  Brown  195,  216,  241 

Hopps  v.  People  309 

Hopson,  In  re  346 

Horn  v.  Atlantic  &  St.  Lawrence 

R.R.  Co.  578,  579 

Horton  v.  Baptist  Church  467 

Hosmer  v .  Loveland  434,  447 

Hotchkiss  v.  Oliphant  453,  455 

Hottentot  Venus  Case  347 

Houghton  v.  Page  23 

House  v.  Rochester  541 

Houston  v.  Moore  18 

Howard,  Ex  parte  116 

w.JVlcDianiid  192,624 

v.  Shields  618 

v.  Thompson  433 

v.  Zeyer  387,  389 

Howell  v.  Bristol  503,  507 

v.  Buffalo  232,  254 

v.  Fry  410 

Hoxie  v.  Wright  16,  401 

Hoyt  t\  Benner  484 

v.  East  Saginaw  507 

v.  .Sheldon  12 

Hubbard  v.  Bell  590 

v.  Brainerd  362,  370 

Hubbell  v.  Hubbell  402,  404 

Huber  v.  Reily  263,  266,  352,  599 

Huckle  v.  Money  307 

Hudson  v.  Geary  476,  596 

v.  Thorne  201 

Hudspeth  v.  Davis  291 

Huff'  v.  Bennett  449,  455 

Hughes  v.  Baltimore  208 

v.  Hughes  68 

Hughey's  Lessee  v.  Horrell      382,  500 

Hull  v.  Hull  402,  404 

v.  Marshall  Co.  217 

Hulseman  v.  Rems  599,  624 

Humboldt  Co.  v.  Churchill  Co. 


Hume  v.  New  York 
Humes  v.  Mayor,  &c. 

v.  Tabor 
Humphries  v.  Brogden 
Hunsaker  v.  Wright 
Hunscom  v.  Hunscom 
Hunt  v.  Bennett 
v.  Lucas 


144, 
187 
249 
207 
304 
573 
126,  515 
477 
431,  437,  464 
362 


Hunt's  Lessee  v.  McMahon  387 

Hunter,  Ex  parte  263 

v.  Cobb  484 

Huntsville  v.  Phelps  202 

Huntzinger  v.  Brock  286 

Hurley  v.  Van  Wagner  614 

Hurst  v.  Smith  348 

Huse  v.  Merriam  520 

Hutcheson  v.  Peck  339 

Hutson  v.  New  York  247 

Hyatt  v.  Bates  47 

v.  Roundout  248,  249 

v.  Taylor  54 

Hyde  v.  Brush  601 

v.  Melvin  615 

v.  White  152 

Hydes  v.  Joyes  205 


I. 


Igoe  v.  State  146 

Illinois   Central  R.R.   Co.  v.   Ar- 
nold 579 
Illinois  Conference  Female  College 

v.  Cooper  198 

Illinois  &  Michigan  Canal  v.  Chi- 
cago &  R.  I.  R.R.  Co.  282 
Illinois,   &c.,  Co.  v.  Peoria,  &c, 

Association  592 

Imlay  v.  Union  Branch  R.R.  Co.    548, 

551 
Indiana  Central  R.R.  Co.  v.  Potts     82, 
143,  144,  149 
Indianapolis,    &c,    R.R.     Co.    v. 

Kercheval  283,  572,  575,  578,  579 
Indianapolis,  &c,  R.R.  Co.  v.  Town- 
send  578,  579 
Ingalls  v.  Cole  56 
Inge  v.  Police  Jury  532 
Inglee  v.  Coolidge  12 
Inglis  v.  Sailor's  Snug  Harbor  13 
Ingraham  v.  Regan  52 
Inhabitants  of  Springfield  v.  Con- 
necticut River  R.R.  Co.  526,  545,  547 
Inman  v.  Foster  455 
Insurance  Co.  v.  Ritchie  381 
v.  Yard  515 
Intendant  of  Greensboro  v.  Mullins  200 
Ireland  v .  Turnpike  Co.  163,  292 
Iron  R.R.  Co.  v.  Ironton                   53S 


J. 

Jack  v.  Thompson  402 

Jackoway  v.  Denton  33,  289 

Jackson,  Matter  of  343,  344 


XXXVI 


TABLE    OF    CASES    CITED. 


Jackson  v.  Butler  289 

v.  Chew  13 

v.  Commonwealth        317,  318 
v.  Hathaway  558 

v.  Jackson  401,  405 

v.  Lyon  361 

v.  Munson  262 

v.  Rutland    &    B.   R.R. 

Co.  558,  579 

v.  Shawl  129 

v.  Vedder  49 

v.  Walker  615 

v.  Winn's  Heirs  560 

v.  Young  78 

Jacob  v.  Louisville  569 

Jacobs  v.  Cone  318 

v.  Fyler  422 

v.  Smallwood  291 

James  v.  Commonwealth  18 

v.  Reynolds  354 

v.  Stall  290 

Jameson  v.  People  197 

Jane  v.  Commonwealth  18 

Janson  v.  Stewart  423 

Jarvis  v.  Hatheway  442 

Jefferson  Branch  Bank  v.  Skelley     14, 

33,  126 
Jefferson  City  v.  Courtmire  200 

Jeffersonville,   &c.,  R.R.  Co.  v. 

Nichols  579 

Jeffersonville,   &c,  R.R.  Co.  v. 

Parkhurst  579 

Jeffries  v.  Ankeny  394,  616 

v.  Williams  573 

Jenkins  v.  Andover  213 

v.  Hill  620 

Jennings  v.  Paine  441,  444 

v.  Stafford  406 

Jerome  v.  Ross  526 

Jett  v.  Commonwealth  18 

Joannes  v.  Bennett  425,  426 

John  v.  C.  R.  &  F.  W.  R.R.  Co.     119 

John  &  Cherry  Streets,  Matter  of  357, 

530 
Johnson  v.  Atlantic,  &c.,  R.R.  Co.  526 
v.  Bentley  374 

v.  Bond  289 

v.  Campbell  226,  381 

v.  Common  Council  217 

v.  Commonwealth  167 

v.  Higgins    147,  187,  285,  291 
v.  Joliet  &  Chicago  R.R. 

Co.  72,  128,  186 


v.  Jones 

j;.  Philadelphia 

v.  Rich 

v.  Riley 

v.  Stack 


195,  201 


362 
202 
123 
15 
119 


Johnson  v.  Stark  County 

Johnstone  v.  Sutton 

Joliet  &  Northern  Indiana  R.R 

Co.  v.  Jones 
Jolly  v.  Terre  Haute  Drawbridge 


Co 
Jones  v.  Boston 
v.  Carter 
v.  Cavins 
v.  Columbus 
v.  Fletcher 
v.  Galena,  &c 
v.  Harris 
v.  Hutchinson 
v.  Jones 

v.  Keep's  Estate 
v.  New  Haven 
v.  People 
v.  Perry 
v.  Richmond 
v.  Robbins 
v.  State 
Jordan  v.  Woodward 
Journeay  v.  Gibson 
Joy  v.  Thompson 
Joyner  v.  School  District 
Judson  v.  Bridgeport 
v.  Reardon 


K. 


26, 
506, 


R.R.  Co. 


135, 


247, 


92,  104, 

191,  211, 

179, 


377, 


201, 


219 
442 

579 

592 

512 
387 
156 
146 
304 
579 
477 
154 
113 
483 
252 
582 
353 
593 
410 
602 
536 
379 
293 
520 
528 
339 


Kaine,  Matter  of 

347 

Kane  v.  Baltimore 

532 

v.  Cook 

16 

v.  People 

329 

Karney  v.  Paisley 

366 

Kavanaugh  v.  Brooklyn 

254 

Kayser  v.  Bremen 

254 

Kean  v.  McLaughlin 

442 

v.  Stetson 

590 

Kearney,  Ex  -parte 

347 

v.  Taylor 

371 

Keasy  v.  Louisville 

207 

Keen  v.  State 

267, 

273 

Keene  v.  Clarke 

12 

Keith  v.  Ware 

361 

Keller  v.  State 

146 

Kelley  v.  Corson 

521 

522 

v.  Marshall 

212,  228 

494 

v.  McCarthy 

361 

v.  Partington 

424 

v.  Pike 

47 

v.  Sherlock 

440 

v.  Tinling 

440 

Kellogg,  Ex  parte 

348,  408, 

409 

v.  Oshkosh 

125 

v.  Union  Co. 

592 

TABLE   OP   CASES   CITED. 


XXXV11 


Kelsey  v.  King 

Kemp,  In  re 

Kemper  v.  McClelland  520, 

Kendall  v.  Dodge 

v.  Kingston    40,  182,  366, 
v.  United  States 
Kendillon  v.  Maltby 
Kennedy,  In  re 

v.  Phelps 
Kennett's  Petition  541, 

Kentucky  v.  Dennison 
Kenyon  v.  Stewart 
Kermott  v.  Ayer 
Kern  v.  Kitchen 
Kerr,  Matter  of, 
v.  Kerr 
v.  Union  Bank 
Kershaw  v.  Bailey 
Kerwhacker  v.  Cleveland,  C.  &  C. 

R.R.  Co. 
Ketcham  v.  Buffalo 
Kettering  v.  Jacksonville  254, 

Keyser  v.  Stansifer  .  466, 

Kibbey  v.  Jones 
Kibby  v.  Cbetwood's  Adm'ra 
Kidder  v.  Parkhurst 
Kilburn  v.  Woodworth  16, 

Kilham  v.  Ward 
Kimball  v.  Alcorn 
v.  Kimball 
Kimble  v.  White  Water  Valley 

Canal 
Kincaid's  Appeal  127,  206, 

Kine  v.  Sewall 

King  v.  Dedham  Bank  91, 

v.  Hunder 

v.  Root     437,  438,  453,  455, 
v.  Wilson 
King,  The  v.  Abingdon 
v.  Campbell 
v.  Carlile  448, 

v.  Carlisle 
v.  Clewes 
v.  Cooper 
v.  Cox 

v.  Creevy  448, 

v.  I)e  Manneville 
v.  Dunn 
v.  Ellis 
V.  Enoch 
v.  Fisher 
v.  Fletcher 
v.  Foxcroft 
v.  Gardner 
v.  Hagan 
v.  Howes 

v.  Inhabitants  of  Hard- 
wicke 


Page 

Page 

555 

King,  The   v.  Inhabitants 

af  Hips- 

319 

well 

74 

521 

v.  Inhabitants 

of    St. 

361 

Gregory 

74 

367 

V.  Inhabitants 

of  Wo- 

19 

burn 

243 

434 

v.  Kingston 

316 

287 

v.  Lewis 

313 

584 

v.  Locksdale 

74 

542 

v.  Mayor  of  Stratford- 

15 

upon-Avon 

197 

286 

v.  Partridge 

314 

23 

v.  Richards 

316 

105 

v.  Rivers 

313 

281 

v.  Simpson 

314 

402 

v.  Smith 

313 

47 

v.  St.  Olave's 

600 

434 

v.  Sutton 
v.  Taylor 

96 

472 

544 

v.  Thomas 

316 

193 

v.  Tubbs 

299 

581 

v.  Waddington 

472 

475 

467 

v.  Walkley 

316 

287 

v.  Webb 

313 

103 

V.  Withers 

619 

442 

».  Woolston 

472 

474 

404 

v.  Wright 

459 

616 

v.  Younger 

50 

255 

Kingsbury's  Case 

15 

401 

Kingsley  v.  Cousins 

293 

Kinney 

v.  Beverley 

353 

564 

Kinsworthy  v.  Mitchell 

520 

595 

Kip  v.  Patterson 

201 

442 

Kirby  v 

Shaw           173,  230,  232, 

479 

279 

Kirk  v. 

Lowell 

205 

277 

v. 

State 

319 

464 

Klinch  v 

.  Colby 

425 

14 

Knapp  i 

.  Grant 

232 

457 

Kneass's 

Appeal 

105 

424 

Kneeland  v.  Milwaukee 

50,  53, 

73, 

472 

515 

448 

Knifer  v 

.  Louisville 

195 

316 

Knight  v.  Gibbs 

424 

316 

Knoop  i 

.  Piqua  Bank 

280 

50 

Knowles 

v.  People 

317, 

394 

458 

v.  Yeates 

619 

348 

Knowlton  v.  Supervisors  o 

f  Rock 

316 

Co. 

■501, 

515 

313 

Knox  v. 

Chaloner 

589, 

590 

314 

v. 

Cleveland 

365 

449 

Knox  C 

a.  v.  Aspinwall 

119, 

216 

329 

v.  Wallace 

119 

619 

Kohlheimer  v.  State 

327 

252 

Kraft  v . 

Wickey 

405 

318 

Kramer 

v.  Cleveland  &  P 

R.R. 

316 

Co. 

527, 

530 

Kuckler 

v.  People 

272 

243 

Kuhn  v. 

Board  of  Education 

192 

xxxvm 


TABLE   OF   CASES   CITED. 


Kunkle  v.  Franklin 
Kyle  v.  Malin 


Page 
379 
195 


L. 


Lackland  v.  North  Missouri  R.R. 

Co.  191,  195,  544,  545 

Lacour  v.  New  York  254 

Lacey  v.  Davis  367,  521 

Ladd  v.  Adams  288 

La?fon  v.  Dufoe  146 

La  Favette  v.  Bush  206,  542 

v.  Cox  193,  194,  215 

v.  Fowler  206,  507 

v.  Jenners  182 

v.  Orphan  Asylum  514 

La  Favette  Plank  Road  Co.  v.  New 

Albany  &  Salem  R.R.  Co.  542 

La    Fayette,    &c.,    R.R.    Co.    v. 

Geiger  68,  119 

Lake  Erie,  &c,  R.R.  Co.  v.  Heath  410 

Lakeman  v.  Burnham  523 

Lamb  v.  Lane  562 

v.  Lynd  133 

Lambertson  v.  Hogan  94 

Landon  v.  Litchfield  280 

Lane  v.  Dorman  104,  182,  353 

v.  Vick  14 

Langdon  v.  Applegate  52,  151 

Langford  v.  Ramsay  Co.  560 

Langworthy  v.  Dubuque  192,  501 

Lanier  v.  Gallatas  96,  613,  619 

Lanning  v.  Carpenter  255,  616 

Lansing  v.  Lansing  615 

v.  Smith  542,  543 

v.  Stone  23 

v.  Van  Gorder  196 

Lanzetti,  Succession  of  146 

La  Plaisance  Bay  Harbor  Co.  v. 

Monroe  26 

Larkin  v.  Saginaw  Co.  208 

Lathrop  v.  Mills  177 

Latless  v.  Holmes  155 

Lauer  v.  State  147 

Laval  v.  Myers  615 

Law,  Ex  parte  262,  263 

Lawler  v.  Earle  426 

Lawrence,  In  re  359 

v.  Great  Northern  R.R. 

Co.  564 

Lawrenceburg  v.  Wuest  200 

Lawyer  v.  Clifferlv  466,  467 

Lay  ton  v.  New  Orleans     193,  230,  233 
Lea  v.  Lea  47 

Leach  v.  Money  307 

League  v.  Egery  13 

v.  Journeay  595 


Leavenworth  v.  Norton  195 

v.  Rankin  217 

Leavenworth  Co.  v.  Miller        119,  210 

Lebanon  v.  Olcott  537 

Le  Bois  v.  Bramel  379 

Le  Claire  v.  Davenport  596 

Lee  v.  Sandy  Hill  247 

v.  State  37,  325 

v.  Tillotson  181 

Leefe,  Matter  of  412 

Le  Fever  v.  Detroit  499,  514 

Leffingwell  v.  Warren  13,  14,  364,  365, 

366 

Leggett  v.  Hunter  88,  103 

Lehman  v.  McBride  151,  599 

Leith  v.  Leith  401 

Leland  v.  Wilkinson  92 

Lemmon  v.  People  15 

Lenz  v.  Charlton  356,  368 

Leonard  v.  Wiseman  57 

Le  Seur  v.  State  272 

Leslie  v.  State  328 

Lester  v.  State  327 

Levins  v.  Sleator  109,  113 

Levy  v.  State  198,  200 

Lewis  v.  Chapman  425,  426 

v.  Clements  448 

v.  Few  436 

v.  Garrett's  Administrator      402 

v.  Levy  448,  449 

v.  Lewis  292 

v.  McElvain  361,  374 

v.  Walter  448 

v.  Webb     96,  109,  168,  365,  391 

Lexington  v.  Long  567,  568 

v.  McQuillan's  Heirs      498, 

508 

Libby  v.  Burnham  521 

License  Cases      1,  486,  573,  581,  582, 

584,  595 

License  Tax  Cases  170,  573,  584 

Life  Association  v.  Assessors  75 

Lincoln  v.  Hapgood  600,  616 

v.  Smith  18,  410,  581,  582 

v.  Tower  16 

Lindenmuller  v.  People  587,  596 

Lindsay  v.  Commissioners  160 

Lindsey  v.  Coats  23 

v.  Smith  423 

Linford  v.  Fitchroy  310 

Linney  v.  Malton  423 

Lin  Sing  v.  Washburn     391,  486,  503, 

586 

Linton  v.  Stanton      •  13 

Litchfield  v.  McComber  286 

v.  Vernon  488 

Little  v.  Fitts  397 

v.  Smith  52 


TABLE   OF   CASES   CITED. 


XXXIX 


Page 
Little  Miami  R.R.  v.  Collett  568 

Littleton  v.  Richardson  402 

Live    Stock,    &c,    Association   v. 
Crescent  City,  &c,  Co.  11,  294, 

573,  584 
Livingston  v.  New  York  4(J8,  510 

Livingston's  Lessee  v.  Moore  18 

Lloyd  v.  New  York  248,  252,  253 

Lobrano  v.  Nelligan  103 

Locke  v.  Dane  266,  371 

Lockwood  o.  St.  Louis  514 

Loeb  v.  Mathis  53 

Logue  v.  Commonwealth  307 

Londonderry  v.  Andover  197 

Long  v.  Fuller  560 

Long's  Case  314 

Longworth  v.  Worthington  387 

Loomis  v.  Wadhams  409 

Lord  v.  Chadbourne  361 

v.  Litchfield  280,  383 

Lorillard  v.  Monroe  246 

Lorman  v.  Benson  23,  589 

v.  Clarke  19 

Loughbrid^e  v.  Harris  536 

Louisiana  State  Lottery  v.  Richoux  135 
Louisville  v.  Commonwealth  252 

v.  Rolling  Mill  Co.  207 

v.  University  239 

Louisville,  &c,  Co.  v.  Ballard  147 

Louisville,  &c,  R.R.  Co.  v.  Burke  581 
Louisville,  &c,  R.R.  Co.  U.David- 
son 119,  616 
Louisville  &  Nashville  R.R.  Co.  v. 

County  Court  616 

Louisville  &  Nashville  R.R.  Co.  v. 

Thompson  569 

Louisville  City  R.R.  Co.  u.  Louis- 
ville 206,  208 
Love.  v.  Moynahan  339 
v.  Shartzer  389 
Lovingston  v.  Wider  233,  491 
Low  v.  Galena  &  Chicago  U.  R.R. 

Co.  541 

Lowe  v.  Commonwealth  277 

Lowell  v.  Boston  175,  215 

v.  Hadley  78,  588 

v.  Oliver  222,  223 

Lowenburg  v.  People  329 

Lowry  v.  Francis  275 

Lucas  v.  Sawver  361 

v.  Tucker  372 

Ludlow  v.  Jackson  361 

Ludlow's  Heirs  v.  Johnson  56 

Lumsden  v:  Cross  367,  499,  507 

Lunt's  Case  168 

Lusher  v.  Scites  186 

Luther  v.  Borden  30 

Lyle  v.  Richards  23 


Lyman    v.    Boston    &    Worcester 

R.R.  Co.  579 

v.  Mower  361 

Lynch  v.  State  323,  335,  336 

Lyon  v.  Jerome         205,  526,  538,  560 

v.  Lyon  402 


M. 


Machir  v.  Moore  615 

Mackaboy  v.  Commonwealth  408 

Mackay  v.  Ford  443 

Macon  v.  Macon  &  Western  R.R. 

Co.  195 

Macon  &   Western   R.R.    Co.  v. 

Davis  168,  182 

Macready  v.  Wolcott  340 

Macy  v.  Indianapolis  542 

Madison  &  Ind.  R.R.  Co.  v.  Nor- 
wich Savings  Society  216 
Madison    &    Ind.     R.R.    Co.    v. 

Whiteneck  146,  168,  578 

Madox  v.  Graham  47 

Magee  v.  Commonwealth  507 

v.  Supervisors  623 

Magruder,  Ex  parte  263 

Maguire  v.  Maguire  284,  402,  404,  405 
Mahala  v.  State  327 

Maher  v.  People  307,  317,  325 

Mahon  v.  New  York  Central  R.R. 

Co.  547 

Mahoney  v.  Bank  of  the  State  198 

Maiden  v.  Ingersoll  11 

Maize  v.  State  117,  124,  168,  178 

Malone  v.  Clark  409 

v.  Stewart  423 

Maloy  v.  Marietta      41,  499,  506,  518, 

519 
Maltas  v.  Shields  491 

Mauley  v.  Manley  402,  404 

Manly  v.  State    '  57,  58,  66. 

Mansfield  v.  Mclntvre  402,  404 

Mansfield,  &c,  R.R.  Co.  v.  Clark    537 
Mapes  v.  Weeks  455 

Marbury  v.  Madison  -  46 

March  v.  Commonwealth  198 

v.  Portsmouth,     &c,    R.R. 

Co.  526 

Marchant  v.  Langworthy  78 

Marietta  v.  Fearing  202,  277 

Marion  v.  Epler  499,  506 

Mark  v.  State  156,  187 

Marks  v.  Pardue  University    213,  230, 

493 
Marlatt  v.  Silk  13 

Marlow  v.  Adams  389 


xl 


TABLE   OP   CASES   CITED. 


Marsh  v.  Chestnut  75,  76 

v.  New  York  &  Erie  R.R. 

Co.  579 

v.  Putnam  294 

v.    Supervisors    of    Fulton 

Co.  217 

Marshall  v.  Baltimore  &  Ohio  R.R. 
Co. 


Grimes 

Harwood 

Kerns 


137 

185 

134 

616,  622,  625 


Marshall   Co.    Court  v.   Calloway 


Co.  Court 
Martin  v.  Broach 

v.  Brooklyn 

v.  Hunter's  Lessee 


v.  Martin 

v.  Mott 

v.  Van  Schaick 

v.  Waddell 

v.  Wade 
Martin's  Appeal 
Mason,  Matter  of 

v.  Haile 

v.  Kennebeck,   &c,   R.R. 

Co.  564,  570 

v.  Messenger  403 

v.  Wait  88,  104 

Mather  v.  Chapman  372,  381 

v.  Hood  408 

Mathews  v.  Beach  449 

Matter  of  Election  Law  614 


193 
146 

248,  254 
9,  11,  12, 
18,  68,  89 
365 
41 
455 
13 
137 
105 
348 
287,  289 


Maul  v.  State 

267 

Maurer  v.  People 

318 

Maxey  V.  Loyal 

287 

,288 

v.  Wise 

376 

Maxwell  v.  Newbold 

12 

May  v.  Holdredge 

379 

Mayberry  v.  Kelly 

163 

Mayer,  Ex  parte 

383 

Maynes  v.  Moore 

286 

Mayo  v.  Freeland 

621 

v.  Wilson 

23 

Mayor  v.  Sheffield 

253 

Mayor,  &c.  v.  Medbury 

588 

Mayor  of  Annapolis  v.  State 

144 

Mayor  of  Hull  v.  Horner 

197 

Mayor  of  London's  Case 

344 

Mayor  of  Lyme  v.  Turner 

247 

252 

Major  of  Mobile  v.  Dargan 

21, 

493, 
499 

Mayor  of  Wetumpka  v.  Winter 

119 

Mayrant  v.  Richardson 

441 

Mays  v.  Cincinnati     191,  198, 

201 

518 

McAdoo  v.  Benbow 

57 

McAffee's  Heirs  v.  Kennedy 

536 

McAllister  v.  Hoffman 

615 

McAurich  v.  Mississippi,  &c,  R.R. 
Co.  129, 

McBrayer  v.  Hill 
McBride  v.  Chicago 
McCafferty  v.  Guyer  64, 

McCann  v.  Sierra  Co. 
McCardle,  Ex  parte    94,  187,  381, 
McCarthy  v.  Hoffman 
McCauley  v.  Brooks 
McClaughry  v.  Wetmore 
McCloud  v.  Selby 
McClure  v.  Owen 
McCluskey  v.  Cromwell 
McCollum,  Ex  parte 
McComb  v.  Akron  207, 

v.  Bell 
v.  Gilkey 
McConkle  v.  Bliss 
McCool  v.  Smith 

McCormick  v.  Rusch  292, 

McCoy  v.  Grandy 

v.  Huffman 

v.  Michew 
McCracken  v.  Hayward  284,  286, 

McCready  v'.  Sexton 
McCulloch  v.  Maryland  11,  18 

479,  480, 
v.  State    81,  135,  140, 


McDaniel  v.  Correll  107, 

McDermott's  Appeal 

McDonald  v.  Redwing  526, 

McDonough  v.  Millaudon 

McElvain  v.  Mudd 

McFadden  v.  Commonwealth 

McFarland  v.  Butler  289, 

McGatrick  v.  Wason 

McGear  v.  Woodruff 

MeGee  v.  Mathis 

McGehee  v.  Mathis  498, 

McGiffert  v.  McGiffert  401, 

McGinnis  v.  Watson  466, 

McGinity  v.  New  York 

McGlinchy  v.  Barrows 

McGowen  v.  State 

McGuffie  v.  State  320, 

McKee  v.  McKee  190, 

v.  People 

v.  Wilcox 
McKeen  v.  Delancy's  Lessee 
McKenzie  v.  State 
McKim  v.  Odorn 

v.  Weller 
McKinney  v.  Carroll 

v.  O'Connor  613, 

v.  Springer 
McKune  v  Weller 


147 
423 
498 
263 
560 
383 
379 
289 
442 
245 
215 
56 
182 
542 
503 
103 
464 
151 
361 
389 
339 
370 
288, 
289 
368 
,63, 
482 
177, 
187 
382 
402 
594 
12 
484 
325 
362 
476 
319 
498 
512 
402 
467 
249 
304 
323 
322 
588 
328 
61 
13 
309 
192 
78 
12 
618 
365 
602 


TABLE    OF    CASES    CITED. 


xli 


Page 
McLawrine  v.  Monroe  16 

McLean  v.  Hugarin  47 

MeLeod's  Case  346 

McManus  v.  Carmichael  589 

McMillan  v.  Birch  443 

v.  Lee  County  193 

v.  McNiell    "  18,  294 

McMillen  v.  Boyles  119,379 

McMinn  v.  Whelan  522 

McMullen  v.  Hodge  33,  73 

McPherson  v.  Leonai'd 

v.  State 
McReynolds  v.  Smallbouse 
McSpeddon  v.  New  York 
Meacham  v.  Dow 

v.  Fitchburg  R.R.  Co. 
Mead  v.  Beal 

v.  McGraw 
v.  Walker 
Meagher  v.  Storey  County 
Mears  v.  Commissioners   of  Wil 

mington 
Mechanics,  &c,  Bank  Appeal 
Mechanics    &    Farmers1  Bank 

Smith 
Mechanics    &    Traders1 

Debolt 
Mechanics    &    Traders' 

Thomas 
Meddock  v.  Williams 
Medford  v.  Learned 
Meeker  v.  Van  Rensselaer 
Meighen  v.  Strong 
Melizet's  Appeal 
Mellenr.  Western  R.R.  Corp. 
Memphis  v.  Winfield 
Memphis  &  Charleston  R.R.  Co 

v.  Payne 
Mendota  v.  Thompson 
Menges  v.  Westman  371,  372,  375 

Mercer  v.  McWilliams  560 

Merchants1  Bank  v.  Cook  243 

Merrick  v.  Amherst  213,  230,  493 

Merrill  v.  Plainfield  211,212 

v.  Sherburne  92,  96,  358 

Merritt  v.  Farris  515 

Merwin  v.  Ballard  62,  370 

Meshmeier  v.  State  117,  124,  178,  186, 

582,  583 
Methodist  E.  Church  v.  Wood  467 

Metropolitan   Board  of  Excise  v. 

Barrie  283,  383,  581,  584 

Metropolitan   Board  of  Excise  v. 

Heister  584 

Metzger,  Matter  of  317,  348 

Mewherter  v.  Price  146,  149 

Meyer  v.  Muscatine  215 

Miami  Coal  Co.  v.  Wigton  530 


323 
592 
212 
615 
569 
14 
53 
410 
187 

247 
286 

202 

Bank  v. 

126,  280 

Bank  v. 

280 
377 
369 
584,  594 
379 
113 
542 
200 

562 

254 


Michigan  State  Bank  v.  Hastings     279 
Milan,   &c,  Plank    Road    Co.  v. 

Husted  280 

Milburn,  Ex  parte  347 

v.    Cedar    Rapids,    &c, 

R.R.  Co.  553 

Miles  v.  Caldwell  14 

Milhau  v.  Sharp        195,  202,  207,  208, 

545 
Miller  v.  Craig  595 

v.  English  467 

v.  Gable  466 

v.  Graham  381,  382 

v.  Grandy  228,  490 

v.  Miller  360 


v.  New  York  &  Erie 

Co. 
v.  Nichols 
v.  Parish 
v.  State     80,  96,  135, 


v.  State  (8  Gill) 

v.  Troost 
Miller's  Case 
Miller's  Ex'r  v.  Miller 
Millholand  v.  Bryant 
Milligan,  Ex  parte 
Mills,  Matter  of 
v.  Brooklyn 


R.R. 

576, 


139, 
168 


308 


247, 


,  252 
v.  Charleton    147,  191,  232, 


193 


v.  Duryea 
v.  Gleason 
v.  Jefferson 
v.  St.  Clair  Countv 
v.  Williams       192,  277,  279 
Milwaukee  v.  Gross 
Milwaukee     Gas     Light     Co.     v. 

Steamer  Gamecock 
Milwaukee    Town    v.    Milwaukee 

City 
Miners1  Bank  v.  Iowa 

v.  United  States  106 
Minor  v.  Board  of  Education 
Mississippi  Society  v.  Musgrove 
Mitchell  v.  Burlington 
v.  Deeds 
v .  Harmony 
v.  Williams 
Mitchell's  Case 
Mithoff  v.  Carrollton 
Moberly  v.  Preston 
Mobile  v.  Allaire 
v.  Rouse 
v.  Yuille 
Mobile  &  Ohio  R.R.  Co 


371, 
530, 


198, 


Moers  v.  Reading 


201,  202, 
v.  State 
163,  177, 
68, 


578 
12 
423 
149, 
327 
96 
536 
460 
404 
605 
319 
337 
254 
381, 
489 
16 
521 
157 
396 
280 
584 

26 

193 
25 
279 
469 
279 
215 
373 
594 
595 
334 
532 
423 
200 
2C0 
596 
152, 
181 
119 


xlii 


TABLE   OP   CASES   CITED. 


Mohawk  Bridge   Co.  v.  Utica    & 

Schenectady  R.R.  Co.  396 

Mohawk    &    Hudson    R.R.    Co., 

Matter  of  78 

Monell  v.  Dickey  405 

Money  v.  Leach  302 

Monongahela   Navigation    Co.    v. 

Coons  541,  543 

Monopolies,  Case  of  393 

Monroe  v.  Collins  64,  394,  599,602,  616 

Montee  v.  Commonwealth  323 

Montgomery  v.  Kasson  275,  284 

v.  Meredith  370 

v.  State  323,  463 

Montpelier  v.  East  Montpelier        192, 

193,  239,  279 

Montpelier  Academy  v.  George       192, 

193 

Moodalay  v.  East  India  Co.  251 

Moon  v.  Durden  62 

Moore,  Matter  of  337 

v.  Detroit       Locomotive 

Works  397 

v.  Houston  168 

v.  Lisce  865 

v.  Maxwell  103 

v.  Meagher  424 

v.  Moore  484 

v.  New  York  361 

v.  People  18,  200 

v.  Quirk  484 

15.  Sanborne  589,  590 

v.  Smaw  523 

v.  State  310 

Moreau  v.  Detchamendy  14 

Morehead  v.  State  314 

Morev  v.  Brown  595 

"  v.  Newfane  246,  248 

Morford  v.  Barnes  410 

v.  Unger    118,  144,  146,  155, 

382,  488,  494,  500 

Morgan  v.  Buffington  115 

v.  Dudley  616 

v.  King  23,  557,  589,  590,  591 

v.  Livingston  422 

v.  Plumb  47 

v.  Quaekenbush  621,  624 

v.  Smith  127 

v.  State  318 

Morril  v.  Haines  618 

Morris  v.  Barkley  423 

v.  People  168,  182 

v.  State  328 

Morris    Canal  &    Banking  Co.  v. 

Fisher  216 

Morris  &  Essex  R.R.  Co.  v.  New- 
ark 547 
Morrissey  v.  People  127 


Morrison  v.  Springer 

168, 

599 

Morse  v.  Goold 

286, 

287 

Morton,  Matter  of 

305 

v.  Sharkey 

365, 

366 

v.  Valentine 

288 

Mose  v.  State 

318 

Moseley  v.  State 

327 

Moses  v.  Pittsburg,  Fort  Wayne, 

&  C.  R.R.  Co.  553 

Moses  Taylor,  The  v.  Hammons        18 
Mosier  v.  Hilton  147 

Mott  v.  Pennsylvania  R.R.  Co.        126, 

127,  280 
Moulton  v.  Raymond  489 

Mount  v.  Commonwealth  327 

Mount  Carmel  v.  Wabash  Co.  193 

Mount  Pleasant  v.  Breeze  195 

Mount    Washington    Road    Co.'s 

Petition  537,  562,  569,  570 

Mounts  v.  State  325,  327 

Mower  v.  Leicester  244,  246 

v.  Watson  422,  442,  444 

Mundy  v.  Monroe  180,  290 

Munger  v.  Tonawanda  R.R.  Co.      558 
Municipality  v.  Blanc  588 

v.  Cutting  596 

v.  Wheeler  266 

v.  White  499,  509 

Munn  v.  Pittsburg  253 

Munson  v.  Hungerford  589 

Murphey  v.  Menard       .  146 

Murphy,  Ex  parte  620 

In  re  56,  266 

v.  Chicago  206,  542 

v.  Commonwealth  319 

v.  State  335 

Murray  v.  Commissioners  of  Berk- 
shire 545,  551 
v.  McCarty  15 
v.  Menifee                    541,  544 
v.  Sharp                                  544 
Murray's  Lessee  v.  Hoboken  Land 

Co.  352,  402 

Murtaugh  v.  St.  Louis  208,  248 

Musselman  v.  Logansport  371 

Mutual  Assurance  Co.  v.  Watts  13 

Myers  v.  English  168 

v.  Johnson  County  215 

v.  Manhattan  Bank  26 

Mygatt  v.  Washburn  499 

Myrick  v.  Hasey  52 

v.  La  Crosse  521 


N. 

National  Bank  v.  Commonwealth     482 
Nations  v.  Johnson  402,  403 


TABLE   OF   CASES   CITED. 


xliii 


Naylor  v.  Field 

151 

Neaderhouser  v.  State 

593 

Neal  v.  Green 

14 

Neass  v.  Mercer 

288 

Nebraska  v.  Campbell 

247 

Neifing  v.  Pontiac 

147 

Neill  v.  Keese 

397 

Nels  v.  State 

323 

Nelson  v.  Allen 

50,  51 

389 

v.  Milford 

209 

211 

v.  Kountree 

382 

v.  State 

323 

Nesbitt  v.  Trumbo 

530 

Nesmith  v.  Sheldon 

14 

New  Albany  &  Salem  R.R.  Co.  v. 

O'Daily  543,  552 

New  Albany  &  Salem  R.R.  Co.  v. 

Maiden  578 

New  Albany  &  Salem  R.R.  Co.  v. 

McNamara  578 

New  Albany  &  Salem  R  R.  Co.  v. 

Tilton  572,  578,  581 

Newberry  v.  Trowbridge  47 

New  Boston  v.  Dunbarton  197 

Newby  v.  Platte  County  568,  569 

Newby's  Adm'r  v.  Blakey  365 

Newcastle,  &c,  R.R.  Co.  v.  Peru 

&  Indiana  R.R.  Co.  526 

Newcomb  v.  Peck  16 

v.  Smith  536 

Newcum  v.  Kirtley  620,  623 

Newell  v.  Newton  404 

v.  People  54,  56,  57 

v.  Smith  536 

v.  Wheeler  522 

New  Jersey  v.  Wilson  126,  280 

Newland  v.  Marsh       90,  168,  182,  185 

New  London  v.  Brainerd  193,  211 

Newman,  Ex  parte  168,  187 

New  Orleans  v.  De  Armas  12 

v.  Poutz  266 

v.  Southern  Bank         151 

v.  St.  Rowe's  78 

v.  Turpin  190 

New  York,  Matter  of  498,  514 

v.  Bailey  254 

v.  Furze  247 

v.  Hyatt  200 

v.  Kerr  552 

v.  Lord  594 

v.  Miln  486,  587 

v.  Nichols       198,  200,  202 

v.  Ryan  190 

V.  Second  Avenue  R.R. 

Co.  201,  206 

N.  F.  Screw  Co.  v.  Bliven  14 

N.  Y.  &  Harlaem  R.R.  Co.  v.  Kip  530, 

531 


N.  Y.  &  Harlaem  R.R.  Co.  v.  New 

York  208,  545 

Nichol  v.  Nashville  119 

Nichols,  Matter  of  287 

v.  Bertram  279 

v.  Bridgeport  498, 528, 568, 570 

v.  Guy  422 

.     v.  Mudgett  615 

v.  Somerset,    &c,    R.  R. 

Co.  560 

Nicholson  v.  N.  Y.  &   N.  Haven 

R.R.  Co.  549,  568 

Nickerson  v.  Howard  340 

Nicolls  v.  Ingersol  341 

Nightingale  v.  Bridges  358 

Nightingale's  Case  596 

Noel  v.  Ewing  113,  361 

Nolin  v.  Franklin  596 

Norman  v.  Herst  359,  379 

Norris  v.  Abingdon  Academy   168,  279 

v.  Beyea  361,  369 

v.  Boston  177 

v.  Clymer  68,  103 

v.  Crocker  381 

v.  Doniphan  361,  363 

v.  Harris  23 

v.  Newton  346 

v.  Vermont  Central    R.  R. 

Co.  526,  542 

Norristown,  &c,  Co.  v.  Burket        410 
Northern  Indiana  R.R.  Co.  v.  Con- 
nelly 497,  499,  506,  507,  518 
Northern   Liberties   v.  St.  John's 

Church  499 

North  Hempstead  v.  Hempstead     198, 

212 
North  Missouri  R.R.  Co.  v.  Gott    538 
v.  Lack- 
land 538 
v.  Maguire 
18,  280 
Norton  v.  Pettibone  372 

Norwich  v.  County  Commissioners  168, 

182 
Norwich  Gas  Co.  v.  Norwich  City 

Gas  Co.  393 

Norwood  v.  Cobb  16 

Noyes  v.  Butler  16 

Nugent  v.  State  .         327 

Nunn  v.  State  350 


o. 

Oakland  v.  Carpentier  205 

Oakley  v.  Aspinwall  72,  412 

Oatman  v.  Bond  289 


xliv 


TABLE   OP   CASES   CITED. 


O'Bannon  v.  Louisville,  &c,  R.R. 

Co.  366,  579 

O'Brien  v.  Commonwealth  325 

O'Conner  v.  Warner  94 

O'Connor  v.  Pittsburg       206,  542,  570 

O'Donaghue  v.  McGovern  434 

O'Donnell  v.  Bailey  280 

O'Farrell  v.  Colby  621 

Officer  v.  Young  370,  392 

Ogden  v.  Blackledge  92,  94 

v.  Saunders      61,  68,  182,  266. 

284,   285,   286,   288,  293, 

294,  366,  367 

v.  Strong  54,  57 

O'Hara  v.  Carpenter  223 

Ohio,  &c,  R.R.  Co.  v.  Ridge  214 

Ohio  &  Lexington  R.R.  Co.  v.  Ap- 

plegate  555 

Ohio  &  Mississippi  R.R.  Co.  v.  Mc- 
Clelland 283,  572,  578,  580,  581 
Ohio  Life  Ins.  &  Trust  Co.  v.  De- 
bolt  126,  280 
O'Kane  v.  Treat  503,  515 
O'Kelly  v.  Athens  Manufac.  Co.  362 
Oldknow  v.  Wainwright  619 
O'Leary  v.  Cook  County  147 
Oliver  v.  Washington  Mills      396,  487, 

494 
Oliver,  Lee,  &  Co.'s  Bank,  Matter 

of  33,  37,  63 

Ohnstead  v.  Camp  536,  537 

Olmsted  v.  Miller  424 

Olney  v.  Harvey  192 

One  House  v.  State  582 

Onslow  v.  Hone  438 

Opinions  of  Judges  (18  Pick.)  29 

(52  Me.)     222 

(30  Conn.)   599 

(6  Cush.)     30 

(44  X.  H.)   599 

(41N.H.)319,410 

(6  Shep.)  79,  82 

(38  Me.)  610,  620 

(3  R.  I.)      94 

(4  N.  H.)    101 

(45N.H.)152,599 

(37  Vt.)     599 

(16  Me.)     113 

(99  Mass.)  .  153 

(7  Mass.)    602 

(49  Mo.)   40,  42 

(58  Me.)  175,  489 

(15  Mass.)   602 

Oriental  Bank  v.  Freeze  361,  383 

Ormichund  v.  Barker  477 

Ormond  v.  Martin  389 

Orphan  House  v.  Lawrence  49 

Ortman  v.  Greenman  168 


Orton  v.  Noonan 

377, 

388 

Osborn  v.  Hart 

357, 

530 

V.  Jaines 

366 

v.  Mobile 

486 

v.  Nicholson 

285, 

289 

v.  State 

319 

Osborne  v.  Humphrey 

280 

v.  Jaines 

366 

v .  United  States  Bank 

482 

Overstreet  v.  Brown 

397 

Oviatt  v.  Pond 

582 

Owen  v.  State 

350 

O wings  v.  Norwood's  Lessee 

11 

,  12 

Owners  of  Ground  v.  Albany 

533 

Owners  of  the  James  Gray  v.  Own- 
ers of  the  John  Frazer 


586 


Pacific  R.R.  Co.  v.  Chrj 

stal 

568, 

569 

Packet  Co.  v.  Sickles 

47 

Pacquette  v.  Pickness 

387 

Padmore  v.  Lawrence 

442, 

444 

Page,  Ex  parte 

329 

v.  Allen 

601 

v.  Fazackerly 

596 

v.  Fowler 

47 

v.  Hardin 

363 

Paine's  Case 

426 

Palairet's  Appeal 

285 

Palmer  v.  Commissioners  of 

Cuy- 

ahoga  Co. 

26, 

592 

v.  Concord 

424 

451, 

454 

v.  Lawrence 

50 

v.  Napoleon 

521 

v.  Stumph 

499 

507 

Palmer  Co.  v.  Ferrill 

569 

Parish  v.  Eager 

365 

Parker  v.  Bidwell 

341 

v.  Commonwealth  117 

123, 

124 

v.  Culter  Mill-da 

tn  Co 

593 

v.  Kane 

14 

v.  Phetteplace 

14 

v.  Redfield 

280 

v.  Sunbury  &  Erie  R.R. 

Co. 

394 

Parkins's  Case 

331 

Parkinson  v.  State 

57 

146 

Parks  v.  Boston 

567, 

568 

v.  Goodwin 

78 

Parmele  v.  Thompson 

96 

Parmelee  v.  Lawrence 

362, 

372, 

375, 
376 

Parmiter  v.  Coupland 

463 

Parsons  v.  Casey 

286 

v.  Goshen 

212 

v.  Howe 

529 

TABLE    OF    CASES    CITED. 


xlv 


Parsons  v.  Russell 
Paschal  V.  Perez 

v.  Whitsett 
Passenger  Cases 
Patten  v.  People 


Page 

352 
286 
361 
573,  586 
307 


Paterson  City  v.  Society,  &c.  118,  119, 

192 

Patterson  v.  Philbrook      301,  371,  381 

v.  Wilkinson  423 

Pattison  v.  Jones  425 

v.  Yuba  56,  119 

Paul  v.  Virginia  15 

Pawling  v.  Bird's  Executors        16,  402 

v.  Wilson  404 

Paxon  v.  Sweet  588 

Payne  v.  Tread  well  239,  376 

v.  Wright  14 

Pays  on  v.  Pay  son  401 

Pearce  v.  Atwood  411 

v.  Olney  16 

v.  Patton  865 

Pease  v.  Chicago  228 

v.  Peck  14 

Peavey  v.  Robbing  616 

Peay  v.  Duncan  47 

Peck  v.  Batavia  248 

v.  Freeholders  of  Essex  411 

v.  Lockwood  202 

v.  Weddell  117,  612 

Peddicord  v.  Baltimore,  &c,  R.R. 

Co.  547 

Pedrick  v.  Bailey  200 

Peerce  v.  Karskadon  262,  264 

Pekin  v.  Newell  253 

v.  Reynolds  215 

Pemble  v.  Clifford  23 

Penhallow  v.  Doane's  Administrator  6 
Peninsular  R.R.  Co.  v.  Howard  412 
Penn's  Case  320 

Pennock  v.  Dialogue  52 

Pennsylvania   R.R.    Co.  v.  Canal 

Commissioners  394 

Pennsylvania   R.R.    Co.    v.   Com- 
monwealth 486 
Pennsylvania  R.R.  Co.  v.  Reiley     568, 

570 

v.  Riblet     579, 

581 

Penrice  v.  Wallace  569 

Penrose  v.  Erie  Canal  Co.         286,  289 

People  v.  Alameda  230 

v.  Allen  70,  78 

v.  Asher  602 

v.  Auditor-General  284 

v.  Bacheller  175,  232,  239, 

491 

v.  Banvard  277 

v.  Barrett  327 


People  v.  Bates  606,  613,  618 

v.  Bircham  115 

v.  Blakeley  334 

v.  Blodgett        54,"  65,  183,  599 
v.  Board  of  Education  391 

v.  Bowen  153 

v.  Brady  394 

v.  Brenahm  603 

v.  Briggs  144,  149,  177 

v.  Brighton  528 

v.  Brooklyn  232,  235,  479,  497, 
498, 504, 509, 511,  558, 560 
v.  Bull  178,  276 

v.  Burns  57 

v.  Butler  273 

v.  Campbell  81,  140 

v.  Canal  Appraisers  557 

v.  Canty  233 

v.  Cassells  348 

v.  Chicago    175,  219,  232,  233, 
239 
v.  Cicotte       51,  605,  606,  607, 
610,  611,  618,  619,  620, 
624,  625,  626,  627 
v.  Clute  620 

v.  Coleman  15,  52,  514 

v.  Collins  117,  123 

V.  Colman  514 

v.  Commissioners    (47  N.  Y.) 

280 
v.  Commissioners    (4  Wall.) 

482 
v.  Comstock  322 

v.  Common  Council  of  Chi- 
cago 233 
v.  Common  Council  of  De- 
troit       230,  233,  237,  252, 
255 
v.  Cook  (10  Mich.)       325,  327 
v.  Cook  (J4  Barb.  &  8  N. 
Y.)  74,  606,  607,  609,  610, 
613,  618,  622,  623,  624 
v.  Corning  322 
v.  Cover  625 
v.  Cowles                         82,  603 
v.  Croswell            323,  431,  432 
v.  Daniel  89 
v.  Dawell                 16,  401,  402 
v.  Dean                                  •  394 
v.  Denahy                                 149 
v.  Devlin                                 153 
v.  Dill                                     320 
i\  Doe  78 
v.  Draper  46,  88, 170,  171,  187, 
190,  192,  572 
v.  Dubois                                277 
v.  Fancher  82 
v.  Ferguson           607,  609,  630 


xlvi 


TABLE   OF   CASES   CITED. 


Pe 

aple  v.  Finnegan 

323 

People  v.  McCallum 

144,  151 

v.  Fisher 

171 

v.  McCann 

146,  147,  309 

v.  Flagg 

215, 

230,  491,  494 

v.  McCreery 

230 

v.  Ford 

337 

v.  McGowan 

325,  328 

v.  Gallagher 

172,  173,  582 

v.  McKay 

318 

v.  Garbutt 

309,  325 

v.  McMahon 

313,  316 

v.  Gates 

484 

v.  McManus 

606,  612,  618 

v.  Gies 

65,  411 

v.  McNealy 

327 

v.  Gilbert 

366 

v.  Medical  Society  of  Erie    204 

v.  Goodwin 

(18  Johns.)       327 

v.  Mellen 

145,  147 

v.  Goodwin 

(22 

Mich.)        623 

v.  Mercein 

348 

v.  Gordon 

616 

v.  Merrill 

127 

v.  Green 

560,  561 

v.  Mitchell 

368,  381 

v.  Hartwell 

78,  603,  619 

v.  Molliter 

620 

v.  Hascall 

276 

v.  Morrell 

54.  88 

v.  Hatch 

131,  154 

v.  Morris       175, 

192,  237,251, 

v.  Hawes 

233 

277 

v.  Hawley 

582 

v.  Murray 

181 

v.  Hayden 

560 

v.  Nearing 

533 

v.  Hennessey 

314 

v.  New  York 

282,  524,  526, 

v.  Herod 

201 

576,  593 

v.  Higgins 

610 

618,  623,  625 

v.  N.  Y.  Central  R.R.  Co. 

v.  Hill 

177 

56,  58,  66, 

168,  173,  186 

v.  Hilliard 

621 

v.  Peace 

223 

v.  Holden 

606,  625 

v.  Pease        605, 

606,  610,  611, 

v.  Holley 

78 

616,  621, 

626,  627,  629 

v.  Hnrlbut 

37, 

175,  189,  191, 

v.  Peck 

78 

230 

v.  Phelps 

273 

v.  Imlay 

15 

v.  Phillips 

314 

v.  Jackson 

& 

Michigan 

v.  Pine 

323 

Plank  R 

Co. 

279,  292,  576, 

v.  Pinkey 

192 

577 

v.  Piatt 

275 

V.  Jenkins 

588,  593 

v.  Porter 

314,  476,  602 

v.  Jenness 

478 

v.  Power        192 

230,  233,  278 

v.  Jones 

621, 623 

v.  Pritchard 

151 

v.  Keenan 

335 

v.  Purdy 

56,  79,  153 

v.  Kemp 

322 

v.  Raymond 

277 

v.  Kent  County  Canvassers  613 

v.  Reed 

593 

v.  Kerr 

541 

550,  552,  555 

v.  Robertson 

623 

v.  Kilduff 

605,  621 

v.  Rochester 

180 

v.  Koeber 

406 

v.  Roe 

588,  593 

v.  Kopplekom 

601,  602 

v.  Roper 

280,  383 

v.  Lamb 

325 

v.  Royal 

320 

v.  Lambert 

314,  318 

v.  Ruggles 

472,  473,  474 

v.  Lambier 

396 

v.  Runkel 

78 

v.  Lawrence 

79 

,  82,  141,  146, 

v.  Sackett 

625 

177 

186,  211,  212 

v.  Salem       214, 

215,  393,  488, 

v.  Loomis 

606 

493,  536 

v.  Lothrop 

255 

v.  Salomon    119, 

123,  125,  187, 

v.  Lott 

402 

255,  616 

v.  Mahaney 

133, 

134,  135,  142, 

v.  Saxton 

606, 607 

144,    151, 

v.  Schermerhorn 

75 

519 

v.  Seaman      606 

607,  609, 623 

v.  Manhattan  Co 

279 

v.  Seymour 

373 

v.  Martin 

602 

v.  Smith 

309,  310,  538 

v.  Matteson 

606, 

612,  623,  624 

v.  Springwells 

255, 491 

v.  Maynard 

73 

197,  254,  616 

v.  Starne 

82,  139 

v.  Mayworm 

607 

v.  State  Auditors 

383 

TABLE   OF   CASES   CITED. 


xlvii 


People  v.  Stevens  200 

v.  Stewart  323 

r.  Stout  117,  121 

v.  Sullivan  226,  307 

v.  Supervisor,  &c.  219 

v.  Supervisors,  &c.  622 

v.  Supervisors  of  Chenango  79, 
135,  382,  499 
v.  Supervisors  of  Columbia  219, 
369 
v.  Supervisors  of  Greene  623 
v.  Supervisors    of    New 

York  91,  93,  94,  233 

v.  Supervisors   of   Orange    88, 
168,  173,  185 
v.  Supervisors  of  Saginaw    488 
v.  Tallman  562 

v.  Tazewell  County  215  i 

v.  Thayers  323 

v.  Thomas  313,  317 

v.  Thurber  15 

v.  Tisdale  607,  609,  610 

v.  Township  Board  of  Sa- 
lem        214,  215,  393,  488, 
493,  536 
v.  Toynbee  168,  173 

v.  Turner  299 

v.  Tyler  (Mich.)  182,  327 

v.  Tyler  (Cal.)  317 

v.  Vail  623 

v.  Van  Cleve         621,  623,  625 
v.  Van  Eps  402 

v.  Van  Home  309 

v.  Van  Slyck  621,  623 

v.  Videto  323 

v.  Webb  325,  328 

v.  Whyler  512 

v.  Williams  128 

Peoria  v.  Calhoun  205 

v.  Kidder  498,  506 

Peoria  County  v.  Harvey  563 

Percy,  In  re  337 

Perine  v.  Chesapeake  &  Delaware 

Canal  Co.  394 

v.  Farr  406 

Perkins  v.  Corbin  276 

v.  Lewis  219 

v.  Milford  228 

v.  Mitchell  441 

v.  Perkins  119,  370 

Perry's  Case  266,  478 

Persons  v.  Jones  49 

Peru  v.  French  247 

Pe'sterfield  v.  Vickers  198 

Peters  v.  Iron  Mountain  R.R.  Co.  575, 

581 
Petersburg  v.  Metzker  198 

Peterson  v.  Lothrop  49 


Pettibone   v.   La   Crosse   &    Mil- 
waukee R.R.  Co.  564 
Pcttigrew  v.  Janesville                      526 
Petty  v.  Tooker  467 
Phaiis  v.  Dice  290 
Phelps  v.  Goldthwaite  612 
Philadelphia  v.  Commonwealth         402 
v.  Dickson                    563 
v.  Dver  563 
v.  Fox  192 
v.  Try  on                        588 
Philadelphia    Association,    &c.  v. 

Wood  503 

Philadelphia  &  Reading  R.R.  Co. 

v.  Yeiser  570 

Philadelphia  &  Trenton  R.R.  Co., 

Case  of  547 

Philips  v.  Wickham  510 

Phillips  v.  Albany  215 

v.  Allen  205 

v.  Berick  47 

v.  Bridge  Co.  149 

v.  Bury  251 

v.  Covington,  &c,  Co.         147 

v.  People  200 

v.  State  593 

v.  Wiley  423 

Phcenix  Ins.  Co.  v.  Allen  335 

v.  Commonwealth    15 

Piatt  v.  People  618 

Piquett,  Appellant  94,  392 

Pierce  v.  Bartram  584 

v.  State  323 

Pierson  v.  State  23 

Pike  v.  Megoun  68 

v.  Middleton  209 

Pilkey  v.  Gleason  157 

Pirn  v.  Nicholson  82,  139,  149, 

163 
Pingrey  v.  Washburn  136,  576,  577 
Piper  t'.  Chappell  202 

Piqua  Branch  Bank  v.  Knoop  126, 

279,  280 
Piscataqua  Bridge  v.  New  Hamp- 
shire Bridge  280,  281,  384,  526 
Pittock  v.  CTNeil  320,  448,  463 
Pittsburg  v.  Grier  247,  254 
v.  Scott  530 
Pixley  v.  Clark  573 
Planter's  Bank  v.  Sharp  126,  279 
Platner  v.  Best  47 
Pleasant  v.  Kost  512 
v.  State  323 
Pleasants  v.  Rohrer  365 
Pledger  v.  Hitchcock  423 
Plitt  v.  Cox  555,  558 
Plumb  v.  Sawyer  361,369 
Plummer  t;.  Plummer  68 


xlviii 


TABLE    OP    CASES    CITED. 


Plympton  ».  Somerset  233,  319 

Pocopson  Road  531 

Poe  v.  Grever  422 

Police  Commissioners  ?;.  Louisville  572 
Police  Jury  v.  Sbreveport  192,  193 
Polk's  Lessee  v.  Wendal  13 

Pollard's  Lessee  v.  Hogan  524,  525 
Pomeroy  v.  Chicago,  &c,  R.R.  Co.  548 
Pond  v.  Negus  78 

v.  People  307 

Ponder  v.  Graham  113 

Pope  v.  Macon  369,  389 

Popham  v.  Pickburn  459 

Porter  v.  Marriner  286 

v.  Sawyer  615 

Porterfield  v.  Clark  14 

Portland  Bank  v.  Apthorp  479 

Portwardens  v.  The  Ward  586 

Postmaster  v.  Early  94 

Potter  v.  Hiscox  405 

Powers  v.  Bears  560,  561 

v.  Bergen  105 

v.  Dougherty  Co.  119 

v.  Dubois  424 

Pratt  v.  Brown  53,  383,  530,  536, 

537 

v.  Donovan  402 

v.  Jones  366 

v.  People  615 

v.  Teft't  361 

Pray  v.  Northern  Liberties  514 

Prentiss  o.  Holbrook  47 

Presbyterian  Society  v.  Auburn,  &c. 

R.R.  Co.  547,  557 

Prescott  v.  State  299 

v.  Trustees   of  Illinois   & 

M.  Canal  135 

Preston  v.  Boston  397 

v.  Browder  13 

Prettyman  v.  Supervisors,  &c.  119,  219 
Price  v.  Hopkin  156,  366 

v.  Mott  62 

v.  New  Jersey  R.R.  Co.  579 

v.  State  325,  327,  328 

Prichard's  Case  133 

Prigg  v.  Pennsylvania  179 

Pritchett  v.  State  327 

Pritz,  Ex  parte  129 

Proprietors,  &c.  v.  Laborce  366 

v.  Nashua  &  Low- 
ell R.R.  Co.    526, 
557,  568,  569 
Protber  v.  Lexington  248 

Protho  v.  Or  82,  146 

Protzman  v.  Indianapolis,  &c,  R.R. 

Co.  543,  552 

Prout  v.  Berry  9-1 

Providence  v.  Clapp  254 


Providence  Bank  v.  Billings  280,  394, 

479 

Pullen  v.  Raleigh  195 

Pumpelly  v.  Green  Bay  Co.  542 

Purdy  v.  People  65,  66 

Purvear  v.  Commonwealth  18,  584 

Pu  mm  v.  Fl  it  56 

v.  Johnson  597,  600 

Q- 

Quackenbush  v.  Danks     286,  287,  370 
Quarrier,  Ex  parte  263 

Queen,  The  v.  Badger  310 

v.  Collins  426,  428 

v.  Justices  of  Hertford- 
shire 412 
v.  Justices  of  London    412 
v.  Justices  of  Suffolk     412 
v.  Millis  51 
v.  Newman                        465 
v.  Pickesley                      313 
Quick  v.  Whitewater  58 
Quimby  v.  Vermont  Central  R.R. 

Co.  558 

Quin  v.  State  64,  599 


R. 


RadclifFe's  Executors  v.  Brooklyn  206, 
208,  541,  542 
Ragatz  v.  Dubuque  560 

Rail  v.  Potts  616 

Railroad  Co.  v.  Com'rs  of  Clinton 

Co.         91,  117,  119 

v.  Ferris  560 

v.  Gregory  147 

v.  McClure  33 

v.  Rock  12 

v.  Shurmeir  555 

v.  Whiteneck  146 

Railway  Gross  Receipts  Tax  486 

Raleigh  v.  Sorrell  596 

Raleigh,  &c,  R.R.  Co.  v.  Davis      537 

v.  Reid       280 

Ralston  v.  Lothian  361 

Ramsey  v.  People  73 

Rand  v.  Commonwealth  273 

Randall  v.  Eastern  R.R.  Corp.         208 

v.  Kehler  410 

Randolph,  Ex  parte  163 

v.  Good  64,  262 

Randolph  County  v.  Ralls  409 

Ranger  v.  Goodrich  423,  424 

v.  Great  Western  R.  411 

Rape  v.  Heaton  16,  404,  406 


TABLE   OF   CASES   CITED. 


xlix 


Rathbun  v.  Wheeler  361 

Ratzky  v.  People  272 

Rawley  v.  Hooker  289 

Ray  v.  Gage  369 

Ray  Co.  v.  Bentley  241 

Read's  Case  341 

Reading  v.  Keppleman  206 

Reames  v.  Kerns  412 

Reardon  v.  St  Louis  246 

Reciprocity  Bank,  Matter  of  33 

Rector  v.  Smith  426,  442 

Red  River  Bridge  Co.  v.  Clarksville  526 

Reddall  v.  Bryan  12,  525,  532 

Redfield  v.  Florence  614 

Red  way  v.  Gray  422 

Reed  v.  Rice  18 

v.  State  147 

v.  Toledo  194 

v.  Tyler  369 

v.  Wright  353 

Reeves    v.    Treasurer    of    Wood 

County  499,  506,  510,  530,  531,  532, 

533,  589 

Regents  of  University  v.  Williams  106, 

127,  165 


Regnier  v.  Cabot 

423 

Rehoboth  v.  Hunt 

275 

Reid  v.  De  Lorme 

434 

Reimsdyke  v.  Kane 

14 

Reiser  v.  Tell  Association 

94 

Reitenbaugh    v.     Chester    Valley 

R.R.  Co. 

528 

Remsen  v.  People 

325 

Requa  v.  Rochester 

249 

Respublica  v.  Dennie 

420 

429 

v.  Duquet 

594 

v.  Gibbs 

614 

Revis  v.  Smith 

441 

Rex.     -See  King,  The. 

Rexford  v.  Knight 

558 

560 

561 

Reynolds  v.  Baldwin 

192, 

193 

v.  Geary 

582 

v.  Shreveport 

206 

Rhines  v.  Clark 

410 

Rhodes  v.  Cincinnati 

207 

.  v.  Otis 

589 

Rice  v.  Foster 

117, 

123, 

124 

v.  Parkman 

98, 

105 

v.  State 

129, 

160 

v.  Turnpike  Co. 

569 

Rice's  Case 

336 

Rich  v.  Flanders        182, 

366, 

370, 

381 

Richards  v.  Rote 

107, 

382 

Richardson  v.  Boston 

412 

v.  Monson 

103 

v.  Morgan 

499, 

512 

v.  Roberts 

423 

Page 
Richardson  v.  Vermont        Central 

R.R.  Co.       541,  543 

v.  Welcome  412 

Richland  v.  Lawrence      190,  193,  223, 

239,  279 
Richmond  v.  Long  247,  248 

v.  Richmond,  &c,  R.R. 

Co.  286,  287,  394 

Richmond,  &c,  Co.  v.  Rogers  541,  542, 

567 
Richmond,  &c,  R.R.  Co.  v.  Lou- 
isa, &c,  R.R.  Co.  394,  526 
Riddle  v.  Proprietors    of    Locks, 

_&c.  240,  243,  247 

Ridge  Street,  In  re  542 

Riggin's  ExVs  v.  Brown  49 

Riggs  v.  Denniston  423 

v.  Wilton  52 

Riley  v.  Rochester  212 

Riley's  Case  273,  348 

Ring,  Matter  of  348 

v.  Wheeler  444 

Rison  v.  Farr  64,  286,  289,  362,  363 
Roanoke,  &c,  R.R.  Co.  v.  Davis  214 
Robbins  v.  Fletcher  423 

v.  State  323 

Roberts  v.  Caldwell  16 

v.  Chicago  206,  542 

v.  Ogle  588 

Robertson  v.  Bullions  466 

v.  Rockford      119,  192,  219 
Robeson  v.  Brown  290 

Robie  v.  Sedgwick  197 

Robinson,  Ex  parte  345 

v.  Bank  of  Darien  177 

v.  Bidwell  123,  178 

v.  Commonwealth  Insur- 
ance Co.  14 
v.  Howe                     290,  291 
v.  N.  Y.   &  Erie  R.R. 

Co.  543 

v.  Richardson  307 

v.  Robertson  567 

v.  Skipworth  145 

v.  State  146 

v.  Ward's  Ex'rs  16,  404 

v.  West  409 

v.  White  276 

Rochester  v.  Collins  194 

Rochester   White     Lead     Co.    v. 

Rochester  247,  253,,  254 

Rockwell  v.  Hubbell's  Adm'rs  286,  287, 

361 

v.  Xearing  364,  403 

Rogers  v.  Bradshaw  560 

v.  Burlington  119,  215 

v.  Collier  205 

v.  Goodwin  69 


TABLE   OF   CASES   CITED. 


Rogers  v.  Jones 

198 

v.  State 

151 

Roll  v.  Augusta 

206 

Rome  v.  Oinberg 

206 

Roosevelt  v.  Meyer 

12 

Ropes  v.  Clinch 

11 

Rosier  v.  Hale 

361 

Ross  v.  Duval 

13 

v.  Irving 

387 

v.  Madison 

254 

v.  McLung 

13 

v.  Whitman 

89 

Ross's  Case 

273, 

348 

Rounds  v.  Mumford 

206 

Roush  v.  Walter 

593 

Routsong  v.  Wolf 

377 

Rowan  v.  Runels 

14 

Rowe  v.  Addison 

526 

v.  Granite  Bridge 

Corpora- 

tion 

543 

v.  Rowe 

347 

Royal  British  Bank  v.  Turquand 

216 

Ruloff  v.  People 

311 

Rumney  v.  Keyes 

339 

Rumsey  v.  People 

255 

Ruseh  v.  Davenport 

247 

248 

Rush  v.  Cavenaugh 

337 

Russell  v.  Burlington 

206 

v.  Jeffersonville 

216 

v.  Men  of  Devon 

198, 

243 

,  246 

v.  New  York 

526 

594 

v.  Pyland 

615 

v.  Rumsey 

278 

v.  Whiting 

347 

Rust  v.  Gott 

615 

v.  Lowe 

558 

Rutland  v.  Mendon 

52 

Ryalls  v.  Leader 

448 

Ryan  v.  Thomas 

12 

Ryckman  v.  Delavan 

424 

Ryegate  v.  Wardsboro 

57 

Ryerson  v.  Utley       145, 

149 

491 

,  494 

s. 


Sacramento  v.  Crocker  503 

Sadler  v.  Langham      69,  70,  180,  530, 

536 
Safford  v.  People  323 

Sadly  v.  Smith  302 

Salters  v.  Tobias  94 

Saltpetre  Case  594 

Sammons  v.  Ilolloway  484 

San  Antonio  v.  Jones  119 

v.  Lane  216 

Sanborn  v.  Deertield  216 

v.  Rice  233,  493,  494 


Page 

Sanders  v.  Hillsboro'  Ins.  Co.  286 

Sanderson  v.  Caldwell  423 

Sandford  v.  Nichols  303,  304 

Sands  v.  Kimbark  410 

Sanford  v.  Bennett  455 

San  Francisco  v.  Canavan  239 

Santo  v.  State  117,  121,  168,  177,  178, 

581,  582 
Sater  v.  Burlington  &  M.  P.  Plank 

R.  Co.  567 

Satterlee  v.  Mathewson     266,  376,  381 
v.  San  Francisco  141 

Saunders  v.  Cabaniss  96 

ik  Haynes  620 

v.  Mills  448,  465 

v.  Rodway  339 

v.  Springstein  499 

v.  Wilson  387 

Savage  v.  Walshe  78 

Savannah  v.  Hartridge  194 

v.  State  177 

Savannah,   &c,   R.R.   Co.    v.   Sa- 
vannah 
Savings  Bank  v.  Allen 
v.  Bates 
Savings  Society  v.  Philadelphia 
Sawyer  v.  Alton 
v.  Corse 

v.  Vermont,  &c,  R.R.  Co 
Sayles  v.  Davis 
Sayre  v.  Wisner 
Scales  v.  Chattahoochee  Co 
Schenley  v.  Alleghany  City 
v.  Commonwealth 


552 
375 
375 
198 
512 
247 
579 
484 
62,  370 
240 
498 
361,  369, 
373 
307 
520 


Schiner  v.  People 
School  District  v.  Merrills 

v.  AVood   240,  241,  243 
Schooner  Paulina's  Cargo  v.  United 

States  54 

Schooner  Rachel  v.  United  States  361, 

381 
Schurman  v.  Marley  23 

Schurmeier  v.  St.  Paul,  &c,  R.R. 

Co.  547 

Scofield  v.  Watkins  515 

Scott  v.  Clark  157 

v.  Detroit  Young  Men's  So- 
ciety's Lessee  26 
v.  Jones  12 
v.  Manchester                             247 
v.  Mather                                    387 
v.  Smart's  Ex'rs                          168 
v.  Willson                                 589 
Scoville  v.  Cleveland          497,  506,  507 
Sears  v.  Com'rs  of  Warren  Co.  15 
v.  Cottrell          88.  173,  182,  356 
v.  Terry                                      406 


TABLE   OF   CASES   CITED. 


li 


Page 

Sedgwick  v.  Stanton  137 

Sell iv  v.  Bardons  50 

Selin  v.  Snyder  407 
Selma,  &c,  R.R.  Co.,  Ex  parte       119 

Selman  v.  Wolfe  590 

Selsby  v.  Redlon  372 

Semayne's  Case  302 

Sequestration  Cases  291 

Sessions  v.  Crunkilton  506,  588 

Sessurus  v.  Botts  187 

Settle  v.  Van  Enrea  58 

Seven  Bishops'  Case,  The  3-19 

Sexton  v.  Todd  423 

Seymour  v.  Turnpike  Co.  214 

Shackford  v.  Newington  223,  490 

Shackleford  v.  Coffey  536 

Shafer  v.  Mumma  200 

Shannon  v.  Frost  466,  467 

Sharp  v.  Contra  Costa  Co.  200 

v.  New  York  146,  147 

v.  Spier  498 

Sharp's  Ex'rs  v.  Donovan  491 

Sharpless  v.  Mavor,  &c.  119,  226,  479, 

489 

Shattuck  v.  Allen  .       463 

Shaw  v.  Charlestown  563 

v.  Crawford  589 

v.  Dennis  491,  513 

v.  Macon  127 

v.  Moore  477 

v.  Norfolk  R.R.  Corp.  379 

v.  Thompson  339 

Shawnee  County  v.  Carter  75 

Shearlock  v.  Beardsworth  424 

Sheckel  v.  Jackson  454 

Shehan's  Heirs  v.  Barnet's  Heirs      103 

Shelby  v.  Guy  13 

Sheldon  v.  Wright  406,  408 

Shepardson    v.    Milwaukee,  &c, 

R.R.  Co.  186,  560,  561,  562 

Shepherd  v.  People  272 

Sherburne  v.  Yuba  Co.  246,  248 

Sherman  v.  Story  135 

Sherwood  v.  Fleming  379 

Shiplev  v.  Todhunter  426 

Shipp  o.  Miller  13 

Shipper  v.  Pennsylvania  R.R.  Co.      15 

Shore  v.  State  310 

Shorter,  Matter  of  263 

v.  People  307 

v.  Smith  281 

Shouk  v .  Brown  379 

Shover  v.  State  476,  596 

Shraden,  Ex  parte  584 
Shrunk  v.  Schuylkill  Nav.  Co.  541,  542 

Shumway  v.  Stillman  16 

Sidgreaves  v.  Myatt  423 

Sigourney  v.  Sibley  411,  412 


Sill  v.  Corning 

168, 

173, 

rage 

174 

Silliman  v.  Cummins 

377 

Sills  v.  Brown 

318 

Simmons  v.  Holster 

422 

Simond's  Ex'rs  v.  Gratz 

476 

Simonds  v.  Simonds 

96, 

111, 

391 

Simpson  v.  Bailey 

147 

v.  State 

23 

Sims  v.  Irving 

13 

Sinclair  v.  Jackson 

163, 

164 

Sinks  v.  Reese 

601 

Sinton  v.  Ashbury 

192, 

230 

Skelding  v.  Whitney 

47 

Skilding  v.  Herrick 

47 

Skinner,  Ex  parte 

348 

v.  Hartford  Bridge  Co.     206, 
542 
Slack  v.  Railroad  Co.         63,  119,  217, 

232,  488 

Slade  v.  Slade  47 
Slatten  v.  Des  Moines  Valley  R.R. 

Co.  542,  570 

Slaughter  v.  Commonwealth  15 

v.  People  200 

Slauson  v.  Racine  179 

Slave  Grace,  The  298 

Slayton  v.  Hulings  74,  78 

Sleght  v.  Kane  262 

Sloan  v.  State  192 

Smalley  v.  Anderson  423 

Smead  o.  Indianapolis,  &c,  R.R. 

Co.  216 

Smith,  Ex  parte  15 

Matter  of  18 

Petition  of  348 

v.  Adrian  123 

v.  Appleton  292 

v.  Ballentyne  49 

v.  Brown  298 

v.  Bryan  361 

v.  Cheshire  215 

t\  Cleveland  368,  382 

v.  Collins  620 

v.  Commonwealth  147,  149 

v.  Connolley  536 

v.  Eastern  R.R.  Co.  579 

v.  Gould  298 

v.  Henry  Co.  215 

v.  Hunter  13 

v.  Janesville  120,  123 

v.  Judge  89,  173 

v.  Levinus  190 

v.  Maryland  18 

v.  McCarthy  119,  163 

v.  Merchant's  Ex'rs  372 

v.  Morrison  156,  366 

v.  Morse  195,  205 

v.  Nelson  466 


lii 


TABLE   OF   CASES   CITED. 


Smith  v.  Packard 
v.  People 


286,  291 
65,  399 
406 
483 
14 
423 
402 
422 
425 
56 
286 
207,  542 
314 


v.  Rice 

v.  Short 

v.  Shriver 

v.  Silence 

v.  Smith 

v.  Stewart 

v.  Thomas 

v.  Thursby 

v.  Van  Gilder 

v.  Washington 

Smith,  Mary,  Case  of 

Smoot  v.  Wetumpka  247 

Smyth  v.  McMasters  615 

Sneider  v.  Heidelberger  287 

Snowhill  v.  Snowhill  103 

Snyder  v.  Andrews  464 

v.  Bull  379 

v.  Fulton  465 

v.  Pennsylvania  R.R.  Co.     547 

v.  Rockport  206 

Society,  &c.  v.  Wheeler    14,  366,  370, 

389 
Society  of  Scriveners  v.  Brooking  201 
Sohier  v.  Massachusetts  Hospital  103 
Solomon  v.  Cartersville  153 

Somerville  v.  Hawkins  425 

v.  Eastern  R.R.  Co.  ads. 

Doughty  566,  567,  568 
Sommersett's  Case  297,  298 

Sorocco  v.  Gearv  526,  594 

Southard  v.  Central  R.R.  Co.  _         378 
South  Carolina  R.R.  Co.  v.  Steiner  545, 

549 
Southport  v.  Ogden  198 

Southwark  Bank  v.  Commonwealth   51, 

135 
South-western  R.R.  Co.  v.  Paulk     581 
South-western  R.R.   Co.  v.  Tele- 
graph Co.  560,  562 
Southwick  v.  Soutlnvick  366 
Southworth  v.  Palmyra  &  Jackson- 
burgh  R.R.  Co.    "  141 
Soutter  v.  Madison                              292 
Spangler  v.  Jacoby                     135,  140 
Spanker's  Case                              11,  346 
Sparhawk  v.  Salem                              208 
Sparrow  v.  Kingman  52 
Spaulding  v.  Lowell                             596 
Spears  v.  State                           314,  315 
Specht  v.  Commonwealth           476,  596 
Speern.  Plank  Road  Co.                    152 
v.  School  Directors          222,  488 
Spencer  v.  Dearth                            47,  49 
v.  McMasters                         423 
v.  State                  56,  151,  152 
Spooner  v.  McConnell          26,  28,  126 


Sporrer  v.  Eifler 
Sprague  v.  Birdsall 

v.  Norway 

v.  Worcester  542, 

Sprecker  v.  Wakelee  286,  287,  288, 
Spriggins  v.  Houghton 
Spring  v.  Russell 

Springer  v.  Foster  14, 

Springfield   v.    Connecticut   River 
R.R.  Co.  526,  545, 

Springfield  v.  Le  Claire  247, 

Stackhouse  v.  La  Fayette 
Stacy   v.   Vermont   Central   R.R. 

Co. 
St.  Albans  v.  Bush 
Stanfield  v.  Boyer 
Stanford  v.  Worn 
Staniford  v.  Barry 
Stanley,  Ex  parte 

v.  Colt 

v.  Stanley 

v.  Webb  448,  449, 

Stanniford  v.  Wingate 
Starbuck  v.  Murray  16, 

Starin  v.  Genoa 
Starr  v.  Camden,  &c,  R.R.  Co 


v.  Pease 
State  v.  Adams  (2  Stew.) 
v.  Adams  (44  Mo.) 


Ill, 


91,  94, 

263, 

323,  356, 

318, 


v.  Allen 

v.  Alman 

v.  Almond 

v.  Ambs  476, 

v.  Arlin 

v.  Ashley 

v.  Atwood  62, 

v.  Avery 

v.  Auditor,  &c.  361, 

v.  Bailey 

v.  Bank  of  South  Carolina 


v.  Barbee  . 
v.  Barker 
v.  Barnett 
v.  Barrett 
i'.  Bartlett 
v.  Battle 
v.  Behimer 
v.  Bcneke 
v.  Benham 
v.  Bernoudy 
v.  Berry 
v.  Binder 
v.  Bissell 
v.  Bladsdell 
v.  Bond 
v.  Bonny 


63, 


117, 


598, 


Page 
484 
396 
618 
543 
365 
616 
489 
294 

547 
253 
247 

528 
404 
423 
528 

96 
311 
103 
580 
451 
276 
404 
119 
547, 
557 
114 
625 
262, 
280 
463 
327 
581 
596 
267 
168 
370 
623 
370 
156 
289 
370 
275 

18 
340 
317 
327 
328 
121 
328 
263 
151 
619 
119 

55 
601 
397 


TABLE   OF  CASES   CITED. 


liii 


Page 

Page 

State  v.  Bostick 

314 

State  v.  Dean 

499 

v.  Bowers 

146 

\        v.  Demorest 

223 

v.  Branin 

192 

v.  Denton 

319 

v.  Brennan's  Liqi 

ors 

309 

V.  Dews 

277 

v.  Brockman 

314 

v.  Doherty 

355,  382 

v.  Brooks 

327 

v.  Dombaugb 

178 

v.  Brown 

322 

v.  Donehey 

582 

v.  Brunetto 

318 

v.  Doron 

56,  66 

v.  Brunst 

277 

v.  Douseman 

179 

v.  Buchanan 

23 

v.  Draper 

151 

v.  Bunker 

197 

v.  Duffy 

391 

v.  Burlington,  &c 

.,  R.R.  Co.  567 

v .  Dunning 

115 

v.  Burnham       426,  43-J 

,  447,  465 

v.  Easterbrook 

178 

v.  Burns 

322 

v.  Elwood 

606 

610,  612 

v.  Callendine 

325,  327 

v.  Ephraim 

325,  327 

v.  Cameron 

317 

v.  Everett 

319 

ik  Cannon 

66 

v.  Fagau 

187 

v.  Cape  Girardeau 

,  &c. 

RR. 

v.  Felton 

309 

Co. 

21,  182 

v.  Ferguson 

193 

194,  205 

v.  Carew 

291 

v.  Fetter 

623 

v.  Carr 

254 

«.  Field 

121,  124 

v.  Cavers 

612 

v.  Fleming 

94 

v.  Chandler 

471 

,  472,  473 

v.  Foley 

588 

v.  Cincinnati  Gas  Co. 

208,  393, 

v.  Fosdick 

15 

545,  552 

v.  Franklin  Falls  C 

0. 

366 

v.  Clarke 

198 

v.  Freeman 

200, 

318,  596 

v.  Clerk  of  Passaic 

622,  625 

v.  Fry 

113 

v.  Click 

78 

v.  Fuller 

506 

v.  Coleman  and  Maxy 

354 

v.  Garesche 

263 

v.  Collector  of  Jersey  City      515 

V.  Garton 

484 

v,  Commissioners 

of 

Balti- 

v.  Gatzweiler 

285 

more 

78 

,  177,  390 

v.  Georgia  Medica 

Societ 

v.  Commissioners 

of  Clinton 

v.  Gibbs 

623 

Co. 

119 

v.  Gibson 

391 

v.  Commissioners 

of 

Han- 

v.  Giles 

620 

cock 

119 

v.  Gleason 

90 

v.  Commissioners 

of  Or 

msby 

v.  Goetze 

603 

Co. 

89 

v.  Governor 

622 

v.  Commissioners 

of  Perry      179 

v.  Graves          206, 

207, 

560,  561 

v.  Commissioners 

of  School, 

v.  Green 

325 

&C,  lands 

291 

v.  Guild 

314,  316 

v.  Connor 

327 

v.  Guiterez 

173 

v.  Constitution 

587 

v.  Gut 

147 

v.  Cooper 

328 

v.  Haben 

230, 

237,  493 

v.  Copeland 

117 

,  124,  177 

v.  Hairston 

391,  573 

v.  Corson 

272 

v.  Harris 

228 

v.  County  Court  of  Boone       128 

v.  Harrison 

146,  622 

v.  County  Judge 

623 

v.  Hawthorn 

283,  289 

v.  County  Judge  of  Davis      143, 

v.  Hay 

596 

144 

v.  Hays 

187 

v.  Cowan 

192,  200 

v.  Hayward 

279 

i\  Cox 

177,  319 

v.  Henry 

325 

v.  Croteau 

323 

v.  Hilmantel    601, 

606, 

620,  625, 

v.  Crowell 

466 

626 

v.  Cummings 

263 

v.  Hitchcock 

128 

v.  Curtis 

327 

v.  Hudson  County 

246 

v.  Daley 

361 

v.  Hufford 

315 

v.  Dan  forth 

329 

v.  Hundley 

309 

liv 


TABLE    OF    CASES   CITED. 


State  v.  Hurlbut 
v.  Ingersoll 
v.  Jackson 
v.  Jarrett 


Page 

239 

150 

223,  482 

133 


v.  Jersey  City  200,  204,  205,  499, 

578,  588 

v.  Johnson 


v.  Jones  (19  Ind.) 

v.  Jones  (5  Ala.) 

v.  Jones  (21  Md.) 

v.  Judge,  &e. 

v.  Judge  of  Co.  Court 

v.  Jumel 

v.  Justices  of  Middlesex 

v.  Kanouse 

v.  Kason 

v.  Kattlemann 

v.  Keith 

v.  Kemp 

v.  Kennon 

17.  Kettle 

v.  King 

v.  Kinsella 

v.  Kirke 

V.  Kirkley 

v.  Kittle 

V.  Klinger 

v.  Knight 

v.  Krebs 

v.  Kruttschnitt 

v.  Lafayette  Co.  Court 

v.  Laverack 

v.  Lean 

v.  Lehre 

v.  Leiber 

v.  Linn  Co.  Court 

v.  Litchfield 

v.  Little 

v.  Lowhorne 

v.  Lyles 

v.  JNIace 

v.  Macon  County  Court 

v.  Main 

v.  Manning 

v.  Mansfield 

v.  Marlow 

v.  Marler 

v.  Martin 

v.  Mathews 

v.  Mayhew 

v.  Maynard 

v.  Mayor,  &c. 

r.  .AIcAdoo 

v.  McBride 

v.  McCann 

v.  ]\IcGinley 

v.  McGinnis 

v.  Medbury 


79,  623 
603,  618 
323,  325 
364 
624 
186 
350 
622 
322 
327 
328 
33,  266 
322 
66,  114 
328 
57 
149 
336 
117,  196 
328 
309 
127 
394 
167 
149 
545,  555,  557 
77,  157 
420 
596 
119 
306 
325 
316 
168 
58,  66 
61 
127,  128 
272,  381 
319 
623 
309 
328 
133,  575 
68,  70 
89 
598 
263 
32,  141 
129 
78 
320 
15,  397 


State  v 
v, 
v 
v 
v, 
v 
v 

V 


Merchants1  Ins.  Co 

Messmore 

Metzger 

Miller 

Mills 

Milwaukee  Gas  Co 

Mobile 

Mofiitt 

Morristown 

Neal 

Ned 

Neill 


503 
277 
406 
82,  147 
514 
393 
557 
135,  590 
193 


33,  264,  273,  599 

325 

119,  191 

Nelson  325 

Newark         147,  371,  373,  378 

Newton  325 

New  York  207 

Nichols  '  116 

North  514,  519 

Northern  Central  R.R.  Co.  94 

Norvell  325,  327 

,  Norwood  361,  378,  381 

Noyes  106,  123,  190,  279,  283, 

526,  576,  577 

,  Ober  317 

.  O'Flaherty  309 


Olin 
Oliver 
O'Niell 
Orvis 
Oskins 
Parker 
Parkinson 
Patterson 
Peace 

Pendergrass 
Peterson 
Pbalen 
Piatt 
Portage 
Powers 
Prescott 
Prince 
Pritchard 
Quarrel 
Quick 
Redman 
Reed 
Reynolds 
Rich 
Richland 
Richmond 
Robb 
Roberts 

Robinson  (1  Kan.) 
Robinson  (49  Me.) 
,  Robinson  (33  Me.) 
,  Robinson  (14  Minn.) 
,  Rockafellow 


606 
318 
123 
603 
125 
117,  121,  123,  514 
68,  129 


205,  325 
323 
341 
319,  410 
283,  289 
135 
509 
144 
582 
327 
363 
319 
318 
328 
325 
119,  123,  320 
164 
370 
348 
616 
201,  316 
168,  182 
581 
582 
319 
309 


T^BLE   OP   CASES    CITED. 


lv 


Page 

State  v.  Rollins 

23 

v..  Ross 

328 

v.  Rutledge 

614 

v.  Ryan 

272,  273 

v.  Saline  Co.  Court 

187 

v.  Scott 

119,  408 

v.  Shattuck 

348 

v.  Simonds 

190 

v.  Simons 

352,  355 

v.  Slack 

327 

v.  Smith 

620 

v.  Snow 

177,  323 

v.  Spier 

325,  327 

v.  Squires         128,  149,  369,  381 

v.  Staley  314 

v.  Stanley  114 

v.  Staten"  64,  171,  262,  352,  355, 

358,  363 

».  Sterling  283 

v.  St.  Joseph  619 

v.  St.  Louis  Cathedral  147 

v.  St.  Louis  Co.  Court  239 

v.  Stumph  618 

v.  Sullivan  381 

v.  Summons  309,  310 

v.  Swisher  117,  121 

v.  Symonds  64,  263,  599 

v.  Tait  322,  328 

v.  Tappan        171,  211,  228,  232, 

239,  262,  491,  493 

v.  Taylor  322 

v.  Thomas  317 

v.  Thompson  63 

v.  Tombeckbee  Bank       277,  292 

v.  Towle  348 

v.  Treasurer  151 

v.  Trustees  of  Union        119,  144 

v.  Turner  399 

v.  Union  144,  371,  373 

v.  Vaigneur  316 

v.  Van  Home  119 

v.  Walker  327 

v.  Wapello  Co.  215,  219 

v.  Warren  379,  623 

v.  Weir  117 

v.  Welch  200 

v.  Wheeler  177,  581,  582 

v.  White  465 

v.  Wilcox         117,  119,  121,  191 

v.  Wilkesbarre  222 

v.  Wilkinson  323 

v.  Williams  (5  Wis.)  64 

v.  Williams  (2  Rich.)      269,  273 

v.  Wilson  272,  273 

v.  Wiseman  327 

v.  Woodruff  29 

v.  Young  603 

State  Bank  v.  Knoup  14 


Page 

State  Freight  Tax  Case  486 

State  Tax  on  Foreign  held  bonds     487 

Steamship  Co.  v.  Jolliffe  586,  587 

Stearns  v.  Gittings  364,  365,  366 

Stebbins  v.  Jennings  198 

Steele  v.  Smith  16 

v.  Southwick  423,  424 

Stein  v.  Burden  254,  526 

v.  Mobile  119 

Steines  v.  Franklin  Co.  187,  217 

Stephenson  v.  Osborn  287 

Stetson  v.  Kempton  191,  219,  521 

Stevens  v.  Andrews  291 

v.  Middlesex  Canal  537 

v.  Paterson,  &c,  R.R.  Co.   544 

Steward  v.  Jefferson  119 

Stewart  v.  Clark  589 

v.  Griffith  103 

v.  Howe  422 

v.  Kinsella  149 

v.  Laird  67,  69 

v.  Mayor,  &c.  410 

V.  Mechanics'  &  Farmers' 

Bank  411 

v.  New  Orleans  248 

v.  Supervisors,  &c.  119 

Sticknoth's  Estate  377,  379 

Stiles  v.  Nokes  448 

Stilwell  v.  Kellogg  410 

Stine  v.  Bennett  156 

Stinson  v.  Smith  153 

Stipp  v.  Brown  365 

Stittinus  v.  United  States  323 

St.  Joseph  v.  Anthony  498 

v.  O'Donohue  498,  507 

St.   Joseph,    &c,    R.R.    Co.    v. 

County  Court  64,  119 

St.  Louis  v.  Alexander  119 

v.  Allen  192,  193 

v.  Benta  198,  200 

v.  Cafferata      192,  198,  200, 
596 
v.  Gurno  207,  208 

v.  Russell    190,  191,  192,  239 
v.  Tiefel  142,  145 

v.  Weber  198,  200 

St.  Louis,  &c,  R.R.  Co.  v.  Rich- 
ardson 568 
Stockbridge  v.  West  Stockbridge     197 
Stockbridge  Iron  Co.  v.  Hudson 

Iron  Co.  410 

Stockdale  v.  Hansard  133,  458 

v.  State  350 

Stocking  v.  Hunt  286,  289 

v.  State  168,  182,  323 

Stockton,  &c,  R.R.  Co.  v.  Stock- 
ton 119 
Stoddard  v.  Martin  615 


lvi 


TABLE    OF   CASES  CITED. 


168 
215 
290 

424,  457 
303 
526 
319 
215 
286 

252,  253 

425 

28 

57 

205 

253 


Stoddart  v.  Smith 
Stokes  v.  Scott  Co. 
Stone  v.  Bassett 

v.  Cooper 

v.  Dana 

v.  New  York 

v.  State 
Stoney  v.  Life  Insurance  Co. 
Storey  v.  Furman 
Storrs  v.  LTtica 
Story  v.  Challands 
Stout  v.  Keyes 
Stowell  v.  Lord  Zouch 
St.  Paul  v.  Coulter 

v.  Leitz 

St.  Paul,  &c,  R.R.  Co.  v.  Parcker  280 
Strader  v.  Graham  26 

Strahl,  Ex  parte  347 

Straueh  v.  Shoemaker  370 

Strauss  v.  Meyer  442 

v.  Pontiac  202 

Sti-eet  Railway  v.  Cumminsville       543, 

552,  556 
Streety  v.  Wood  434 

Sireubel  v.  Milwaukee,  &c,  R.R. 

Co.    v  361 

Striker  v.  Kelley  78 

Stringfellow  v.  State  314 

Strong  v.  Daniel  187 

v.  State  267 

Stroud  v.  Philadelphia  588 

Stuart  v.  Clark  589 

v.  Kinsella  149 

v.  AVarren  379 

Sturgeon  v.  Hitchins  147 

Sturges  v.  Crowninshield     18,  54,  286, 
287,  288,  293,  365 


Page 


Susquehanna  Canal  Co.  v.  Wright  543 


381 

198,  580 

146 

89 
314 
186 
424 

14 
361 
184 


Sturgis  v.  Spofford 
Stuyvesant  v.  New  York 
Succession  of  Lanzetti 
Succession  of  Tanner 
Suffolk  Witches,  Case  of 
Sullivan  v.  Adams 
Sumner  v.  Buel 
v.  Hicks 
v.  Miller 
Sun  Mutual  Ins.  Co.  v.  New 
Sunbury  &  Erie  R.R.    Co. 

Cooper 
Sunbury  &  Erie  R.R.  Co.  v.  Hum 

mel 
Sundevlin  v.  Bradstreet 
Supervisors,  &c.  v.  Heenan        142,  147 
Supervisors    of    Iroquois   Co.    v. 

Keady  156 

Supervisors   of  Schuyler  Co.   v. 

People  135,  139,  140,  145 

Surgett  v.  Lapice  68 


York 


187 

543 
425 


Susquehanna  Depot  v.  Barry 

226 

Sutherland  v.  De  Leon 

361 

Sutton  v.  Asher 

361 

v.  Board 

246 

v.  Tiller 

530 

Sutton  Hospital,  Case  of 

198 

Sutton's  Heirs  v.  Louisville 

568, 

569, 
570 

Suydam  v.  Broadnax 

294 

v.  Moore 

575 

579 

v.  Williamson 

14 

101 

Swan  v.  Williams 

537 

Swann  v.  Buck 

151 

Swift  v.  Fletcher 

286 

v.  Tyson 

14,  23,  ! 

v.  Williamsburgh 

195 

217 

Swindel  v.  State 

327 

v.  Brooks 

383 

Symonds  v.  Carter 

423 

Syracuse  Bank  v.  Davis 

371, 

374 

Tabor  v.  Cook 
Taft  v.  Adams 
Talbot  v.  Dent  119, 

v.  Hudson      182,  488,  533, 
Tallman  v.  Janesville  379, 

Tanner  v.  Albion  190, 

Tarble's  Case  1,  11, 

Tarleton  v.  Baker 
Tarlton  v.  Peggs 
Tarpley  v.  Hamer 
Tash  v.  Adams 
Tate  v.  Stooltzfoos 
Tate's  Ex'r  v.  Bell 
Tayloe,  Matter  of 
Taylor  v.  Chambers 

v.  Church* 

v.  Commonwealth 

v.  French 

v.  Many  560, 

v.  McCracken 

v.  Miles 

v.  Nashville,  &c., 

v.  Newberne 

v.  Place 

v.  Porter  88,  92 


R.R.  Co 

91,  96 
353,  357, 
530 


v.  Stearns 

v.  St.  Louis 

v.  Taylor  66,  598,  618,  619 

v.  Thompson 
Teftw.  Teft  111 

Temple  v.  Mead  82,  604 


410 
276 
213 
560 
382 
596 
346 
615 
154 
286 
212 
377 
168 
309 

47 
425 
114 

53 
561 

49 
369 
530 
119 
109 
524, 
531 
291 
207 
623 
223 
391 
605 


TABLE   OF    CASES  CITED. 


lvii 


age 

Ten  Eyck  v.  D.  &  R.  Canal  214 

v.  Keokuk  215 

Tennessee,  &c,  R.R.  Co.  v.  Head  545 
Tenney  v.  Lenz  202 

Terre  Haute,   &c,  R.R.  Co.  v. 

McKinley  570 

Terrett  v.  Taylor     165,  175,  237,  274. 

278,  279 
.Terrill  i>.  Rankin  361 

Territory  v.  Pyle  276 

Terry  v.  Bright  423 

v.  Fellows  441,  448,  449 

Texas  v.  White  1,  5 

Thacker  v.  Hawk  394 

Thames  Bank  v.  Lovell  592 

Thames  Manuf.  Co.  v.  Lathrop         78, 

382 

Tharp  v.  Fleming  105 

Thatcher  v.  Powell  13 

The  Banks  v.  The  Mayor  482 

Thein  v.  Voegtlandler  536 

Thomas  v.  Board  of  Commissioners  128 

v.  Croswell  423 

v.  Dakin  198 

v.  Hubbell  49 

v.  Leland     119,  232,  381,  479, 

491,  510 

v.  Owens  64 

v.  Richmond  215 

v.  Scott  155 

Thomasson  v.  State  581 

Thompson  v.  Alexander  370 

v.  Caldwell  365 

v.  Carr  262 

v.  Circuit-Judge  621 

v.  Commonwealth  316 

v.  Grand  Gulf  R.R.  Co.  177 

v.  Lee  County         119,  379 

v.  Morgan  375,  379 

v.  Pacific  R.R.  Co.  482 

v.  Phillips  13 

v.  Pittston  212,  228 

v.  Schermerhorn  206 

v.  State  402,  404 

v.  Steamboat  Morton      397 

Thorn  v.  Blanchard  433 

v.  ConVrs  of  Miami  Co.  216 

Thorne  v.  Cramer  117 

Thorndike  v.  Boston  600 

Thornington  v.  Smith  290 

Thornton  v.  McGrath  369 

v.  Turner  361,  366 

Thorpe  v.  Rutland  &  Burlington 

R.R.  Co.        88,  126,  214,  280,  283, 

573,  574,  578 

Thurber  v.  Blackbourn  16 

Thursfield  v.  Jones  252 

Thurston  v.  Little  521 


Thurston  v.  Thurston  102 

Tide  Water  Co.  v.  Archer        567,  568 
v.  Costar         493,  494 
Tift  v.  Griffin  368,  406 

Tillman  v.  Shackleton  61 

Tims  v.  State  186 

Tinicum  Fishing  Co.  v.  Carter  541 

Tinsman  v.  Belvidere  &  Delaware 

R.R.  Co.  214,  543 

Todd  v.  Hawkins  425 

v.  Kerr  401,  404 

Toledo  Bank  v.  Bond  280 

Tolen  v.  Tolen  401 

Tomlin  v.  Dubuque,   &c,    R.R. 

Co.  544 

Tonawanda  R.R.  Co.  v.  Munger    544, 

579 
Tong  v.  Marvin  61,  361 

Torrey  v.  Corliss  370 

v.  Field  442 

v.  Milbury  76,  521 

Tower  v.  Lamb  409 

Towle  v.  Forney  103 

Town  of  Pawlett  v.  Clark       237,  275, 

279 
Townsend  v.  Griffin  113,  405 

v.  Kendall  405 

Treat  v.  Lord  590 

Tremain  v.  Cohoes  Co.  543 

Trevett  v.  Weeden  26,  161 

Trice  v.  Hannibal,  &c,  R.R.  Co.     579 
Trigally  v.  Memphis  191 

Trombley  v.  Auditor  General  526 

Trott  v.  Warren  197 

Troup  v.  Haight  68 

Troy  &  Boston  R.R.  Co.  v.  Lee  568 
Troy  &  Boston  R.R.  Co.  v.  North- 
ern Turnpike  Co.  542 
True  v.  Plumlev  422 
Truehart  v  Addicks  618 
Trueman  v.  Taylor  423 
Trustees  of  Cass  v.  Dillon  222 
Trustees  of  Erie  Academy  v.  City 

of  Erie  192 

Trustees  of  M.  E.  Church  v.  Ellis    514 
Trustees  of  Paris  v.  Cherry  119 

Trustees  of  Schools  v.  Tatman        192, 
193,  232,  239,  277 
Trustees    of  W.    &   E.    Canal   v. 

Spears  543 

Trustees  v.  McCaughey    361,  371,  374 
v.  McConnell  515 

Trustees,   &c.   v.  Auburn  &   Ro- 
chester R.R.  Co.  214 
Trustees,  &c.  v.  Shoemaker  119 
Tucker  v.  Harris                                   966 
v.  Magee>                                340 
v.  Virginia  City             195, 


lviii 


TABLE  OF  CASES  CITED. 


Page 
Tuolumne  Redemption  Co.  v.  Sedg- 
wick 289 
Turbeville  v.  Stampe                          573 
Turley  v.  Logan  Co.  135 
Turner,  Matter  of                               298 
Turnpike  Co.  v.  People  52 
v.  State                        384 
v.  Wallace                   214 
Tuscaloosa  Bridge  Co.  v.  Olmsted  14'J, 

151 

Tuttle  v.  Strout  147 

Twambly  v.  Henley  49 

Twitchell  v.  Commonwealth  18 

Tyler  v.  Beacber  494,  530,  53G 

v.  People  127,  168 

v.  Tyler  52 

Tyson  v.  Scbool  Directors         14,  175, 

212,  227,  228,  370,  488,  490 

Tyzee  v.  Commonwealtb  319 


IT. 


Uhrig  v.  St.  Louis 

506 

Ullery  v.  Commonwealtb 

310 

Underhill  v.  Welton 

423 

Underwood  v.  Lilley          372, 

377,  379 

Union  Bank  v.  Hill 

483 

v.  State 

33 

Union  Insurance  Co.  v.  Hoge 

68 

United  States  v.  Aredondo 

11 

v.  Battiste 

323 

v.  Benner 

318 

v.  Callendar 

336,  427 

v.  Conway 

289 

v.  Coolidge 

19 

v.  Cooper 

427 

v.  De  Witt 

10,  573 

v.  Fisber 

54,  63 

v.  Frencb 

346 

v.  Gilmore 

68 

v.  Hamilton 

309 

v.  Haswell 

427 

v.  Hoar 

366 

v.  Hudson 

19,  427 

v.  Jailer  of  Fa) 

ette    345 

v.  Jones 

309 

v.  Lancaster 

19 

v.  Little 

318 

v.  Lyon 

427 

v.  Mann 

14 

v.  Marigold 

IS 

v.  Minnesota, 

&c, 

R.R.  Co. 

560 

v.  Moore 

320 

v.  Morris 

323 

v.  Morrison 

13 

United  States  v.  New  Bedford 

Bridge  19,  592 

v.  Ortega  318 

v.  Palmer  141 

v.  Passmore         361,  381 
v.  Perchenian  11 

v.  Perez  327 

v.  Ragsdale  54 

v.  Railroad  Bridge      525 
v.  Rector  346 

v.  Riley  323,  325 

v.  Samperyac  361 

v.  Tynen  "  362,  381 

v.  Wilson  19,  324 

United  States  Bank  v.  Halstead         68 
v.  Norton  11 

v.  Planter's 

Bank  251 

University  of  Nortb   Carolina  v. 

Foy      '  ^     275 

Updegraph  v.  Commonwealtb  472,  474 
Upshaw,  Ex  parte,  149 

Upton  v.  Soutb   Reading   Branch 

R.R.  568,  569 

Usber  v.  Colcbester  228 

Utley  v.  Campbell  422 


V. 

Van  Allen  ?\  Assessors  482 

Van  Alstyne  v.  Indiana  P.  &  C. 

R.R.  Co.  49 

Van  Ankin  v.  Westfall  422 

Van  Bambach  v.  Bade  284,  286 

Van  Bokelen  v.  Brooklyn  City  R.R. 

Co.  14 

Van  Bokkelin  v.  Ingersoll  49 

Van  Camp  v.  Board  of  Education    394 
Vanderbilt  v.  Adams  283,  585,  594 

434 

292 

169 

47 

423 

19,  23 

286 

422 

286 

14 

286,  288, 

289 

584 

434 

352,  354,  356 

168,  544 

75 

575,  580 


Vanderzee  v.  McGregor 
Van  Hoffman  v.  Quincy 
Van  Home  v.  Dorrance 
Van  Kleek  v.  Egglcston 
Van  Ness  v.  Hamilton 
Van  Nest  v.  Pacard 
Van  Rensselaer  v.  Ball 
v.  Hole 
v.  Hays 
v.  Kearney 
v.  Snyder 

Van  Wormer  v.  Albany 
Van  Wyck  v.  Aspinwall 
Van  Zant  v.  Waddell 
Varick  v.  Smith 
Veazie  v.  China 
v.  Mavo 


TABLE   OP  CASES  CITED. 


lix 


Veazie  v.  Moore  592 

Veazie  Bank  v.  Fenno  482,  484 

Veeder  v.  Lima  107,  216 

Verner  v.  Carson  47 

Vidal  v.  Girard's  Ex'ra  472 

Vilas    v.  Milwaukee  &  M.  R.R. 

Co.  564 

Vincennes  ».  Richards  542 
Vincennes  University  v.  Indiana       25, 

279 

Vincent  v.  Nantucket  211,  212 

Violett  v.  Violett  385 

Vischer  v.  Vischer  401 

Vise  v.  Hamilton  Co.  334 

Voglesong  v.  State  476,  596 

Voorhies,  Matter  of  15 

Vose  v.  Morton  399 


w. 

Wabash,  &c,  Co.  v.  Beers  275 

Wade  v.  Richmond  192 

v.  State  318 

Wadleigh  ».  Gilman  594 

Wadsworth's  Adinr  v.  Smith  590 
Wager  v.  Troy  Union  R.R.  Co.      547, 

550 

Waggaman  v.  Byers  422 

Walcott  v.  Swampscott  253 

Waldo  i:  Portland  222 
Waldron  v.  Rensselaer  &  Saratoga 

R.R.  Co.  575,  579 

Wales  v.  Lyon  47 

v.  Stetson  279,  394 

Walker  v.  Caldwell  142,  151 

v.  Cincinnati  119 

v.  Dunham  144 

v.  Peele  276 

v.  State  336 

v.  Taylor  12 

v.  Whitehead  289 

Wall  v.  State  125 

v.  Trumbull  406,  408 

Wallace,  In  re  336 

v.  Muscatine  253 

v.  Shelton  498,  512 

Wallv's  Heirs  v.  Kennedy  352,  392 

Walpole  v.  Elli.-tt  173,  382 

Walschiager  v.  Liberty  219 

Walston  i'.  Commonwealth  272,  273 

Walter  v.  Bacon  371 

Waltham  v.  Kemper  246,  248 

Walther  v.  Warner  560,  562 

Walton's  Lessee  v.  Bailey  377 

Waltz  v.  Waltz  402 

Wammack  v.  Holloway  622 

Wantlan  v.  White  368 


Page 

Ward  v.  Brainerd  361 

v.  Maryland       15,  484,  486,  487 

v.  Morris  487 

v.  New  England,  &c,  Co.      103 

v.  State  15 

v.  Warner  590 

Wardlaw  v.  Buzzard  365 

Ware  v.  Hylton  6,  11 

Warickshall's  Case  316 

Waring  v.  Jackson  13 

Warner  v.  Paine  441,  444 

v.  People  276 

v.  Scott  47 

v.  State  323 

Warren  v.  Charlestown  177,  179 

v.  Glvnn  409 

v.  Henley  508,  509,  512 

v.  Lyon's  City  237 

v.  McCarthy  16 

v.  Paul  483 

v.  Sherman  58 

v.  State  323 

Warren  Manuf.  Co.  v.  iEtna  Ins. 

Co  15 

Wartman  v.  Philadelphia  596 

Washburn  v.  Cooke  425 

v.  Franklin  362,  375 

Washington  v.  Murray  69,  82,  149 

v.  Nashville  588 

v.  Page  68 

Washington  Avenue         488,  497,  498, 

507,  509 
Washington  Bridge  Co.  v.  State     576, 

578 
Washington  Co.  v.  Berwick  222 

Washington  Insurance  Co.  v.  Price  411, 

412 
Washington  University  v.  Rouse  280 
Wason  v.  Walter  418,  440,  449 

Waters  v.  Leech  200 

Waterville  v.  Kennebeck  Co.  193,  230, 

232 
347,  348 
369 
102 
526 
466 
467 
466,  467 
422 


Watkins 


Ex  parte 

v.  Haight 

v.  Holman's  Lessee 

v.  Walker  Co. 
Watson  v.  Avery 

v.  Farris 

v.  Jones 

v.  McCarthy 

v.  Mercer     266,  376,  377,  381 

v.  New  York  Central  R.R. 
Co.  286 

v.  Thurber  61 

Watts  v.  Greenlee  423 

v.  State  311 

Way  man  v.  Southard  90 

Weaver  v.  Cherry  212 


lx 


TABLE  OF  CASES  CITED. 


Page 

Weaver  v.  Lapsley  82,  96,  149 

Webb  v.  Baird  334,  394 

v.  Den  366,  367 

Webster  v.  French  78 

v.  Harwinton       189,  191,  219 

v.  Reid  404,  406 

Weed  v.  Foster  424 

Weeks  v.  Milwaukee        192,  381,  493, 

499,  503,  508,  512,  515,  519,  595 

Weet  i'.  Broekport  247 

Weightman  v.   Washington    208,  246, 

247,  253 

Weise  v.  Smith  589,  590 

Weister  v.  Hade  9,  173,  182.  223,  226, 

372,  381,  479 

Welborn  v.  Aikin 

Welch  v.  Stowell 

v.  Sykes 

v.  Wadsworth 


Welker  v.  Potter 
Wellington,  Petitioner 
Wells  v.  Burbank 
v.  Scott 


289 

582 

16 

293,  362,  372, 

375 

129 

163,  177,  181 

520 

409 


v.  Somerset,  &c,  R.R.  Co.    526 
v.  Weston  382,  500 

Wendel  v.  Durbin  77 

Wendell  v.  Troy  254 

West  v.  Bancroft  555 

v.  Sansom  289 

West  Branch,  &c,   Canal  Co.  v. 

Mulliner  542 

Western  College  v.  Cleveland  208 

Western  Fund   Saving  Society  v. 

Philadelphia  252 

Westervelt  v.  Gregg  355,  360,  361 

v.  Lewis  16 

Westfall  v.  Preston  522 

Weston  v.  Charleston  18,  482 

v.  Foster  558 

West  River  Bridge  Co.  v.  Dix         281, 

526 
West  Va.   Transportation   Co.   v. 

Volcanic  Oil  Co.  528,  530,  533 

Wetherell  v.  Stillman  16 

Wetumpka,  Mayor  of  v.  Winter       119 

Wheat  v.  Ragsdale  625 

Wheaton  v.  Peters  19 

Wheeler  v.  Chicago  76 

v.  Chubbuck  '  156 

v.  Cincinnati  208 

v.  Rochester,   &c,    R.R. 

Co.  558 

v.  Spencer  615 

v.  State  146,  319 

v.  Wall  169 

v.  Worcester  254 


Wheeling  Bridge  Case 


591,  592 


Wheelock  v.  Young 
Whipley  v.  McCune 
Whipple  v.  Farrar 
Wiiite  v.  Buchanan 
v.  Carroll 

v.  Commissioners    of   Nor- 
folk Co. 
v.  Flvnn 

v.  Hart  33,  285, 

v.  Kendrick 
v.  Kent 
v.  Mayor,  &c. 
v.  Scott 

v.  Stamford  171, 

v.  Tallman 
v.  White  (5  Barb.) 
v.  White  (105  Mass.)     Ill, 
v.  Yazoo  City 
v.  Zane 
Whitebread  v.  The  Queen 
Whitehurst  v.  Coleen 
Whiteley  v.  Adams 
Whiteman's  Ex'rs  v.  Wilmington, 

&c,  R.R.  Co. 
White    Mountains    R.R.    Co.     v. 
White    Mountains    R.R.  Co.  of 
N.  H. 
White  River  Turnpike  Co.  v.  Ver- 
mont Central  R.R.  Co.  526, 
White  School  House  v.  Post 
Whitfield  v.  Longest 
Whiting  v.  Barney 
v.  Earle 

v.  Mt.  Pleasant  144, 

v.  Sheboygan  R.R.  Co. 
Whitley  v.  State 

Whitman  v.  Boston  &  Maine  R.R. 
Co. 
v.  Hapgood 
Whitney  v.  Richardson 
Whitson  v.  Franklin 
Whittaker  v.  Johnson  Co. 
Whittington  v.  Polk  47, 

Whyte  v.  Nashville 
Wick  v.  The  Samuel  Strong 
Wider  v.  East  St.  Louis 
Wilbraham  v.  Ludlow 
Wilby  v.  Elston 
Wilcox  v.  Jackson 
v.  Rodman 
v.  Wilcox 
Wilder  v.  Case 
Wildes  v.  Van  Voorhies 
Wiley  v.  Parmer 
Wilkes  v.  Wood 
Wilkes's  Case 
Wilkins  v.  Miller 
AVilkinson  v.  Cheatham  383, 


526 
618 
361 
397 
441 

570 
368 
289 
355 
596 
200 
163 
212 
205 
530 
372 
206 
61 
329 
402 
425 


379 

537 

361 
588 
334 
339 
147 
215 
318 

570 
369 
387 
578 

47 
168 
205 

14 
233 
600 
423 

13 
276 
401 

47 
360 
487 
307 
300 
146 
384 


TABLE  OF   CASES  CITED. 


Ixi 


Wilkinson  v.  Leland  92,  102,  105,  165, 

175 

Willard  v.  Harvey  370 

v.  Killingworth  191,  202 

v.  Longstreet  289 

v.  People  178,  179,  180 

v.  Presbury  507 

Willcox  v.  Kassick  16,  406 

Williams  v.  Augusta  595 

v.  Bidleman  129 

v.  Bryant  423 

v.  Carleton  14:6 

v.  Commonwealth  325 

17.  Detroit  168,  497,  498,  507, 

510 

v.  Haines  286 

v.  Hill  424 

v.  Johnson  370 

v.  Kirkland  14 

v.  Natural  Bridge  Plank 

Road  Co.  545 

v.  New     York     Central 

R.R.  Co.  547,  557 

v.  Norris  12 

v.  Oliver  12 

v.  Payson  146,  177 

v.  People  146 

v.  School  District        78,  489, 

515,  532 

v.  Stein  605 

v.  Wickerman  530 

Williamson  v.  Carlton  164 

f.  Suydara  101 

v.  Williamson  102 

Williston  v.  Colkett  371 

Wilmington  R.R.  Co.  v.  Reid  280 

Wilson  v.  Blackbird  Creek  Marsh 

Co.  486,  532,  537, 

591,  593 
v.  Collins  442 

v.  Crockett  530 

v.  Franklin  530 

v.  Hardesty  375 

v.  McKenna  363,  369 

v.  New  York         514,  515,  542 
v.  Noonan  422,  465 

v.  Runyan  423 

v.  State  337 

Wilson's  Case  344 

Winchell  v.  State  318 

Winchester  v.  Ay  res  399 

Windham  v.  Portland  193 

Wingate  v.  Sluder  479 

Winona,   &c,   R.R.   Co.  v.   Den- 
man  569,  570 
Winona  &  St.  Paul   R.R.  Co.  v. 

Waldron  568,  579 

Winsor  v.  The  Queen  327 


Page 

Winter  i\*Jones  284 

Wires  v.  Farr  365 

Wirth  v.  Wilmington  198,  216 
Wisconsin   River    Improvement 

Co.  v.  Lyons  26 

Withers  v.  State  337 

Withington  v.  Corey  387,  389 

.  Witt  v.  State  318 

Woart  v.  Winnick     266,  267,  365,  370 

Wolcott  v.  People  486 

v.  Rickey  339 

v.  Wigton  57,  79 

Wolcott  Woollen   Manuf.   Co.   v. 

Upham  534 
Wolfe  v.  Covington  &  Lexington 

R.R.  Co.  547 

Wood  v.  Brooklyn  198 

v.  Fort  155 

v.  Kennedy  293,  375 

v.  McCann  137 

v.  Randall  409 

v.  Stephen  49 

v.  Watkinson  16 
Woodbridge  v.  Detroit     498,  501,  508, 

558,  588 
Woodburn   v.    Kilbourne    Manuf. 

Co.  26,  593 

Woodbury  v.  Grimes  286,  361 

v.  Thompson  423,  424 

Woodcock  v.  Bennett  353 

WoodfalPs  Case  460 

Woodfolk  v.  Nashville  R.R.  Co.       569 

Woodhull  v.  Wagner  294 

Woodruff  i'.  Fisher  510 

v.  Neal  544 

v.  Trapnall  14,  284 

Woodward  v.  Lander  434 

v.  Tremere  16 

Woodworth  v.  Spring  405 

Woolsey  v.  Dodge  13 

Work  v.  State  319,  399 

Worth  v.  Butler  423 

Wray,  Ex  parte  310 

v.  Pittsburgh  498,  507 

Wreford  v.  People  204 

Wright  v.  Carter  545 

v.  Chicago  498 

v.  Cradiebaugh  368,  369 

t\  De  Frees  187 

v.  Dunham  367 

v.  Hawkins  361,  379 

v.  Le  Claire  47 

v.  Oakley  365 

v.  Paige  422 

v.  State  325,  327 

v.  Woodgate  4^5 

v.  Wright  113 

Wroth  v.  Johnson  615 


lxii 


TABLE  OF  CASES   CITED. 


Wvnehamer  v.  People  89, 168, 171,  172, 

354, 356, 364, 572, 582, 

583,  584 


Yale,  Ex  parte 

263 

Yates  v.  Milwaukee 

544 

v.  People 

307 

v.  Yates 

402 

Yeaker  v.  Yeaker 

11 

Yeatman  v.  Crandell 

498,  512 

York  v.  Pease 

442 

Yost  v.  Stout 

530 

Yost's  Report 

371 

Young  v.  Beardsley 

369 

v.  Black 

47 

Young  v.  Commissioners,  &c.  246 

v.  Harrison  560 

v.  McKenzie  531 

v.  State  Bank  96 


Z. 


Zabriske  v.  Cleveland  217 

v.  Railroad  Co.  _      119 

Zanesville  v.  Auditor  of  Muskin- 


gum 
Zimmerman  v.  Union  Canal  Co 

Zottman  v.  San  Francisco 
Zumhoff  v.  State 
Zylstra's  Case 


517 
541, 
592,  593 
212 
582 
355 


CONSTITUTIONAL   LIMITATIONS. 


CONSTITUTIONAL    LIMITATIONS. 


CHAPTER    I. 


DEFINITIONS. 


A  State  is  a  body  politic,  or  society  of  men,  united  together  for 
the  purpose  of  promoting  their  mutual  safety  and  advantage  by  the 
joint  efforts  of  their  combined  strength.1  The  terms  nation  and 
State  are  frequently  employed,  not  only  in  the  law  of  nations,  but 
in  common  parlance,  as  importing  the  same  thing ; 2  but  the  term 
nation  is  more  strictly  synonymous  with  people,  and  while  a  single 
State  may  embrace  different  nations  or  peoples,  a  single  nation  will 
sometimes  be  so  divided  politically  as  to  constitute  several  States. 

In  American  constitutional  law  the  word  State  is  applied  to  the 
several  members  of  the  American  Union,  while  the  word  nation  is 
applied  to  the  whole  body  of  the  people  embraced  within  the  juris- 
diction of  the  Federal  government. 

Sovereignty,  as  applied  to  States,  imports  the  supreme,  absolute, 
uncontrollable  power  by  which  any  State  is  governed.3  A  State  is 
called  a  sovereign  State  when  this  supreme  power  resides  within 
itself,  whether  resting  in  a  single  individual,  or  in  a  number  of 
individuals,  or  in  the  whole  body  of  the  people.4     In  the  view  of 

1  Vattel,  b.  1,  c.  1,  §  1;  Story  on  Const.  §  207;  Wheat,  Int.  Law,  pt.  1, 
c.  2,  §  2 ;  Halleck,  Int.  Law,  63;  Bouv.  Law  Diet.  "  State."  "  A  multitude  of 
people  united  together  by  a  communion  of  interest,  and  by  common  laws,  to 
which  they  submit  with  one  accord."     Burlamaqui,  Politic  Law,  c.  5. 

2  Thompson,  J.,  in  Cherokee  Nation  v.  Georgia,  5  Pet.  52;  Chase,  Ch.  J., 
in  Texas  v.  White,  7  Wall.  720 ;  Vattel,  supra. 

3  Story  on  Const.  §  207 ;  1  Black.  Com.  49;  Wheat.  Int.  Law,  pt.  1,  c.  2, 
§  5;  Halleck,  Int.  Law,  63,  64;  Austin,  Province  of  Jurisprudence,  Lee.  VI.; 
Chipman  on  Government,  137.  "  The  right  of  commanding  finally  in  civil  soci- 
ety."    Burlamaqui,  Politic  Law,  c.  5. 

4  Vattel,  b.  1,  c.  1,  §  2  ;  Story  on  Const.  §  207  ;  Halleck,  Int.  Law,  65.  In 
other  words,  when  it  is  an  independent  State.     Chipman  on  Government,  137. 

1  [1] 


*   1  CONSTITUTIONAL    LIMITATIONS.  [CH.    I. 

international   law,  all  sovereign  States  are  and  must  be 
[*  2]      equal  in  rights,  *  because,  from  the  very  definition  of  sover- 
eign State,  it  is  impossible  that  there  should  be,  in  respect 
to  it,  any  political  superior. 

The  sovereignty  of  a  State  commonly  extends  to  all  the  subjects 
of  government  within  the  territorial  limits  occupied  by  the  asso- 
ciated people  which  compose  it;  and,  except  upon  the  high  seas, 
which  belong  equally  to  all  men,  like  the  air,  and  no  part  of  which 
can  rightfully  be  appropriated  by  any  nation,1  the  dividing  line 
between  sovereignties  is  usually  a  territorial  line.  In  American 
constitutional  law,  however,  there  is  a  division  of  the  powers  of 
sovereignty  between  the  national  and  State  governments  by  sub- 
jects :  the  former  being  possessed  of  supreme,  absolute,  and  uncon- 
trollable power  over  certain  subjects  throughout  all  the  States  and 
territories,  while  the  States  have  the  like  complete  power,  within 
their  respective  territorial  limits,  over  other  subjects.2  In  regard 
to  certain  other  subjects,  the  States  possess  powers  of  regulation 
which  are  not  sovereign  powers,  inasmuch  as  they  are  liable  to  be 
controlled,  or  for  the  time  being  to  become  altogether  dormant  by 
the  exercise  of  a  superior  power  vested  in  the  general  government 
in  respect  to  the  same  subjects. 

A  Constitution  is  sometimes  defined  as  the  fundamental  law  of 
a  State,  containing  the  principles  upon  which  the  government  is 
founded,  regulating  the  division  of  the  sovereign  powers,  and 
directing  to  what  persons  each  of  these  powers  is  to  be  confided, 
and  the  manner  in  which  it  is  to  be  exercised.3  Perhaps  an 
equally  complete  and  accurate  definition  would  be,  that  body  of 
rules  and  maxims  in  accordance  with  which  the  powers  of  sover- 
eignty are  habitually  exercised. 

In  a  much  qualified  and  very  imperfect  sense  every  State  may 
be  said  to  possess  a  constitution ;   that  is  to  say,  some  leading 

1  Vattel,  b.  1,  c.  23,  §  281 ;  Wheat.  Int.  Law,  pt.  2,  c.  4,  §  10. 

2  McLean,  J.,  in  License  Cases,  5  How.  588.  "  The  powers  of  the  general 
government  and  of  the  State,  although  both  exist  and  are  exercised  within  the 
s-arne  territorial  limits,  are  yet  separate  and  distinct  sovereignties,  acting  sepa- 
rately and  independently  of  each  other,  within  their  respective  spheres.     And  the 

■'  sphere  of  action  appropriated  to  the  United  States  is  as  far  beyond  the  reach  of 
the  judicial  process  issued  by  a  State  judge  or  a  State  court,  as  if  the  line  of 
division  was  traced  by  landmarks  and  monuments  visible  to  the  eye."  Taney, 
Ch.  J.,  in  Ableman  v.  Booth,  21  How.  516.     See  Tarble's  Case,  13  Wall.  406. 

3  1  Bouv.  Inst.  9 ;  Duer,  Const.  Juris.  26. 

[2] 


CH.    I.]  DEFINITIONS. 


*  0 


principle  has  prevailed  in  the  administration  of  its  government, 
until  it  has  become  an  understood  part  of  its  system,  to 
which  obedience  *  is  expected  and  habitually  yielded ;  like  [*  3] 
the  hereditary  principle  in  most  monarchies,  and  the 
custom  of  choosing  the  chieftain  by  the  body  of  the  people  which 
prevails  among  some  barbarous  tribes.  But  the  term  constitu- 
tional government  is  applied  only  to  those  whose  fundamental  rules 
or  maxims  not  only  locate  the  sovereign  power  in  individuals  or 
bodies  designated  or  chosen  in  some  prescribed  manner,  but  also 
define  the  limits  of  its  exercise  so  as  to  protect  individual  rights, 
and  shield  them  against  the  assumption  of  arbitrary  power.  The 
number  of  these  is  not  great,  and  the  protection  they  afford  to 
individual  rights  is  far  from  being  uniform.1 

In  American  constitutional  law,  the  word  Constitution  is  used  in 
a  restricted  sense,  as  implying  the  written  instrument  agreed  upon 
by  the  people  of  the  Union,  or  of  any  one  of  the  States,  as  the 
absolute  rule  of  action  and  decision  for  all  departments  and  officers 
of  the  government,  in  respect  to  all  the  points  covered  by  it,  which 
must  control  until  it  shall  be  changed  by  the  authority  which 
established  it,  and  in  opposition  to  which  any  act  or  regulation  of 
any  such  department  or  officer,  or  even  of  the  people  themselves, 
will  be  altogether  void. 

The  term  unconstitutional  law  must  vary  in  its  meaning  in  differ- 
ent States,  according  as  the  powers  of  sovereignty  are  or  are  not 
possessed  by  the  individual  or  body  which  exercises  the  powers  of 
ordinary  legislation.  Where  the  law-making  department  of  a  State 
is  restricted  in  its  powers  by  a  written  fundamental  law,  as  in  the 
American  States,  we  understand  by  unconstitutional  law  one  which, 
being  opposed  to  the  fundamental  law,  is  therefore  in  excess  of 
legislative  authority,  and  void.     Indeed,  the  term  unconstitutional 

1  Absolute  monarchs,  under  a  pressure  of  necessity,  or  to  win  the  favor  of 
their  people,  sometimes  grant  them  what  is  called  a  constitution ;  but  this,  so 
long  as  the  power  of  the  monarch  is  recognized  as  supreme,  can  be  no  more  than 
his  promise  that  he  will  observe  its  provisions,  and  conduct  the  government  ac- 
cordingly. The  mere  grant  of  a  constitution  does  not  make  the  government  a 
constitutional  government,  until  the  monarch  is  deprived  of  power  to  set  it  aside 
at  will.  The  mere  grant  of  Magna  Charta  did  not  make  the  English  a  constitu- 
tional monarchy  ;  it  was  only  after  repeated  violations  and  confirmations  of  that 
instrument,  and  when  a  further  disregard  of  its  provisions  had  become  dangerous 
to  the  Crown,  that  fundamental  rights  could  be  said  to  have  constitutional  guar- 
anties, and  the  government  to  be  constitutional. 

*     [3] 


*  3  CONSTITUTIONAL   LIMITATIONS.  [CH.    I. 

law,  as  employed  in  American  jurisprudence,  is  a  misnomer,  and 
implies  a  contradiction  ;  that  enactment  which  is  opposed  to  the 
Constitution  being  in  fact  no  law  at  all.  But  where,  by  the  theory 
of  the  government,  the  exercise  of  complete  sovereignty  is  vested  in 
the  same  individual  or  body  which  enacts  the  ordinary  laws,  any 
law,  being  an  exercise  of  power  by  the  sovereign  authority,  must  be 
obligatory,  and,  if  it  varies  from  or  conflicts  with  any  existing  con- 
stitutional principle,  must  have  the  effect  to  modify  or  abrogate  such 
principle,  instead  of  being  nullified  by  it.  This  must  be  so  in  Great 
Britain  with  every  law  not  in  harmony  with  pre-existing  constitu- 
tional principles  ;  since,  by  the  theory  of  its  government,  Parliament 

exercises  sovereign  authority,  and  may  even  change  the 
[*  4]      Constitution  *  at  any  time,  as  in  many  instances  it  has  done, 

by  declaring  its  will  to  that  effect.1  And  when  thus  the 
power  to  control  and  modify  the  Constitution  resides  in  the  ordi- 
nary law-making  power  of  the  State,  the  term  unconstitutional  law 
can  mean  no  more  than  this :  a  law  which,  being  opposed  to  the 
settled  maxims  upon  which  the  government  has  habitually  been 
conducted,  ought  not  to  be,  or  to  have  been,  adopted.2  It  follows, 
therefore,  that  in  Great  Britain  constitutional  questions  are  for  the 
most  part  to  be  discussed  before  the  people  or  the  Parliament,  since 
the  declared  will  of  the  Parliament  is  the  final  law  ;  but  in  America, 
after  a  constitutional  question  has  been  passed  upon  by  the  legis- 
lature, there  is  generally  a  right  of  appeal  to  the  courts  when  it  is 
attempted  to  put  the  will  of  the  legislature  in  force.  For  the  will 
of  the  people,  as  declared  in  the  Constitution,  is  the  final  law  ;  and 
the  will  of  the  legislature  is  only  law  when  it  is  in  harmony  with, 
or  at  least  is  not  opposed  to,  that  controlling  instrument  which 
governs  the  legislative  body  equally  with  the  private  citizen.3 

1  1  Black.  Com.  161 ;  De  Tocqueville,  Democracy  in  America,  c.  6 ;  Broom, 
Const.  Law,  795. 

2  Mr.  Austin,  in  his  Province  of  Jurisprudence,  Lee.  VI.,  explains  and  enlarges 
upon  this  idea,  and  gives  illustrations  to  show  that  in  England,  and  indeed  under 
most  governments,  a  rule  prescribed  by  the  law-making  authority  may  be  uncon- 
stitutional, and  yet  legal  and  obligatory. 

3  See  Chapter  VII.  post. 

[4] 


CH.   II.]  THE   CONSTITUTION   OF   THE   UNITED   STATES. 


*CHAPTER     II.  [*5] 

THE   CONSTITUTION   OF   THE   UNITED    STATES. 

The  government  of  the  United  States  is  the  existing  represent- 
ative of  the  national  government  which  has  always  in  some  form 
existed  over  the  American  States.  Before  the  Revolution,  the 
powers  of  government,  which  were  exercised  over  all  the  colonies 
in  common,  were  so  exercised  as  pertaining  either  to  the  Crown  of 
Great  Britain  or  to  the  Parliament ;  but  the  extent  of  those  powers, 
and  how  far  vested  in  the  Crown  and  how  far  in  the  Parliament,  were 
questions  never  definitely  settled,  and  which  constituted  subjects 
of  dispute  between  the  mother  country  and  the  people  of  the  colo- 
nies, finally  resulting  in  hostilities.1  That  the  power  over  peace 
and  war,  the  general  direction  of  commercial  intercourse  with  other 
nations,  and  the  general  control  of  such  subjects  as  fall  within  the 
province  of  international  law,  were  vested  in  the  home  government, 
and  that  the  colonies  were  not,  therefore,  sovereign  States  in  the 
full  and  proper  sense  of  that  term,  were  propositions  never  seriously 
disputed  in  America,  and  indeed  were  often  formally  conceded  ; 
and  the  disputes  related  to  questions  as  to  what  were  or  were  not 
matters  of  internal  regulation,  the  control  of  which  the  colonists 
insisted  should  be  left  exclusively  to  themselves. 

Besides  the  tie  uniting  the  several  colonies  through  the  crown 
of  Great  Britain,  there  had  always  been  a  strong  tendency  to  a 
more  intimate  and  voluntary  union,  whenever  circumstances  of 
danger  threatened  them  ;  and  this  tendency  led  to  the  New  Eng- 
land Confederacy  of  1643,  to  the  temporary  Congress  of  1690,  to 
the  plan  of  union  agreed  upon  in  Convention  of  1754,  but  rejected 
by  the  Colonies  as  well  as  the  Crown,  to  the  Stamp  Act  Congress 
of  1765,  and  finally  to  the  Continental  Congress  of  1774.  When 
the  difficulties  with  Great  Britain  culminated  in  actual  war,  the 

1  1  Pitkin's  Hist.  U.  S.  c.  6  ;  Life  and  Works  of  John  Adams,  Vol.  I.  pp. 
122,  161;  Vol.  II.  p.  311;  Works  of  Jefferson,  Vol.  IX.  p.  291;  2  Marshall's 
Washington,  c.  2;  Declaration  of  Rights  by  Colonial  Congress  of  1765;  Ram- 
say's Revolution  in  South  Carolina,  pp.  6-11;  5  Bancroft's  U.  S.  c.  18;  1 
Webster's  Works,  128  ;  Story  on  Const.  §  183,  et  seq. 

[5] 


*  5  CONSTITUTIONAL    LIMITATIONS.  [CH.    II. 

Congress  of  1775  assumed  to  itself  those  powers  of  external  con- 
trol which  before  had  been  conceded  to  the  Crown  or  to 
[*  6]  the  *  Parliament,  together  with  such  other  powers  of  sov- 
ereignty as  it  seemed  essential  a  general  government 
should  exercise,  and  thus  became  the  national  government  of  the 
United  Colonies.  By  this  body,  war  was  conducted,  independence 
declared,  treaties  formed,  and  admiralty  jurisdiction  exercised.  It 
is  evident,  therefore,  that  the  States,  though  declared  to  be  "  sov- 
ereign and  independent,"  were  never  strictly  so  in  their  individual 
character,  but  that  they  were  always,  in  respect  to  the  higher  powers 
of  sovereignty,  subject  to  the  control  of  a  central  power,  and  were 
never  separately  known  as  members  of  the  family  of  nations.1 

1  "AH  the  country  now  possessed  by  the  United  States  was  [prior  to  the 
Revolution]  a  part  of  the  dominions  appertaining  to  the  Crown  of  Great  Britain. 
Every  acre  of  land  in  this  country  was  then  held,  mediately  or  immediately,  by 
grants  from  that  crown.  All  the  people  of  this  country  were  then  subjects  of  the 
king  of  Great  Britain,  and  owed  allegiance  to  him  ;  and  all  the  civil  authority 
then  existing  or  exercised  here  flowed  from  the  head  of  the  British  empire.  They 
were  in  a  strict  sense  fellow-subjects,  and  in  a  variety  of  respects  one  people. 
When  the  Revolution  commenced,  the  patriots  did  not  assert  that  only  the  same 
affinity  and  social  connection  subsisted  between  the  people  of  the  colonies,  which 
subsisted  between  the  people  of  Gaul,  Britain,  and  Spain  while  Roman  provinces, 
namely,  only  that  affinity  and  social  connection  which  result  from  the  mere  cir- 
cumstance of  being  governed  by  one  prince  ;  different  ideas  prevailed,  and  gave 
occasion  to  the  Congress  of  1774  and  1775. 

"  The  Revolution,  or  rather  the  Declaration  of  Independence,  found  the  people 
already  united  for  general  purposes,  and  at  the  same  time  providing  for  their 
more  domestic  concerns  by  State  conventions  and  other  temporary  arrangements. 
From  the  Crown  of  Great  Britain  the  sovereignty  of  their  country  passed  to  the 
people  of  it  ;  and  it  was  not  then  an  uncommon  opinion  that  the  unappropriated 
lands  which  belonged  to  the  Crown  passed,  not  to  the  people  of  the  colony  or 
State  within  whose  limits  they  were  situated,  but  to  the  whole  people.  On  what- 
ever principles  this  opinion  rested,  it  did  not  give  way  to  the  other,  and  thirteen 
sovereignties  were  considered  as  emerged  from  the  principles  of  the  Revolution, 
combined  with  local  convenience  and  considerations ;  the  people,  nevertheless, 
continued  to  consider  themselves,  in  a  national  point  of  view,  as  one  people ;  and 
they  continued  without  interruption  to  manage  their  national  concerns  accord- 
ingly. Afterwards,  in  the  hurry  of  the  war,  and  in  the  warmth  of  mutual  confi- 
dence, they  made  a  confederation  of  the  States  the  basis  of  a  general  government. 
Experience  disappointed  the  expectations  they  had  formed  from  it ;  and  then  the 
people,  in  their  collective  capacity,  established  the  present  Constitution."  Per 
Jay,  Ch.  J.,  in  Chisholm  v.  Georgia,  2  Dall.  470.  See  this  point  forcibly  put 
and  elaborated  by  Mr.  A.  J.  Dallas,  in  his  Life  and  Writings,  by  G.  M.  Dallas, 
200-207.     Also  in  Texas  v.  White,  7  Wall.  724. 


CH.    II.]  THE    CONSTITUTION    OF    THE    UNITED    STATES.  *  6 

The  Declaration  of  Independence  made  them  sovereign  and 
independent  States,  by  altogether  abolishing  the  foreign  juris- 
diction, and  substituting  a  national  government  of  their  own 
creation. 

But  while  national  powers  were  assumed  by  and  conceded 
to  *  the  Congress  of  1775-76,  that  body  was  nevertheless      [*  7] 
strictly  revolutionary  in  its  character,  and,  like  all  revolu- 
tionary bodies,  its  authority  was  undefined,  and  could  be  limited 
only,  first,  by  instructions  to  individual  delegates  by  the  States 
choosing  them  ;  second,  by  the  will  of  the  Congress  ;  and  third,  by 
the  power  to  enforce  that  will.1     As  in  the  latter  particular  it  was 
essentially  feeble,  the  necessity  for  a  clear  specification  of  powers 
which  should    be  exercised    by  the  national  government  became 
speedily  apparent,  and  led  to  the  adoption  of  the  Articles  of  Con- 
federation.    But  those  articles  did  not  concede  the  full  measure  of 
power  essential  to  the  efficiency  of  a  national  government  at  home, 
the  enforcement  of  respect  abroad,  or  the  preservation  of  the  public 
faith  or  public  credit ;  and  the  difficulties  experienced  induced  the 
election  of  delegates  to  the  Constitutional  Convention  held  in  1787, 
by  which  a  Constitution  was  formed  which  was  put  into  operation 
in  1789.     As  much  larger  powers  were  vested  by  this  instrument 
in  the  general  government  than  had  ever  been  exercised  in  this 
country,  by  either  the  Crown,  the  Parliament,  or  the  Revolutionary 
Congress,  and  larger  than  those  conceded  to  the  Congress  under 
the  Articles  of  Confederation,  the  assent  of  the  people  of  the  sev- 
eral States  was  essential  to  its  acceptance,  and  a  provision 
was  inserted  in  the  Constitution  that  the  ratification  *  of      [*  8] 
the  conventions  of  nine  States  should  be  sufficient  for  the 
establishment  of  the  Constitution  between  the  States  so  ratifying 
the  same.     In  fact,  the  Constitution  was  ratified  by  conventions  of 
delegates  chosen  by  the  people  in  eleven  of  the  States,  before  the 
new  government  was  organized  under  it ;  and  the  remaining  two, 
North  Carolina  and  Rhode  Island,  by  their  refusal  to  accept,  and  ft 
by  the  action  of  the  others  in  proceeding  separately,  were  excluded 
altogether  from  that  national  jurisdiction  which  before  had  embraced 
them.     This  exclusion  was  not  warranted  by  any  thing  contained 
in  the  Articles  of  Confederation,  which  purported  to  be  articles  of 

1  See  remarks  of  Iredell,  J.,  in  Penhallow  v.  Doane's  Adm'r,  3  Dall.  91,  and 
of  Blair,  J.,  in  the  same  case,  p.  111.  The  true  doctrine  on  this  subject  is  very 
clearly  explained  by  Chase,  J.,  in  Ware  v.  Hylton,  3  Dall.  231. 

m 


*  8  CONSTITUTIONAL    LIMITATIONS.  [CH.   II. 

"  perpetual  union"  ;  and  the  action  of  the  eleven  States  in  making 
radical  revision  of  the  Constitution,  and  excluding  their  associates 
for  refusal  to  assent,  was  really  revolutionary  in  character,1  and 
only  to  be  defended  on  the  same  ground  of  necessity  on  which  all 
revolutionary  action  is  justified,  and  which  in  this  case  was  the 
absolute  need,  fully  demonstrated  by  experience,  of  a  more  efficient 
general  government.2 

1  Mr.  Van  Buren  has  said  of  it  that  it  was   "  an  heroic,  though  perhaps   a 
lawless  act."     Political  Parties,  p.  50. 

2  "  Two  questions  of  a  very  delicate  nature  present  themselves  on  this  occa- 
sion :    1.  On  what  principle  the   confederation,  which  stands  in  the  form   of  a 
solemn  compact  among  the  States,  can  he  superseded  without  the  unanimous  con- 
sent of  the  parties  to  it;  2.  What  relation  is  to  subsist  between  the  nine  or  more 
States  ratifying  the   Constitution,  and  the  remaining  few  who  do  not  become 
parties  to  it.     The  first  question  is  answered  at  once  by  recurring  to  the  absolute 
necessity  of  the  case ;  to  the  great  principle  of  self-preservation  ;  to  the  tran- 
scendent law  of  nature  and  of  nature's  God,  which  declares  that  the  safety  and 
happiness  of  society  are  the  objects  at  which   all  political  institutions  aim,  and 
to  which  all  such  institutions  must  be  sacrificed.    Perhaps,  also,  an  answer  may  be 
found  without  searching  beyond  the  principles  of  the  compact  itself.     It  has  been 
heretofore  noted,  among  the  defects  of  the  confederation,  that  in  many  of  the 
States  it  had  received  no  higher  sanction   than  a  mere  legislative  ratification. 
The  principle  of  reciprocality  seems  to  require  that  its  obligation   on  the   other 
States  should  be  reduced  to  the  same  standard.     A  compact  between  independent 
sovereigns,  founded  on  acts  of  legislative  authority,  can  pretend   to  no  higher 
validity  than  a  league  or  treaty  between  the  parties.     It  is  an   established   doc- 
trine on  the  subject  of  treaties,  that  all  of  the  articles  are  mutually  conditions  of 
each  other ;  that  a  breach  of  any  one  article  is  a  breach  of  the  whole  treaty  ;  and 
that  a  breach  committed  by  either  of  the  parties  absolves  the  others,  and  author- 
izes them,  if  they  please,  to  pronounce  the  compact  violated   and  void.     Should 
it  unhappily  be  necessary  to  appeal  to  these  delicate  truths  for  a  justification  for 
dispensing  with  the  consent  of  particular  States  to   a  dissolution  of  the  federal 
pact,  will  not  the  complaining  parties  find  it  a  difficult  task  to  answer  the  multi- 
plied and  important  infractions  with  which  they  may  be  confronted  ?     The  time 
has  been  when  it  was  incumbent  on  us  all  to  veil  the  ideas  which  this  paragraph 
exhibits.     The  scene  is  now  changed,  and  with  it  the  part  which  the  same  motives 
dictate.     The  second  question  is  not  less  delicate,  and  the  flattering  prospect  of 
its  being  merely  hypothetical  forbids  an  over-curious  discussion  of  it.     It  is  one 
of  those  cases  which  must  be  left   to  provide  for  itself.     In  general  it  may  be 
observed,  that  although  no  political  relation  can   subsist  between  the  assenting 
and  dissenting  States,  yet  the   moral  relations  will  remain  uncancelled.     The 
claims  of  justice,  both  on  one  side  and  on  the  other,  will  be  in  force  and  must  be 
fulfilled  ;  the  rights  of  humanity  must  in  all  cases  be  duly  and  mutually  respected  ; 
whilst  considerations  of  a  common  interest,  and  above  all  the  remembrance  of 
the  endearing  scenes  which  are  past,  and  the  anticipation  of  a  speedy  triumph 

[8] 


CH.    II.]  THE   CONSTITUTION   OP   THE   UNITED    STATES.  *  9 

*  Left  at  liberty  now  to  assume  complete  powers  of  sover-  [*  9] 
eignty  as  independent  governments,  these  two  States  saw 
fit  soon  to  resume  their  place  in  the  American  family,  under  a  per- 
mission contained  in  the  Constitution  ;  and  new  States  have  since 
been  added  from  time  to  time,  all  of  them,  with  the  exception  of 
one,  organized  by  the  consent  of  the  general  government  and  em- 
bracing territory  previously  under  its  control.  The  exception  was 
Texas,  which  had  previously  been  an  independent  sovereign  State, 
but  which,  by  the  conjoint  action  of  its  government  and  that  of  the 
United  States,  was  received  into  the  Union  on  an  equal  footing 
witli  the  other  States. 

Without  therefore  discussing,  or  even  designing  to  allude  to 
any  abstract  theories  as  to  the  precise  position  and  actual  power 
of  the  several  States  at  the  time  of  forming  the  present  Constitu- 
tion,1 it  may  be  said  of  them  generally  that  they  have  at  all  times 
been  subject  to  some  common  national  government,  which  has 
exercised  control  over  the  subjects  of  war  and  peace,  and  other 
matters  pertaining  to  external  sovereignty;  and  that  when  the 
only  three  States  which  ever  exercised  complete  sovereignty 
accepted  the  Constitution  and  came  into  the  Union,  on  an  equal 
footing  with  all  the  other  States,  they  thereby  accepted  the  same 
relative  position  to  the  general  government,  and  divested  them- 
selves permanently  of  those  national  powers  which  the  others  had 
never  exercised. 

The  government  of  the  United  States  is  one  of  enumerated 
powers;  the  national  Constitution  being  the  instrument  which 
specifies  them,  and  in  which  authority  should  be  found  for  the 
exercise  of  any  power  which  the  national  government  assumes 
to  possess.2    In  this  respect  it  differs  from  the  constitutions  of 

over  the  obstacles  to  reunion,  will,  it  is  hoped,  not  urge  in  vain  moderation  on 
one  side,  and  prudence  on  the  other."     Federalist,  No.  43  (by  Madison). 

1  See  this  subject  discussed  in  Gibbons  v.  Ogden,  9  Wheat.  1. 

2  "  The  government  of  the  United  States  can  claim  no  powers  which  are  not 
granted  to  it  by  the  Constitution ;  and  the  powers  actually  granted  must  be  such 
as  are  expressly  given,  or  given  by  necessary  implication."  Per  Marshall,  Ch. 
J.,  in  Martin  v.  Hunter's  Lessee,  1  Wheat.  326.  "  This  instrument  contains  an 
enumeration  of  the  powers  expressly  granted  by  the  people  to  their  government." 
Marshall,  Ch.  J.,  in  Gibbons  v.  Ogden,  9  Wheat.  187.  See  Calder  v.  Bull,  3 
Dall.  386;  Briscoe  v.  Bank  of  Kentucky,  11  Pet.  257;  Gilman  v.  Philadelphia, 
3  Wall.  713 ;  Weister  v.  Hade,  52  Penn.  St.  477.  The  tenth  amendment  to  the 
Constitution  provides  that  "  the  powers  not  delegated  to  the  United  States  by 

[9] 


*  10  CONSTITUTIONAL    LIMITATIONS.  [CH.    II. 

[*  10]  the  *  several  States,  which  are  not  grants  of  powers  to 
the  States,  but  which  apportion  and  impose  restrictions 
upon  the  powers  which  the  States  inherently  possess.  The  gen- 
eral purpose  of  the  Constitution  of  the  United  States  is  declared 
by  its  founders  to  be,  "  to  form  a  more  perfect  union,  establish 
justice,  insure  domestic  tranquillity,  provide  for  the  common 
defence,  promote  the  general  welfare,  and  secure  the  blessings  of 
liberty  to  ourselves  and  our  posterity."  To  accomplish  these 
purposes,  the  Congress  is  empowered  by  the  eighth  section  of 
article  one  :  — 

1.  To  lay  and  collect  taxes,  duties,  imposts,  and  excises  ;  to 
pay  the  debts  and  provide  for  the  common  defence  and  general 
welfare  of  the  United  States.  But  all  duties,  imposts,  and  excises 
shall  be  uniform  throughout  the  United  States. 

2.  To  borrow  money  on  the  credit  of  the  United  States. 

3.  To  regulate  commerce  with  foreign  nations  and  among  the 
several  States,  and  with  the  Indian  tribes. 

4.  To  establish  a  uniform  rule  of  naturalization,  and  uniform 
laws  on  the  subject  of  bankruptcy,  throughout  the  United  States. 

5.  To  coin  money,  regulate  the  value  thereof,  and  of  foreign 
coin,  and  fix  the  standard  of  weights  and  measures. 

6.  To  provide  for  the  punishment  of  counterfeiting  the  securities 
and  current  coin  of  the  United  States. 

7.  To  establish  post-offices  and  post-roads. 

8.  To  promote  the  progress  of  science  and  the  useful  arts,  by 
securing  for  limited  terms  to  authors  and  inventors  the  exclusive 
right  to  their  respective  writings  and  discoveries. 

9.  To  constitute  tribunals  inferior  to  the  Supreme  Court.  To 
define  and  punish  piracies  and  felonies  committed  upon  the  high 
seas,  and  offences  against  the  law  of  nations. 

10.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concerning  captures  on  land  and  water. 

11.  To  raise  and  support  armies  ;  but  no  appropriation  of  money 
to  that  use  shall  be  for  a  longer  term  than  two  years. 

12.  To  provide  and  maintain  a  navy. 

the  Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to  the   States 
respectively,  or  to  the  people."     No  power  is  conferred  by  the  Constitution  upon 
Congress  to  establish  mere  police  regulations  within  the  States.     United  States 
v.  Dewitt,  9  Wall.  41. 
[10] 


CH.    II.]  THE    CONSTITUTION    OF    THE    UNITED    STATES.  *  10 

13.  To  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces. 

*  14.  To  provide  for  calling  forth  the  militia  to  execute    [*  11] 
the  laws  of  the  nation,  suppress  insurrections,  and  repel 
invasions. 

15.  To  provide  for  organizing,  arming,  and  disciplining  the 
militia,  and  for  governing  such  part  of  them  as  may  be  employed 
in  the  service  of  the  United  States,  reserving  to  the  States  re- 
spectively the  appointment  of  the  officers,  and  the  authority  of 
training  the  militia  according  to  the  discipline  prescribed  by 
Congress. 

16.  To  exercise  exclusive  legislation  in  all  cases  whatsoever, 
over  such  district  not  exceeding  ten  miles  square  as  may,  by  ces- 
sion of  particular  States,  and  the  acceptance  of  Congress,  become 
the  seat  of  government  of  the  United  States ;  and  to  exercise  like 
authority  over  all  places  purchased  by  the  consent  of  the  legis- 
lature of  the  State  in  which  the  same  shall  be,  for  the  erection  of 
forts,  magazines,  arsenals,  dock-yards,  and  other  needful  buildings. 

17.  To  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other  powers 
vested  by  the  Constitution  in  the  government  of  the  United  States, 
or  in  any  department  or  officer  thereof. 

Congress  is  also  empowered  by  the  thirteenth,  fourteenth,  and 
fifteenth  amendments  to  the  Constitution  to  enforce  the  same 
by  appropriate  legislation.  The  thirteenth  amendment  abolishes 
slavery  and  involuntary  servitude,  except  as  a  punishment  for 
crime,. throughout  the  United  States  and  all  places  subject  to 
their  jurisdiction.  The  fourteenth  amendment  has  several  objects. 
1.  It  declares  all  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  to  be  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside  ;  and  it  forbids  any  m 
State  to  make  or  enforce  any  law  which  shall  abridge  the  privi- 
leges or  immunities  of  citizens  of  the  United  States,  or  to  deprive 
any  person  of  life,  liberty,  or  property,  without  due  process  of  law, 
or  to  deny  to  any  person  within  its  jurisdiction  the  equal  protec- 
tion of  the  laws.  2.  It  provides  that  when  the  right  to  vote  at 
any  election  for  the  choice  of  electors  for  president  or  vice-presi- 
dent of  the  United  States,  representatives  in  Congress,  the  ex- 
ecutive and  judicial  officers  of  a  State,  or  the  members  of  the 
legislature  thereof,  is  denied  to  any  of  the  male  inhabitants  of 

[11] 


*  11  CONSTITUTIONAL  LIMITATIONS.  [CH.    II. 

such  State,  being  twenty-one  years  of  age,  and  citizens  of  the 
United  States,  or  in  any  way  abridged,  except  for  participation  in 
rebellion  or  other  crime,  the  basis  of  Congressional  representation 
therein  shall  be  reduced  in  the  proportion  which  the  number  of 
such  male  citizens  shall  bear  to  the  whole  number  of  male  citizens 
twenty-one  years  of  age  in  such  State.  3.  It  disqualifies  from 
holding  federal  or  State  offices  certain  persons  who  shall  have 
engaged  in  insurrection  or  rebellion  against  the  United  States,  or 
given  aid  or  comfort  to  the  enemies  thereof.  4.  It  declares  the 
inviolability  of  the  public  debt  of  the  United  States,  and  forbids 
the  United  States  or  any  State  assuming  or  paying  any  debt  or 
obligation  incurred  in  aid  of  insurrection  or  rebellion  against  the 
United  States,  or  any  claim  for  the  loss  or  emancipation  of  any 
slave.  The  fifteenth  amendment  declares  that  the  right  of  citizens 
of  the  United  States  to  vote  shall  not  be  denied  or  abridged  by  the 
United  States  or  by  any  State,  on  account  of  race,  color,  or  pre- 
vious condition  of  servitude.1 

The  executive  power  is  vested  in  a  president,  who  is  made 
commander-in-chief  of  the  army  and  navy,  and  of  the  militia  of 
the  several  States  when  called  into  the  service  of  the  United 
States  ;  and  who  has  power,  by  and  with  the  consent  of  the  Senate, 
to  make  treaties,  provided  two-thirds  of  the  Senate  concur,  and, 
with  the  same  advice  and  consent,  to  appoint  ambassadors  and 
other  public  ministers  and  consuls,  judges  of  the  Supreme  Court, 
and  other  officers  of  the  United  States,  whose  appointments  are 
not  otherwise  provided  for.2 

The  judicial  power  of  the  United  States  extends  to  all  cases  in 
law  and  equity  arising  under  the  national  Constitution,  the  laws 
of  the  United  States,  and  treaties  made,  or  which  shall  be  made, 
under  their  authority  ;  to  all  cases  affecting  ambassadors,  other 
public  ministers  and  consuls  ;  to  all  cases  of  admiralty  and  mar- 
itime jurisdiction ;  to  controversies  to  which  the  United  States 
shall  be  a  party ;  to  controversies  between  two  or  more  States ; 
between  a  State  and  citizens  of  another  State ;   between  citizens 

1  See  these  amendments  construed  in  the  recent  cases  of  Live  Stock  Dealers 
and  Butchers1  Association  v.  The  Crescent  City  Live  Stock  Landing  and  Slaugh- 
ter House  Co.,  and  Bradwell  v.  Illinois,  decided  by  the  Supreme  Court  of  the 
United  States  in  1873,  and  to  appear  in  15  Wallace.  See  also  Story  on  Const. 
4th  ed.  c.  46,  47,  48,  and  App.  to  Vol.  II. 

2  U.  S.  Const,  art.  2. 

[12] 


CH.    II.]  THE   CONSTITUTION   OF   THE   UNITED   STATES.  *  11 

of  different  States ;    between  citizens  of  the  same  State  claiming 

lands  under  grants  of  different  States  ;    and  between  a 

*  State  or  citizens   thereof  and   foreign    States,  citizens    [*  12] 

or  subjects.1     But  a  State  is  not  subject  to  be  sued  in 

the  courts  of  the  United  States  by  the  citizens  of  another  State, 

or  by  citizens  or  subjects  of  any  foreign  State.2 

The  Constitution  and  the  laws  of  the  United  States,  made  in 
pursuance  thereof,  and  all  treaties  made  under  the  authority  of 
the  United  States,  are  declared  to  be  the  supreme  law  of  the 
land ;  and  the  judges  of  every  State  are  to  be  bound  thereby, 
any  thing  in  the  Constitution  or  laws  of  any  State  to  the  contrary 
notwithstanding.3 

It  is  essential  to  the  protection  of  the  national  jurisdiction,  and 
to  prevent  collision  between  State  and  national  authority,  that  the 
final  decision  upon  all  questions  arising  in  regard  thereto  should 
rest  with  the  courts  of  the  Union;4  and  as  such  questions  must 
frequently  arise  first  in  the  State  courts,  provision  is  made  by  the 
Judiciary  Act  of  1789  for  removing  to  the  Supreme  Court  of  the 
United  States  the  final  judgment  or  decree  in  any  suit,  rendered  in 
the  highest  court  of  law  or  equity  of  a  State  in  which  a  decision 
could  be  had,  in  which  was  drawn  in  question  the  validity  of  a 
treaty,  or  statute  of,  or  authority  exercised  tinder  the  United  States, 
and  the  decision  was  against  their  validity  ;  or  where  was  drawn  in 
question  the  validity  of  a  statute  of,  or  an  authority  exercised  un- 
der any  State,  on  the  ground  of  their  being  repugnant  to  the  Con- 

1  U.S.  Const,  art.  3,  §  2.  -  U.  S.  Const.  11th  Amendment. 

8  U.  S.  Const,  art.  6  ;  Owings  v.  Norwood's  Lessee,  5  Cranch,  348 ;  McCul- 
loch  v.  Maryland,  4  Wheat.  316  ;  Foster  v.  Neilson,  2  Pet.  253,  314;  Cook  v. 
Moffat,  5  How.  295  ;  Dodge  v.  Woolsey,  18  How.  331.  When  a  treaty  has  been 
ratified  by  the  proper  formalities,  it  is,  by  the  Constitution,  the  supreme  law  of 
the  land,  and  the  courts  have  no  power  to  inquire  into  the  authority  of  the  per- 
sons by  whom  it  was  entered  into  on  behalf  of  the  foreign  nation  :  Doe  v.  Braden, 
16  How.  635,  657 ;  or  the  powers  or  rights  recognized  by  it  in  the  nation  with 
which  it  was  made:  Maiden  v.  Ingersoll,  6  Mich.  373.  A  State  law  in  conflict 
with  it  must  give  way  to  its  superior  authority.  Ware  v.  Hylton,  3  Dall.  99  ; 
Yeaker  v.  Yeaker,  4  Met.  Ky.  33.  See,  further,  United  States  v.  Aredondo, 
6  Pet.  691 ;  United  States  v.  Percheman,  7  Pet.  51 ;  Garcia  v.  Lee,  12  Pet.  511 ; 
Ropes  v.  Clinch,  8  Blatch.  304;  The  Cherokee  Tobacco,  11  Wall.  616. 

4  Martin  v.  Hunter's  Lessee,  1  Wheat.  304,  334 ;  Cohens  v.  Virginia,  6 
'Wheat.  264;  Bank  of  United  States  v.  Norton,  3  Marsh.  423;  Braynard  v. 
Marshall,  8  Pick.  196,  per  Parker,  Ch.  J.;  Spangler's  Case,  11  Mich.  298; 
Tarble's  Case,  13  Wall.  397. 

[13] 


*  12  CONSTITUTIONAL   LIMITATIONS.  [CH.   II. 

stitution,  treaties,  or  laws  of  the  United  States,  and  the  decision 
was  in  favor  of  such  their  validity  ;  or  where  was  drawn  in  ques- 
tion the  construction  of   any  clause  of  the  Constitution,  or  of  a 

treaty,  or  statute  of,  or  commission  held  under  the  United 
[*  13]    States,  and   the  decision    was    against  the   right,    *  title, 

privilege,  or  exemption  specially  set  up  or  claimed  by  either 
party  under  such  clause  of  the  said  Constitution,  treaty,  statute,  or 
commission.1 

But  to  authorize  the  removal  under  that  act,  it  must  appear  by 
the  record,  either  expressly  or  by  clear  and  necessary  intendment, 
that  some  one  of  the  enumerated  questions  did  arise  in  the  State 
court,  and  was  there  passed  upon.  It  is  not  sufficient  that  it 
might  have  arisen  or  been  applicable.2  And  if  the  decision  of  the 
State  court  is  in  favor  of  the  right,  title,  privilege,  or  exemption 
so  claimed,  the  Judiciary  Act  does  not  authorize  such  removal.3 
Neither  does  it  where  the  validity  of  the  State  law  is  drawn  in 
question,  and  the  decision  of  the  State  court  is  against  its  validity.4 
But  the  same  reasons  which  require  that  the  final  decision  upon 
all  questions  of  national  jurisdiction  should  be  left  to  the  national 
courts  will  also  hold  the  national  courts  bound  to  respect  the 
decisions  of  the  State  courts  upon  all  questions  arising  under  the 
State  constitutions  and  laws,  where  no  question  of  national  au- 

1  1  Statutes  at  Large,  83 ;  Brightly's  Digest,  259. 

8  Owings  v.  Norwood's  Lessee,  5  Cranch,  344;  Martin  v.  Hunter's  Lessee, 
1  Wheat.  304;  Inglee  v.  Coolidge,  2  Wheat.  363;  Miller  v.  Nicholls,  4  Wheat. 
311 ;  Williams  v.  Norris,  12  Wheat.  117  ;  Hickie  v.  Starke,  1  Pet.  98  ;  Harris  v. 
Dennie,  3  Pet.  292 ;  Fisher's  Lessee  v.  Cockerell,  5  Pet.  256  ;  New  Orleans  v. 
De  Armas,  9  Pet.  223,  234 ;  Keene  v.  Clarke,  10  Pet.  291 ;  Crowell  v.  Randell, 
10  Pet.  368 ;  McKinny  v.  Carroll,  12  Pet.  66  ;  Holmes  v.  Jennison,  14  Pet.  510 ; 
Scott  v.  Jones,  5  How.  343 ;  Smith  v.  Hunter,  7  How.  738  ;  Williams  v.  Oliver, 
12  How.  Ill  ;  Calcote  v.  Stanton,  18  How.  243;  Maxwell  v.  Newbold,  18  How. 
511;  Hoyt  v.  Shelden,  1  Black,  518;  Farney  v.  Towle,  1  Black,  350;  Day  v. 
Gallup,  2  Wall.  97.  It  is  not  sufficient  that  the  presiding  judge  of  the  State 
court  certifies  that  a  right  claimed  under  the  national  authority  was  brought  in 
question.     Railroad  Co.  v.  Rock,  4  Wall.  177. 

3  Gordon  v.  Caldcleugh,  3  Cranch,  268  ;  McDonough  v.  Millaudon,  3  How. 
693 ;  Fulton  v.  McAffee,  16  Pet.  149  ;  Linton  v.  Stanton,  12  How.  423 ;  Burke 
v.  Gaines,  19  How.  388;  Reddall  v.  Bryan,  24  How.  420;  Roosevelt  v.  Meyer, 
1  Wall.  512  ;  Ryan  v.  Thomas,  4  Wall.  603. 

4  Commonwealth  Bank  v.  Griffith,  14  Pet.  56 ;  Walker  v.  Taylor,  5  How.  64. 
We  take  no  notice  here  of  the  statutes  for  the  removal  of  causes  from  the  State 
to  the  Federal  courts  for  the  purposes  of  original  trial,  as  they  are  not  impor- 
tant to  any  discussion  we  shall  have  occasion  to  enter  upon  in  this  work. 

[14] 


/ 


CH.    II.]  THE   CONSTITUTION   OF   THE   UNITED   STATES.  *  13 

thority  is  involved,  and  to  accept  those  decisions  as  correct,  and 
to  follow  them  whenever  the  same  questions  arise  in  the  national 
courts.1      With  the  power    to   revise   the  decisions  of  the  State 

1  In  Beauregard  v.  New  Orleans,  18  How.  502,  Mr.  Justice  Campbell  says  : 
"The  constitution  of  this  court  requires  it  to  follow  the  laws  of  the  several 
States  as  rules  of  decision  wherever  they  apply.  And  the  habit  of  the  court 
has  been  to  defer  to  the  decisions  of  their  judicial  tribunals  upon  questions 
arising  out  of  the  common  law  of  the  State,  especially  when  applied  to  the  title 
of  lands."  In  Bank  of  Hamilton  v.  Dudley's  Lessee,  2  Pet.  524,  it  was  con- 
tended that  the  exclusive  power  of  State  courts  to  construe  legislative  acts  did 
not  extend  to  the  paramount  law,  so  as  to  enable  them  to  give  efficacy  to  an  act 
which  was  contrary  to  the  State  constitution;  but  Marshall,  Ch.  J.,  said:  "  We 
cannot  admit  this  distinction.  The  judicial  department  of  every  government  is 
the  rightful  expositor  of  its  laws,  and  emphatically  of  its  supreme  law."  Again 
in  Elmendorf  v.  Taylor,  10  Wheat.  159,  the  same  eminent  judge  says:  "The 
judicial  department  of  every  government,  where  such  department  exists,  is  the 
appropriate  organ  for  construing  the  legislative  acts  of  that  government.  Thus 
no  court  in  the  universe  which  proposed  to  be  governed  by  principle  would,  we 
presume,  undertake  to  say  that  the  courts  of  Great  Britain  or  France,  or  of  any 
other  nation,  had  misunderstood  their  own  statutes,  and  therefore  erect  itself  into 
a  tribunal  which  should  correct  such  misunderstanding.  We  receive  the  construc- 
tion given  by  the  courts  of  the  nation  as  the  true  sense  of  the  law,  and  feel  our- 
selves no  more  at  liberty  to  depart  from  that  construction  than  to  depart  from 
the  words  of  the  statute.  On  this  principle,  the  construction  given  by  this  court 
to  the  Constitution  and  laws  of  the  United  States  is  received  by  all  as  the  true 
construction  ;  and  on  the  same  principle  the  construction  given  by  the  courts  of 
the  several  States  to  the  legislative  acts  of  those  States  is  received  as  true, 
unless  they  come  in  conflict  with  the  Constitution,  laws,  or  treaties  of  the  United 
States."  And  in  Green  v.  jSTeafs  Lessee,  6  Pet.  298,  it  is  said  by  McLean,  J. : 
"  The  decision  of  the  highest  judicial  tribunal  of  a  State  should  be  considered 
as  final  by  this  court,  not  because  the  State  tribunal  in  such  a  case  has  any 
power  to  bind  this  court,  but  because,  in  the  language  of  the  court  in  Shelby  v. 
Guy,  11  Wheat.  361,  a  fixed  and  received  construction  by  a  State,  in  its  own 
courts,  makes  a  part  of  the  statute  law."  And  see  Jackson  v.  Chew,  12  Wheat 
162,  per  Thompson,  J.  ;  also  the  following  cases :  Sims  v.  Irvine,  3  Dall.  425 
McKeen  v.  Delancy,  5  Cranch,  22  ;  Polk's  Lessee  v.  Wendal,  9  Cranch,  87 
Preston  v.  Browder,  1  Wheat.  115;  Mutual  Assurance  Co.  v.  Watts,  ib.  279 
Shipp  v.  Miller,  2  Wheat.  316;  Thatcher  v.  Powell,  6  Wheat.  119;  Bell  v 
Morrison,  1  Pet.  351;  Waring  v.  Jackson,  ib.  570;  DeWolf  v.  Rabaud,  ib 
476 ;  Fullerton  v.  Bank  of  United  States,  ib.  604 ;  Gardner  v.  Collins,  2  Pet 
58 ;  Beach  v.  Viles,  2  Pet.  675  ;  Inglis  v.  Sailors'  Snug  Harbor,  3  Pet.  99 
United  States  v.  Morrison,  4  Pet.  124;  Henderson  v.  Griffin,  5  Pet.  151; 
Hinde  v.  Vattier,  ib.  398 ;  Ross  v.  McLung,  6  Pet.  283 ;  Marlatt  v.  Silk,  11 
Pet.  1 ;  Bank  of  United  States  v.  Daniel,  12  Pet.  32 ;  Clarke  v.  Smith,  13  Pet. 
195;  Ross  v.  Duval,  ib.  45;  Wilcox  v.  Jackson,  ib.  498;  Harpending  v. 
Reformed  Church,   16  Pet.  415;  Martin  v.  Waddell,  ib.  367;  Amis  v.  Smith, 

[15] 


*  14  CONSTITUTIONAL  LIMITATIONS.  [CH.    II. 

[*  14]    *  courts  in  the  cases  already  pointed  out,  the  due  observ- 
ance of  this  rule  will  prevent  those  collisions  of  judicial 

ib.  303 ;  Porterfield  v.  Clark,  2  How.  76 ;  Lane  v.  Vick,  3  How.  464 ;  Fox- 
croft  v.  Mallett,  4  How.  353 ;  Barry  v.  Mercein,  5  How.  103 ;  Rowan  v.  Run- 
nels, ib.  134;  Van  Rensselaer  v.  Kearney,  11  How.  297;  Pease  v.  Peck,  18 
How.  595 ;  Fisher  v.  Ilaldeman,  20  How.  186 ;  Parker  v.  Kane,  22  How.  1  ; 
Suydam  v.  Williamson,  24  How.  427  ;  Sumner  v.  Hicks,  2  Black,  532 ;  Chicago 
v.  Robbins,  £5.  418  ;  Miles  v.  Caldwell,  2  Wall.  35 ;  Williams  v.  Kirkland,  13 
Wall.  306 ;  Springer  v.  Foster,  2  Story  C.  C.  383 ;  Neal  v.  Green,  1  McLean, 
18  ;  Paine  v.  Wright,  6  McLean,  395  ;  Boyle  v.  Arledge,  Hemp.  620 ;  Grifling  v. 
Gibb,  McAll.  212  ;  Bayerque  v.  Cohen,  ib.  113  ;  Wick  v.  The  Samuel  Strong, 
Newb.  187  ;  K  F.  Screw  Co.  v.  Bliven,  3  Blatch.  240  ;  Bronson  v.  Wallace,  4 
Blatch.  465;  Van  Bokelen  v.  Brooklyn  City  R.R.  Co.,  5  Blatch.  379;  United 
States  v.  Mann,  1  Gall.  5  ;  Society,  &c.  v.  Wheeler,  2  Gall.  105 ;  Coates  v. 
Muse,  Brock.  539 ;  Meade  v.  Beale,  Taney,  339 ;  Parker  v.  Phetteplace,  2 
Cliff.  70 ;  King  v.  Wilson,  1  Dill.  555.  In  Green  v.  Neal's  Lessee,  6  Pet.  291, 
an  important  question  was  presented  as  to  the  proper  course  to  be  pursued  by 
the  Supreme  Court  of  the  United  States  under  somewhat  embarrassing  circum- 
stances. That  court  bad  been  called  upon  to  put  a  construction  upon  a  State 
statute  of  limitations,  and  had  done  so.  Afterwards  the  same  question  had 
been  before  the  Supreme  Court  of  the  State,  and  in  repeated  cases  had  been 
decided  otherwise.  The  question  now  was  whether  the  Supreme  Court  would 
follow  its  own  decision,  or  reverse  that,  in  order  to  put  itself  in  harmony  with  the 
State  decisions.  The  subject  is  considered  at  length  by  McLean,  J.,  who  justly 
concludes  that  "  adherence  by  the  federal  to  the  exposition  of  the  local  law, 
as  given  by  the  courts  of  the  State,  will  greatly  tend  to  preserve  harmony  in  the 
exercise  of  the  judicial  power  in  the  State  and  federal  tribunals.  This  rule  is 
not  only  recommended  by  strong  considerations  of  propriety,  growing  out  of  our 
system  of  jurisprudence,  but  it  is  sustained  by  principle  and  authority."  The 
court  accordingly  reversed  its  rulings  to  make  them  conform  to  those  of  the  State 
court.  See  also  Suydam  v.  Williamson,  24  How.  427  ;  Leffingwell  v.  Warren, 
2  Black,  599;  Blossburg,  &c,  R.R.  Co.  v.  Tioga  R.R.  Co.,  5  Blatch.  3S7 ; 
Smith  v.  Shriver,  3  Wall.  Jr.  219.  It  is  of  course  immaterial  that  the  court  may 
still  be  of  opinion  that  the  State  court  has  erred,  or  that  the  decisions  elsewhere 
are  different.  Bell  v.  Morrison,  1  Pet.  360.  But  where  the  Supreme  Court  had 
held  that  certain  contracts  for  the  price  of  slaves  were  not  made  void  by  the 
State  constitution,  and  afterward  the  State  court  held  otherwise,  the  Supreme 
Court,  regarding  this  decision  wrong,  declined  to  reverse  their  own  ruling. 
Rowan  v.  Runnels,  5  How.  134.  Compare  this  with  Nesmith  v.  Sheldon,  7 
How.  812,  in  which  the  court  followed,  without  examination  or  question,  the 
State  decision,  that  a  State  general  banking  law  was  in  violation  of  the  consti- 
tution of  the  State.  The  United  States  Circuit  Court  had  held  otherwise  pre- 
vious to  the  State  decision.     Falconer  v.  Campbell,  2  McLean,  195. 

This  doctrine  does  not  apply  to   questions  not  at  all   dependent  upon  local 
statutes  or  usages ;  as,  for  instance,  to  contracts  and  other  instruments  of  a  com- 
mercial and  general  nature,  like  bills  of  exchange  ;  Swift  v.  Tyson,  16  Pet.  1 ; 
and  insurance    contracts ;  Robinson  v.  Commonwealth  Ins.  Co.,  3   Sum.  220. 
[16] 


CH.  II.]  THE   CONSTITUTION   OP  THE   UNITED   STATES.  *  14 

authority  which  would  otherwise  be  inevitable,  and  which, 
besides  being  unseemly,  *  would  be  dangerous  to  the  peace,    [*  15] 
harmony,  and  stability  of  the  Union  under  our  peculiar 
system. 

Besides  conferring  specified  powers  upon  the  national  govern- 
ment, the  Constitution  contains  also  certain  restrictions  upon  the 
action  of  the  States,  a  portion  of  them  designed  to  prevent  en- 
croachments upon  the  national  authority,  and  another  portion  to 
protect  individual  rights  against  possible  abuse  of  State  power. 
Of  the  first  class  are  the  following :  No  State  shall  enter  into  any 
treaty,  alliance,  or  confederation,  grant  letters  of  marque  or  re- 
prisal, coin  money,  emit  bills  of  credit,1  or  make  any  thing  but  gold 
and  silver  coin  a  tender  in  payment  of  debts.  No  State  shall, 
without  the  consent  of  Congress,  lay  any  imposts  or  duties  upon 
imports  or  exports,  except  what  may  be  absolutely  necessary  for 
executing  its  inspection  laws ;  and  the  net  produce  of  all  duties 
and  imposts  laid  by  any  State  on  imports  or  exports  shall  be  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, 

And  see  Reinisdyke  v.  Kane,  1  Gall.  376 ;  Austen  v.  Miller,  5  McLean,  153 ; 
Glouster  Ins.  Co.  v.  Younger,  2  Curt.  C.  C.  322;  Bragg  v.  Meyer,  1  McAll. 
408.  And  of  course  cases  presenting  questions  of  conflict  with  the  Constitution 
of  the  United  States  cannot  be  within  it.  State  Bank  v.  Knoup,  16  How.  369  ; 
Jefferson  Branch  Bank  v.  Skelley,  1  Black,  436.  And  where  a  contract  had 
been  made  under  a  settled  construction  of  the  State  constitution  by  its  highest 
court,  the  Supreme  Court  sustained  it,  notwithstanding  the  State  court  had 
since  overruled  its  former  decision.  Gelpecke  v.  Dubuque,  1  Wall.  176.  Of  late 
it  has  seemed  that  new  and  doubtful  grounds  were  being  taken  for  disregarding 
State  decisions,  and  in  several  cases  nearly  one  half  the  members  of  the  federal 
Supreme  Court  have  deemed  it  necessary  to  protest  against  an  abandonment  of 
the  sound  and  safe  doctrine  of  the  earlier  decisions. 

1  To  constitute  a  bill  of  credit  within  the  meaning  of  the  Constitution,  it  must 
be  issued  by  a  State,  involve  the  faith  of  the  State,  and  be  designed  to  circulate 
as  money  on  the  credit  of  the  State  in  the  ordinary  uses  of  business.  Briscoe  v. 
Bank  of  Kentucky,  11  Pet.  257;  Woodruff  v.  Trapnall,  10  How.  209.  The 
facts  that  a  State  owns  the  entire  capital  stock  of  a  bank,  elects  the  directors, 
makes  its  bills  receivable  for  the  public  dues,  and  pledges  its  faith  for  their 
redemption,  do  not  make  the  bills  of  such  bank  "  bills  of  credit"  in  the  constitu- 
tional sense.  Darrington  v.  State  Bank  of  Alabama,  13  How.  12.  See,  further, 
Craig  v.  Missouri,  4  Pet.  410;  Byrne  v.  Missouri,  8  Pet.  40;  Curran  v.  Arkan- 
sas, 15  How.  317 ;  Moreau  v.  Detchamendy,  41  Mo.  431 ;  Bailey  v.  Milner,  35 
Geo.  330;  City  National  Bank  v.  Mahan,  21  La.  Ann.  751. 

2  [17] 


*  15  CONSTITUTIONAL   LIMITATIONS.  [CH.  II. 

keep  troops  or  ships  of  war  in  time  of  peace,  enter  into  any  agree- 
ment or  compact  with  another  State  or  with  a  foreign  power,  or 
engage  in  war,  unless  actually  invaded,  or  in  such  imminent 
danger  as  will  not  admit  of  delay.  Of  the  second  class  are  the 
following  :  No  State  shall  pass  any  bill  of  attainder,  ex  post  facto 
law,  or  law  impairing  the  obligation  of  contracts,1  or  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  to  any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws,2  nor  base  discriminations  in  suffrage  on  race,  color,  or 
previous  condition  of  servitude.3 

Other  provisions  have  for  their  object  to  prevent  discriminations 
by  the  several  States  against  the  citizens  and  public  authority  and 
proceedings  of  other  States.  Of  this  class  are  the  provisions  that 
the  citizens  of  each  State  shall  be  entitled  to  all  the  privileges 
and  immunities  of  citizens  in  the  several  States ; 4  that  fugitives 

!  Const,  of  U.  S.  art.  1,  §  10  ;  Story  on  Const,  c.  33,  34. 

2  Const,  of  U.  S.  14th  Amendment ;  Story  on  Const.  4th  ed.  c.  47. 

3  Const,  of  U.  S.  15th  Amendment;  Story  on  Const.  4th  ed.  c.  48. 

4  Const,  of  U.  S.  art.  4.  "  What  are  the  privileges  and  immunities  of  citi- 
zens in  the  several  States  ?  We  feel  no  hesitation  in  confining  these  expressions 
to  those  privileges  and  immunities  which  are  in  their  nature  fundamental ;  which 
belong  of  right  to  the  citizens  of  all  free  governments ;  and  which  have,  at  all 
times,  been  enjoyed  by  the  citizens  of  the  several  States  which  compose  this 
Union,  from  the  time  of  their  becoming  free,  independent,  and  sovereign.  What 
those  fundamental  principles  are,  it  would  perhaps  be  more  tedious  than  difficult 
to  enumerate.  They  may,  however,  be  all  comprehended  under  the  following 
general  heads  :  protection  by  the  government,  the  enjoyment  of  life  and  lib- 
erty, with  the  right  to  acquire  and  possess  property  of  every  kind,  and  to  pursue 
and  obtain  happiness  and  safety,  subject  nevertheless  to  such  restraints  as  the 
government  may  justly  prescribe  for  the  general  good  of  the  whole.  The  right 
of  a  citizen  of  one  State  to  pass  through,  or  to  reside  in  any  other  State,  for 
purposes  of  trade,  agriculture,  professional  pursuits,  or  otherwise ;  to  claim  the 
benefit  of-  the  writ  of  habeas  corpus  ;  to  institute  and  maintain  actions  of  every 
kind  in  the  courts  of  the  State ;  to  take,  hold,  and  dispose  of  property,  either 
real  or  personal ;  and  an  exemption  from  higher  taxes  or  impositions  than  are 
paid  by  the  citizens  of  the  other  State,  may  be  mentioned  as  some  of  the  particu- 
lar privileges  and  immunities  of  citizens,  which  are  clearly  embraced  by  the 
general  description  of  privileges  deemed  to  be  fundamental ;  to  which  may  be 
added  the  elective  franchise  as  regulated  and  established  by  the  laws  or  constitu- 
tion of  the  State  in  which  it  is  to  be  exercised.  These,  and  many  others  which 
might  be  mentioned,  are,  strictly  speaking,  privileges  and  immunities,  and  the 
enjoyment  of  them  by  the  citizens  of  each  State  in  every  other  State  wrs  mani- 

[18] 


CH.  II.]  THE   CONSTITUTION    OF   THE   UNITED   STATES.  *  15 

from  justice  shall  *  be  delivered  up,1  and  that  full  faith    [*  16] 

festly  calculated  (to  use  the  expressions  of  the  preamble  of  the  corresponding 
provision  in  the  old  Articles  of  Confederation)  '  the  better  to  secure  and  perpet- 
uate mutual  friendship  and  intercourse  among  the  people  of  the  different  States 
of  the  Union."'  Washington,  J.,  in  Corfield  v.  Coryell,  4  Wash.  C.  C.  880. 
The  Supreme  Court  will  not  describe  and  define  those  privileges  and  immunities, 
in  a  general  classification ;  preferring  to  decide  each  case  as  it  may  come  up.  • 
Conner  v.  Elliott,  18  How.  591 ;  Ward  v.  Maryland,  12  Wall.  418.  For  discus- 
sions upon  this  subject,  see  Murray  v.  McCarty,  2  Munf.  393  ;  Lemmon  ».  Peo- 
ple, 26  Barb.  270,  and  20  N.  Y.  562;  Campbell  v.  Morris,  3  Har.  &  M'H.  554; 
Amy  v.  Smith,  1  Lit.  326;  Crandall  v.  State,  10  Conn.  340;  Butler  v.  Farns- 
worth,  4  Wash.  C.  C.  101;  Commonwealth  v.  Towles,  5  Leigh,  743;  Haney 
v.  Marshall,  9  Md.  194;  Slaughter  v.  Commonwealth,  13  Grat.  767;  State  v. 
Medbury,  3  R.  I.  138  ;  People  v.  Imlay,  20  Barb.  68 ;  People  v.  Coleman,  4 
Cal.  46 ;  People  v.  Thurber,  13  111.  544 ;  Phoenix  Insurance  Co.  v.  Common- 
wealth, 5  Bush,  68;  Ducat  v.  Chicago,  48  111.  172;  Fire  Department  v.  Noble, 
3  E.  D.  Smith,  441;  Same  v.  Wright,  ib.  453;  Same  v.  Holfeustein,  16  Wis. 
136;  Sears  v.  Commissioners  of  Warren  Co.,  36  Ind.  267;  Cincinnati  Health 
Association  v.  Rosenthal,  55  111.  85 ;  State  v.  Fosdick,  21  La.  Ann.  434.  The 
constitutional  provision  does  not  apply  to  corporations.  Warren  Manuf.  Co.  v. 
iEtna  Ins.  Co.,  2  Paine,  501 ;  Paul  v.  Virginia,  8  Wall.  168.  A  discrimination 
between  local  freight  on  railroads  and  that  which  is  extra  territorial  is  not  per- 
sonal, and  therefore  not  forbidden  by  this  clause  of  the  Constitution.  Shippers. 
Pennsylvania  R.R.  Co.,  47  Penn.  St.  338.  A  State  cannot  impose,  for  the  priv- 
ilege of  doing  business  within  its  limits,  a  heavier  license  tax  upon  non-residents 
than  is  required  of  residents.     Ward  v.  Maryland,  12  Wall.  418. 

1  For  decisions  under  this  clause,  see  Ex  parte  Joseph  Smith,  8  McLean,  133  ; 
Dow's  Case,  18  Penn.  St.  39  ;  State  v.  Hufford,  28  Iowa,  391 ;  Kingsbury's  Case, 
106  Mass.  223;  Matter  of  Clark,  9  Wend.  221 ;  Johnson  v.  Riley,  13  Geo.  97 ; 
Matter  of  Fetter,  3  Zab.  311.  The  three  cases  last  cited  decide  that  the  alleged 
offence  need  not  be  an  offence  at  the  common  law ;  it  is  sufficient  that  it  be  a 
crime  against  the  State  from  which  the  accused  has  fled.  But  it  must  have  been 
actually  committed  within  the  State  reclaiming  the  alleged  offender,  and  he  must 
have  been  an  actual  fugitive  therefrom.  Ex  parte  Smith,  supra.  The  whole 
subject  was  considered  in  Commonwealth  of  Kentucky  v.  Dennison,  24  How.  66. 
One  Lago  was  indicted  in  Kentucky  for  enticing  and  assisting  a  slave  to  escape 
from  his  master,  and  a  requisition  was  made  upon  the  governor  of  Ohio  for  his 
surrender  to  the  Kentucky  authorities  as  a  fugitive  from  justice.  The  governor 
of  Ohio  refused  to  surrender  him,  on  the  ground  that  the  act  with  which  he  was 
charged  was  not  an  offence  known  to  the  laws  of  Ohio,  and  not  an  act  affecting 
the  public  safety,  or  regarded  as  malum  in  se  by  the  general  judgment  and  con- 
science of  civilized  nations.  Application  was  then  made  to  the  Supreme  Court  of 
the  United  States  for  a  mandamus  to  compel  the  governor  of  Ohio  to  perform 
this  duty.  The  application  was  denied,  on  the  ground  that,  although  the  gov- 
ernor erred  in  his  refusal,  no  power  was  delegated  to  the  general  government, 
either  through  the  judicial  or  any  other  department,  to  employ  any  coercive 
means  to  compel  him.     See  Matter  of  Voorhies,  32  N.  J.  141. 

[19] 


*  16  CONSTITUTIONAL   LIMITATIONS.  [CH.  II. 

[*  17]    and  credit  shall  be  given  in  *  each  State  to  the  public  acts, 
records,  and  judicial  proceedings  of  every  other  State.1 
The  last  provisions  that  we  shall  here  notice  are  that  the  United 
States  shall  guarantee  to  every  State  a  republican  form  of  govern- 
ment,2 and  that  no  State  shall  grant  any  title  of  nobility.3     The 
purpose  of  these  is  to  protect  a  Union  founded  on  republi- 
[*  18]    can  principles,  and  composed  entirely  of  *  republican  mem- 
bers against  aristocratic  and  monarchial  innovations.4 

1  Const,  of  U.  S.  art.  4.  This  clause  of  the  Constitution  has  been  the  sub- 
ject of  a  good  deal  of  discussion  in  the  courts.  It  is  well  settled  that  if  the  record 
of  a  judgment  shows  that  it  was  rendered  without  service  of  process  or  appear- 
ance of  the  defendant,  or  if  that  fact  can  be  shown  without  contradicting  the  reci- 
tals of  the  record,  it  will  be  treated  as  void  in  any  other  State,  notwithstanding 
this  constitutional  provision.  Benton  v.  Burgot,  10  S.  &  R.  242 ;  Thurber  v. 
Blackbourne,  1  N.  H.  242 ;  Hall  v.  Williams,  6  Pick.  232  ;  Aldrich  v.  Kinney, 
4  Conn.  380;  Bradshaw  v.  Heath,  13  Wend.  407;  Robinson  v.  Ward's  Execu- 
tors, 8  Johns.  86  ;  Fenton  v.  Garlick,  ib.  194 ;  Kilbourn  v.  Woodworth,  5  Johns. 
37  ;  Pawling  v.  Bird's  Executors,  13  Johns.  192  ;  Starbuck  v.  Murray,  5  Wend. 
161 ;  Noyes  v.  Butler,  6  Barb.  613;  Woodward  v.  Tremere,  6  Pick.  354 ;  Lin- 
coln v.  Tower,  2  McLean,  473;  Westervelt  v.  Lewis,  ib.  511 ;  Bimelar  v.  Daw- 
son, 4  Scam.  536;  Gleason  v.  Dodd,  4  Met.  333;  Warren  v.  M'Carthy,  25  111. 
95  ;  Rape  v.  Heaton,  9  Wis.  328  ;  Wood  v.  Watkinson,  17  Conn.  500;  Norwood 
v.  Cobb,  24  Texas,  551 ;  McLaurine  v.  Monroe,  30  Mo.  462 ;  Commonwealth  v. 
Blood,  97  Mass.  538.  But  whether  it  would  be  competent  to  show,  in  opposi- 
tion to  the  recitals  of  the  record,  that  a  judgment  of  another  State  was  rendered 
without  jurisdiction  having  been  obtained  of  the  person  of  the  defendant,  is  not 
settled  by  the  authorities.  Many  cases  hold  not.  Field  v.  Gibbs,  1  Pet.  C.  C. 
156;  Green  v.  Sarmiento,  ib.  76;  Lincoln  v.  Tower,  2  McLean,  473;  Wester- 
velt v.  Lewis,  ib.  511 ;  Roberts  v.  Caldwell,  5  Dana,  512 ;  Hensley  v.  Force,  7 
Eng.  756;  Pearce  v.  Olney,  20  Conn.  544;  Hoxie  v.  Wright,  2  Vt.  2G3 ;  New- 
comb  v.  Peck,  17  Vt.  302  ;  Willcox  v.  Kassick,  2  Mich.  165  ;  Bimelar  v.  Dawson, 
4  Scam.  536  ;  Welch  v.  Sykes,  3  Gil.  197  ;  Harbin  v.  Chiles,  20  Mo.  314 ; 
Wetherell  v.  Stillman,  65  Penn.  St.  105.  Other  cases  admit  such  evidence. 
Starbuck  v.  Murray,  5  Wend.  148  ;  Holbrook  v.  Murray,  ib.  161 ;  Shumway  v. 
Stillman,  6  Wend.  447  ;  Borden  v.  Fitch,  15  Johns.  121 ;  Hall  v.  Williams,  6 
Pick.  232.;  Aldrich  v.  Kinney,  4  Conn.  380  ;  Bradshaw  v.  Heath,  13  Wend.  407 ; 
Hoffman  v.  Hoffman,  46  N.  Y.  30;  Gleason  v.  Dodd,  4  Met.  333;  Kane  v. 
Cook,  8  Cal.  449;  Norwood  v.  Cobb,  24  Texas,  551.  The  same  defences  may 
be  made  to  a  judgment  when  sued  in  another  State  which  could  have  been  made 
to  it  in  the  State  where  rendered.  Hampton  v.  McConnel,  3  Wheat.  234;  Mills 
v.  Duryea,  7  Cranch,  484 ;  Steele  v.  Smith,  7  W.  &  S.  447 ;  Bank  of  the  State 
v.  Dalton,  9  How.  528.  But  no  others :  Green  v.  Van  Buskirk,  7  Wall.  139 ; 
Christmas  v.  Russell,  5  Wall.  290 ;  Cheever  v.  Wilson,  9  Wall.  108 ;  People  v. 
Dawell,  25  Mich.  247. 

2  Const,  of  U.  S.  art.  4,  §  4.  3  Const,  of  U.  S.  art.  1,  §  10. 

4  Federalist,  Nos.  43  and  44.     It  does  not  fall  within  our  province  to  discuss 
[20] 


CH.  II.]  THE   CONSTITUTION   OF   THE   UNITED   STATES.  *  18 

So  far  as  a  particular  consideration  of  the  foregoing  provisions 
falls  within  the  plan  of  our  present  work,  it  will  be  more  convenient 
to  treat  of  them  in  another  place,  especially  as  all  of  them  which 
have  for  their  object  the  protection  of  person  or  property  are 
usually  repeated  in  the  bills  of  rights  contained  in  the  State  con- 
stitutions, and  will  require  some  notice  at  our  hands  as  a  part  of 
State  constitutional  law. 

Where  powers  are  conferred  upon  the  general  government,  the 
exercise  of  the  same  powers  by  the  States  is  impliedly  prohibited, 
wherever  the  intent  of  the  grant  to  the  national  government  would 
be  defeated  by  such  exercise.  On  this  ground  it  is  held  that  the 
States  cannot  tax  the  agencies  or  loans  of  the  general  government ; 
since  the  power  to  tax,  if  possessed  by  the  States  in  regard  to  these 
objects,  might  be  so  exercised  as  altogether  to  destroy  such  agen- 
cies and  impair  or  even  destroy  the  national  credit.1  And  where  by 
the  national  Constitution  jurisdiction  is  given  to  the  national  courts 
with  a  view  to  the  more  efficient  and  harmonious  working  of  the 
system  organized  under  it,  it  is  competent  for  Congress  in  its  wis- 
dom to  make  that  jurisdiction  exclusive  of  the  State  courts.2  On 
some  other  subjects  State  laws  may  be  valid  until  the  power  of 
Congress  is  exercised,  when  they  become  superseded,  either  wholly, 
or  so  far  as  they  are  found  inconsistent.  The  States  may  legislate 
on  the  subject  of  bankruptcy  if  there  be  no  law  of  Congress  which 
will  conflict.3  State  laws  for  organizing  and  disciplining  the  mili- 
tia are  valid  except  as  they  may  conflict  with  national  legislation  ; 4 
and  the  States  may  constitutionally  provide  for  punishing  the  coun- 
terfeiting of  coin5   and  the  passing  of  counterfeit  money,6  since 

these  provisions.  They  have  been  much  discussed  in  Congress  within  a  few 
years,  but  in  a  party,  rather  than  a  judicial  spirit.  See  Story  on  Const.  4th  ed. 
c.  41  and  notes. 

1  McCulloch  v.  Maryland,  4  Wheat.  316,  427  ;  Weston  v.  Charleston,  2  Pet. 
449.     See  cases  collected,  post,  p.  482. 

2  Martin  v.  Hunter's  Lessee,  1  Wheat.  334 ;  The  Moses  Taylor  v.  Hammons, 
4  Wall.  411 ;  The  Ad  Hine  v.  Trevor,  ib.  555.  And  see  note  to  these  cases  in 
the  Western  Jurist,  Vol.  I.  p.  241. 

3  Sturgis  v.  Crowninshield,  4  Wheat.  122 ;  McMillan  v.  McNeill,  ib.  209. 
And  see  post,  pp.  293-94. 

4  Houston  v.  Moore,  5  Wheat.  1,  51. 

6  Harlan  v.  People,  1  Doug.  Mich.  207. 

6  Fox  v.  Ohio,  5  How.  410  ;  United  States  v.  Marigold,  9  How.  560.  And 
see  Hendrick's  Case,  5  Leigh,  707 ;  Jett  v.  Commonwealth,  18  Grat.  933 ;  Moore 
v.  People,  14  How.  13. 

[21] 


*  18  CONSTITUTIONAL    LIMITATIONS.  [CH.  II. 

these  acts  are  offences  against  the  State,  notwithstanding  they  may 

be  offences  against  the  nation  also. 
[*  19]        *  The  tenth  amendment  to  the  Constitution  provides  that 

the  powers  not  delegated  to  the  United  States  by  the  Con- 
stitution, nor  prohibited  by  it  to  the  States,  are  reserved  to  the 
States  respectively,  or  to  the  people.  And  it  is  to  be  observed  of 
this  instrument,  that  being  framed  for  the  establishment  of  a  na- 
tional government,  it  is  a  settled  rule  of  construction  that  the  limi- 
tations it  imposes  upon  the  powers  of  government  are  in  all  cases 
to  be  understood  as  limitations  upon  the  government  of  the  Union 
only,  except  where  the  States  are  expressly  mentioned.1 

With  other  rules  for  the  construction  of  the  national  Constitu- 
tion, we  shall  have  little  occasion  to  deal.  They  have  been  the 
subject  of  elaborate  treatises,  judicial  opinions,  and  legislative  de- 
bates, which  are  familiar  alike  to  the  legal  profession  and  to  the 
public  at  large.  So  far  as  that  instrument  apportions  powers  to 
the  national  judiciary,  it  must  be  understood,  for  the  most  part,  as 
simply  authorizing  Congress  to  pass  the  necessary  legislation  for 
the  exercise  of  those  powers  by  the  federal  courts,  and  not  as 
directly,  of  its  own  force,  vesting  them  with  that  authority.  The 
Constitution  does  not,  of  its  own  force,  give  to  national  courts 
jurisdiction  of  the  several  cases  which  it  enumerates,  but  an  act 
of  Congress  is  essential,  first,  to  create  courts,  and  afterwards  to 
apportion  the  jurisdiction  among  them.  The  exceptions  are  of 
those  few  cases  of  which  the  Constitution  confers  jurisdiction 
upon  the  Supreme  Court  by  name.  And  although  the  courts  of 
the  United  States  administer  the  common  law  in  many  cases,  they 
do  not  derive  authority  from  the  common  law  to  take  cognizance 
of  and  punish  offences  against  the  government.     Offences  against 

1  Barron  v.  Baltimore,  7  Pet.  243 ;  Livingston's  Lessee  v.  Moore,  7  Pet.  551 ; 
Fox  v.  Ohio,  5  How.  432  ;  Smith  v.  Maryland,  18  How.  71 ;  Buonaparte  v.  Cam- 
den &  Amboy  R.R.  Co.,  Baldvv.  220  ;  James  v.  Commonwealth,  12  S.  &  R.  221  ; 
Barker  v.  People,  3  Cow.  G86  ;  Colt  v.  Eves,  12  Conn.  243 ;  Jane  v.  Common- 
wealth, 3  Met.  (Ky.)  18;  Lincoln  v.  Smith,  27  Vt.  336;  Matter  of  Smith,  10 
Wend.  449  ;  State  v.  Barnett,  3  Kansas,  250 ;  Reed  v.  Rice,  2  J.  J.  Marsh.  45 ; 
North.  Mo.  R.R.  Co.  v.  Maguire,  49  Mo.  490 ;  Purvear  v.  Commonwealth,  5 
Wall.  475;  Twitchell  v.  Commonwealth,  7  Wall.  321.  For  instance,  though  the 
right  of  trial  by  jury  is  preserved  by  the  Constitution  of  the  United  States,  the 
States  may,  nevertheless,  if  they  choose,  provide  for  the  trial  of  all  offences 
against  the  States,  as  well  as  the  trial  of  civil  cases  in  the  State  courts,  without 
the  intervention  of  a  jury. 
[22] 


CH.  II.]  THE   CONSTITUTION   OP   THE   UNITED   STATES.  *  19 

the  nation  are  defined  and  their  punishment  prescribed  by  acts  of 
Congress.1 

1  Demurrer  to  an  indictment  for  a  libel  upon  the  President  and  Congress.  By 
the  court:  "The  only  question  which  this  case  presents  is,  whether  the  circuit 
courts  can  exercise  a  common-law  jurisdiction  in  criminal  cases.  .  .  .  The  gen- 
eral acquiescence  of  legal  men  shows  the  prevalence  of  opinion  in  favor  of  the 
negative  of  the  proposition.  The  course  of  reasoning  which  leads  to  this  con- 
clusion is  simple,  obvious,  and  admits  of  but  little  illustration.  The  powers  of 
the  general  government  are  made  up  of  concessions  from  the  several  States ; 
whatever  is  not  expressly  given  to  the  former,  the  latter  expressly  reserve.  The 
judicial  power  of  the  United  States  is  a  constitutional  part  of  these  concessions  : 
that  power  is  to  be  exercised  by  courts  organized  for  the  purpose,  and  brought 
into  existence  by  an  effort  of  the  legislative  power  of  the  Union.  Of  all  the 
courts  which  the  United  States  may,  under  their  general  powers,  constitute,  one 
only,  the  Supreme  Court,  possesses  jurisdiction  derived  immediately  from  the 
Constitution,  and  of  which  the  legislative  power  cannot  deprive  it.  All  other 
courts,  created  by  the  general  government,  possess  no  jurisdiction  but  what  is 
given  them  by  the  power  that  created  them,  and  can  be  vested  with  none  but 
what  the  power  ceded  to  the  general  government  will  authorize  them  to  confer. 
It  is  not  necessary  to  inquire  whether  the  general  government,  in  any  and  what 
extent,  possesses  the  power  of  conferring  on  its  courts  a  jurisdiction  in  cases 
similar  to  the  present ;  it  is  enough  that  such  jurisdiction  has  not  been  conferred 
by  any  legislative  act,  if  it  does  not  result  to  those  courts  as  a  consequence  of 
their  creation."  United  States  v.  Hudson,  7  Cranch,  32.  See  United  States  v. 
Coolidge,  1  Wheat.  415.  "  It  is  clear  there  can  be  no  common  law  of  the  United 
States.  The  federal  government  is  composed  of  twenty-four  sovereign  and 
independent  States,  each  of  which  may  have  its  local  usages,  customs,  and  com- 
mon law.  There  is  no  principle  which  pervades  the  Union,  and  has  the  authority 
of  law,  that  is  not  embodied  in  the  Constitution  or  laws  of  the  Union.  The  com- 
mon law  could  be  made  a  part  of  our  federal  system  only  by  legislative  adop- 
tion." Per  McLean,  J.,  in  Wheaton  v.  Peters,  8  Pet.  658.  See  also  Kendall 
v.  United  States,  12  Pet.  524;  Lorman  v.  Clarke,  2  McLean,  568;  U.  S.  v.  Lan- 
caster, ib.  433 ;  U.  S.  v.  New  Bedford  Bridge,  1  Wood.  &  M.  435 ;  U.  S.  v.  Wil- 
son, 3  Blatch.  435.  As  to  the  adoption  of  the  common  law  by  the  States,  see 
Van  Nest  v.  Pacard,  2  Pet.  144,  per  Story,  J. ;  post,  p.  23,  and  cases  cited  in 
notes. 

[23] 


*  21  CONSTITUTIONAL   LIMITATIONS.  [CH.  III. 


[*21]  *  CHAPTER    III. 

THE   FORMATION   AND   AMENDMENT   OF   STATE    CONSTITUTIONS. 

The  Constitution  of  the  United  States  assumes  the  existence 
of  thirteen  distinct  State  governments,  over  whose  people  its  au- 
thority was  to  be  extended  if  ratified  by  conventions  chosen  for 
the  purpose.  Each  of  these  States  was  then  exercising  the  powers 
of  government  under  some  form  of  written  constitution,  and  that 
instrument  would  remain  unaffected  by  the  adoption  of  the  national 
Constitution,  except  in  those  particulars  in  which  the  two  would 
come  in  conflict ;  and  as  to  those,  the  latter  would  modify  and 
control  the  former.1  But  besides  this  fundamental  law,  every  State 
had  also  a  body  of  laws,  prescribing  the  rights,  duties,  and  obli- 
gations of  persons  within  its  jurisdiction,  and  establishing  those 
minute  rules  for  the  various  relations  of  life  which  cannot  be  prop- 
erly incorporated  in  a  constitution,  but  must  be  left  to  the  regula- 
tion of  the  ordinary  law-making  power. 

By  far  the  larger  and  more  valuable  portion  of  that  body  of  laws 
consisted  of  the  common  law  of  England,  which  had  been  trans- 
planted in  the  American  wilderness,  and  which  the  colonists,  now 
become  an  independent  nation,  had  found  a  shelter  of  protection 
during  all  the  long  contest  with  the  mother  country,  brought  at 
last  to  so  fortunate  a  conclusion. 

The  common  law  of  England  consisted  of  those  maxims  of 
freedom,  order,  enterprise,  and  thrift  which  had  prevailed  in  the 
conduct  of  public  affairs,  the  management  of  private  business,  the 
regulation  of  the  domestic  institutions,  and  the  acquisition,  con- 
trol, and  transfer  of  property  from  time  immemorial.  It  was  the 
outgrowth  of  the  habits  of  thought  and  action  of  the  people,  and 
was  modified  gradually  and  insensibly  from  time  to  time  as  those 

1  State  v.  Cape  Girardeau,  &c.  R.R.  Co.,  48  Mo.  468 ;  Mayor,  &c.  of  Mobile 
v.  Dargan,  45  Ala.  310. 
[24] 


CH.  III.]        FORMATION   AND   AMENDMENT   OF   CONSTITUTIONS.  *  21 

habits  became  modified,  and  as  civilization  advanced,  and  new  in- 
ventions introduced  new  wants  and  conveniences,,  and  new  modes 
of  business.  Springing  from  the  very  nature  of  the  people  them- 
selves, and  developed  in  their  own  experience,  it  was  obviously  the 
body  of  laws  best  adapted  to  their  needs,  and  as  they  took  with 
them  their  nature,  so  also  they  would  take  with  them  these  laws 
whenever  they  should  transfer  their  domicile  from  one  country  to 
another. 

*  To  eulogize  the  common  law  is  no  part  of  our  pres-  [*  22] 
ent  purpose.  Many  of  its  features  were  exceedingly  harsh 
and  repulsive,  and  gave  unmistakable  proofs  that  they  had  their 
origin  in  times  of  profound  ignorance,  superstition,  and  barbarism. 
The  feudal  system,  which  was  essentially  a  system  of  violence,  dis- 
order, and  rapine,1  gave  birth  to  many  of  the  maxims  of  the  com- 
mon law  ;  and  some  of  these,  long  after  that  system  has  passed 
away,  may  still  be  traced  in  our  law,  especially  in  the  rules  which 
govern  the  acquisition,  control,  and  enjoyment  of  real  estate.  The 
criminal  code  was  also  marked  by  cruel  and  absurd  features,  some 
of  which  have  clung  to  it  with  wonderful  tenacity,  even  after  the 
most  stupid  could  perceive  their  inconsistency  with  justice  and 
civilization.  But,  on  the  whole,  the  system  was  the  best  foundation 
on  which  to  erect  an  enduring  structure  of  civil  liberty  which  the 
world  has  ever  known.  It  was  the  peculiar  excellence  of  the  com- 
mon law  of  England  that  it  recognized  the  worth,  and  sought  es- 
pecially to  protect  the  rights  and  privileges  of  the  individual  man. 
Its  maxims  were  those  of  a  sturdy  and  independent  race,  accus- 
tomed in  an  unusual  degree  to  freedom  of  thought  and  action,  and 
to  a  share  in  the  administration  of  public  affairs ;  and  arbitrary 
power  and  uncontrolled  authority  were  not  recognized  in  its  prin- 
ciples. Awe  surrounded,  and  majesty  clothed  the  king,  but  the 
humblest  subject  might  shut  the  door  of  his  cottage  against  him, 
and  defend  from  intrusion  that  privacy  which  was  as  sacred  as  the 
kingly  prerogatives.2    The  system  was  the  opposite  of  servile  ;  its 

1  "  A  feudal  kingdom  was  a  confederacy  of  a  numerous  body,  who  lived  in  a 
state  of  war  against  each  other,  and  of  rapine  towards  all  mankind,  in  which  the 
king,  according  to  his  ability  and  vigor,  was  either  a  cipher  or  a  tyrant,  and  a 
great  portion  of  the  people  were  reduced  to  personal  slavery."  Mackintosh, 
History  of  England,  c.  3. 

2  See  post,  p.  299. 

[25> 


*  22  CONSTITUTIONAL   LIMITATIONS.  [CH.  III. 

features  implied  boldness,  and  independent  self-reliance  on  the  part 
of  the  people  ;  and  if  the  criminal  code  was  harsh,  it  at  least 
escaped  the  inquisitorial  features  which  fastened  themselves  upon 
criminal  procedure  in  other  civilized  countries,  and  have  ever  been 
fruitful  of  injustice,  oppression,  and  terror. 

For  several  hundred  years,  however,  changes  had  from  time  to 
time  been  made  in  the  common  law  by  means  of  statutes.  Origi- 
nally the  purpose  of  general  statutes  was  mainly  to  declare  and 
re-affirm  such  common-law  principles  as,  by  reason  of  usurpations 

and  abuses,  had  come  to  be  of  doubtful  force,  and  which, 
[*  23]    therefore,  *  needed  to  be  authoritatively  announced,  that 

king  and  subject  alike  might  understand  and  observe 
them.  Such  was  the  purpose  of  the  first  gre"at  statute,  promul- 
gated at  a  time  when  the  legislative  power  was  exercised  by  the 
king  alone,  and  which  is  still  known  as  the  Magna  Charta  of  King 
John.1  Such  also  was  the  purpose  of  the  several  confirmations  of 
that  charter,  as  well  as  of  the  Petition  of  Right,2  and  the  Bill  of 
Rights,3  each  of  which  became  necessary  by  reason  of  usurpations. 
But  further  statutes  also  became  needful  because  old  customs  and 
modes  of  business  were  unsuited  to  new  conditions  of  things,  when 
property  had  become  more  valuable,  wealth  greater,  commerce  more 
extended,  and  when  all  these  changes  had  brought  with  them  new 
desires  and  necessities,  and  also  new  dangers  against  which  society 
as  well  as  the  individual  subject  needed  protection.  For  this  reason 
the  Statute  of  Wills,4  and  the  Statute  of  Frauds  and  Perjuries5  be- 
came important;  and  the  Habeas  Corpus  Act6  was  also  found 
necessary,  not  so  much  to  change  the  law,7  as  to  secure  existing 
principles  of  the  common  law  against  being  habitually  set  aside 
and  violated  by  those  in  power. 

1  It  is  justly  observed  by  Sidney  that  "  Magna  Charta  was  not  made  to  restrain 
the  absolute  authority,  for  no  such  thing  was  in  being  or  pretended  (the  folly  of 
such  visions  seeming  to  have  been  reserved  to  complete  the  misfortunes  and 
ignominy  of  our  age),  but  it  was  to  assert  the  native  and  original  liberties  of  our 
nation  by  the  confession  of  the  king  then  being,  that  neither  he  nor  his  successors 
should  any  way  encroach  upon  them."     Sidney  on  Government,  c.  3,  sec.  27. 

2  1  Charles  I.  c.  1. 

3  1  William  &  Mary,  Sess.  2,  c.  2. 

4  32  Henry  VIII.  c.  7,  and  34  and  35  Henry  VIH.  c.  5. 

5  29  Charles  II.  c.  3. 

6  31  Charles  II.  c.  2. 

7  "  I  dare  not  advise  to  cast  the  laws  into  a  new  mould.      The  work  which  I 

[26] 


CH.  III.]        FORMATION  AND   AMENDMENT   OP   CONSTITUTIONS.  *  23 

From  the  first  the  colonists  in  America  claimed  the  benefit  and 
protection  of  the  common  law.  In  some  particulars,  however,  the 
common  law  as  then  existing  in  England  was  not  suited  to  their 
condition  and  circumstances  in  the  new  country,  and  those  partic- 
ulars they  omitted  as  it  was  put  in  practice  by  them.1  They 
also  claimed  the  benefit  of  *  such  statutes  as  from  time  to  [*  24] 
time  had  been  enacted  in  modification  of  this  body  of 
rules.2   And  when  the  difficulties  with  the  home  government  sprung 

propound  tendeth  to  the  priming  and  grafting  of  the  law,  and  not  the  plowing 
up  and  planting  it  again,  for  such  a  remove  I  should  hold  for  a  perilous  innova- 
tion."    Bacon's  Works,  Vol.  II.  p.  231,  Phil.  Ed.  1852. 

1  "  The  common  law  of  England  is  not  to  be  taken,  in  all  respects,  to  be  that 
of  America.  Our  ancestors  brought  with  them  its  general  principles,  and 
claimed  it  as  their  birthright;  but  they  brought  with  them  and  adopted  only  that 
portion  which  was  applicable  to  their  condition."  Story,  J.,  in  Van  Nest  v. 
Packard,  2  Pet.  144.  "  The  settlers  of  colonies  in  America  did  not  carry  with 
them  the  laws  of  the  land  as  being  bound  by  them  wherever  they  should  settle. 
They  left  the  realm  to  avoid  the  inconveniences  and  hardships  they  were  under, 
where  some  of  these  laws  were  in  force;  particularly  ecclesiastical  laws,  those 
for  payment  of  tithes  and  others.  Had  it  been  understood  that  they  were  to 
carry  these  laws  with  them,  they  had  better  have  stayed  at  home  among  their 
friends,  unexposed  to  the  risks  and  toils  of  a  new  settlement.  They  carried  with 
them  a  right  to  such  parts  of  laws  of  the  land  as  they  should  judge  advantageous 
or  useful  to  them ;  a  right  to  be  free  from  those  they  thought  hurtful,  and  a  right 
to  make  such  others  as  they  should  think  necessary,  not  infringing  the  general 
rights  of  Englishmen ;  and  such  new  laws  they  were  to  form  as  agreeable  as 
might  be  to  the  laws  of  England."  Franklin,  Works  by  Sparks,  Vol.  IV.  p.  271. 
See,  also,  Chisholm  v.  Georgia,  2  Dall.  435  ;  Commonwealth  v.  Knowlton,  2 
Mass.  534;  Commonwealth  v.  Hunt,  4  Met.  122;  Mayo  v.  Wilson,  1  N.  Hr  58  ; 
Houghton  v.  Page,  2  N.  H.  44  ;  State  v.  Rollins,  8  K  H.  550  ;  State  v.  Buchanan, 
5  H.  &  J.  356  ;  Lindsey  v.  Coats,  1  Ohio,  245  ;  Bloom  v.  Richards,  2  Ohio,  n.  s.  390 ; 
Lyle  v.  Richards,  9  S.  &  R.  330 ;  Craft  v.  State  Bank,  7  Ind.  219 ;  Dawson  v. 
Coffman,  28  Ind.  220  ;  Bogardus  v.  Trinity  Church,  4  San.df.  Ch.  757  ;  Morgan 
v.  King,  30  Barb.  9  ;  Lansing  v.  Stone,  37  Barb.  15  ;  Simpson  v.  State,  5  Yerg. 
356  ;  Stout  v.  Keyes,  2  Doug.  Mich.  184 ;  Lorman  v.  Benson,  8  Mich.  18 ;  Pier- 
son  v.  State,  12  Cal.  149 ;  Norris  v.  Harris,  15  Cal.  226 ;  Hamilton  v.  Kneeland, 
1  Nev.  40.  The  courts  of  one  State  will  presume  the  common  law  of  a  sister 
State  to  be  the  same  as  their  own  in  the  absence  of  evidence  to  the  contrary. 
Abell  v.  Douglass,  4  Denio,  305  ;  Kermott  v.  Ayer,  11  Mich.  181 ;  Schurman  v. 
Marley,  29  Ind.  458. 

2  The  acts  of  Parliament  passed  after  the  settlement  of  a  colony  were  not  in 
force  therein,  unless  made  so  by  express  words,  or  by  adoption.  Commonwealth 
v.  Lodge,  2  Grat.  579 ;  Pemble  v.  Clifford,  2  McCord,  31.  See  Swift  v.  Tousey, 
5  Ind.  196 ;  Baker  v.  Mattocks,  Quincy,  72 ;  Cathcart  v.  Robinson,  5  Pet.  280. 
Those  amendatory  of  the  common  law,  if  suited  to  the  condition  of  things  in 

[27] 


*  24  CONSTITUTIONAL   LIMITATIONS.  [CH.  III. 

up,  it  was  a  source  of  immense  moral  power  to  the  colonists  that 
they  were  able  to  show  that  the  rights  they  claimed  were  conferred 
by  the  common  law,  and  that  the  king  and  Parliament  were  seeking 
to  deprive  them  of  the  common  birthright  of  Englishmen.  Did 
Parliament  attempt  to  levy  taxes  in  America,  the  people  demanded 
the  benefit  of  that  maxim  with  which  for  many  generations  every 
intelligent  subject  had  been  familiar,  that  those  must  vote  the  tax 
who  are  to  pay  it.1  Did  Parliament  order  offenders  against  the  laws 
in  America  to  be  sent  to  England  for  trial,  every  American  was 
roused  to  indignation,  and  protested  against  the  trampling  under 
foot  of  that  time-honored  principle  that  trials  for  crime  must  be  by 
a  jury  of  the  vicinage.  Contending  thus  behind  the  bulwarks  of 
the  common  law,  Englishmen  would  appreciate  and  sympathize 
with  their  position,  and  Americans  would  feel  doubly  strong  in  a 
cause  that  was  right  not  only,  but  the  justice  of  which  must  be 
confirmed  by  an  appeal  to  the  consciousness  of  their  enemies  them- 
selves. 

The  evidence  of  the  common  law  consisted  in  part  of  the  declar- 
atory statutes  we  have  mentioned,2  in  part  of  the  commentaries  of 
such  men  learned  in  the  law  as  had  been  accepted  as  authority, 
but  mainly  in  the  decisions  of  the  courts  applying  the 
j-*  25]  *  law  to  actual  controversies.  While  .colonization  con- 
America,  were  generally  adopted  by  tacit  consent.  For  the  differing  views  taken 
by  English  and  American  statesmen  upon  the  general  questions  here  discussed, 
see  the  observations  by  Governor  Pownall,  and  the  comments  of  Franklin 
thereon,  4  Works  of  Franklin,  by  Sparks,  271. 

1  "  The  blessing  of  Judah  and  Issachar  will  never  meet;  that  the  same  people 
or  nation  should  be  both  the  lion's  whelp  and  the  ass  between  burdens ;  neither 
will  it  be  that  a  people  overlaid  with  taxes  should  ever  become  valiant  and  mar- 
tial. It  is  true  that  taxes  levied  by  consent  of  the  State  do  abate  men's  courage 
less,  as  it  hath  been  seen  notably  in  the  exercise  of  the  Low  Countries,  and  in 
some  degree  in  the  subsidies  of  England,  for  you  must  note  that  we  speak  now 
of  the  heart  and  not  of  the  purse ;  so  that  although  the  same  tribute  or  tax  laid 
by  consent  or  by  imposing  be  all  one  to  the  purse*  yet  it  works  diversely  upon 
the  courage.  So  that  you  may  conclude  that  no  people  overcharged  with  tribute 
is  fit  for  empire."     Lord  Bacon  on  the  True  Greatness  of  Kingdoms. 

2  These  statutes  upon  the  points  which  are  covered  by  them  are  the  best 
evidence  possible.  They  are  the  living  charters  of  English  liberty,  to  the  present 
day  ;  and  as  the  forerunners  of  the  American  constitutions  and  the  source  from 
which  have  been  derived  many  of  the  most  important  articles  in  their  bills  of 
rights,  they  are  constantly  appealed  to  when  personal  liberty  or  private  rights 
are  placed  in  apparent  antagonism  to  the  claims  of  government. 

[28] 


CH.  III.]        FORMATION   AND   AMENDMENT   OP   CONSTITUTIONS.  *  25 

tinued, —  that  is  to  say,  until  the  war  of  the  Revolution  actually 
commenced, —  these  decisions  were  authority  in  the  colonies,  and 
the  changes  made  in  the  common  law  up  to  the  same  period  were 
operative  in  America  also  if  suited  to  the  condition  of  things  here. 
The  opening  of  the  war  of  the  Revolution  is  the  point  of  time  at 
which  the  continuous  stream  of  the  common  law  became  divided, 
and  that  portion  which  had  been  adopted  in  America  flowed  on  by 
itself,  no  longer  subject  to  changes  from  across  the  ocean,  but 
liable  still  to  be  gradually  modified  through  changes  in  the  modes 
of  thought  and  of  business  among  the  people,  as  well  as  through 
statutory  enactments. 

The  colonies  also  had  legislatures  of  their  own,  by  which  laws 
had  been  passed  which  were  in  force  at  the  time  of  the  separation, 
and  which  remained  unaffected  thereby.  When,  therefore,  they 
emerged  from  the  colonial  condition  into  that  of  independence,  the 
laws  which  governed  them  consisted,  first,  of  the  common  law  of 
England,  so  far  as  they  had  tacitly  adopted  it  as  suited  to  their 
condition  ;  second,  of  the  statutes  of  England,  or  of  Great  Britain, 
amendatory  of  the  common  law,  which  they  had  in  like  manner 
adopted  ;  and  third,  of  the  colonial  statutes.1  The  first  and  second 
constituted  the  American  common  law,  and  by  this  in  great  part 
are  rights  adjudged  and  wrongs  redressed  in  the  American  States 
to  this  day.2 

*  Every  colony  had  also  its  charter,  emanating  from  the    [*  26] 

1  The  like  condition  of  things  is  found  to  exist  in  the  new  States  formed  and 
admitted  to  the  Union  since  the  Constitution  was  adopted.  Congress  creates 
territorial  governments  of  different  grades,  but  generally  with  plenary  legislative 
power  either  in  the  governor  and  judges,  a  territorial  council,  or  a  territorial 
legislature  chosen  by  the  people,  and  the  authority  of  this  body  extends  to  all 
rightful  subjects  of  legislation,  subject,  however,  to  the  disapproval  of  Congress. 
Vincennes  University  v.  Indiana,  14  How.  273  ;  Miners'  Bank  v.  Iowa,  12 
How.  1.  The  legislation,  of  course,  must  not  be  in  conflict  with  the  law  of 
Congress  conferring  the  power  to  legislate,  but  a  variance  from  it  may  be  sup- 
posed approved  by  that  body,  if  suffered  to  remain  without  disapproval  for  a 
series  of  years  after  being  duly  reported  to  it.  Clinton  v.  Englebrect,  13  Wall. 
446. 

2  A  few  of  the  States,  to  get  rid  of  confusion  in  the  law,  deemed  it  desirable 
to  repeal  the  acts  of  Parliament,  and  to  re-enact  such  portions  of  them  as  were 
regarded  important  here.  See  the  Michigan  repealing  statue,  copied  from  that 
of  Virginia,  in  Code  of  1820,  p.  459.  In  some  of  the  new  States  there  were 
also  other  laws  in  force  than  those  to  which  we  have  above  alluded.     Although  it 

[29] 


*  26  CONSTITUTIONAL   LIMITATIONS.  [CH.  III. 

Crown,  and  constituting  its  colonial  constitution.  All  but  two 
of  these  were  swept  away  by  the  whirlwind  of  revolution,  and 

Las  been  said  in  La  Plaisance  Bay  Harbor  Co.  v.  The  City  of  Monroe,  Wal. 
Ch.  155,  and  Depew  i>.  Trustees  of  Wabash  &  Erie  Canal,  5  Ind.  8,  that  the 
ordinance  of  1787  was  superseded  in  each  of  the  States  formed  out  of  the 
North-West  Territory  by  the  adoption  of  a  State  constitution,  and  admission  to 
the  Union,  yet  the  weight  of  judicial  authority  is  probably  the  other  way.  In 
Hogg  v.  The  Zanesville  Canal  Manufacturing  Co.,  5  Ohio,  410,  it  was  held  that 
the  provision  of  the  ordinance  that  the  navigable  waters  of  the  territory,  and  the 
carrying-places  between  should  be  common  highways  and  for  ever  free,  was  per- 
manent in  its  obligation,  and  could  not  be  altered  without  the  consent  both  of  the 
people  of  the  State,  and  of  the  United  States,  given  through  their  representatives. 
"  It  is  an  article  of  compact;  and  until  we  assume  the  principle  that  the  sover- 
eign power  of  a  State  is  not  bound  by  compact,  this  clause  must  be  considered 
obligatory."  Justices  McLean  and  Leavitt,  in  Spooner  v.  McConnell,  1  Mc- 
Lean, 337,  examine  this  subject  at  considerable  length,  and  both  arrive  at  the 
same  conclusion  with  the  Ohio  court.  The  view  taken  of  the  ordinance  in  that 
case  was,  that  such  parts  of  it  as  were  designed  temporarily  to  regulate  the  gov- 
ernment of  the  territory  were  abolished  by  the  change  from  a  territorial  to  a 
State  government,  while  the  other  parts,  which  were  designed  to  be  permanent, 
are  unalterable  except  by  common  consent.  Some  of  these,  however,  being 
guaranteed  by  the  federal  Constitution,  afterwards  adopted,  may  be  regarded 
as  practically  annulled,  while  any  others  which  are  opposed  to  the  constitution  of 
any  State  formed  out  of  the  territory  must  also  be  considered  as  annulled  by 
common  consent;  the  people  of  the  State  assenting  in  forming  their  constitution, 
and  Congress  in  admitting  the  State  into  the  Union  under  it.  The  article  in 
regard  to  navigable  waters  is  therefore  still  in  force.  The  same  was  also  said  in 
regard  to  the  article  prohibiting  slavery,  though  that  also  may  now  be  regarded 
as  practically  annulled  by  the  amendment  to  the  federal  Constitution  covering 
the  same  ground.  The  like  opinion  was  subsequently  expressed  in  Palmer  v. 
Commissioners  of  Cuyahoga  Co.,  3  McLean,  226,  and  in  Jolly  v.  Terre  Haute 
Drawbridge  Co.,  6  McLean,  23?.  See  also  Strader  v.  Graham,  10  How.  82  ; 
Doe  v.  Douglass,  8  Blackf.  12 ;  Connecticut  Mutual  Life  Ins.  Co.  v.  Cross,  18 
Wis.  109  ;  Milwaukee  Gaslight  Co.  v.  Schooner  Gamecock,  23  Wis.  141 ;  Wis- 
consin River  Improvement  Co.  v.  Lyons,  30  Wis.  61.  Compare  Woodburn  v. 
Kilbourn  Manuf.  Co.,  1  Abb.  U.  S.  158.  In  the  cases  in  the  first  and  third  Mc- 
Lean, however,  the  opinion  was  expressed  that  the  States  might  lawfully  improve 
the  navigable  waters  and  the  carrying-places  between,  and  charge  tolls  upon  the 
use  of  the  improvement  to  obtain  reimbursement  of  their  expenditures. 

In  some  of  the  States  formed  out  of  the  territory  acquired  by  the  United  States 
from  foreign  powers,  traces  will  be  found  of  the  laws  existing  before  the  change 
of  government.  Louisiana  has  a  code  peculiar  to  itself,  based  upon  the  civil  law. 
Much  of  Mexican  law,  and  especially  as  regards  lands  and  land  titles,  is  retained 
in  the  systems  of  Texas  and  California.  In  Michigan,  when  the  acts  of  Parlia- 
ment were  repealed,  it  was  also  deemed  important  to  repeal  all  laws  derived  from 

[30] 


CH.  III.]        FORMATION   AND   AMENDMENT   OP   CONSTITUTIONS.  *  26 

others  substituted  which  had  been  framed  by  the  people  themselves, 
through  the  agency  of  conventions  which  they  had  chosen.  The 
exceptions  were  the  States  of  Connecticut  and  Rhode  Island,  each 
of  which  had  continued  its  government  as  a  State  under  the  colo- 
nial charter,  finding  it  sufficient  and  satisfactory  for  the  time  being, 
and  accepting  it  as  the  constitution  for  the  State.1 

New  States  have  since,  from  time  *  to  time,  formed  con-    [*  27] 
stitutions  either  regularly  in  pursuance  of  enabling  acts 
passed  by  Congress,  or  irregularly  by  the  spontaneous  action  of 
the  people,  or  under  the  direction  of  the  legislative  or  executive 
authority  of  the  Territory  to  which  the  State  succeeded.     Where 
irregularities  existed,  they  must  be  regarded  as  having  been  cured 
by  the  subsequent  admission  of  the  State  into  the  Union  by  Con- 
gress ;  and  there  were  not  wanting  in  the  case  of  some  States 
plausible  reasons  for  insisting  that  such  admission  *  had    [*  28] 
become  a  matter  of  right,  and  that  the  necessity  for  an 
enabling  act  by  Congress  was  dispensed  with  by  the  previous  stip- 
ulations of  the  national  government  in  acquiring  the  Territory  from 
which  such    States  were  formed.2      Some  of  these  constitutions 
pointed   out  the  mode  for  their  own  modification  ;    others    were 
silent  on  that  subject ;  but  it  has  been  assumed  that  in  such  cases 

France,  through  the  connection  with  the  Canadian  provinces,  including  the 
Continue  de  Paris,  or  ancient  French  common  law.  In  the  mining  States  and 
Territories  a  peculiar  species  of  common  law,  relating  to  mining  rights  and  titles, 
has  sprung  up,  having  its  origin  among  the  miners,  but  recognized  and  enforced 
by  the  courts. 

1  It  is  worthy  of  note,  that  the  first  case  in  which  a  legislative  enactment  was 
declared  unconstitutional  and  void,  on  the  ground  of  incompatibility  with  the 
constitution  of  the  State,  was  decided  under  one  of  these  royal  charters.  The 
case  was  that  of  Trevett  v.  Weeden,  decided  by  the  Superior  Court  of  Rhode  */ 
Island  in  1786.  See  Arnold's  History  of  Rhode  Island,  Vol.  II.  c.  24.  The 
case  is  further  referred  to,  post,  p.  160,  n. 

2  This  was  the  claim  made  on  behalf  of  Michigan ;  it  being  insisted  that  the 
citizens,  under  the  provisions  of  the  ordinance  of  1787,  whenever  the  Territory 
acquired  the  requisite  population,  had  an  absolute  right  to  form  a  constitution 
and  be  admitted  to  the  Union  under  it.  See  Scott  v.  Detroit  Young  Men's 
Society's  Lessee,  1  Doug.  Mich.  119,  and  the  contrary  opinion  in  Myers  v.  Man- 
hattan Bank,  20  Ohio,  283.  The  debates  in  the  Senate  of  the  United  States  on 
the  admission  of  Michigan  to  the  Union  go  fully  into  this  question.  See  Benton's 
Abridgment  of  Congressional  Debates,  Vol.  XIII.  pp.  69-72.  And  as  to  the 
right  of  the  people  of  a  Territory  to  originate  measures  looking  to  an  application 
for  admission  to  the  Union,  see  Opinions  of  Attorneys-General,  Vol.  II.  p.  726. 

[31] 


V 
*  28  CONSTITUTIONAL   LIMITATIONS.  [CH.  III. 

the  power  to  originate  proceedings  for  that  purpose  rested  with 
the  legislature  of  the  State,  as  the  department  most  nearly  repre- 
senting its  general  sovereignty  ;  and  this  is  doubtless  the  correct 
view  to  take  of  this  subject.1 

The  theory  of  our  political  system  is  that  the  ultimate  sover- 
eignty is  in  the  people,  from  whom  springs  all  legitimate  author- 
ity.2 The  people  of  the  Union  created  a  national  constitution,  and 
conferred  upon  it  powers  of  sovereignty  over  certain  subjects,  and 
the  people  of  each  State  created  a  State  government,  to  exercise 
the  remaining  powers  of  sovereignty  so  far  as  they  were  disposed 
to  allow  them  to  be  exercised  at  all.  By  the  constitution  which 
they  establish,  they  not  only  tie  up  the  hands  of  their  official 
agencies,  but  their  own  hands  as  well,  and  neither  the  officers  of 
the  State,  nor  the  whole  people  as  an  aggregate  body,  are  at  liberty 
to  take  action  in  opposition  to  this  fundamental  law.  But  in 
every  State,  although  all  persons  are  under  the  protection  of  the 
government,  and  obliged  to  conform  their  action  to  its  laws,  there 
are  always  some  who  are  altogether  excluded  from  participation 
in  the  government,  and  are  compelled  to  submit  to  be  ruled  by 
an  authority  in  the  creation  of  which  they  have  no  choice.  The 
political  maxim,  that  government  rests  upon  the  consent  of  the 
governed,  appears,  therefore,  to  be  practically  subject  to  many 
exceptions ;  and  when  we  say  the  sovereignty  of  the  State  is 
vested  in  the  people,  the  question  very  naturally  presents  itself, 
What  are  we  to  understand  by  The  People  as  used  in  this  con- 
nection ? 
[*  29]  *  What  should  be  the  correct  rule  upon  this  subject,  it 
does  not  fall  within  our  province  to  consider.  Upon  this 
men  will  theorize ;  but  the  practical  question  lies  back  of  the  for- 
mation of  the  Constitution,  and  is  addressed  to  the  people  them- 
selves. As  a  practical  fact,  the  sovereignty  is  vested  in  those 
persons  who  are  permitted  by  the  constitution  of  the  State  to 
exercise  the  elective  franchise.  These  persons  may  have  been 
designated  by  description  in  the  enabling  act  of  Congress  permit- 
ting the  formation  of  the  constitution,  if  any  such  there  were,  or 
the  convention  which  framed  the  constitution  may  have  determined 

1  See  Jameson  on  Constitutional  Conventions,  c.  8. 

2  McLean,  J.,  in  Spooner  v.  McConnell,  1  McLean,  347;  Potter's  Dwarris 
on  Stat.  c.  1. 

[32] 


CH.  III.]        FORMATION   AND    AMENDMENT   OP   CONSTITUTIONS.  *  29 

the  qualifications  of  electors  without  external  dictation.  In  either 
case,  however,  it  was  essential  to  subsequent  good  order  and  satis- 
faction with  the  government,  that  those  classes  in  general  should 
be  admitted  to  a  voice  in  its  administration,  whose  exclusion 
on  the  ground  of  want  of  capacity  or  of  moral  fitness  could  not 
reasonably  and  to  the  general  satisfaction  be  defended. 

Certain  classes  have  been  almost  universally  excluded,  —  the 
slave,  because  he  is  assumed  to  be  wanting  alike  in  the  intelligence 
and  the  freedom  of  will  essential  to  the  proper  exercise  of  the 
right;  the  woman,  from  mixed  motives,  but  mainly  perhaps,  be- 
cause, in  the  natural  relation  of  marriage,  she  was  supposed  to  be 
under  the  influence  of  her  husband,  and,  where  the  common  law 
prevailed,  actually  was  in  a  condition  of  dependence  upon  and 
subjection  to  him ;  the  infant,  for  reasons  similar  to  those  which 
exclude  the  slave  ;  the  idiot,  the  lunatic,  and  the  felon,  on  obvious 
grounds  ;  and  sometimes  other  classes  for  whose  exclusion  it  is 
difficult  to  assign  reasons  so  generally  satisfactory. 

The  theory  in  these  cases  we  take  to  be  that  classes  are  ex- 
cluded because  they  lack  either  the  intelligence,  the  virtue,  or  the 
liberty  of  action  essential  to  the  proper  exercise  of  the  elective 
franchise.  But  the  rule  by  which  the  presence  or  absence  of  these 
qualifications  is  to  be  determined,  it  is  not  easy  to  establish  on 
grounds  the  reason  and  propriety  of  which  shall  be  accepted  by 
all.  It  must  be  one  that  is  definite  and  easy  of  application,  and 
it  must  be  made  permanent,  or  an  accidental  majority  may  at  any 
time  change  it,  so  as  to  usurp  all  power  to  themselves.  But  to  be 
definite  and  easy  of  application,  it  must  also  be  arbitrary.  The 
infant  of  tender  years  is  wanting  in  competency,  but  he  is  daily 
acquiring  it,  and  a  period  is  fixed  at  which  he  shall  conclusively 
be'  presumed  to  possess  what  is  requisite.  The  alien  may  know 
nothing  of  our  political  system  and  laws,  and  he  is 
excluded  until  *  he  has  been  domiciled  in  the  country  [*  30] 
for  a  period  judged  to  be  sufficiently  long  to  make  him 
familiar  with  its  institutions ;  races  are  sometimes  excluded 
arbitrarily ;  and  there  have  been  times  when  in  some  of  the 
States  the  possession  of  a  certain  amount  of  property,  or  the 
capacity  to  read,  were  regarded  as  essential  to  satisfactory  proof 
of  sufficient  freedom  of  action  and  intelligence.1 

1  State  v.  Woodruff,  2  Day,  504 ;  Catlin  v.  Smith,  2  S.  &  R.  267  ;  Opinions  of 

3  [33] 


*  30  CONSTITUTIONAL   LIMITATIONS.  [CH.  III. 

Whatever  the  rule  that  is  once  established,  it  must  remain  fixed 
until  those  who  by  means  of  it  have  the  power  of  the  State  put 
into  their  hands  see  fit  to  invite  others  to  participate  with  them  in 
its  exercise.  Any  attempt  of  the  excluded  classes  to  assert  their 
right  to  a  share  in  the  government,  otherwise  than  by  operating 
upon  the  public  opinion  of  those  who  possess  the  right  of  suffrage, 
would  be  regarded  as  an  attempt  at  revolution,  to  be  put  down 
by  the  strong  arm  of  the  government  of  the  State,  assisted,  if  need 
be,  by  the  military  power  of  the  Union.1 

In  regard  to  the  formation  and  amendment  of  State  constitu- 
tions, the  following  appear  to  be  settled  principles  of  American 
constitutional  law :  — 

I.  The  people  of  the  several  Territories  may  form  for  them- 
selves State  constitutions  whenever  enabling  acts  for  that  purpose 
are  passed  by  Congress,  but  only  in  the  manner  allowed  by  such 
enabling  acts,  and  through  the  action  of  such  persons  as  the  en- 
abling acts  shall  clothe  with  the  elective  franchise  to  that  end. 
If  the  people  of  a  Territory  shall,  of  their  own  motion,  without 
such  enabling  act,  meet  in  convention,  frame  and  adopt  a  consti- 
tution, and  demand  admission  to  the  Union  under  it,  such  action 
does  not  entitle  them,  as  matter  of  right,  to  be  recognized  as 
a  State ;  but  the  power  that  can  admit  can  also  refuse,  and  the 
territorial  status  must  be  continued  until  Congress  shall  be  satis- 
fied to  suffer  the  Territory  to  become  a  State.  There  are  always 
in  these  cases  questions  of  policy  as  well  as  of  constitutional  law 
to  be  determined  by  the  Congress  before  admission  becomes  a 
matter  of  right,  —  whether  the  constitution  formed  is  republi- 
can ;  whether  the  proper  State  boundaries  have  been  fixed  upon  ; 
whether  the  population  is  sufficient ;  whether  the  proper  qualifi- 
cations for  the  exercise  of  the  elective  franchise  have  been  agreed 
to  ;   whether  any  inveterate  evil  exist  in  the  Territory  which  is 

Judges,  18  Pick.  575.  For  some  local  elections  it  is  quite  common  still  to  require 
property  qualification  or  the  payment  of  taxes  in  the  voter ;  but  statutes  of  this 
description  are  generally  construed  liberally.  See  Crawford  v.  Wilson,  4  Barb. 
504.  Many  special  statutes,  referring  to  the  people  of  a  municipality  the  ques- 
tion of  voting  aid  to  internal  improvements,  have  confined  the  right  of  voting  on 
the  question  to  tax-payers. 

1  The  case  of  Rhode  Island  and  the  "  Dorr  Rebellion,"  so  popularly  known, 
will  be  fresh  in  the  minds  of  all.  For  a  discussion  of  some  of  the  legal  aspects 
of  the  case,  see  Luther  v.  Borden,  7  How.  1. 

[34] 


CH.  III.]         FORMATION   AND   AMENDMENT   OF   CONSTITUTIONS.  *  30 

now  subject  to  control,  but  which  might  be  perpetuated  under  a 
State  government,  —  these  and  the  like  questions,  in  which  the 
whole  country  is  interested,  cannot  be  finally  solved  by  the  people 
of  the  Territory  for  themselves,  but  the  final  decision  must  rest 
with  Congress,  and  the  judgment  must  be  favorable  before  admis- 
sion can  be  claimed  or  expected. 

II.  In  the  original  States,  and  all  others  subsequently  admitted 
to  the  Union,  the  power  to  amend  or  revise  their  constitutions 
resides  in  the  great  body  of  the  people  as  an  organized  body  poli- 
tic, who,  being  vested  with  ultimate  sovereignty,  and  the  source 
of  all  State  authority,  have  power  to  control  and  alter  the  law 
which  they  have  made  at  their  will.  But  the  people,  in  the  legal 
sense,  must  be  understood  to  be  those  who,  by  the  existing  consti- 
tution, are  clothed  with  political  rights,  and  who,  while  that  in- 
strument remains,  will  be  the  sole  organs  through  which  the  will 
of  the  body  politic  can  be  expressed. 

III.  But- the  will  of  the  people  to  this  end  can  only  be  expressed 
in  the  legitimate  modes  by  which  such  a  body  politic  can  act,  and 
which  must  either  be  prescribed  by  the  constitution  whose  revision 
or  amendment  is  sought,  or  by  an  act  of  the  legislative  department 
of  the  State,  which  alone  would  be  authorized  to  speak  for  the 
people  upon  this  subject,  and  to  point  out  a  mode  for  the  expres- 
sion of  their  will  in  the  absence  of  any  provision  for  amendment 
or  revision  contained  in  the  constitution  itself.1 

1  Opinions  of  the  Judges,  6  Cush.  573  ;  Collier  v.  Frierson,  24  Ala.  100.  The 
first  constitution  of  New  York  contained  no  provision  for  its  own  amendment, 
and  Mr.  Hammond,  in  his  Political  History  of  New  York,  Vol.  I.  c.  26,  gives  a 
very  interesting  account  of  the  controversy  before  the  legislature  and  in  the  coun- 
cil of  revision  as  to  the  power  of  the  legislature  to  call  a  convention  for  revision, 
and  as  to  the  mode  of  submitting  its  work  to  the  people.  In  Collier  v.  Frierson, 
24  Ala.  108,  it  appeared  that  the  legislature  had  proposed  eight  different  amend- 
ments to  be  submitted  to  the  people  at  the  same  time  ;  the  people  had  approved 
them,  and  all  the  requisite  proceedings  to  make  them  a  part  of  the  constitution 
had  been  had,  except  that  in  the  subsequent  legislature  the  resolution  for  their 
ratification  had  by  mistake  omitted  to  recite  one  of  them.  On  the  question 
whether  this  one  had  been  adopted,  we  quote  from  the  opinion  of  the  court : 
"  The  constitution  can  be  amended  in  but  two  ways;  either  by  the  people  who 
originally  framed  it,  or  in  the  mode  prescribed  by  the  instrument  itself.  If  the 
last  mode  is  pm-sued,  the  amendments  must  be  proposed  by  two-thirds  of  each 
house  of  the  General  Assembly :  they  must  be  published  in  print,  at  least  three 
months  before  the  next  general  election  for  representatives ;  it  must  appear  from 
the  returns  made  to  the  Secretary  of  State  that  a  majority  of  those  voting  for 

[35] 


*  32  CONSTITUTIONAL   LIMITATIONS.  [CH.  III. 

[*  32]  *  IV.  In  accordance  with  universal  practice,  and  from 
the  very  necessity  of  the  case,  amendments  to  an  ex- 
isting constitution,  or  entire  revisions  of  it,  must  be  prepared 
and  matured  by  some  body  of  representatives  chosen  for  the  pur- 
pose. It  is  obviously  impossible  for  the  whole  people  to  meet, 
prepare,  and  discuss  the  proposed  alterations,  and  there  seems 
to  be'no  feasible  mode  by  which  an  expression  of  their  will  can 
be  obtained,  except  by  asking  it  upon  the  single  point  of  assent 
or  disapproval.  But  no  body  of  representatives,  unless  specially 
clothed  with  power  for  that  purpose  by  the  people  when  choosing 
them,  can  rightfully  take  definitive  action  upon  amendments  or 
revisions ;  they  must  submit  the  result  of  their  deliberations  to 
the  people  —  who  alone  are  competent  to  exercise  the  powers  of 
sovereignty  in,  framing  the  fundamental  law  —  for  ratification  or 
rejection.  The  constitutional  convention  is  the  representative  of 
sovereignty  only  in  a  very  qualified  sense,  and  for  the  specific 
purpose,  and  with  the  restricted  authority  to  put  in  proper  form 
the  questions  of  amendment  upon  which  the  people  are  to 
[*  33]  pass ;  but  the  changes  in  the  *  fundamental  law  of  the 
State  must  be  enacted  by  the  people  themselves.1 

representatives  have  voted  in  favor  of  the  proposed  amendments,  and  they  must 
be  ratified  by  two-thirds  of  each  house  of  the  next  General  Assembly  after  such 
election,  voting  by  yeas  and  nays,  the  proposed  amendments  having  been  read  at 
each  session  three  times  on  three  several  days  in  each  house.  We  entertain  no 
doubt  that  to  change  the  constitution  in  any  other  mode  than  by  a  convention, 
every  requisition  which  is  demanded  by  the  instrument  itself  must  be  observed, 
and  the  omission  of  any  one  is  fatal  to  the  amendment.  We  scarcely  deem  any 
argument  necessary  to  enforce  this  proposition.  The  constitution  is  the  supreme 
and  paramount  law.  The  mode  by  which  amendments  are  to  be  made  under  it 
is  clearly  defined.  It  has  been  said  that  certain  acts  are  to  be  done,  certain 
requisitions  are  to  be  observed,  before  a  change  can  be  effected.  But  to  what 
purpose  are  those  acts  required  or  those  requisitions  enjoined,  if  the  legislature  or 
any  department  of  the  government  can  dispense  with  them  ?  To  do  so  would  be 
to  violate  the  instrument  which  they  are  sworn  to  support,  and  every  principle  of 
public  law  and  sound  constitutional  policy  requires  the  courts  to  pronounce  against 
any  amendment  which  is  not  shown  to  have  been  made  in  accordance  with  the 
rules  prescribed  by  the  fundamental  law."  See  also  State  v.  McBride,  4  Mo. 
303. 

1  See  upon  this  subject  Jameson  on  the  Constitutional  Convention,  §§  415-418, 
and  479-520.  This  work  is  so  complete  and  satisfactory  in  its  treatment  of  the 
general  subject,  as  to  leave  little  to  be  said  by  one  who  shall  afterwards  attempt 
to  cover  the  same  ground.  The  Supreme  Court  of  Missouri  have  expressed  the 
opinion  tliat  it  was  competent  for  a  convention  to  put  a  new  constitution  in  force 

[36] 


CH.  III.]        FORMATION   AND    AMENDMENT   OP   CONSTITUTIONS.  *  33 

Y.  The  power  of  the  people  to  amend  or  revise  their  constitu- 
tions is  limited  by  the  Constitution  of  the  United  States  in  the 
following  particulars  :  — 

1.  It  must  not  abolish  the  republican  form  of  government,  since 
such  act  would  be  revolutionary  in  its  character,  and  would  call 
for  and  demand  direct  intervention  on  the  part  of  the  government 
of  the  United  States.1 

2.  It  must  not  provide  for  titles  of  nobility,  or  assume  to  violate 
the  obligation  of  any  contract,  or  attaint  persons  of  crime,  or  pro- 
vide ex  post  facto  for  the  punishment  of  acts  by  the  courts  which 
were  innocent  when  committed,  or  contain  any  other  provision 
which  would,  in  effect,  amount  to  the  exercise  of  any  power  ex- 
pressly or  impliedly  prohibited  to  the  States  by  the  Constitution 
of  the  Union.  For  while  such  provisions  would  not  call  for  the 
direct  and  forcible  intervention  of  the  government  of  the  Union, 
it  would  be  the  duty  of  the  courts,  both  State  and  national,  to 
refuse  to  enforce  them,  and  to  declare  them  altogether  void,  as 
much  when  enacted  by  the  people  in  their  primary  capacity  as 
makers  of  the  fundamental  law,  as  when  enacted  in  the  form  of 
statutes  through  the  delegated  power  of  their  legislatures.2 

YI.  Subject  to  the  foregoing  principles  and  limitations,  each 
State  must  judge  for  itself  what  provisions  shall  be  inserted  in  its 
constitution  ;  how  the  powers  of  government  shall  be  apportioned 
in  order  to  their  proper  exercise ;  what  protection  shall  be  thrown 
around  the  person  or  property  of  the  citizen  ;  and  to  what  extent 
private  rights  shall  be  required  to  yield  to  the  general 
good.3  *  And  the  courts  of  the  State,  still  more  the  [*  34] 
courts  of  the  Union,  would  be  precluded  from  inquiring 

without  submitting  it  to  the  people.  State  v.  Neal,  42  Mo.  119.  But  this  was 
obiter. 

1  Const,  of  U.  S.  art.  4,  §  4 ;  Federalist,  No.  43. 

3  Cummings  v.  Missouri,  4  Wall.  277;  Jefferson  Branch  Bank  v.  Skelly,  1 
Black,  436;  State  v.  Keith,  63  N.  C.  140;  Jackoway  v.  Denton,  25  Ark.  525; 
Union  Bank  v.  State,  9  Yerg.  490 ;  Girdner  v.  Stephens,  1  Heis.  280 ;  Railroad 
Co.  v.  McClure,  10  Wall.  511;  White  v.  Hart,  13  Wall.  649. 

3  Matter  of  the  Reciprocity  Bank,  22  N.  Y.  9;  McMullen  v.  Hodge,  5  Texas, 
34;  Matter  of  Oliver  Lee  &  Co.'s  Bank,  21  N.  Y.  9.  In  the  case  last  cited, 
Denio,  J.,  says  :  "  The  [constitutional]  convention  was  not  obliged,  like  the  legis- 
lative bodies,  to  look  carefully  to  the  preservation  of  vested  rights.  It  was  com- 
petent to  deal,  subject  to  ratification  by  the  people,  and  to  the  Constitution  of 
the  federal  government,  with  all  private  and  social  rights,  and  with  all  the  exist-    ' 

[37] 


*  34  CONSTITUTIONAL   LIMITATIONS.  [CH.  III. 

into  the  justice  of  their  action,  or  questioning  its  validity,  because 
of  any  supposed  conflict  with  fundamental  rules  of  right  or  of 
government,  unless  they  should  be  able  to  show  collision  at  some 
point  between  the  instrument  thus  formed  and  that  paramount 
law  which  constitutes,  in  regard  to  the  subjects  it  covers,  the 
fundamental  rule  of  action  throughout  the  whole  United  States.1 

How  far  the  constitution  of  a  State  shall  descend  into  the  par- 
ticulars of  government  is  a  question  of  policy  addressed  to  the 
convention  which  forms  it.  Certain  things  are  to  be  looked  for 
in  all  these  instruments  ;  though  even  as  to  these  there  is  great 
variety,  not  only  of  substance,  but  also  in  the  minuteness  of  their 
provisions  to  meet  particular  cases. 

I.  We  are  to  expect  a  general  framework  of  government  to  be 
designed,  under  which  the  sovereignty  of  the  people  is  to  be  exer- 
cised by  representatives  chosen  for  the  purpose,  in  such  manner 

ing  laws  and  institutions  of  the  State.  If  the  convention  had  so  willed,  and  the 
people  had  concurred,  all  former  charters  and  grants  might  have  been  annihilated. 
When,  therefore,  we  are  seeking  for  the  true  construction  of  a  constitutional  pro- 
vision, 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 
upon  them  as  the  founders  of  a  State,  intent  only  upon  establishing  such  princi- 
ples as  seemed  best  calculated  to  produce  good  government  and  promote  the  pub- 
lic happiness,  at  the  expense  of  any  and  all  existing  institutions  which  mio-ht 
stand  in  their  way." 

1  All  the  State  constitutions  now  contain  within  themselves  provisions  for  their 
amendment.  Some  require  the  question  of  calling  a  convention  to  revise  the 
constitution  to  be  submitted  to  the  people  at  stated  periods  ;  others  leave  it  to  the 
legislature  to  call  a  convention  or  to  submit  to  the  people  the  question  of  calling 
one;  while  the  major  part  allow  the  legislature  to  mature  specific  amendments  to 
be  submitted  to  the  people  separately,  and  these  become  a  part  of  the  constitu- 
tion if  adopted  by  the  requisite  vote. 

When  the  late  rebellion  had  been  put  down  by  the  military  forces  of  the  United 
States,  and  the  State  governments  which  constituted  a  part  of  the  disloyal  sys- 
tem had  been  displaced,  serious  questions  were  raised  as  to  the  proper  steps  to 
be  taken  in  order  to  restore  the  States  to  their  harmonious  relations  to  the  Union. 
These  questions,  and  the  controversy  over  them,  constituted  an  important  part  of 
the  history  of  our  country  during  the  administration  of  President  Johnson;  but 
as  it  is  the  hope  and  trust  of  our  people  that  the  occasion  for  discussing  such 
questions  will  never  arise  again,  we  do  not  occupy  space  with  them  in  this  work. 
It  suffices  for  the  present  to  say,  that  Congress  claimed,  insisted  upon,  and 
enforced  the  right  to  prescrihe  the  steps  to  be  taken  and  the  conditions  to  be 
observed  in  order  to  restore  these  States  to  their  former  positions  in  the  Union, 
and  the  right  also  to  determine  when  the  prescribed  conditions  had  been  com- 
plied with,  so  as  to  entitle  them  to  representation  in  Congress. 

[38] 


CH.  III.]         FORMATION   AND   AMENDMENT   OP   CONSTITUTIONS.  *  34 

as  the  instrument  provides,  and  with  such  reservations  as  it 
makes. 

II.  Generally  the  qualifications  for  the  right  of  suffrage  will 
be  declared,  as  well  as  the  conditions  under  which  it  shall  be 
exercised. 

III.  Separate  departments  will  be  created  for  the  exercise  of 
legislative,  executive,  and  judicial  power,  and  care  taken  to  keep 
the  three  as  separate  and  distinct  as  possible,  except  so  far  as 
each  is  made  a  check  upon  the  other  to  keep  it  within  proper 
bounds,  or  to  prevent  hasty  and  improvident  action.  The 
executive  *  is  a  check  upon  the  legislature  in  the  veto  [*  35] 
power,  which  most  States  allow  ;  the  legislature  is  a  check 

upon  both  the  other  departments  through  its  power  to  prescribe 
rules  for  the  exercise  of  their  authority,  and  through  its  power 
to  impeach  their  officers  ;  and  the  judiciary  is  a  check  upon  the 
legislature  by  means  of  its  authority  to  annul  unconstitutional 
laws. 

IV.  Local  self-government  having  always  been  a  part  of  the 
English  and  American  systems,  we  shall  look  for  its  recognition 
in  any  such  instrument.  And  even  if  not  expressly  recognized, 
it  is  still  to  be  understood  that  all  these  instruments  are  framed 
with  its  present  existence  and  anticipated  continuance  in  view. 

V.  We  shall  also  expect  a  declaration  of  rights  for  the  pro- 
tection of  individuals  and  minorities.  This  declaration  usually 
contains  the  following  classes  of  provisions  :  — 

1.  Those  declaratory  of  the  general  principles  of  republican 
government;  such  as,  that  all  freemen,  when  they  form  asocial 
compact,  are  equal,  and  no  man,  or  set  of  men,  is  entitled  to  ex- 
clusive, separate  public  emoluments  or  privileges  from  the  com- 
munity, but  in  consideration  of  public  services ;  that  absolute, 
arbitrary  power  over  the  lives,  liberty,  and  property  of  freemen 
exists  nowhere  in  a  republic,  not  even  in  the  largest  majority ; 
that  all  power  is  inherent  in  the  people,  and  all  free  governments 
are  founded  on  their  authority,  and  instituted  for  their  peace, 
safety,  happiness,  security,  and  the  protection  of  property ;  that 
for  the  advancement  of  these  ends  they  have  at  all  times  an  in- 
alienable and  indefeasible  right  to  alter,  reform,  or  abolish  their 
government  in  such  manner  as  they  may  think  proper;  that  all 
elections  shall  be  free  and  equal ;  that  no  power  of  suspending 
the  laws  shall  be  exercised  except  by  the  legislature  or  its  author- 

[39] 


*  35  CONSTITUTIONAL   LIMITATIONS.  [CH.  III. 

ity;  that  standing  armies  are  not  to  be  maintained  in  time  of 
peace ;  that  representation  shall  be  in  proportion  to  population  ; 
that  the  people  shall  have  the  right  freely  to  assemble  to  consult 
of  the  common  good,  to  instruct  their  representatives,  and  petition 
for  redress  of  grievances  ;  and  the  like. 

2.  Those  declaratory  of  the  fundamental  rights  of  the  citizen : 
as  that  all  men  are  by  nature  free  and  independent,  and  have  cer- 
tain inalienable  rights,  among  which  are  those  of  enjoying  and 
defending  life  and  liberty,  acquiring,  possessing,  and  protecting 
property,  and  pursuing  and  obtaining  safety  and  happiness  ;  that 

the  right  to  property  is  before  and  higher  than  any  consti- 
[*  36]    tutional  *  sanction ;  that  the  free  exercise  and  enjoyment 

of  religious  profession  and  worship,  without  discrimination 
or  preference,  shall  for  ever  be  allowed  ;  that  every  man  may  freely 
speak,  write,  and  publish  his  sentiments  on  all  subjects,  being  re- 
sponsible for  the  abuse  of  that  right  ;  that  every  man  may  bear 
arms  for  the  defence  of  himself  and  of  the  State  ;  that  the  right 
of  the  people  to  be  secure  in  their  persons,  houses,  papers,  and 
effects  against  unreasonable  searches  and  seizures,  shall  not  .be 
violated,  nor  shall  soldiers  be  quartered  upon  citizens  in  time  of 
peace  ;  and  the  like. 

3.  Those  declaratory  of  the  principles  which  ensure  to  the  citizen 
an  impartial  trial,  and  protect  him  in  his  life,  liberty,  and  property 
against  the  arbitrary  action  of  those  in  authority :  as  that  no  bill 
of  attainder  or  ex  post  facto  law  shall  be  passed  ;  that  the  right  to 
trial  by  jury  shall  be  preserved ;  that  excessive  bail  shall  not  be 
required,  nor  excessive  punishments  inflicted  ;  that  no  person  shall 
be  subject  to  be  twice  put  in  jeopardy  for  the  same  offence,  nor 
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  ;  that  private  property  shall  not  be  taken  for  public  use  without 
compensation  ;  and  the  like. 

Other  clauses  are  sometimes  added  declaratory  of  the  principles 
of  morality  and  virtue ;  and  it  is  also  sometimes  expressly  de- 
clared —  what  indeed  is  implied  without  the  declaration  —  that 
every  thing  in  the  declaration  of  rights  contained  is  excepted  out 
of  the  general  powers  of  government,  and  all  laws  contrary  thereto 
shall  be  void. 

Many  other  things  are  commonly  found  in  these  charters  of 
[40] 


OH.  III.]  FORMATION   AND   AMENDMENT   OP   CONSTITUTIONS.  *  36 

government ; 1  but  since,  while  they  continue  in  force,  they  are  to 
remain  absolute  and  unchangeable  rules  of  action  and  decision,  it 
is  obvious  that  they  should  not  be  made  to  embrace  within  their 
iron  grasp  those  subjects  in  regard  to  which  the  policy  or  interest 
of  the  State  or  of  its  people  may  vary  from  time  to  time,  and 
which  are  therefore  more  properly  left  to  the  control  of  the  legis- 
lature, which  can  more  easily  and  speedily  make  the  required 
changes. 

In  considering  State  constitutions  we  must  not  commit  the  mis- 
take of  supposing  that,  because  individual  rights  are  guarded  and 
protected  by  them,  they  must  also  be.  considered  as  owing  their 
origin  to  them.  These  instruments  measure  the  powers  of  the 
rulers,  but  they  do  not  measure  the  rights  of  the  governed. 
*  "  What  is  a  constitution,  and  what  are  its  objects  ?  It  is  [*  87] 
easier  to  tell  what  it  is  not  than  what  it  is.  It  is  not  the 
beginning  of  a  community,  nor  the  origin  of  private  rights  ;  it 
is  not  the  fountain  of  law,  nor  the  incipient  state  of  government; 
it  is  not  the  cause,  but  consequence,  of  personal  and  political  free- 
dom ;  it  grants  no  rights  to  the  people,  but  is  the  creature  of  their 
power,  the  instrument  of  their  convenience.  Designed  for  their 
protection  in  the  enjoyment  of  the  rights  and  powers  which  they 
possessed  before  the  constitution  was  made,  it  is  but  the  framework 
of  the  political  government,  and  necessarily  based  upon  the  pre- 
existing condition  of  laws,  rights,  habits,  and  modes  of  thought. 
There  is  nothing  primitive  in  it :  it  is  all  derived  from  a  known 
source.  It  presupposes  an  organized  society,  law,  order,  property, 
personal  freedom,  a  love  of  political  liberty,  and  enough  of  culti- 
vated intelligence  to  know  how  to  guard  it  against  the  encroach- 
ments of  tyranny.  A  written  constitution  is  in  every  instance  a 
limitation  upon  the  powers  of  government  in  the  hands  of  agents ; 
for  there  never  was  a  written  republican  constitution  which  del- 
egated to  functionaries  all  the  latent  powers  which  lie  dormant 

1  "  This,  then,  is  the  office  of  a  written  constitution :  to  delegate  to  various 
public  functionaries  such  of  the  powers  of  government  as  the  people'  do  not 
intend  to  exercise  for  themselves ;  to  classify  these  powers,  according  to  their 
nature,  and  to  commit  them  to  separate  agents  ;  to  provide  for  the  choice  of  these 
agents  by  the  people  ;  to  ascertain,  limit,  and  define  the  extent  of  the  authority 
thus  delegated ;  and  to  reserve  to  the  people  their  sovereignty  over  all  things  not 
expressly  committed  to  their  representatives."  E.  P.  Hurlbut  in  Human  Rights 
and  their  Political  Guaranties. 

[41] 


*  37  CONSTITUTIONAL    LIMITATIONS.  [CH.  Ill 

in  every  nation,  and  are  boundless  in  extent,  and  incapable  of 
definition."  1 

1  Hamilton  v.  St.  Louis  County  Court,  15  Mo.  13,  per  Bates,  arguendo.  •  And 
see  Matter  of  Oliver  Lee  &  Co.'s  Bank,  21  N.  Y.  9;  Lee  v.  State,  26  Ark.  265-6. 
"  Written  constitutions  sanctify  and  confirm  great  principles,  but  the  latter  are 
prior  in  existence  to  the  former."  2  Webster's  Works,  392.  See,  also,  1  Bl. 
Com.  124 ;  2  Story,  Life  and  Letters,  278 ;  Sidney  on  Government,  c.  3,  sec.  27 
and  33.  "  If  this  charter  of  State  government  which  we  call  a  Constitution  were 
all  there  was  of  constitutional  command  ;  if  the  usages,  the  customs,  the  maxims, 
that  have  sprung  from  the  habits  of  life,  modes  of  thought,  methods  of  trying 
facts  by  the  neighborhood,  and  mutual  responsibility  in  neighborhood  interests ; 
the  precepts  that  have  come  to  us  .from  the  revolutions  which  overturned  tyran- 
nies;  the  sentiments  of  manly  independence  and  self  control  which  impelled  our 
ancestors  to  summon  the  local  community  to  redress  local  evils,  instead  of  relying 
upon  king  or  legislature  at  a  distance  to  do  so,  —  if  a  recognition  of  all  these 
were  to  be  stricken  from  the  body  of  our  constitutional  law,  a  lifeless  skeleton 
might  remain,  but  the  living  spirit,  that  which  gives  it  force  and  attraction,  which 
makes  it  valuable,  and  draws  to  it  the  affections  of  the  people  ;  that  which  dis- 
tinguishes it  from  the  numberless  constitutions,  so  called,  which  in  Europe  have 
been  set  up  and  thrown  down  within  the  last  hundred  years,  many  of  which,  in 
their  expressions,  seemed  equally  fair  and  to  possess  equal  promise  with  ours, 
and  have  only  been  wanting  in  the  support  and  vitality  which  these  alone  can 
give,  —  this  living  and  breathing  spirit  which  supplies  the  interpretation  of  the 
words  of  the  written  charter  would  be  utterly  lost  and  gone."  People  v. 
Hurlbut,  24  Mich.  107. 

[42] 


'H.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS. 


^CHAPTER    IV.  [*38] 

OP    THE    CONSTRUCTION    OF    STATE    CONSTITUTIONS. 

The  deficiencies  of  human  language  are  such  that  if  written 
instruments  were  always  carefully  drawn,  and  by  persons  skilled 
in  the  use  of  words,  we  should  not  be  surprised  to  find  their  mean- 
ing often  drawn  in  question,  or  at  least  to  meet  with  difficulties 
in  their  practical  application.  But  these  difficulties  are  greatly 
increased  when  draughtsmen  are  careless  or  incompetent;  and  they 
multiply  rapidly  when  the  instruments  are  to  be  applied,  not  only 
to  the  subjects  directly  within  the  contemplation  of  those  who 
framed  them,  but  also  to  a  great  variety  of  new  circumstances 
which  could  not  have  been  anticipated,  but  which  must  nevertheless 
be  governed  by  the  general  rules  which  the  instruments  establish. 
Moreover,  the  different  points  of  view  from  which  different  interests 
regard  these  instruments  incline  them  to  different  views  of  the 
instruments  themselves.  All  these  circumstances  tend  to  render 
the  subjects  of  interpretation  and  construction  prominent  in  the 
practical  administration  of  the  law,  and  often  suggest  questions  of 
no  little  difficulty. 

Interpretation  differs  from  construction  in  that  the  former  "  is 
the  act  of  finding  out  the  true  sense  of  any  form  of  words  ;  that  is, 
the  sense  which  their  author  intended  to  convey  ;  and  of  enabling 
others  to  derive  from  them  the  same  idea  which  the  author  in- 
tended to  convey.  Construction,  on  the  other  hand,  is  the  drawing 
of  conclusions  respecting  subjects  that  lie  beyond  the  direct  ex- 
pressions of  the  text,  from  elements  known  from  and  given  in  the 
text ;  conclusions  which  are  in  the  spirit,  though  not  in  the  letter 
of  the  text.  Interpretation  only  takes  place  if  the  text  conveys 
some  meaning  or  other.  But  construction  is  resorted  to  when,  in 
comparing  two  different  writings  of  the  same  individual,  or  two 
different  enactments  by  the  same  legislative  body,  there  is  found 
contradiction  where  there  was  evidently  no  intention  of  such  con- 
tradiction one  of  another,  or  where  it  happens  that  part  of  a  writ 

[43] 


*  38  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

ing  or  declaration  contradicts  the  rest.  When  this  is  the  case, 
and  the  nature  of  the  document  or  declaration,  or  whatever  else  it 
may  be,  is  such  as  not  to  allow  us  to  consider  the  whole  as  being 
invalidated  by  a  partial  or  other  contradiction,  then  resort  must  be 
had  to  construction  ;  so,  too,  if  found  to  act  in  cases  which  have 
not  been  foreseen  by  the  framers  of  those  rules,  by  which  we  are 
nevertheless  obliged,  for  some  binding  reason,  faithfully  to  regulate 
as  well  as  we  can  our  action  respecting  the  unforeseen  case."  1  In 
common  use,  however,  the  word  construction  is  generally  employed 
in  the  law  in  a  sense  embracing  all  that  is  properly  covered  by 
both  when  used  in  a  sense  strictly  and  technically  correct ;  and 

we  shall  so  employ  it  in  the  present  chapter. 
[*  39]  From  the  earliest  periods  in  the  history  of  *  written  law, 
rules  of  construction,  sometimes  based  upon  sound  rea- 
son, and  seeking  the  real  intent  of  the  instrument,  and  at  other 
times  altogether  arbitrary  or  fanciful,  have  been  laid  down  by 
those  who  have  assumed  to  instruct  in  the  law,  or  who  have  been 
called  upon  to  administer  it,  by  the  aid  of  which  the  meaning  of 
the  instrument  was  to  be  resolved.  Some  of  these  rules  have  been 
applied  to  particular  classes  of  instruments  only ;  others  are  more 
general  in  their  application,  and  so  far  as  they  are  sound,  may  be 
made  use  of  in  any  case  where  the  meaning  of  a  writing  is  in  dis- 
pute. To  such  of  these  as  seem  important  in  constitutional  law 
we  shall  refer,  and  illustrate  them  by  references  to  reported  cases, 
where  they  have  been  applied. 

A  few  preliminary  words  may  not  be  out  of  place,  upon  the 
questions,  who  are  to  apply  these  rules  ;  what  person,  body,  or 
department  is  to  enforce  the  construction  ;  and  how  far  a  deter- 
mination, when  once  made,  is  to  be  binding  upon  other  persons, 
bodies,  or  departments. 

We  have  already  seen  that  we  are  to  expect  in  every  constitu- 
tion an  apportionment  of  the  powers  of  government.  We  shall 
also  find  certain  duties  imposed  upon  the  several  departments,  as 
well  as  upon  specified  officers  in  each,  and  we  shall  likewise  dis- 

1  Lieber,  Legal  and  Political  Hermeneutics.  See  Smith  on  Stat,  and  Const. 
Construction,  600.  Bouvier  defines  the  two  terms  succinctly  as  follows  :  "  Inter- 
pretation, the  discovery  and  representation  of  the  true  meaning  of  any  signs  used 
to  convey  ideas."  "  Construction,  in  practice,  determining  the  meaning  and 
application  as  to  the  case  in  question  of  the  provisions  of  a  constitution,  statute, 
will,  or  other  instrument,  or  of  an  oral  agreement."     Law  Die. 

[44] 


i^ff.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS.  *  39 

cover  that  the  constitution  has  sought  to  hedge  about  their  action 
in  various  ways,  with  a  view  to  the  protection  of  individual  rights, 
and  the  proper  separation  of  duties.  And  wherever  any  one  is 
called  upon  to  perform  any  constitutional  duty,  or  to  do  any  act 
in  respect  to  which  it  can  be  supposed  that  the  constitution  has 
spoken,  it  is  obvious  that  a  question  of  construction  may  at  once 
arise,  upon  which  some  one  must  decide  before  the  duty  is  per- 
formed or  the  act  done.  From  the  very  nature  of  the  case,  this 
decision  must  commonly  be  made  by  the  person,  body,  or  depart- 
ment upon  whom  the  duty  is  devolved,  or  from  whom  the  act  is 
required. 

Let  us  suppose  that  the  constitution  requires  of  the 
legislature,  *  that,  in  establishing  municipal  corporations,  [*  40] 
it  shall  restrict  their  powers  of  taxation  ;  and  a  city  charter 
is  proposed  which  confines  the  right  of  taxation  to  the  raising  of 
money  for  certain  specified  purposes,  but  in  regard  to  those  pur- 
poses leaves  it  unlimited ;  or  which  allows  to  the  municipality 
unlimited  choice  of  purposes,  but  restricts  the  rate ;  or  which 
permits  persons  to  be  taxed  indefinitely,  but  limits  the  taxation  of 
property :  in  either  of  these  cases  the  question  at  once  arises, 
whether  the  limitation  in  the  charter  is  such  a  restriction  as  the 
constitution  intends.  Let  us  suppose,  again,  that  a  board  of  su- 
pervisors is,  by  the  constitution,  authorized  to  borrow  money  upon 
the  credit  of  the  county  for  any  county  purpose,  and  they  are 
asked  to  issue  bonds  in  order  to  purchase  stock  in  some  railway 
company  which  proposes  to  construct  a  road  across  the  county ; 
the  proposition  is  met  with  the  query,  Is  this  a  county  purpose, 
and  can  the  issue  of  bonds  be  regarded  as  a  borrowing  of  money, 
within  the  meaning  of  the  people  as  expressed  in  the  constitu- 
tion ?  And  once  again  :  let  us  suppose  that  the  governor  is  em- 
powered to  convene  the  legislature  on  extraordinary  occasions, 
and  he  is  requested  to  do  so  in  order  to  provide  for  a  class  of 
private  claims  whose  holders  are  urgent;  can  this  with  any  pro- 
priety be  deemed  an  extraordinary  occasion  ? 

In  these  and  the  like  cases  our  constitutions  have  provided  no 
tribunal  for  the  specific  duty  of  solving  in  advance  the  questions 
which  arise.  In  a  few  of  the  States,  indeed,  the  legislative  de- 
partment has  been  empowered  by  the  constitution  to  call  upon 
the  courts  for  their  opinion  upon  the  constitutional  validity  of  a 
proposed  law,  in  order  that,  if  it  be  adjudged  without  warrant, 

[45] 


*  40  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV", 

the  legislature  may  abstain  from  enacting  it.1  But  those  pro- 
visions are  not  often  to  be  met  with,  and  judicial  decisions,  espe- 
cially upon  delicate  and  difficult  questions  of  constitutional  law, 
can  seldom  be  entirely  satisfactory  when  made,  as  they  commonly 
will  be  under  such  calls,  without  the  benefit  of  argument  at  the 

bar,  and  of  that  light  upon  the  points  involved  which  might 
[*  41]    *  be  afforded  by  counsel  learned  in  the  law,  and  interested 

in  giving  them  a  thorough  investigation. 
It  follows,  therefore,  that  every  department  of  the  government 
and  every  official  of  every  department  may  at  any  time,  when  a 
duty  is  to  be  performed,  be  required  to  pass  upon  a  question  of 
constitutional  construction.2  Sometimes  the  case  will  be  such 
that  the  decision  when  made  must,  from  the  nature  of  things,  be 
conclusive  and  subject  to  no  appeal  or  review,  however  erroneous 
it  may  be  in  the  opinion  of  other  departments  or  other  officers ; 
but  in  other  cases  the  same  question  may  be  required  to  be  passed 
upon  again  before  the  duty  is  completely  performed.  The  first  of 
these  classes  is  where,  by  the  constitution,  a  particular  question 
is  plainly  addressed  to  the  discretion  or  judgment  of  some  one 
department  or  officer,  so  that  the  interference  of  any  other  de- 
partment or  officer,  with  a  view  to  the  substitution  of  its  own 
discretion  or  judgment  in  the  place  of  that  to  which  the  "consti- 
tution has  confided  the  decision,  would  be  impertinent  and  intru- 
sive. Under  every  constitution  cases  of  this  description  are  to 
be  met  with  ;  and  though  it  will  sometimes  be  found  difficult  to 

1  By  the  constitutions  of  Maine,  New  Hampshire,  and  Massachusetts,  the 
judges  of  the  Supreme  Court  are  required,  when  called  upon  by  the  governor, 
council,  or  either  house  of  the  legislature,  to  give  their  opinions  "  upon  impor- 
tant questions  of  law,  and  upon  solemn  occasions."  In  Missouri,  they  are  to 
give  their  opinions  "upon  important  questions  of  constitutional  law,  and  upon 
solemn  occasions;  "  and  the  Supreme  Court  has  held  that  while  the  governor 
determines  for  himself  whether  the  occasion  is  such  as  to  authorize  him  to  call  on 
the  judges  for  their  opinion,  they  must  decide  for  themselves  whether  the  occa- 
sion is  such  as  to  warrant  the  governor  in  making  the  call.  Opinions  of  Judges, 
49  Mo.  216. 

2  "It  is  argued  that  the  legislature  cannot  give  a  construction  to  the  constitu- 
tion relative  to  private  rights  secured  by  it.  It  is  true  that  the  legislature,  in 
consequence  of  their  construction  of  the  constitution,  cannot  make  laws  repug- 
nant to  it.  But  every  department  of  government,  invested  with  certain  consti- 
tutional powers,  must,  in  the  first  instance,  but  not  exclusively,  be  the  judge  of 
its  powers,  or  it  could  not  act."  Parsons,  Ch.  J.,  in  Kendall  v.  Inhabitants  of 
Kingston,  5  Mass.  533. 

[46] 


CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS.  *  41 

classify  them,  there  can  be  no  doubt,  when  the  case  is  properly 
determined  to  be  one  of  this  character,  that  the  rule  must  prevail 
which  makes  the  decision  final. 

We  will  suppose,  again,  that  the  constitution  empowers  the 
executive  to  convene  the  legislature  on  extraordinary  occasions, 
and  does  not  in  terms  authorize  the  intervention  of  any  one  else 
in  determining  what  is  and  what  is  not  such  an  occasion  in  the 
constitutional  sense ;  it  is  obvious  that  the  question  is  addressed 
exclusively  to  the  executive  judgment,  and  neither  the  legislature 
nor  the  judicial  department  can  intervene  to  compel  action  if  he 
decide  against  it,  or  to  enjoin  action  if,  in  his  opinion,  the  proper 
occasion  has  arisen.1  And  again,  if,  by  the  constitution, 
*  laws  are  to  take  effect  at  a  specified  time  after  their  [*  42] 
passage,  unless  the  legislature,  for  urgent  reasons,  shall 
otherwise  order,  we  must  perceive  at  once  that  the  legislature 
alone  is  competent  to  pass  upon  the  urgency  of  the  alleged 
reasons.2  And  to  take  a  judicial  instance :  If  a  court  is  required 
to  give  an  accused  person  a  trial  at  the  first  term  after  indictment, 

1  In  exercising  bis  power  to  call  out  the  militia  in  certain  exigencies,  the  Pres- 
ident is  the  exclusive  and  final  judge  when  the  exigency  has  arisen.  Martin  v. 
Mott,  12  Wheat.  29. 

2  In  Gillinwater  v .  Mississippi  &  Atlantic  Railroad  Co.,  13  111.  1,  it  was  urged 
that  a  certain  restriction  imposed  upon  railroad  corporations  by  the  general  rail- 
road law  was  a  violation  of  the  provision  of  the  constitution  which  enjoins  it  upon 
the  legislature  "  to  encourage  internal  improvements  by  passing  liberal  general 
laws  of  incorporation  for  that  purpose."  The  court  say  of  this  provision  :  "  This 
is  a  constitutional  command  to  the  legislature,  as  obligatory  on  it  as  any  other  of 
the  provisions  of  that  instrument ;  but  it  is  one  which  cannot  be  enforced  by  the 
courts  of  justice.  It  addresses  itself  to  the  legislature  alone,  and  it  is  not  for  us 
to  say  whether  it  has  obeyed  the  behest  in  its  true  spirit.  Whether  the  provisions 
of  this  law  are  liberal,  and  tend  to  encourage  internal  improvements,  is  matter  of 
opinion,  about  which  men  may  differ;  and  as  we  have  no  authority  to  revise  legis- 
lative action  on  the  subject,  it  would  not  become  us  to  express  our  views  in  rela- 
tion to  it.  The  law  makes  no  provision  for  the  construction  of  canals  and  turn- 
pike roads,  and  yet  they  are  as  much  internal  improvements  as  railroads,  and  we 
might  as  well  be  asked  to  extend  what  we  might  consider  the  liberal  provisions  of 
this  law  to  them,  because  they  are  embraced  in  the  constitutional  provision,  as  to 
ask  us  to  disregard  such  provisions  of  it  as  we  might  regard  as  illiberal.  The 
argument  proceeds  upon  the  idea  that  we  should  consider  that  as  done  which  ought 
to  be  done ;  but  that  principle  has  no  application  here.  Like  laws  upon  other 
subjects  within  legislative  jurisdiction,  it  is  for  the  courts  to  say  what  the  law  is, 
not  what  it  should  be."  It  is  clear  that  courts  cannot  interfere  with  matters  of 
legislative  discretion.     Maloy  v.  Marietta,  11  Ohio,  N.  s.  639. 

[47] 


*  42  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

unless  good  cause  be  shown  for  continuance,  it  is  obvious  that  the 
question  of  good  cause  is  one  for  the  court  alone  to  pass  upon, 
and  that  its  judgment  when  exercised  is,  and  must  be  from  the 
nature  of  the  case,  final.  And  when  in  any  of  these  and  similar 
cases  the  decision  is  once  made,  other  departments  or  other 
officers,  whatever  may  have  been  their  own  opinions,  must  assume 
the  decision  to  be  correct,  and  are  not  at  liberty  to  raise  any 
question  concerning  it,  unless  some  duty  is  devolved  upon  them 
which  presents  the  same  question  anew. 

But  there  are  cases  where  the  question  of  construction  is  equally 
addressed  to  two  or  more  departments  of  the  government,  and  it 
then  becomes  important  to  know  whether  the  decision  by  one  is 
binding  upon  the  others,  or  whether  each  is  to  act  upon  its 
own  judgment.  Let  us  suppose  once  more  that  the  governor, 
being  empowered  by  the  constitution  to  convene  the 
[*  43]  *  legislature  upon  extraordinary  occasions,  has  regarded 
a  particular  event  as  being  such  an  occasion,  and  has 
issued  his  proclamation  calling  them  together  with  a  view  to  the 
enactment  of  some  particular  legislation  which  the  event  seems 
to  call  for,  and  which  he  specifies  in  his  proclamation.  Now  the 
legislature  are  to  enact  laws  upon  their  own  view  of  necessity 
and  expediency  ;  and  they  will  refuse  to  pass  the  desired  statute 
if  they  regard  it  as  unwise  or  unimportant.  But  in  so  doing  they 
indirectly  review  the  governor's  decision,  as  in  refusing  to  pass 
the  law  they  also  decide  that  the  specific  event  was  not  one  calling 
for  action  on  their  part.  In  such  a  case  it  is  clear  that,  while  the 
decision  of  the  governor  is  final  so  far  as  to  require  the  legislature 
to  meet,  it  is  not  final  in  any  sense  that  would  bind  the  legislative 
department  to  accept  and  act  upon  it  when  they  are  called  to  enter 
upon  the  performance  of  their  duty  in  the  making  of  laws.1 

So  also  there  are  cases  where,  after  the  two  houses  of  the  legis- 
lature have  passed  upon  the  question,  their  decision  is  in  a  certain 
sense  subject  to  review  by  the  governor.  If  a  bill  is  introduced 
the  constitutionality  of  which  is  disputed,  the  passage  of  the  bill 
by  the  two  houses  must  be  regarded  as  the  expression  of  their 
judgment  that,  if  approved,  it  will  be  a  valid  law.  But  if  the 
constitution  confers  upon  the  governor  a  veto  power,  the  same 
question  of  constitutional  authority  will  be  brought  by  the  bill 
before  him,  since  it  is  manifestly  his  duty  to  withhold  approval  • 

1  See  Opinions  of  Judges,  49  Mo.  216. 
[48] 


CH.  IV.]  CONSTRUCTION   OP   STATE   CONSTITUTIONS.  *  43 

from  any  bill  which,  in  his  opinion,  the  legislature  ought  not  for 
any  reason  to  pass.  And  what  reason  so  valid  as  that  the  con- 
stitution confers  upon  them  no  authority  to  that  end  ?  In  all 
these  and  the  like  cases,  each  department  must  act  upon  its  own 
judgment,  and  cannot  be  required  to  do  that  which  it  regards  as 
a  violation  of  the  constitution,  on  the  ground  solely  that  another 
department  which,  in  the  course  of  the  discharge  of  its  own  duty, 
was  called  upon  first  to  act,  has  reached  the  conclusion  that  it  will 
not  be  violated  by  the  proposed  action. 

But  setting  aside  now  those  cases  to  which  we  have  referred, 
where  from  the  nature  of  things,  and  perhaps  from  explicit  terms 
of  the  constitution,  the  judgment  of  the  department  or  officer 
acting  must  be  final,  we  shall  find  the  general  rule  to  be,  that 
whenever  an  act  is  done  which  may  become  the  subject  of  a 
proceeding  in  court,  any  question  of  constitutional  authority 
that  might  have  been  raised  when  the  act  was  done  will 
be  *  open  for  consideration  in  such  proceeding,  and  that  as  [*  44] 
the  courts  must  finally  settle  the  controversy,  so  also  will 
they  finally  determine  the  question  of  constitutional  law. 

For  the  constitution  of  the  State  is  higher  in  authority  than  any 
law,  direction,  or  decree  made  by  any  body  or  any  officer  assuming 
to  act  under  it,  since  such  body  or  officer  must  exercise  a  dele- 
gated authority,  and  one  that  must  necessarily  be  subservient  to 
the  instrument  by  which  the  delegation  is  made.  In  any  case  of 
conflict  the  fundamental  law  must  govern,  and  the  act  in  conflict 
with  it  must  be  treated  as  of  no  legal  validity.  But  no  mode  has 
yet  been  devised  by  which  these  questions  of  conflict  are  to  be 
discussed  and  settled  as  abstract  questions,  and  their  determination 
is  necessary  or  practicable  only  when  public  or  private  rights 
would  be  affected  thereby.  They  then  become  the  subject  of  legal 
controversy,  and  legal  controversies  must  be  settled  by  the  courts. 
The  courts  have  thus  devolved  upon  them  the  duty  to  pass  upon 
the  constitutional  validity,  sometimes  of  legislative,  and  sometimes 
of  executive  acts.  And  as  judicial  tribunals  have  authority,  not 
only  to  judge,  but  also  to  enforce  their  judgments,  the  result  of 
a  decision  against  the  constitutionality  of  a  legislative  or  executive 
act  will  be  to  render  it  invalid  through  the  enforcement  of  the 
paramount  law  in  the  controversy  which  has  raised  the  question.1 

1  "  When  laws  conflict  in  actual  cases,  they  [the  courts]  must  decide  'which  is 
the  superior  law,  and  which  must  yield ;  and  as  we  have  seen  that,  according  to 

4  [49] 


*  45  CONSTITUTIONAL    LIMITATIONS.  [CH.  IV. 

[*  45]  *  The  same  conclusion  is  reached  by  stating  in  consecu- 
tive order  a  few  familiar  maxims  of  the  law.  The  adminis- 
tration of  public  justice  is  referred  to  the  courts.  To  perform  this 
duty,  the  first  requisite  is  to  ascertain  the  facts,  and  the  next  to 
determine  the  law  that  is  applicable.  The  constitution  is  the  funda- 
mental "law  of  the  State,  in  opposition  to  which  any  other  law,  or 
any  direction  or  decree,  must  be  inoperative  and  void.  If,  therefore, 
such  other  law,  direction,  or  decree  seems  to  be  applicable  to  the 
facts,  but  on  comparison  with  the  fundamental  law  it  is  found  to  be 
in  conflict,  the  court,  in  declaring  what  the  law  of  the  case  is,  must 
necessarily  determine  its  invalidity,  and  thereby  in  effect  annul 
it.1     The  right  and  the  power  of  the  courts  to  do  this  are  so  plain, 

our  principles,  every  officer  remains  answerable  for  what  he  officially  does,  a  cit- 
izen, believing  that  the  law  he  enforces  is  incompatible  with  the  superior  law,  the 
constitution  simply  sues  the  officer  before  the  proper  court  as  having  unlawfully 
aggrieved  him  in  the  particular  case.  The  court,  bound  to  do  justice  to  every 
one,  is  bound  also  to  decide  this  case  as  a  simple  case  of  conflicting  laws.  The 
court  does  not  decide  directly  upon  the  doings  of  the  legislature.  It  simply 
decides  for  the  case  in  hand,  whether  there  actually  are  conflicting  laws,  and  if 
so  which  is  the  higher  law  that  demands  obedience,  when  both  may  not  be  obeyed 
at  the  same  time.  As,  however,  this  decision  becomes  the  leading  decision  for 
all  future  cases  of  the  same  import,  until,  indeed,  proper  and  legitimate  authority 
should  reverse  it,  the  question  of  constitutionality  is  virtually  decided,  and  it  is 
decided  in  a  natural,  easy,  legitimate,  and  safe  manner,  according  to  the  prin- 
ciple of  the  supremacy  of  the  law,  and  the  dependence  of  justice.  It  is  one  of 
the  most  interesting  and  important  evolutions  of  the  government  of  law,  and  one 
of  the  greatest  protections  of  the  citizen.  It  may  well  be  called  a  very  jewel  of 
Anglican  liberty,  and  one  of  the  best  fruits  of  our  political  civilization."  Lieber, 
Civil  Liberty  and  Self-Government. 

"  Whenever  a  law  which  the  judge  holds  to  be  unconstitutional  is  argued  in  a 
tribunal  of  the  United  States,  he  may  refuse  to  admit  it  as  a  rule ;  this  power  is 
the  only  one  which  is  peculiar  to  the  American  magistrate,  but  it  gives  rise  to 
immense  political  influence.  Few  laws  can  escape  the  searching  analysis ;  for 
there  are  few  which  are  not  prejudicial  to  some  private  intei'est  or  other,  and 
none  which  may  not  be  brought  before,  a  court  of  justice  by  the  choice  of  par- 
ties, or  bythe  necessity  of  the  case.  But  from  the  time  that  a  judge  has  refused 
to  apply  any  given  law  in  a  case,  that  law  loses  a  portion  of  its  moral  sanction. 
The  persons  to  whose  interest  it  is  prejudicial  learn  that  means  exist  for  evading 
its  authority  ;  and  similar  suits  are  multiplied  until  it  becomes  powerless.  One 
of  two  alternatives  must  then  be  resorted  to,  —  the  people  must  alter  the  con- 
stitution, or  the  legislature  must  repeal  the  law."  De  Tocqueville,  Democracy 
in  America,  c.  6. 

1  "  It  is  idle  to  say  that  the  authority  of  each  branch  of  the  government  is 
defined  and  limited  by  the  constitution,  if  there  be  not  an  independent  power 
able  and  willing  to  enforce  the  limitations.     Experience  proves  that  the  consti- 

[50] 


CH.  IV.]  CONSTRUCTION   OP   STATE   CONSTITUTIONS.  *  46 

*  and  the  duty  is  so  generally  —  we  may  almost  say  uni-    [*  46] 
versally  —  conceded,  that  we  should  not  be  justified  in 
wearying  the  patience  of  the  reader  in   quoting  from  the  very 
numerous  authorities  upon  the  subject.1 

tution  is  thoughtlessly  but  habitually  violated ;  and  the  sacrifice  of  individual 
rights  is  too  remotely  connected  with  the  objects  and  contests  of  the  masses  to 
attract  their  attention.  From  its  very  position  it  is  apparent  that  the  conserva- 
tive power  is  lodged  in  the  judiciary,  which,  in  the  exercise  of  its  undoubted 
rights,  is  bound  to  meet  any  emergency ;  else  causes  would  be  decided,  not  only 
by  the  legislature,  but  sometimes  without  hearing  or  evidence."  Per  Gibson, 
Ch.  J.,  in  De  Chastellux  v.  Fairchild,  15  Penn.  St.  18. 

"  Nor  will  this  conclusion,  to  use  the  language  of  one  of  our  most  eminent 
jurists  and  statesmen,  by  any  means  suppose  a  superiority  of  the  judicial  to  the 
legislative  power.  It  will  only  be  supposing  that  the  power  of  the  people  is 
superior  to  both ;  and  that  where  the  will  of  the  legislature,  declared  in  its  stat- 
utes, stands  in  opposition  to  that  declared  by  the  people  in  the  constitution,  the 
judges  ought  to  be  governed  by  the  latter  rather  than  the  former.  They  ought 
to  regulate  their  decisions  by  the  fundamental  laws  rather  than  by  those  which 
are  not  fundamental.  Neither  would  we,  in  doing  this,  be  understood  as  im- 
pugning the  honest  intentions,  or  sacred  regard  to  justice,  which  we  most  cheer- 
fully accord  to  the  legislature.  But  to  be  above  error  is  to  possess  an  entire 
attribute  of  the  Deity  ;  and  to  spurn  its  correction,  is  to  reduce  to  the  same 
degraded  level  the  most  noble  and  the  meanest  of  his  works."  Bates  v.  Kimball, 
2  Chip.  77. 

"  Without  the  limitations  and  restraints  usually  found  in  written  constitutions, 
the  government  could  have  no  elements  of  permanence  and  durability ;  and  the 
distribution  of  its  powers  and  the  vesting  their  exercise  in  separate  departments 
would  be  an  idle  ceremony."     Brown,  J.,  in  People  v.  Draper,  15  N.  Y.  558. 

1  1  Kent,  500-507  ;  Marbury  v.  Madison,  1  Cranch,  137  ;  Webster  on  the 
Independence  of  the  Judiciary,  Works,  Vol.  III.  p.  29.  In  this  speech  Mr. 
Webster  has  forcibly  set  forth  the  necessity  of  leaving  with  the  courts  the  power 
to  enforce  constitutional  restrictions.  "  It  cannot  be  denied,"  says  he,  "  that 
one  great  object  of  written  constitutions  is,  to  keep  the  departments  of  govern- 
ment as  distinct  as  possible ;  and  for  this  purpose  to  impose  restraints  designed 
to  have  that  effect.  And  it  is  equally  true  that  there  is  no  department  on  which 
it  is  more  necessary  to  impose  restraints  than  upon  the  legislature.  The  ten- 
dency of  things  is  almost  always  to  augment  the  power  of  that  department  in  its 
relation  to  the  judiciary.  The  judiciary  is  composed  of  few  persons,  and  those 
not  such  as  mix  habitually. in  the  pursuits  and  objects  which  most  engage  public 
men.  They  are  not,  or  never  should  be,  political  men.  They  have  often  un- 
pleasant duties  to  perform,  and  their  conduct  is  often  liable  to  be  canvassed  and 
censured  where  their  reasons  for  it  are  not  known  or  cannot  be  understood. 
The  legislature  holds  the  public  purse.  It  fixes  the  compensation  of  all  other 
departments ;  it  applies  as  well  as  raises  all  revenue.  It  is  a  numerous  body, 
and  necessarily  carries  along  with  it  a  great  force  of  public  opinion.  Its  mem- 
bers are  public  men,  in  constant  contact  with  one  another  and  with  their  constit- 

[51] 


47  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 


[*  47]  *  Conclusiveness  of  Judicial  Decisions. 

•But  a  question  which  has  arisen  and  been  passed  upon  in  one 
case  may  arise  again  in  another,  or  it  may  present  itself  under 
different  circumstances  for  the  decision  of  some  other  department 
or  officer  of  the  government.  It  therefore  becomes  of  the  highest 
importance  to  know  whether  a  principle  once  authoritatively  de- 
clared is  to  be  regarded  as  conclusively  settled  for  the  guidance, 
not  only  of  the  court  declaring  it,  but  of  all  courts  and  all  depart- 
ments of  the  government  ;  or  whether,  on  the  other  hand,  the 
decision  settles  the  particular  controversy  only,  so  that  a  different 
decision  may  be  possible ;  or,  considering  the  diversity  of  human 
judgments,  even  probable,  whenever  in  any  new  controversy  other 
tribunals  may  be  required  to  examine  and  decide  upon  the  same 
question. 

In  some  cases  and  for  some  purposes  the  conclusiveness  of  a 
judicial  determination  is,  beyond  question,  final  and  absolute.  A 
decision  once  made  in  a  particular  controversy,  by  the  highest 
court  empowered  to  pass  upon  it,  is  conclusive  upon  the  parties  to 
the  litigatiQii  and  their  privies,  and  they  are  not  allowed  afterwards 
to  revive  the  controversy  in  a  new  proceeding  for  the  purpose  of 
raising  the  same  or  any  other  questions.  The  matter  in  dispute 
has  become   res  judicata ;   a  thing  definitely  settled  by  judicial 

uents.  It  would  seem  to  be  plain  enough  that,  without  constitutional  provisions 
which  should  be  fixed  and  certain,  such  a  department,  in  case  of  excitement, 
would  be  able  to  encroach  on  the  judiciary."  "The  constitution  being  the 
supreme  law,  it  follows,  of  course,  that  every  act  of  the  legislature  contrary  to 
that  law  must  be  void.  But  who  shall  decide  this  question  ?  Shall  the  legisla- 
ture itself  decide  it?  If  so,  then  the  constitution  ceases  to  be  a  legal,  and  be- 
comes only  a  moral  restraint  upon  the  legislature.  If  they,  and  they  only,  are  to 
judge  whether  their  acts  be  conformable  to  the  constitution,  then  the  constitution 
is  admonitory  or  advisory  only,  not  legally  binding;  because  if  the  construction 
of  it  rests  wholly  with  them,  their  discretion,  in  particular  cases,  may  be  in 
favor  of  very  erroneous  and  dangerous  constructions.  Hence  the  courts  of  law, 
necessarily,  when  the  case  arises,  must  decide  on  the  validity  of  particular  acts." 
"Without  this  check,  no  certain  limitation  could  exist  on  the  exercise  of  legisla- 
tive power."  See  also,  as  to  the  dangers  of  legislative  encroachments,  De  Toc- 
queville,  Democracy  in  America,  c.  6  ;  Story  on  Const.  4th  ed.  §  532  and  note. 
The  legislature,  though  possessing  a  larger  share  of  power,  no  more  represents 
the  sovereignty  of  the  people  than  either  of  the  other  departments  ;  it  derives  its 
authority  from  the  same  high  source.  Bailey  v.  Philadelphia,  &c,  Railroad  Co.,  4 
Harr.  402 ;  Whittington  v.  Polk,  1  H.  &  J.  244. 

[52] 


CH.  IV.]  CONSTRUCTION   OF   STATE    CONSTITUTIONS.  *  47 

decision  ;  and  the  judgment  of  the  court  imports  absolute  verity. 
Whatever  the  question  involved, —  whether  the  interpretation  of  a 
private  contract,  the  legality  of  an  individual  act,  or  the  validity  of 
a  legislative  enactment,  —  the  rule  of  finality  is  the  same.  The 
controversy  has  been  adjudged,  and  once  finally  passed  upon  is 
never  to  be  renewed.1  It  must  frequently  happen,  therefore,  that 
a  question  of  constitutional  law  will  be  decided  in  a  private  litiga- 
tion, and  the  parties  to  the  controversy,  and  all  others  subsequently 
acquiring  rights  under  them,  in  the  subject-matter  of  the  suit,  will 
thereby  become  absolutely  and  for  ever  precluded  from  renewing 
the  question  in  respect  to  the  matter  then  involved.  The  rule  of 
conclusiveness  to  this  extent  is  one  of  the  most  inflexible 
principles  *  of  the  law  ;  insomuch  that  even  if  it  were  sub-  [*  48] 
sequently  held  by  the  courts  that  the  decision  in  the  par- 
ticular case  was  erroneous,  such  holding  would  not  authorize  the 
reopening  of  the  old  controversy  in  order  that  the  final  conclusion 
might  be  applied  thereto.2 

1  Duchess  of  Kingston's  Case,  2  Smith's  Lead.  Cas.  424;  Etheridge  v.  Osborn, 
12  Wend.  399;  Hayes  v.  Reese,  34  Barb.  151 ;  Hyatt  v.  Bates,  35  Barb.  308; 
Harris  v.  Harris,  36  Barb.  88  ;  Young  v.  Black,  7  Cranch,  567  ;  Chapman  v. 
Smith,  16  How.  114  ;  Wales  v.  Lyon,  2  Mich.  276  ;  Prentiss  v.  Holbrook,  2  Mich. 
372;  Van  Kleek  v.  Eggleston,  7  Mich.  511;  Newberry  v.  Trowbridge,  13  Mich. 
278;  Crandall  v.  James,  6  R.  I.  144;  Babcock  v.  Camp,  12  Ohio,  N.  s.  11; 
Warner  v.  Scott,  39  Penn.  St.  274;  Kerr  v.  Union  Bank,  18  Md.  396  ;  Eimer  v. 
Richards,  25  111.  289  ;  Wright  v.  Leclaire,  3  Iowa,  241 ;  Whittaker  v.  Johnson 
County,  12  Iowa,  595;  Peay  v.  Duncan,  20  Ark.  85;  Madox  v.  Graham,  2  Met. 
(Ky.)  56;  George  v.  Gillespie,  1  Greene  (Iowa),  421;  Clark  v.  Sammons,  12 
Iowa,  368;  Taylor  v.  Chambers,  1  Iowa,  124;  Skelding  v.  Whitney,  3  Wend. 
154;  Hawkins  v.  Jones,  19  Ohio,  n.  s.  22;  Slade  v.  Slade,  58  Me.  157;  Geary 
v.  Simmons,  39  Cal.  224 ;  Cannon  v.  Brame,  45  Ala.  262 ;  Dwyer  v.  Goran,  29 
Iowa,  126  ;  Verner  v.  Carson,  66  Penn.  St.  440 ;  Aurora  City  v.  West,  7  Wall.  82  ; 
Harris  v.  Colquit,  44  Geo.  663 ;  Finney  v.  Boyd,  26  Wis.  366  ;  Ram  on  Legal 
Judgment,  c.  14.  A  judgment,  however,  is  conclusive  as  an  estoppel  as  to  those 
facts  without  the  existence  and  proof  of  which  it  could  not  have  been  rendered ; 
and  if  it  might  have  been  given  on  any  one  of  several  grounds,  it  is  conclusive 
between  the  parties  as  to  neither  of  them.  Lea  v.  Lea,  97  Mass.  493.  And  see 
Dickinson  v.  Hayes,  31  Conn.  417  ;  Church  v.  Chapin,  35  Vt.  223  ;  Packet  Co. 
v.  Sickles,  5  Wall.  580;  Spencer  v.  Dearth,  43  Vt.  98. 

2  McLean  v.  Hugarin,  13  Johns.  184 ;  Morgan  v.  Plumb,  9  Wend.  287  ; 
Wilder  v.  Case,  16  Wend.  583;  Baker  v.  Rand,  13  Barb.  152;  Kelley  v.  Pike, 
5  Cush.  484;  Hart  v.  Jewett,  11  Iowa,  276;  Colburn  v.  Woodworth,  31  Barb. 
381;  Newberry  v.  Trowbridge,  13  Mich.  278;  Skildin  v.  Herrick,  3  Wend.  154; 
Brockway  v.  Kinney,  2  Johns.  210;  Platner  v.  Best,  11  Johns.  530;  Phillips  v. 
Berick,  16  Johns.  136 ;  Page  v.  Fowler,  37  Cal.  100. 

[53] 


*  48  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

But  if  important  principles  of  constitutional  law  can  be  thus 
disposed  of  in  suits  involving  only  private  rights,  and  when  private 
individuals  and  their  counsel  alone  are  heard,  it  becomes  of  interest 
to  know  how  far,  if  at  all,  other  individuals  and  the  public  at  large 
■are  affected  by  the  decision.  And  here  it  will  be  discovered  that 
quite  a  different  rule  prevails,  and  that  a  judicial  decision  has  no 
such  force  of  absolute  conclusiveness  as  to  other  parties  as  it  is 
allowed  to  possess  between  the  parties  to  the  litigation  in  which 
the  decision  has  been  made,  and  those  who  have  succeeded  to  their 
rights. 

A  party  is  estopped  by  a  judgment  against  him  from  disputing 
its  correctness,  so  far  as  the  point  directly  involved  in  the  case 
was  concerned,  whether  the  reasons  upon  which  it  was  based  were 
sound  or  not,  and  even  if  no  reasons  were  given  therefor.     And  if 
the  parties  themselves  are  estopped,  so  also  should  be  all  those 
who,  since  the  decision,  claim  to  have  acquired  interests  in  the 
subject-matter  of  the  judgment  from  or  under  the  parties,  as  per- 
sonal representatives,  heirs-at-law,  donees,  or  purchasers,  and  who 
are  therefore  considered  in  the  law  as  privies.    But  if  strangers  who 
have  no  interest  in  that  subject-matter  are  to  be  in  like  manner 
concluded,  because  their  controversies  are  supposed  to  involve  the 
same  question  of  law,  we  shall  not  only  be  forced  into  a  series  of 
endless  inquiries,  often  resulting  in  little  satisfaction,  in  order  to 
ascertain  whether  the  question  is  the  same,  but  we  shall  also  be 
met  by  the  query,  whether  we  are  not  concluding  parties  by  deci- 
sions which  others  have  obtained  in  fictitious  controversies  and  by 
collusion,  or  suffered  to  pass  without  sufficient  consideration  and 
discussion,  and  which  might  have  been  given  otherwise  had  other 

parties  had  an  opportunity  of  being  heard. 
[*  49]  *  We  have  already  seen  that  the  force  of  a  judgment 
does  not  depend  upon  the  reasons  given  therefor,  or  upon 
the  circumstance  that  any  were  or  were  not  given.  If  there  were, 
they  may  have  covered  portions  of  the  controversy  only,  or  they 
may  have  had  such  reference  to  facts  peculiar  to  that  case,  that  in 
any  other  controversy,  though  somewhat  similar  in  its  facts,  and 
apparently  resembling  it  in  its  legal  bearings,  grave  doubts  might 
arise  whether  it  ought  to  fall  within  the  same  general  principle. 
If  one  judgment  were  absolutely  to  conclude  the  parties  to  any 
similar  controversy,  we  ought  at  least  to  be  able  to  look  into  the 
judicial  mind,  in  order  that  we  might  ascertain  of  a  surety  that  all 
[54] 


CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS.  *  49 

those  facts  which  should  influence  the  questions  of  law  were  sub- 
stantially the  same  in  each,  and  we  ought  also  to  be  able  to  see 
that  the  firs.t  litigation  was  conducted  in  entire  good  faith,  and  that 
every  consideration  was  presented  to  the  court  which  could  prop- 
erly have  weight  in  the  construction  and  application  of  the  law.' 
All  these  things,  however,  are  manifestly  impossible  ;  and  the  law 
therefore  wisely  excludes  judgments  from  being  used  to  the  preju- 
dice of  strangers  to  the  controversy,  and  restricts  their  conclusive- 
ness to  the  parties  thereto  and  their  privies.1  Even  parties  and 
privies  are  bound  only  so  far  as  regards  the  subject-matter  then 
involved,  and  would  be  at  liberty  to  raise  the  same  questions  anew 
in  a  distinct  controversy  affecting  some  distinct  subject-matter.2 

All  judgments,  however,  are  supposed  to  apply  the  existing  law 
to  the  facts  of  the  case ;  and  the  reasons  which  are  sufficient  to 
influence  the  court  to  a  particular  conclusion  in  one  case  ought  to 
be  sufficient  to  bring  it  or  any  other  court  to  the  same  conclusion 
in  all  other  like  cases  where  no  modification  of  the  law  has  inter- 
vened. There  would  thus  be  uniform  rules  for  the  administra- 
tion of  justice,  and  the  same  measure  that  is  meted  out 
*  to  one  would  be  received  by  all  others.  And  even  if  the  [*  50] 
same  or  any  other  court,  in  a  subsequent  case,  should  be 
in  doubt  concerning  the  correctness  of  the  decision  which  has  been 
made,  there  are  consequences  of  a  very  grave  character  to  be  con- 
templated and  weighed  before  the  experiment  of  disregarding  it 
should  be  ventured  upon.  That  state  of  things,  when  judicial  de- 
cisions conflict,  so  that  a  citizen  is  always  at  a  loss  in  regard  to 
his  rights  and  his  duties,  is  a  very  serious  evil ;  and  the  alterna- 
tive of  accepting  adjudged  cases  as  precedents  in  future  controver- 
sies resting  upon  analogous  facts,  and  brought  within  the  same 
reasons,  is  obviously  preferable.      Precedents,  therefore,  become 

1  Burrill  v.  West,  2  N.  H.  190;  Davis  v.  Wood,  1  Wheat.  6;  Jackson  v. 
Vedder,  3  Johns.  8  ;  Case  v.  Reeve,  14  Johns.  79  ;  Alexander  v.  Taylor,  4  Denio, 
302 ;  Van  Bokkelin  v.  Ingersoll,  5  Wend.  315  ;  Smith  v.  Ballantyne,  10  Paige, 
101 ;  Orphan  House  v.  Lawrence,  11  Paige,  80 ;  Thomas  v.  Hubbell,  15  N.  Y. 
405 ;  Wood  v.  Stephen,  1  Serg.  &  R.  175 ;  Peterson  v.  Lothrop,  34  Penn.  St. 
223;  Twambly  v.  Henley,  4  Mass.  441 ;  Este  v.  Strong,  2  Ohio,  401 ;  Cowles  v. 
Harts,  3  Conn.  516  ;  Floyd  v.  Mintsey,  5  Rich.  361 ;  Riggins's  Ex'rs  v.  Brown, 
12  Geo.  271 ;  Persons  v.  Jones,  ib.  371. 

2  Van  Alstinet-.  Railroad  Co.,  34  Barb.  28;  Taylor  v.  McCracken,  2  Blackf. 
260  ;  Cook  v.  Vimont,  6  T.  B.  Monr.  284.  See,  for  a  discussion  of  this  doctrine 
and  limitations  upon  it,  Spencer  v.  Dearth,  43  Vt.  98. 

[55] 


*  50  CONSTITUTIONAL  LIMITATIONS.  [CH.  IV. 

important,  and  counsel  are  allowed  and  expected  to  call  the  atten- 
tion of  the  court  to  them,  not  as  concluding  controversies,  but  as 
guides  to  the  judicial  mind.  Chancellor  Kent  says :  %"  A  solemn 
decision  upon  a  point  of  law  arising  in  any  given  case  becomes  an 
authority  in  a  like  case,  because  it  is  the  highest  evidence  which 
we  can  have  of  the  law  applicable  to  the  subject,  and  the  judges 
are  bound  to  follow  that  decision  so  long  as  it  stands  unreversed, 
unless  it  can  be  shown  that  the  law  was  misunderstood  or  misap- 
plied in  that  particular  case.  If  a  decision  has  been  made  upon 
solemn  argument  and  mature  deliberation,  the  presumption  is  in 
favor  of  its  correctness,  and  the  community  have  a  right  to  regard 
it  as  a  just  declaration  or  exposition  of  the  law,  and  to  regulate 
their  actions  and  contracts  by  it.  It  would  therefore  be  extremely 
inconvenient  to  the  public  if  precedents  were  not  duly  regarded, 
and  implicitly  followed.  It  is  by  the  notoriety  and  stability  of 
such  rules  that  professional  men  can  give  safe  advice  to  those  who 
consult  them,  and  people  in  general  can  venture  to  buy  and  trust, 
and  to  deal  with  each  other.  If  judicial  decisions  were  to  be 
lightly  disregarded,  we,  should  disturb  and  unsettle  the  great 
landmarks  of  property.  When  a  rule  has  once  been  deliberately 
adopted  and  declared,  it  ought  not  to  be  disturbed  unless  by  a 
court  of  appeal  or  review,  and  never  by  the  same  court,  except  for 
very  urgent  reasons,  and  upon  a  clear  manifestation  of  error ;  and 
if  the  practice  were  otherwise,  it  would  be  leaving  us  in  a  perplex- 
ing uncertainty  as  to  the  law."  x 

1  1  Kent,  475.  And  see  Cro.  Jac.  527;  Goodtitle  v.  Otway,  7  T.  R.  416; 
Selby  v.  Bardons,  8  B.  &  Ad.  17  ;  Fletcher  v.  Lord  Somers,  3  Bing.  588  ;  Ander- 
son v.  Jackson,  16  Johns.  402 ;  Goodell  v.  Jackson,  20  Johns.  722  ;  Bates  v. 
Releyea,  23  Wend.  340 ;  Emerson  v.  Atwater,  7  Mich.  12 ;  Nelson  v.  Allen,  1 
Yerg.  376  ;  Palmer  v.  Lawrence,  5  N.  Y.  389  ;  Kneeland  v.  Milwaukee,  15  Wis. 
458  ;  Boon  v.  Bowers,  30  Miss.  246  ;  Rex  v.  Cox,  2  Burr.  787;  King  v.  Younger, 
5  T.  R.  450  ;  Hammond  v.  Anderson,  4  B.  &  P.  69  ;  Broom's  Maxims,  109.  Dr. 
Lieber  thinks  the  doctrine  of  the  precedent  especially  valuable  in  a  free  country. 
"Liberty  and  steady  progression  require  the  principle  of  the  precedent  in  all 
spheres.  It  is  one  of  the  roots  with  which  the  tree  of  liberty  fastens  in  the  soil 
of  real  life,  and  through  which  it  receives  the  sap  of  fresh  existence.  It  is  the 
weapon  by  which  interference  is  warded  off.  The  principle  of  the  precedent  is 
eminently  philosophical.  The  English  Constitution  would  not  have  developed 
itself  without  it.  What  is  called  the  English  Constitution  consists  of  the  funda- 
mentals of  the  British  polity,  laid  down  in  custom,  precedent,  decisions,^and  stat- 
utes ;  and  the  common  law  in  it  is  a  far  greater  portion  than  the  statute  law. 
The  English  Constitution  is  chiefly  a  common-law  constitution ;  and  this  reflex 

[56] 


CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS.  *  51 

*  The  doctrine  of  stare  decisis,  however,  is  only  applica-  [*  51] 
ble,  in  its  full  force,  within  the  territorial  jurisdiction  of 
the  courts  making  *  the  decisions,  since  there  alone  can  [*  52] 
such  decisions  be  regarded  as  having  established  any 
rules.  Rulings  made  under  a  similar  legal  system  elsewhere  may 
be  cited  and  respected  for  their  reasons,  but  are  not  necessarily  to 
be  accepted  as  guides,  except  in  so  far  as  those  reasons  commend 
themselves  to  the  judicial  mind.1  Great  Britain  and  the  thirteen 
original  States  had  each  substantially  the  same  system  of  common 

of  a  continuous  society  in  a  continuous  law  is  more  truly  philosophical  than  the 
theoretic  and  systematic,  but  lifeless  constitutions  of  recent  France."  Civ.  Lib. 
and  Self-Gov.  See  also  his  chapter  on  precedents  in  the  Hermeneutics.  In 
Nelson  v.  Allen.  1  Yerg.  376,  where  the  constitutionality  of  the  "  Betterment 
Law"  came  under  consideration,  the  court  (White,  J.)  say:  "  Whatever  might 
be  my  own  opinion  upon  this  question,  not  to  assent  to  its  settlement  now,  after 
two  solemn  decisions  of  this  court,  the  last  made  upwards  of  fourteen  years  ago, 
and  not  only  no  opposing  decision,  but  no  attempt  even  by  any  case,  during  all 
this  time,  to  call  the  point  again  in  controversy,  forming  a  complete  acquiescence, 
would  be,  at  the  least,  inconsistent,  perhaps  mischievous,  and  uncalled  for  by  a 
correct  discharge  of  official  duty.  Much  respect  has  always  been  paid  to  the 
contemporaneous  construction  of  statutes,  and  a  forbidding  caution  hath  always 
accompanied  any  approach  towards  unsettling  it,  dictated  no  doubt  by  easily 
foreseen  consequences  attending  a  sudden  change  of  a  rule  of  property,  neces- 
sarily introductory  at  least  of  confusion,  increased  litigation,  and  the  disturbance 
of  the  peace  of  society.  The  most  able  judges  and  the  greatest  names  on  the 
bench  have  held  this  view  of  the  subject,  and  occasionally  expressed  themselves 
to  that  effect,  either  tacitly  or  openly,  intimating  that  if  they  had  held  a  part  in 
the  first  construction  they  would  have  been  of  a  different  opinion  ;  but  the  con- 
struction having  been  made,  they  give  their  assent  thereto.  Thus  Lord  Ellen- 
borough,  in  2  East,  '602,  remarks :  '  I  think  it  is  better  to  abide  by  that  deter- 
mination, than  to  introduce  uncertainty  into  this  branch  of  the  law,  it  being  often 
more  important  to  have  the  rule  settled,  than  to  determine  what  it  shall  be.  I 
am  not,  however,  convinced  by  the  reasoning  in  this  case,  and  if  the  point  were 
new  I  should  think  otherwise.'  Lord  Mansfield,  in  1  Burr.  419,  says  :  '  Where 
solemn  determinations  acquiesced  under  had  settled  precise  cases,  and  a  rule  of 
property,  they  ought,  for  the  sake  of  certainty,  to  be  observed,  as  if  they  had 
originally  formed  a  part  of  the  text  of  the  statute.'  And  Sir  James  Mansfield, 
in  4  B.  &  P.  69,  says :  '  I  do  not  know  how  to  distinguish  this  from  the  case 
before  decided  in  the  court.  It  is  of  greater  consequence  that  the  law  should  be 
as  uniform  as  possible,  than  that  the  equitable  claim  of  an  individual  should 
be  attended  to.'"     And  see  People  v.  Cicotte,  16  Mich.  283. 

A  judgment  rendered  by  a  court  is  authority  notwithstanding  it  was  one  given 
under  the  law  of  necessity,  in  consequence  of  an  equal  division  of  the  court. 
Regina  v.  Millis,  13  M.  &  W.  261 ;  Durant  v.  Essex  Co.,  7  Wall.  107. 

J  Caldwell  v.  Gale,  11  Mich.  77. 

[57] 


*  52  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

law  originally,  and  a  decision  now  by  one  of  the  higher  courts  of 
Great  Britain  as  to  what  the  common  law  is  upon  any  point  is  cer- 
tainly entitled  to  great  respect  in  any  of  the  States,  though  not 
necessarily  to  be  accepted  as  binding  authority  any  more  than  the 
decisions  in  any  one  of  the  other  States  upon  the  same  point.  It 
gives  us  the  opinions  of  able  judges  as  to  what  the  law  is,  but  its 
force  as  an  authoritative  declaration  must  be  confined  to  the  coun- 
try for  which  the  court  sits  and  judges.  But  an  English  decision 
before  the  Revolution  is  in  the  direct  line  of  authority  ;  and  where 
a  particular  statute  or  clause  of  the  constitution  has  been  adopted 
in  one  State  from  the  statutes  or  constitution  of  another,  after  a 
judicial  construction  had  been  put  upon  it  in  such  last-mentioned 
State,  it  is  but  just  to  regard  the  construction  to  have  been 
adopted,  as  well  as  the  words,  and  all  the  mischiefs  of  disregard- 
ing precedents  would  follow  as  legitimately  here  as  in  any  other 

case.1 

It  will  of  course  sometimes  happen  that  a  court  will  find  a 
former  decision  so  unfounded  in  law,  so  unreasonable  in  its  deduc- 
tions, or  so  mischievous  in  its  consequences,  as  to  feel  compelled 
to  disregard  it.  Before  doing  so,  however,  it  will  be  well  to  con- 
sider whether  the  point  involved  is  such  as  to  have  become  a  rule 
of  property,  so  that  titles  have  been  acquired  in  reliance  upon  it, 
and  vested  rights  will  be  disturbed  by  any  change  ;  for  in  such  a 

case  it  may  be  better  that  the  correction  of  the  error  be 
[*  53]    left  to  the  legislature,  which  can  control  its  action  so  *  as 

to  make  it  prospective  only,  and  thus  prevent  unjust  con- 
sequences.2 

1  Commonwealth  v.  Hartnett,  3  Gray,  450 ;  Bond  v.  Appleton,  8  Mass.  472  ; 
Rutland  v.  Mendon,  1  Pick.  154 ;  Campbell  v.  Quinlin,  3  Scam.  288  ;  Little  v. 
Smith,  4  Scam.  402;  Riggs  v.  Wilton,  13  111.  15;  Ingraham  v.  Regan,  23  Miss. 
213;  Tyler  v.  Tyler,  19  111.  151;  Pennock  v.  Dialogue,  2  Pet.  18;  Adams  v. 
Field,  21  Vt.  266;  Turnpike  Co.  v.  People,  9  Barb.  167;  Drennan  v.  People, 
10  Mich.  169;  Myrick  v.  Hasey,'27  Me.  9;  People  v.  Coleman,  4  Cal.  46; 
Attorney-General  v.  Brunst,  3  Wis.  787  ;  Langdon  v.  Applegate,  5  Ind.  327  ; 
Hess  v.  Pegg,  7  Nev.  23.  But  it  does  not  necessarily  follow  that  the  prior 
decision  construing  the  law  must  be  inflexibly  followed,  since  the  circumstances 
in  the  State  adopting  it  may  be  so  different  as  to  require  a  different  construction. 
Little  v.  Smith,  4  Scam.  402;  Lessee  of  Gray  v.  Askew,  3  Ohio,  479. 

2  "  After  an  erroneous  decision  touching  rights  of  property  has  been  followed 
thirty  or  forty  years,  and  even  a  much  less  time,  the  courts  cannot  retrace  their 
steps  without  committing  a  new  error  nearly  as  great  as  the  one  at  the  first." 
Bronson,  J.,  in  Sparrow  v.  Kingman,  1  N.  Y.  260.    See  also  Emerson  v.  Atwater, 

[58] 


CH.  IV.]  CONSTRUCTION   OP   STATE   CONSTITUTIONS.  *  53 

Whenever  the  case  is  such  that  judicial  decisions  which  have 
been  made  are  to  be  accepted  as  law,  and  followed  by  the  courts 
in  future  cases,  it  is  equally  to  be  expected  that  they  will  be  fol- 
lowed by  other  departments  of  the  government  also.  Indeed  in 
the  great  majority  of  cases  the  officers  of  other  departments  have 
no  option  ;  for  the  courts  possess  the  power  to  enforce  their  con- 
struction of  the  law  as  well  as  to  declare  it  ;  and  a  failure  to 
accept  and  follow  it  in  one  case  would  only  create  necessity  for 
new  litigation  with  similar  result.  Nevertheless,  there  are  excep- 
tions to  this  rule  which  embrace  all  those  cases  where  new  action 
is  asked  of  another  department,  which  that  department  is  at  lib- 
erty to  grant  or  refuse  for  any  reasons  which  it  may  regard  as 
sufficient.  We  cannot  conceive  that,  because  the  courts  have 
declared  an  expiring  corporation  to  have  been  constitutionally 
created,  the  legislature  would  be  bound  to  renew  its  charter,  or 
the  executive  to  sign  an  act  for  that  purpose,  if  doubtful  of  the 
constitutional  authority,  even  though  no  other  adverse  reasons  ex- 
isted.1    In  the  enactment  of  laws  the  legislature  must  act  upon 

7  Mich.  12  ;  Loeb  v.  Mathis,  37  Ind.  306.  "  It  is  true  that  when  a  principle  of 
law, doubtful  in  its  characteror  uncertain  in  the  subject-matter  ofits  application,  has 
been  settled  by  a  series  of  judicial  decisions,  and  acquiesced  in  for  a  considerable 
time,  and  important  rights  and  interests  have  become  established  under  such 
decisions,  courts  will  hesitate  long  before  they  will  attempt  to  overturn  the  result 
so  long  established.  But  when  it  is  apparently  indifferent  which  of  two  or  more 
rules  is  adopted,  the  one  which  shall  have  been  adopted  by  judicial  sanction  will 
be  adhered  to,  though  it  may  not,  at  the  moment,  appear  to  be  the  preferable  rule. 
But  when  a  question  involving  important  public  or  private  rights,  extending 
through  all  coming  time,  has  been  passed  upon  on  a  single  occasion,  and  which 
decision  can  in  no  just  sense  be  said  to  have  been  acquiesced  in,  it  is  not  only 
the  right,  but  the  duty  of  the  court,  when  properly  called  upon,  to  re-examine 
the  questions  involved,  and  again  subject  them  to  judicial  scrutiny.  We  are 
by  no  means  unmindful  of  the  salutary  tendency  of  the  rule  stare  decisis,  but  at 
the  same  time  we  cannot  be  unmindful  of  the  lessons  furnished  by  our  own 
consciousness,  as  well  as  by  judicial  history,  of  the  liability  to  error  and  the 
advantages  of  review."  Per  Smith,  J.,  Pratt  v.  Brown,  3  Wis.  6U9.  And  see 
Kneeland  v.  Milwaukee,  15  Wis.  458 ;  Taylor  v.  French,  19  Vt.  49  ;  Bellows  v. 
Parsons,  13  N.  H.  '256  ;  Hannel  v.  Smith,  15  Ohio,  134 ;  Day  v.  Munson,  14 
Ohio,  n.  s.  488 ;  Green  Castle,  &c,  Co.  v.  State,  28  Ind.  382 ;  Harrow  v.  Myers, 
29  Ind.  469 ;  Mead  v.  McGraw,  19  Ohio,  n.  s.  62 ;  Ram  on  Legal  Judgment, 
c.  14,  §3. 

1  In  the  celebrated  case  of  the  application  of  the  Bank  of  the  United  States 
for  a  new  charter,  President  Jackson  felt  himself  at  liberty  to  act  upon  his  own 
view  of  constitutional  power,  in  opposition  to  that  previously  declared  by  the 

[59] 


*  53  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

its  own  reasons  ;  mixed  motives  of  power,  justice,  and  policy  influ- 
ence its  action  ;  and  it  is  always  justifiable  and  laudable  to  lean 
against  a  violation  of  the  constitution.  Indeed  cases  must  some- 
times occur  when  a  court  should  refrain  from  declaring  a 
[*  54]  statute  *  unconstitutional,  because  not  clearly  satisfied 
that  it  is  so,  when  if  the  judges  were  to  act  as  legislators 
upon  the  question  of  its  enactment,  they  ought  with  the  same 
views  to  withhold  their  assent,  from  grave  doubts  upon  that  sub- 
ject. The  duty  is  different  in  the  two  cases,  and  presumptions 
may  control  in  one  which  do  not  exist  in  the  other.  But  those 
cases  where  new  legislation  is  sought  stand  by  themselves,  and  are 
not  precedents  for  those  which  involve  only  considerations  concern- 
ing the  constitutional  validity  of  existing  enactments.  The  general 
acceptance  of  judicial  decisions  as  authoritative,  by  each  and  all, 
can  alone  prevent  confusion,  doubt,  and  uncertainty,  and  any  other 
course  is  incompatible  with  a  true  government  of  law. 

Construction  to  be   Uniform. 

A  cardinal  rule  in  dealing  with  written  instruments  is  that 
they  are  to  receive  an  unvarying  interpretation,  and  that  their 
practical  construction  is  to  be  uniform.  A  constitution  is  not  to 
be  made  to  mean  one  thing  at  one  time,  and  another  at  some  sub- 
sequent time  when  the  circumstances  may  have  so  changed  as 
perhaps  to  make  a  different  rule  in  the  case  seem  desirable.  A 
principal  share  of  the  benefit  expected  from  written  constitutions 
would  be  lost  if  the  rules  they  established  were  so  flexible  as  to 
bend  to  circumstances  or  be  modified  by  public  opinion.  It  is 
with  special  reference  to  the  varying  moods  of  public  opinion,  and 
with  a  view  to  putting  the  fundamentals  of  government  beyond 
their  control,  that  these  instruments  are  framed ;  and  there  can 
be  no  such  steady  and  imperceptible  change  in  their  rules  as  in- 
heres in  the  principles  of  the  common  law.  Those  beneficent 
maxims  of  the  common  law  which  guard  person  and  property 
have  grown  and  expanded  until  they  mean  vastly  more  to  us  than 
they  did  to  our  ancestors,  'and  are  more  minute,  particular,  and 
pervading  in  their  protections  ;  and  we  may  confidently  look  for- 

Supreme  Court,  and  President  Lincoln  expressed  similar  views  regarding  the 
conclusiveness  of  the  Died  Scott  decision  upon  executive  and  legislative  action. 
See  Story  on  Const,  4th  ed.  §  375,  note. 

[60] 


CH.  IV.]  CONSTRUCTION   OP   STATE  CONSTITUTIONS.  *  54 

ward  in  the  future  to  still  further  modifications  in  the  direction  of 
improvement.  Public  sentiment  and  action  effect  such  changes, 
and  the  courts  recognize  them ;  but  a  court  or  legislature  which 
should  allow  a  change  in  public  sentiment  to  influence  it  in  giving 
construction  to  a  written  constitution  not  warranted  by  the  inten- 
tion of  its  founders,  would  be  justly  chargeable  with  reckless 
disregard  of  official  oath  and  public  duty ;  and  if  its  course 
could  become  a  precedent,  these  instruments  would  be  of 
*  little  avail.  The  violence  of  public  passion  is  quite  as  [*  55] 
likely  to  be  in  the  direction  of  oppression  as  in  any  other ; 
and  the  necessity  for  bills  of  rights  in  our  fundamental  laws  lies 
mainly  in  the  danger  that  the  legislature  will  be  influenced  by 
temporary  excitements  and  passions  among  the  people  to  adopt 
oppressive  enactments.  What  a  court  is  to  do,  therefore,  is  to  de- 
clare the  law  as  written,  leaving  it  to  the  people  themselves  to  make 
such  changes  as  new  circumstances  may  require.1  The  meaning 
of  the  constitution  is  fixed  when  it  is  adopted,  and  it  is  not  differ- 
ent at  any  subsequent  time  when  a  court  has  occasion  to  pass 
upon  it.2 

TJie  Intent  to  govern. 

The  object  of  construction,  as  applied  to  a  written  constitution, 
is  to  give  effect  to  the  intent  of  the  people  in  adopting  it.  In  the 
case  of  all  written  laws,  it  is  the  intent  of  the  lawgiver  that  is  to 
be  enforced.  But  this  intent  is  to  be  found  in  the  instrument 
itself.  It  is  to  be  presumed  that  language  has  been  employed  with 
sufficient  precision  to  convey  it,  and  unless  examination  demon- 
strates that  the  presumption  does  not  hold  good  in  the  particular 
case,  nothing  will  remain  except  to  enforce  it.  "  Where  a  law  is 
plain  and  unambiguous,  whether  it  be  expressed  in  general  or 
limited  terms,  the  legislature  should  be  intended  to  mean  what 
they  have  plainly  expressed,  and  consequently  no  room  is  left  for 
construction." 3     Possible  or  even  probable  meanings,  when  one 

1  People  v.  Morrell,  21  Wend.  584 ;  Newell  v.  People,  7  N.  Y.  109 ;  Hyatt 
v.  Taylor,  42  N.  Y.  259. 

8  Campbell,  J.,  in  People  v.  Blodgett,  13  Mich.  138. 

3  United  States  v.  Fisher,  2  Cranch,  399 ;  Bosley  v.  Mattingley,  14  B.  Monr. 
89  ;  Sturgis  v.  Crowninshield,  4  Wheat.  202  ;  Schooner  Paulina's  Cargo  v.  United 
States,  7  Cranch,  60 ;  Ogden  v.  Strong,  2  Paine,  C.  C.  .  84 ;  United  States  v. 
Ragsdale,  1  Hemp.  497 ;  Southwark  Bank  v.  Commonwealth,  26  Penn.  St.  446 ; 

[61] 


*  56  CONSTITUTIONAL   LIMITATIONS.  .         [CH.  IV. 

[*  56]    is  *  plainly  declared  in  the  instrument  itself,  the  courts 
are  not  at  liberty  to  search  for  elsewhere. 

Ingalls  v.  Cole,  47  Me.  530 ;  McCluskey  v.  Cromwell,  11  N.  Y.  593 ;  Furman  v. 
New  York,  5  Sandf.  16  ;  Newell  v.  People,  7  N.  Y.  83  ;  People  v.  N.  Y.  Central 
R.R.  Co.,  24  N.  Y.  492 ;  Bidwell  v.  Whittaker,  1  Mich.  479 ;  Alexander  v. 
Worthington,  5  Md.  471;  Cantwell  v.  Owens,  14  Md.  215;  Case  v.  Wildridge, 
4  Ind.  51 ;  Spencer  v.  State,  5  Ind.  49 ;  Putnam  v.  Flint,  10  Pick.  504 ;  Heirs 
of  Ludlow  v.  Johnson,  3  Ohio,  553 ;  District  Township  v.  Dubuque,  7  Iowa, 
262 ;  Pattison  v.  Yuba,  13  Cal.  175 ;  Ezekiel  v.  Dixon,  3  Kelly,  146 ;  In  re 
Murphy,  3  Zab.  180;  Attorney-General  v.  Detroit  &  Erin  P.  R.  Co.,  Wal.  Ch. 
394;  Smith  v.  Thursby,  28  Md.  244;  State  v.  Bladsdel,  4  Nev.  241;  State  v. 
Doron,  5  Nev.  399.  The  remarks  of  Mr.  Justice  Bronson  in  People  v.  Purdy, 
2  Hill,  35,  are  very  forcible  in  showing  the  impolicy  and  danger  of  looking 
beyond  the  instrument  itself  to  ascertain  its  meaning,  when  the  terms  employed 
are  positive  and  free  from  all  ambiguity.  "It  is  said  that  the  Constitution  does 
not  extend  to  public  corporations,  and  therefore  a  majority  vote  was  sufficient. 
I  do  not  so  read  the  Constitution.  The  language  of  the  clause  is  :  '  The  assent 
of  two-thirds  of  the  members  elected  to  each  branch  of  the  legislature  shall  be 
requisite  to  every  bill  creating,  continuing,  altering,  or  renewing  any  body  politic 
or  corporate.'  These  words  are  as  broad  in  their  signification  as  any  which 
could  have  been  selected  for  the  occasion  from  our  vocabulary,  and  there  is  not 
a  syllable  in  the  whole  instrument  tending  in  the  slightest  degree  to  limit  or 
qualify  the  universality  of  the  language.  If  the  clause  can  be  so  construed  that 
it  shall  not  extend  alike  to  all  corporations,  whether  public  or  private,  it  may 
then,  I  think,  be  set  down  as  an  established  fact  that  the  English  language  is  too 
poor  for  the  framing  of  fundamental  laws  which  shall  limit  the  powers  of  the 
legislative  branch  of  the  government.  No  one  has,  I  believe,  pretended  that 
the  Constitution,  looking  at  that  alone,  can  be  restricted  to  any  particular  class 
or  description  of  corporations.  But  it  is  said  that  we  may  look  beyond  the 
instrument  for  the  purpose  of  ascertaining  the  mischief  against  which  the  clause 
was  directed,  and  thus  restrict  its  operation.  But  who  shall  tell  us  what  that 
mischief  was  ?  Although  most  men  in  public  life  are  old  enough  to  remember 
the  time  when  the  Constitution  was  framed  and  adopted,  they  are  not  agreed 
concerning  the  particular  evils  against  which  this  clause  was  directed.  Some 
suppose  the  clause  was  intended  to  guard  against  legislative  corruption,  and 
others  that  it  was  aimed  at  monopolies.  Some  are  of  opinion  that  it  only  extends 
to  private  without  touching  public  corporations,  while  others  suppose  that  it  only 
restricts  the  power  of  the  legislature  when  creating  a  single  corporation,  and  not 
when  they  are  made  by  the  hundred.  In  this  way  a  solemn  instrument  —  for  so 
I  think  the  Constitution  should  be  considered  —  is  made  to  mean  one  thing  by 
one  man  and  something  else  by  another,  until,  in  the  end,  it  is  in  danger  of  being 
rendered  a  mere  dead  letter ;  and  that,  too,  where  the  language  is  so  plain  and 
explicit  that  it  is  impossible  to  mean  more  than  one  thing,  unless  we  first  lose 
sight  of  the  instrument  itself,  and  allow  ourselves  to  roam  at  large  in  the  bound- 
less fields  of  speculation.  For  one,  I  dare  not  venture  upon  such  a  course. 
Written  constitutions  of  government  will  soon  come  to  be  regarded  as  of  little 

[62] 


CH.  IV.]  CONSTRUCTION    OF   STATE   CONSTITUTIONS.  *  57 

*  "  Whether  we  are  considering  an  agreement  between  [*  57] 
parties,  a  statute,  or  a  constitution,  with  a  view  to  its  in- 
terpretation, the  thing  which  we  are  to  seek  is  the  thought  which  it 
expresses.  To  ascertain  this,  the  first  resort  in  all  cases  is  to  the 
natural  signification  of  the  words  employed,  in  the  order  of  gram- 
matical arrangement  in  which  the  framers  of  the  instrument  have 
placed  them.  If  thus  regarded  the  words  embody  a  definite  mean- 
ing, which  involves  no  absurdity  and  no  contradiction  between 
different  parts  of  the  same  writing,  then  that  meaning,  apparent 
on  the  face  of  the  instrument,  is  the  one  which  alone  we  are  at 
liberty  to  say  was  intended  to  be  conveyed.  In  such  a  case  there 
is  no  room  for  construction.  That  which  the  words  declare  is  the 
meaning  of  the  instrument,  and  neither  courts  nor  legislatures 
have  a  right  to  add  to  or  take  away  from  that  meaning."  1 

value  if  their  injunctions  may  be  thus  lightly  overlooked  ;  and  the  experiment  of 
setting  a  boundary  to  power  will  prove  a  failure.  We  are  not  at  liberty  to  pre- 
sume that  the  framers  of  the  Constitution,  or  the  people  who  adopted  it,  did  not 
understand  the  force  of  language."  See  also  same  case,  4  Hill,  381,  and  State 
v.  King,  44  Mo.  285.  Another  court  has  said:  "This  power  of  construc- 
tion in  courts  is  a  mighty  one,  and,  unrestrained  by  settled  rules,  would  tend  to 
throw  a  painful  uncertainty  over  the  effect  that  might  be  given  to  the  most  plainly 
worded  statutes,  and  render  courts,  in  reality,  the  legislative  power  of  the  State. 
Instances  are  not  wanting  to  confirm  this.  Judge-made  law  has  overrode  the 
legislative  department.  It  was  the  boast  of  Chief  Justice  Pemberton,  one  of  the 
judges  of  the  despot  Charles  II.,  and  not  the  worst  even  of  those  times,  that  he 
had  entirely  outdone  the  Parliament  in  making  law.  We  think  that  system  of 
jurisprudence  best  and  safest  which  controls  most  by  fixed  rules,  and  leaves  least 
to  the  discretion  of  the  judge  ;  a  doctrine  constituting  one  of  the  points  of  su- 
pei'iority  in  the  common  law  over  that  system  which  has  been  administered  in 
France,  where  authorities  had  no  force,  and  the  law  of  each  case  was  what  the 
judge  of  the  case  saw  fit  to  make  it.  We  admit  that  the  exercise  of  an  unlimited 
discretion  may,  in  a  particular  instance,  be  attended  with  a  salutary  result ;  still 
history  informs  us  that  it  has  often  been  the  case  that  the  arbitrary  discretion  of 
a  judge  was  the  law  of  a  tyrant,  and  warns  us  that  it  may  be  so  again."  Spencer 
v.  State,  5  Ind.  76.  "Judge-made  law,"  as  here  employed,  is  that  made  by 
judicial  decisions  which  construe  away  the  meaning  of  statutes,  or  find  meanings 
in  them  the  legislature  never  held.  The  phrase  is  sometimes  used  as  meaning, 
simply,  the  law  that  becomes  established  by  precedent.  The  uses  and  necessity 
of  judicial  legislation  are  considered  at  length  by  Mr.  Austin,  in  his  Province  of 
Jurisprudence. 

1  Newell  v.  People,  7  N.  Y.  97.  And  see  Den  v.  Reid,  10  Pet.  524 ;  Green- 
castle  Township  v.  Black,  5  Ind.  569 ;  Bartlett  v.  Morris,  9  Port.  266  ;  Leonard 
v.  Wiseman,  31  Md.  204,  per  BartoL,  Ch.  J. ;  McAdoo  v.  Benbow,  63  N.  C. 
464;  Broom's  Maxims  (5th  Am.  ed.),  551,  marg. 

[63] 


57  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 


The  whole  Instrument  to  be  examined. 

Nor  is  it  lightly  to  be  inferred  that  any  portion  of  a  written  law 
is  so  ambiguous  as  to  require  extrinsic  aid  in  its  construction. 
Every  such  instrument  is  adopted  as  a  whole,  and  a  clause  which, 
standing  by  itself,  might  seem  of  doubtful  import,  may  yet  be 
made  plain  by  comparison  with  other  clauses  or  portions  of  the 
same  law.  It  is  therefore  a  rule  of  construction,  that  the  whole 
is  to  be  examined  with  a  vieiv  to  arriving  at  the  true  intention  of 
each  part ;  and  this  Sir  Edward  Coke  regards  the  most  natural 
and  genuine  method  of  expounding  a  statute.1  "  If  any  section 
[of  a  law]  be  intricate,  obscure,  or  doubtful,  the  proper  mode  of 
discovering  its  true  meaning  is  by  comparing  it  with  the  other 
sections,  and  finding  out  the  sense  of  one  clause  by  the  words  or 
obvious  intent  of  another."2  And  in  making  this  comparison  it 
is  not  to  be  supposed  that  any  words  have  been  employed  without 

occasion,  or  without  intent  that  they  should  have  effect  as 
[*  58]    part  of  *  the  law.     The  rule  applicable  here  is,  that  effect 

is  to  be  given,  if  possible,  to  the  whole  instrument,  and 
to  every  section  and  clause.  If  different  portions  seem  to  conflict, 
the  courts  must  harmonize  them,  if  practicable,  and  lean  in  favor 
of  a  construction  which  will  render  every  word  operative,  rather 
than  one  which  may  make  some  idle  and  nugatory.3 

This  rule  is  especially  applicable  to  written  constitutions,  in 
which  the  people  will  be  presumed  to  have  expressed  themselves 
in  careful  and  measured  terms,  corresponding  with  the  immense 
importance  of  the  powers  delegated,  leaving  as  little  as  possible 
to  implication.4  It  is  scarcely  conceivable  that  a  case  can  arise 
where  a  court  would  be  justifiable  in  declaring  any  portion  of  a 
written  constitution  nugatory  because  of    ambiguity.     One  part 

1  Co.  Lit.  381,  a. 

2  Stowell  v.  Lord  Zouch,  Plowd.  365 ;  Broom's  Maxims,  521. 

3  Attorney-General  v.  Detroit  and  Erin  Plank  Road  Co.,  2  Mich.  138;  People 
v.  Burns,  5  Mich.  114;  District  Township  v.  Dubuque,  7  Iowa,  262;  Manly  v. 
State,  7  Md.  135;  Parkinson  v.  State,  14  Md.  184;  Belleville  Railroad  Co.  v. 
Gregory,  15  111.  20;  Ogden  v.  Strong,  2  Paine,  C.  C.  584;  Ryegate  v.  Wards- 
boro,  30  Vt.  746 ;  Brooks  v.  Mobile  School  Commissioners,  31  Ala.  227  ;  Den 
v.  Dubois,  1  Harrison,  285 ;  Den  v.  Schenck,  3  Halst.  34 ;  Bigelow  v.  W.  Wis- 
consin R.R.,  27  Wis.  478. 

4  Wolcott  v.  Wigton,  7  Ind.  49 ;  People  v.  Purdy,  2  Hill,  36,  per  Bronson, 
J. ;  Greencastle  Township  v.  Black,  5  Ind.  570;  Green  v.  Weller,  32  Miss.  650. 

[64] 


/ 


CH.  IV.]  CONSTRUCTION    OP    STATE    CONSTITUTIONS.  *  58 

may  qualify  another  so  as  to  restrict  its  operation,  or  apply  it 
otherwise  than  the  natural  construction  would  require  if  it  stood 
by  itself;  but  one  part  is  not  to  be  allowed  to  defeat  another, 
if  by  any  reasonable  construction  the  two  can  be  made  to  stand 
together.1 

In  interpreting  clauses  we  must  presume  that  words  have  been 
employed  in  their  natural  and  ordinary  meaning.  Says  Marshall, 
Ch.  J.  :  "The  framers  of  the  Constitution,  and  the  people  who 
adopted  it,  must  be  understood  to  have  employed  words  in  their 
natural  sense,  and  to  have  understood  what  they  meant."  2  This 
is  but  saying  that  no  forced  or  unnatural  construction  is  to  be  put 
upon  their  language ;  and  it  seems  so  obvious  a  truism 
that  one  *  expects  to  see  it  universally  accepted  without  [*  59] 
question ;  but  the  attempt  is  so  often  made  by  interested 
subtlety  and  ingenious  refinement  to  induce  the  courts  to  force 
from  these  instruments  a  meaning  which  their  framers  never  held, 
that  it  frequently  becomes  necessary  to  re-declare  this  fundamen- 
tal maxim.3     Narrow  and  technical  reasoning  is  misplaced  when 

1  It  is  a  general  rule,  in  the  construction  of  writings,  that,  a  general  intent 
appearing,  it  shall  control  the  particular  intent ;  but  this  rule  must  sometimes 
give  way,  and  effect  must  be  given  to  a  particular  intent  plainly  expressed  in  one 
part  of  a  constitution,  though  apparently  opposed  to  a  general  intent  deduced 
from  other  parts.  Warren  v.  Sherman,  5  Texas,  441.  In  Quick  v.  Whitewater 
Township,  7  Ind.  570,  it  was  said  that  if  two  provisions  of  a  written  constitution 
are  irreconcilably  repugnant,  that  which  is  last  in  order  of  time  and  in  local  posi- 
tion is  to  be  preferred. 

2  Gibbons  v.  Ogden,  9  Wheat.  18S.     See  Settle  v.  Van  Enrea,  49  N.  Y.  281. 

3  State  v.  Mace,  5  Md.  337 ;  Manly  v.  State,  7  Md.  135 ;  Green  v.  Weller, 
32  Miss.  650  ;  Greencastle  Township  v.  Black,  5  Ind.  570  ;  People  v.  N.  Y.  Cen- 
tral Railroad  Co.,  34  Barb.  137,  and  24  N.  Y.  488;  Story  on  Const.  §  453. 
"  The  true  sense  in  which  words  are  used  in  a  statute  is  to  be  ascertained  gen- 
erally by  taking  them  in  their  ordinary  and  popular  signification,  or,  if  they  be 
terms  of  art,  in  their  technical  signification.  But  it  is  also  a  cardinal  rule  of 
exposition,  that  the  intention  is  to  be  deduced  from  the  whole  and  every  part  of 
the  statute,  taken  and  compared  together,  from  the  words  of  the  context,  and 
such  a  construction  adopted  as  will  best  effectuate  the  intention  of  the  lawgiver. 
One  part  is  referred  to  in  order  to  help  the  construction  of  another,  and  the 
intent  of  the  legislature  is  not  to  be  collected  from  any  particular  expression, 
but  from  a  general  view  of  the  whole  act.  Dwarris,  658,  698,  702,  703.  And 
when  it  appears  that  the  framers  have  used  a  word  in  a  particular  sense  gener- 
ally in  the  act,  it  will  be  presumed  that  it  was  intended  to  be  used  in  the  same 
sense  throughout  the  act,  unless  an  intention  to  give  it  a  different  signification 
plainly  appears  in  the  particular  part  of  the  act  alleged  to   be   an  exception  to  . 

5  [  65  ] 


*  59  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

it  is  brought  to  bear  upon  an  instrument  framed  by  the  people 
themselves,  for  themselves,  and  designed  as  a  chart  upon  which 
every  man,  learned  and  unlearned,  may  be  able  to  trace  the  lead- 
ing principles  of  government. 

But  it  must  not  be  forgotten,  in  construing  our  constitutions, 
that  in  many  particulars  they  are  but  the  legitimate  successors  of 
the  great  charters  of  English  liberty,  whose  provisions  declaratory 
of  the  rights  of  the  subject  have  acquired  a  well-understood  mean- 
ing, which  the  people  must  be  supposed  to  have  had  in  view  in 
adopting  them.     We  cannot  understand  these  provisions  unless 

we  understand  their  history  ;  and  when  we  find  them 
[*  60]    expressed  in  *  technical  words,  and  words  of  art,  we  must 

suppose  these  words  to  be  employed  in  their  technical 
sense.  When  the  constitution  speaks  of  an  ex  post  facto  law,  it 
means  a  law  technically  known  by  that  designation  ;  the  meaning 
of  the  phrase  having  become  defined  in  the  history  of  constitu- 
tional law,  and  being  so  familiar  to  the  people  that  it  is  not  neces- 
sary to  employ  language  of  a  more  popular  character  to  designate 
it.  The  technical  sense  in  these  cases  is  the  sense  popularly  un- 
derstood, because  that  is  the  sense  fixed  upon  the  words  in  legal 
and  constitutional  history  where  they  have  been  employed  for  the 
protection  of  popular  rights.1 

the  general  meaning  indicated.  Ibid.  704,  ef  seq.  When  words  are  used  to  which 
the  legislature  bas  given  a  plain  and  definite  import  in  the  act,  it  would  be  dan- 
gerous to  put  upon  them  a  construction  which  would  amount  to  holding  that  the 
legislature  did  not  mean  what  it  has  expressed.  It  follows  from  these  principles 
that  the  statute  itself  furnishes  the  best  means  of  its  own  exposition ;  and  if  the 
sense  in  which  words  were  intended  to  be  used  can  be  clearly  ascertained  from 
all  its  parts  and  provisions,  the  intention  thus  indicated  shall  prevail,  without 
resorting  to  other  means  of  aiding  in  the  construction.  And  these  familiar  rules 
of  construction  apply  with  at  least  as  much  force  to  the  construction  of  written 
constitutions  as  to  statutes ;  the  former  being  presumed  to  be  framed  with  much 
greater  care  and  consideration  than  the  latter."  Green  v.  Weller,  32  Miss.  678. 
1  It  is  quite  possible,  however,  in  applying  constitutional  maxims,  to  overlook 
entirely  the  reason  upon  which  they  rest,  and  "  considering  merely  the  letter,  go 
but  skin  deep  into  the  meaning."  On  the  great  debate  on  the  motion  for  with- 
drawing the  confidence  of  Parliament  from  the  ministers,  after  the  surrender  of 
Cornwallis,  —  a  debate  which  called  out  the  best  abilities  of  Fox  and  Pitt  as  well 
as  of  the  ministry,  and  necessarily  led  to  the  discussion  of  the  primary  principle 
in  free  government,  that  taxation  and  representation,  shall  go  together,  —  Sir 
James  Mariott  rose,  and  with  great  gravity  proceeded  to  say,  that  if  taxation 
and  representation  were  to  go  hand  in  hand,  then  Britain  had  an  undoubted 
right  to  tax  America,  because  she  was  represented  in  the  British  Parliament. 

[66] 


/ 

CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS.  *  60 


The  Common  Law  to  he  kept  in  View. 

In  the  same  connection  it  may  be  remarked  that  the  constitu- 
tions are  to  be  construed  in  the  light  of  the  common  law,  and  of 
the  fact  that  its  rules  are  still  left  in  force.  By  this  we  do  not 
mean  that  the  common  law  is  to  control  the  constitution,  or  that 
the  latter  is  to  be  warped  and  perverted  in  its  meaning  in  order 
that  no  inroads,  or  as  few  as  possible,  may  be  made  in  the  system 
of  common-law  rules,  but  only  that  for  its  definitions  we  are-  to 
draw  from  that  great  fountain,  and  that,  in  judging  what 
it  means,  we  *  are  to  keep  in  mind  that  it  is  not  the  begin-  [*  61] 
ning  of  law  for  the  State,  but  that  it  assumes  the  existence 
of  a  well-understood  system,  which  is  still  to  remain  in  force  and 
be  administered,  but  under  such  limitations  and  restrictions  as 
that  instrument  imposes.  It  is  a  maxim  with  the  courts  that 
statutes  in  derogation  of  the  common  law  shall  be  construed 
strictly;1  a  maxim  which  we  fear  is  sometimes  perverted  to  the 
overthrow  of  the  legislative  intent ;  but  the  same  maxim  could 
seldom  be  properly  applied  to  constitutions.  When  these  instru- 
ments assume  to  make  any  change  in  the  common  law,  the  change 
designed  is  generally  a  radical  one  ;  but  as  they  do  not  go  minutely 
into  particulars,  like  the  statutes,  it  will  sometimes  be  easy  to 
defeat  a  provision,  if  courts  are  at  liberty  to  say  that  they  will 
presume  against  any  intention  to  alter  the  common  law  further 
than  is  expressly  declared.  A  reasonable  construction  is  what 
such  an  instrument  demands  and  should  receive ;   and  the  real 

She  was  represented  by  the  members  for  the  county  of  Kent,  of  Avhich  the  thir- 
teen provinces  were  a  part  and  parcel  ;  for  in  their  charters  they  were  to  hold  of 
the  manor  of  Greenwich  in  Kent,  of  which  manor  they  were  by  charter  to  be 
parcel!  The  opinion,  it  is  said,  "  raised  a  very  loud  laugh,1'  but  Sir  James  con- 
tinued to  support  it,  and  concluded  by  declaring  that  he  would  give  the  motion 
a  hearty  negative.  Thus  would  he  have  settled  a  great  principle  of  constitu- 
tional right,  for  which  a  seven  years1  bloody  war  had  been  waged,  by  putting  it 
in  the  form  of  a  meaningless  legal  fiction.  Hansard's  Debates,  Vol:  XXII. 
i  p.  1184.  Lord  Mahon,  following  Lord  Campbell,  refers  the  origin  of  this  won- 
derful argument  to  Mr.  Hardinge,  a  Welsh  judge,  and  nephew  of  Lord  Camden. 
7  Mahon's  Hist.  139.  He  was  said  to  have  been  a  good  lawyer,  but  must  have 
read  the  history  of  his  country  to  little  purpose. 

1  Broom's  Maxims,  33  ;    Sedg.  on  Stat.  &  Const.  Law,  313.     See  Harrison  o. 
Leach,  4  W.  Va.  383. 

[67] 


\ 

*  61  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

question  is,  what  the  people  meant,  and  not  how  meaningless  their 

words  can  be  made  by  the  application  of  arbitrary  rules.1 
[*  62]  *  As  a  general  thing,  it  is  to  be  supposed  that  the  same 
word  is  used  in  the  same  sense  wherever  it  occurs  in  a 
constitution.  Here  again,  however,  great  caution  must  be  ob- 
served in  applying  an  arbitrary  rule ;  for,  as  Mr.  Justice  Story 
has  well  observed,  "  It  does  not  follow,  either  logically  or  gram- 
matically, 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.  This 
would  be  to  suppose  that  the  framers  weighed  only  the  force  of 
single  words,  as  philologists  or  critics,  and  not  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.2  Men  of  ingenious  and  subtle 
minds,  who  seek  for  symmetry  and  harmony  in  language,  having 

1  Under  a  clause  of  the  Constitution  of  Michigan  which  provided  that  "  the 
real  and  personal  estate  of  every  female  acquired  before  marriage,  and  all  prop- 
erty to  which  she  may  afterwards  become  entitled,  by  gift,  grant,  inheritance,  or 
devise,  shall  be  and  remain  tbe  estate  and  property  of  such  female,  and  shall  not 
be  liable  for  the  debts,  obligations,  or  engagements  of  her  husband,  and  may  be 
devised  or  bequeathed  by  her  as  if  she  were  unmarried,"  it  was  held  that  a  mar- 
ried woman  could  not  sell  her  personal  property  without  the  consent  of  her 
husband,  inasmuch  as  the  power  to  do  so  was  not  expressly  conferred,  and  the 
clause,  being  in  derogation  of  the  common  law,  was  not  to  be  extended  by  con- 
struction. Brown  v.  Fifield,  4  Mich.  322.  The  danger  of  applying  arbitrary 
rules  in  the  construction  of  constitutional  principles  might  well,  as  it  seems  to  us, 
be  illustrated  by  this  case.  For  while  on  the  one  hand  it  might  be  contended 
that,  as  a  provision  in  derogation  of  the  common  law,  the  one  quoted  should 
receive  a  strict  construction,  on  the  other  hand  it  might  be  insisted  with  perhaps 
equal  reason  that,  as  a  remedial  provision,  in  furtherance  of  natural  right  and 
justice,  it  should  be  liberally  construed,  to  effect  the  beneficial  purpose  had  in 
view.  Thus  arbitrary  rules,  of  directly  opposite  tendency  and  force,  would  be 
contending  for  the  mastery  in  the  same  case.  The  subsequent  decisions  under 
the  same  provision  do  not  appear  to  have  followed  this  lead.  See  White  v.  Zane, 
10  Mich.  3;j:; ;  McKee  v.  Wilcox,  11  Mich.  358  ;  Farr  v.  Sherman,  11  Mich.  33  ; 
Watson  v.  Thurber,  11  Mich.  457  ;  Burdeno  v.  Amperse,  14  Mich.  91 ;  Tong  v. 
Marvin,  15  Mich.  GO;  Tillman  v.  Shackleton,  15  Mich.  447.  The  common  law 
is  certainly  to  be  kept  in  view  in  the  interpretation  of  such  a  clause,  since  other- 
wise we  do  not  ascertain  the  evil  designed  to  be  remedied,  and  perhaps  arc  not 
able  to  fully  understand  and  explain  the  terms  employed  ;  but  it  is  to  be  looked 
at  with  a  view  to  the  real  intent,  rather  than  for  the  purpose  of  arbitrarily 
restraining  it. 

2  See  remarks  of  Johnson,  J.,  in  Ogden  v.  Saunders,  12  Wheat.  290. 

[68] 


CH.  IV.]  CONSTRUCTION   OF   STATE    CONSTITUTIONS.  *  62 

found  in  the  Constitution  a  word  used  in  some  sense,  which  falls 
in  with  their  favorite  theory  of  interpreting  it,  have  made  that  the 
standard  by  which  to  measure  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  extending  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."  x  And  he  gives  many  instances 
where,  in  the  national  Constitution,  it  is  very  manifest  the  same 
word  is  employed  in  different  meanings.  So  that,  while  the  rule 
may  be  sound  as  one  of  presumption  merely,  its  force  is  but  slight, 
and  it  must  readily  give  way  to  a  different  intent  appearing  in  the 
instrument. 

Operation  to  be  Prospective. 

We  shall  venture  also  to  express  the  opinion  that  a  constitution 
should  operate  prospectively  only,  unless  the  words  employed  show 
a  clear  intention  that  it  should  have  a  retrospective  effect.  This 
is  the  rule  in  regard  to  statutes,  and  it  is  "  one  of  such  obvious 
convenience  and  justice,  that  it  must  always  be  adhered  to  in  the 
construction  of  statutes,  unless  there  is  something  on  the  face  of 
the  enactment  putting  it  beyond  doubt  that  the  legislature  meant 
it  to  operate  retrospectively."  2  Retrospective  legislation, 
except  *  when  designed  to  cure  formal  defects,  or  other-  [*  63] 
wise  operate  remedially,  is  commonly  objectionable  in 
principle,  and  apt  to  result  in  injustice  ;  and  it  is  a  sound  rule  of 
construction  which  refuses  lightly  to  imply  an  intent  to  enact  it. 
And  we  are  aware  of  no  reasons  applicable  to  ordinary  legislation 
which  do  not,  upon  this  point,  apply  equally  well  to  constitutions.3 

1  Story  on  Const.  §  454.     And  see  Cherokee  Nation  v.  Georgia,  5  Pet.  19. 

2  Moon  v.  Durden,  2  Exeh.  22.  See  Dash  v.  Van  Kleek,  7  Johns.  477 ; 
Sayre  v.  Wisner,  8  Wend.  661 ;  State  v.  Atwood,  11  Wis.  422  ;  Hastings  v. 
Lane,  3  Shep.  134  ;  Brown  v.  Wilcox,  14  S.  &  M.  127 ;  Price  v.  Mott,  52  Penn. 
St.  315;  Ex  parte  Graham,  13  Rich.  277;  Merwin  v.  Ballard,  G6  N.  C.  398; 
Broom's  Maxims,  28. 

3  Iu  Allbyer  v.  State,  10  Ohio,  n.  s.  588,  a  question  arose  under  the  provision 
of  the  constitution  that  "  all  laws  of  a  general  nature  shall  have  a  uniform  opera- 
tion throughout  the  State."  Another  clause  provided  that  all  laws  then  in  force, 
not  inconsistent  with  the  constitution,  should  continue  in  force  until  amended  or 
repealed.     Allbyer  was  convicted  and  sentenced  to  imprisonment  under  a  crimes 

[69] 


63  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 


Implications. 

The  implications  from  the  provisions  of  a  constitution  are  some- 
times exceedingly  important,  and  have  large  influence  upon  its 
construction.  In  regard  to  the  Constitution  of  the  United  States 
the  rule  has  been  laid  down,  that  where  a  general  power  is  con- 
ferred.or  duty  enjoined,  every  particular  power  necessary  for  the 
exercise  of  the  one,  or  the  performance  of  the  other,  is  also  con- 
ferred.1 The  same  rule  has  been  applied  to  the  State  constitution, 
with  an  important  modification,  by  the  Supreme  Court  of  Illinois. 
"That  other  powers  than   those  expressly  granted   may  be,  and 

often  are,  conferred  by  implication,  is  too  well  settled  to 
[*  64]     be  *  doubted.     Under  every  constitution  implication  must 

be  resorted  to,  in  order  to  carry  out  the  general  grants  of 
power.  A  constitution  cannot  from  its  very  nature  enter  into  a 
minute  specification  of  all  the  minor  powers  naturally  and  obvi- 
ously included  in  and  flowing  from  the  great  and  ■  important  ones 
which  are  expressly  granted.  It  is  therefore  established  as  a  gen- 
eral rule,  that  when  a  constitution  gives  a  general  power,  or  enjoins 
a  duty,  it  also  gives,  by  implication,  every  particular  power  neces- 
sary for  the  exercise  of  the  one  or  the  enjoyment  of  the  other. 
The  implication  under  this  rule,  however,  must  be  a  necessary, 

act  previously  in  force,  applicable  to  Hamilton  County  only,  and  the  question 
was,  whether  that  act  was  not  inconsistent  with  the  provision  above  quoted,  and 
therefore  repealed  by  it.  The  court  held  that  the  provision  quoted  evidently  had 
regard  to  future  and  not  to  past  legislation,  and  therefore  was  not  repealed.  A 
similar  decision  was  made  in  State  v.  Barbee,  3  Ind.  258.  See  also  State  v. 
Thompson,  2  Kansas,  432;  Slack  v.  Maysville,  &c,  R.R.  Co.,  13  B.  Monr.  1; 
State  v.  Macon  County  Court,  41  Mo.  453.  In  Matter  of  Oliver  Lee  &  Co.'s 
Bank,  21  N.  Y.  12,  Denio,  J.,  says  :  "  The  rule  laid  down  in  Dash  v.  Van  Kleek, 
7  Johns.  477,  and  other  cases  of  that  class,  by  which  the  courts  are  admonished 
to  avoid,  if  possible,  such  an  interpretation  as  would  give  a  statute  a  retrospec- 
tive operation,  has  but  a  limited  application,  if  any,  to  the  construction  of  a  con- 
stitution. When,  therefore,  we  read  in  the  provision  under  consideration,  that 
the  stockholders  of  every  banking  corporation  shall  be  subject  to  a  certain  lia- 
bility, we  are  to  attribute  to  the  language  its  natural  meaning,  without  inquiring 
whether  private  interests  may  not  be  prejudiced  by  such  a  sweeping  mandate." 
The  remark  was  obiter,  as  it  was  found  that  enough  appeared  in  the  constitution 
to  show  clearly  that  it  was  intended  to  apply  to  existing,  as  well  as  to  subse- 
quently created  banking  institutions. 

1  Story  on  Const.  §  430.     See  also  United  States  v.  Fisher,  2  Cranch,  358 ; 
McCulloch  v.  Maryland,  4  Wheat.  428. 

[70] 


CH.  IV.]  CONSTRUCTION   OP   STATE    CONSTITUTIONS.  *  64 

not  a  conjectural  or  argumentative  one.  And  it  is  further  modified 
by  another  rule,  that  where  the  means  for  the  exercise  of  a  granted 
power  are  given,  no  other  or  different  means  can  be  implied,  as 
being  more  effective  or  convenient."  :  The  rule  applies  to  the 
exercise  of  power  by  all  departments  arid  all  officers,  and  will  be 
touched  upon  incidentally  hereafter. 

Akin  to  this  is  the  rule  that  "  where  a  power  is  granted  in  gen- 
eral terms,  the  power  is  to  be  construed  as  coextensive  with  the 
terms,  unless  some  clear  restriction  upon  it  is  deducible  [ex- 
pressly or  by  implication]  from  the  context." 2  This  rule  has 
been  so  frequently  applied  in  restraining  the  legislature  from 
encroaching  upon  the  grant  of  power  to  the  judiciary,  that  we 
shall  content  ourselves  in  this  place  with  a  reference  to  the  cases 
collected  upon  this  subject  and  given  in  another  chapter. 

Another  rule  of  construction  is,  that  when  the  constitution 
defines  the  circumstances  under  which  a  right  may  be  exercised 
or  a  penalty  imposed,  the  specification  is  an  implied  prohibition 
against  legislative  interference,  to  add  to  the  condition,  or  to  ex- 
tend the  penalty  to  other  cases.  On  this  ground  it  has  been  held 
by  the  Supreme  Court  of  Maryland,  that  where  the  constitution 
defined  the  qualifications  of  an  officer,  it  was  not  in  the  power  of 
the  legislature  to  change  or  superadd  to  them,  unless  the  power  to 
do  so  was  expressly  or  by  necessary  implication  conferred  by  the 
constitution  itself.3 

*  The  Light  which  the  Purpose   to  be  accomplished  may      [*  65] 
afford  in  Construction. 

The  considerations  thus  far  suggested  are  such  as  have  no  regard 
to  extrinsic  circumstances,  but  are  those  by  the  aid  of  which  we 
seek  to  arrive  at  the  meaning  of  the  constitution  from  an  exami- 

1  Field  v.  People,  2  Scam.  83.     See  Fletcher  v.  Oliver,  25  Ark.  298. 

2  Story  on  Const.  §§  424-426. 

3  Thomas  v.  Owens,  4  Md.  189.  To  the  same  effect  see  Matter  of  Dorsey, 
7  Port.  293.  So  the  legislature  cannot  add  to  the  constitutional  qualifications  of 
votei's.  Rison  v.  Farr,  24  Ark.  161 ;  St.  Joseph,  &c,  R.R.  Co.  v.  Buchanan 
County  Court,  39  Mo.  485;  State  v.  Williams,  5  Wis.  308;  Monroe  v.  Collins, 
17  Ohio,  n.  s.  665;  State  v.  Symonds,  57  Me.  .148;  State  v.  Staten,  6  Cold. 
243 ;  Davies  v.  McKeeby,  5  Nev.  369 ;  McCafferty  v.  Guyer,  59  Penn.  St.  109 ; 
Quin  v.  State,  35  Md.  485 ;  Clayton  v.  Harris,  7  Nev.  64 ;  Randolph  v.  Good, 
3  W.  Va.  551. 

[71] 


*  65  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

nation  of  the  words  employed.  It  is  possible,  however,  that  after 
we  shall  have  made  use  of  all  the  lights  which  the  instrument  itself 
affords,  there  may  still  be  doubts  to  clear  up  and  ambiguities  to 
explain.  Then,  and  only  then,  are  we  warranted  in  seeking  else- 
where for  aid.  We  are  not  to  import  difficulties  into  a  constitu- 
tion, by  a  consideration  of  extrinsic  facts,  when  none  appear  upon 
its  face.  If,  however,  a  difficulty  really  exists,  which  an  examina- 
tion of  every  part  of  the  instrument  does  not  enable  us  to  remove, 
there  are  certain  extrinsic  aids  which  may  be  resorted  to,  and 
which  are  more  or  less  satisfactory  in  the  light  they  afford. 
Among  these  aids  is  a  contemplation  of  the  object  to  be  accom- 
plished or  the  mischief  designed  to  be  remedied  or  guarded  against 
by  the  clause  in  which  the  ambiguity  is  met  with.1  "  When  we 
once  know  the  reason  which  alone  determined  the  will  of  the  law- 
makers, we  ought  to  interpret  and  apply  the  words  used  in  a 
manner  suitable  and  consonant  to  that  reason,  and  as  will  be  best 
calculated  to  effectuate  the  intent.  Great  caution  should  always 
be  observed  in  the  application  of  this  rule  to  particular  given  cases  ; 
that  is,  we  ought  always  to  be  certain  that  we  do  know,  and  have 
actually  ascertained,  the  true  and  only  reason  which  induced  the 
act.  It  is  never  allowable  to  indulge  in  vague  and  uncertain  con- 
jecture, or  in  supposed  reasons  and  views  of  the  framers  of  an  act, 
where  there  are  none  known  with  any  degree  of  certainty."  2  The 
prior  state  of  the  law  will  sometimes  furnish  the  clue  to  the  real 
meaning  of  the  ambiguous  provision,3  and  it  is  especially  impor- 
tant to  look  into  it  if  the  constitution  is  the  successor  to  another, 
and  in  the  particular  in  question  essential  changes  have  apparently 
been  made.4 

[*  Q6~]         *  Proceedings  of  the  Constitutional  Convention. 

When  the  inquiry  is  directed  to  ascertaining  the  mischief  de- 
signed to  be  remedied,  or  the  purpose  sought  to  be  accomplished 

1  Alexander  v.  Worthington,  5  Md.  471 ;  District  Township  v.  Dubuque,  7 
Iowa,  262.     See  Smith  v.  People,  47  N.  Y.  330. 

2  Smith  on  Stat,  and  Const.  Construction,  634.  See  also  remarks  of  Bronson, 
J.,  in  Purdy  v.  People,  2  Hill,  35-37.     • 

3  Baltimore  v.  State,  15  Md.  376 ;  Henry  v.  Tilson,  19  Vt.  447 ;  Hamilton  v. 
St.  Louis  County  Court,  15  Mo.  30;  People  v.  Gies,  25  Mich.  83;  Story  on 
Const.  §  428. 

4  People  v.  Blodgett,  13  Mich.  147. 

[72] 


CH.  IV.]  CONSTRUCTION   OP   STATE   CONSTITUTIONS.  *  66 

by  a  particular  provision,  it  may  be  proper  to  examine  the  pro- 
ceedings of  the  convention  which  framed  the  instrument.1  Where 
the  proceedings  clearly  point  out  the  purpose  of  the  provision,  the 
aid  will  be  valuable  and  satisfactory  ;  but  where  the  question  is 
one  of  abstract  meaning,  it  will  be  difficult  to  derive  from  this 
source  much  reliable  assistance  in  interpretation.  Every  member 
of  such  a  convention  acts  upon  such  motives  and  reasons  as 
influence  him  personally,  and  the  motions  and  debates  do  not 
necessarily  indicate  the  purpose  of  a  majority  of  a  convention  in 
adopting  a  particular  clause.  It  is  quite  possible  for  a  clause  to 
appear  so  clear  and  unambiguous  to  the  members  of  a  convention 
as  to  require  neither  discussion  nor  illustration  ;  and  the  few 
remarks  made  concerning  it  in  the  convention  might  have  a  plain 
tendency  to  lead  directly  away  from  the  meaning  in  the  minds  of 
the  majority.  It  is  equally  possible  for  a  part  of  the  members  to 
accept  a  clause  in  one  sense  and  a  part  in  another.  And  even  if 
we  were  certain  we  had  attained  to  the  meaning  of  the  convention, 
it  is  by  no  means  to  be  allowed  a  controlling  force,  especially  if  that 
meaning  appears  not  to  be  the  one  which  the  words  would  most 
naturally  and  obviously  convey.2  For  as  the  constitution  does 
not  derive  its  force  from  the  convention  which  framed,  but  from 
the  people  who  ratified  it,  the  intent  to  be  arrived  at  is  that  of  the 
people,  and  it  is  not  to  be  supposed  that  they  have  looked  for  any 
dark  or  abstruse  meaning  in  the  words  employed,  but  rather  that 
they  have  accepted  them  in  the  sense  most  obvious  to  the  common 
understanding,  and  ratified  the  instrument  in  the  belief  that  that 
was  the  sense  designed  to  be  conveyed.3  These  proceedings  there- 
fore are  less  conclusive  of  the  proper  construction  of  the  instru- 
ment than  are  legislative  proceedings  of  the  proper  construction 
of  a  statute  ;  since  in  the  latter  case  it  is  the  intent  of  the 
*  legislature  we  seek,  while  in  the  former  we  are  endeav-  [*  67] 
oring  to  arrive  at  the  intent  of  the  people  through  the  dis- 
cussions and  deliberations  of  their  representatives.     The  history 

1  Per  Walworth,  Chancellor,  Coutant  v.  People,  11  Wend.  518,  and  Clark  v. 
People,  26  Wend.  602 ;  per  Bronson,  J.,  Purdy  v.  People,  2  Hill,  37;  People 
v.  N.  Y.  Central  Railroad  Co.,  21  1ST.  Y.  496.  See  State  v.  Kennon,  7  Ohio, 
n.  s.  563. 

2  Taylor  v.  Taylor,  10  Minn.  126.  And  see  Eakin  v.  Racob,  12  S.  &  R.  352  ; 
Aldrklge  v.  Williams,  3  How.  1 ;  State  v.  Doron,  5  Nev.  399. 

3  State  v.  Mace,  5  Md.  318  ;  Manly  v.  State,  7  Md.  117. 

[73] 


*  67  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

of  the  calling  of  the  convention,  the  causes  which  led  to  it,  and  the 
discussions  and  issues  before  the  people  at  the  time  of  the  election 
of  the  delegates,  will  sometimes  be  quite  as  instructive  and  satis- 
factory as  any  thing  to  be  gathered  from  the  proceedings  of  the 
convention. 

Contemporaneous  and  Practical  Construction. 

An  important  question  which  now  suggests  itself  is  this  :  How 
far  the  contemporaneous  construction,  or  the  subsequent  practical 
construction  of  any  particular  provision  of  the  constitution,  is  to 
have  weight  with  the  courts  when  the  time  arrives  at  which  a 
judicial  decision  becomes  necessary.  Contemporaneous  construc- 
tion may  consist  simply  in  the  understanding  with  which  the 
people  received  it  at  the  time,  or  in  the  acts  done  in  putting  it  in 
operation,  and  which  necessarily  assume  that  it  is  to  be  construed 
in  a  particular  way.  In  the  first  case  it  can  have  very  little  force, 
because  the  evidences  of  the  public  understanding,  when  nothing 
has  been  done  under  the  provision  in  question,  must  always 
necessarily  be  vague  and  indecisive.  But  where  there  has  been  a 
practical  construction,  which  has  been  acquiesced  in  for  a  consid- 
erable period,  considerations  in  favor  of  adhering  to  this  construc- 
tion sometimes  present  themselves  to  the  courts  with  a  plausibility 
and  force  which  it  is  not  easy  to  resist.  Indeed,  where  a  particular 
construction  has  been  generally  accepted  as  correct,  and  especially 
when  this  lias  occurred  contemporaneously  with  the  adoption  of 
the  constitution,  and  by  those  who  had  opportunity  to  understand 
the  intention  of  the  instrument,  it  is  not  to  be  denied  that  a  strong 
presumption  exists  that  the  construction  rightly  interprets  the 
intention.  Especially  where  this  has  been  given  by  officers  in 
the  discharge  of  their  duty,  and  rights  have  accrued  in  reliance 
upon  it,  which  would  be  divested  by  a  decision  that  the  construc- 
tion was  erroneous,  the  argument  ah  inconvenienti  is  sometimes 
allowed  to  have  very  great  weight. 

The  Supreme  Court  of  the   United    States   has  had   frequent 

occasion  to  consider  this  question.     In  Stewart  v.  Laird,1  decided 

in  1803,  that  court  sustained  the  authority  of  its  members  to  sit 

as  circuit  judges  on  the  ground  of  a  practical  construction, 

[*  68]    *  commencing  with  the  organization  of  the  government. 

1  Cranch,  299. 
[74] 


CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS.  *  68 

In  Martin  v.  Hunter's  Lessee,1  Justice  Story,  after  holding 
that  the  appellate  power  of  the  United  States  extends  to  cases 
pending  in  the  State  courts,  and  that  the  25th  section  of  the 
Judiciary  Act,  which  authorized  its  exercise,  was  supported  by 
the  letter  and  spirit  of  the  Constitution,  proceeds  to  say :  "  Strong 
as  this  conclusion  stands  upon  the  general  language  of  the  Con- 
stitution, it  may  still  derive  support  from  other  sources.  It  is  an 
historical  fact,  that  this  exposition  of  the  Constitution,  extending 
its  appellate  power  to  State  courts,  was,  previous  to  its  adoption, 
uniformly  and  publicly  avowed  by  its  friends,  and  admitted  by  its 
enemies,  as  the  basis  of  their  respective  reasonings  both  in  and 
out  of  the  State  conventions.  It  is  an  historical  fact,  that  at  the 
time  when  the  Judiciary  Act  was  submitted  to  the  deliberations  of 
the  First  Congress,  composed,  as  it  was,  not  only  of  men  of  great 
learning  and  ability,  but  of  men  who  had  acted  a  principal  part  in 
framing,  supporting,  or  opposing  that  Constitution,  the  same  ex- 
position was  explicitly  declared  and  admitted  by  the  friends  and 
by  the  opponents  of  that  system.  It  is  an  historical  fact,  that  the 
Supreme  Court  of  the  United  States  have  from  time  to  time  sus- 
tained this  appellate  jurisdiction  in  a  great  variety  of  cases,  brought 
from  the  tribunals  of  many  of  the  most  important  States  in  the 
Union,  and  that  no  State  tribunal  has  ever  breathed  a  judicial 
doubt  on  the  subject,  or  declined  to  obey  the  mandate  of  the 
Supreme  Court  until  the  present  occasion.  This  weight  of  con- 
temporaneous exposition  by  all  parties,  this  acquiescence  by  en- 
lightened State  courts,  and  these  judicial  decisions  by  the  Supreme 
Court  through  so  long  a  period,  do,  as  we  think,  place  the  doctrine 
upon  a  foundation  of  authority  which  cannot  be  shaken  without 
delivering  over  the  subject  to  perpetual  and  irremediable  doubts." 
The  same  doctrine  was  subsequently  supported  by  Chief  Justice 
Marshall  in  a  case  involving  the  same  point,  and  in  which  he  says 
that  "  great  weight  has  always  been  attached,  and  very  rightly 
attached,  to  contemporaneous  exposition."  2 

In  Bank  of  United  States  v.  Halstead 3  the  question  was  made, 
whether  the  laws  of  the  United  States  authorizing  the  courts 
of  the  Union  so  to  alter  the  form  of  process  of  execution  used 
in  the  Supreme  Courts  of  the  States  in  September,  1789,  as  to 

1  1  Wheat.  351.     See  Story  on  Const.  §  405-408. 

2  Cohens  v.  Virginia,  6  Wheat.  418. 

3  10  Wheat.  63. 

[75] 


*  68  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

[*"  69]  subject  to  *  execution  lands  and  other  property  not  thus 
subject  by  the  State  laws  in  force  at  that  time,  were  con- 
stitutional ;  and  Mr.  Justice  Thompson,  in  language  similar  to  that 
of  Chief  Justice  Marshall  in  the  preceding  case,  says :  "  If  any 
doubt  existed  whether  the  act  of  1792  vests  such  power  in  the 
courts,  or  with  respect  to  its  constitutionality,  the  practical  con- 
struction given  to  it  ought  to  have  great  weight  in  determining 
both  questions."  And  Mr.  Justice  Johnson  assigns  a  reason  for 
this  in  a  subsequent  case :  "  Every  candid  mind  will  admit  that 
this  is  a  very  different  thing  from  contending  that  the  frequent 
repetition  of  wrong  will  create  a  right.  It  proceeds  upon  the  pre- 
sumption that  the  contemporaries  of  the  Constitution  have  claims 
to  our  deference  on  the  question  of  right,  because  they  had  the 
best  opportunities  of  informing  themselves  of  the  understanding 
of  the  framers  of  the  Constitution,  and  of  the  sense  put  upon  it  by 
the  people  when  it  was  adopted  by  them." l 

Great  deference  has  been  paid  in  all  cases  to  the  action  of  the 
executive  department,  where  its  officers  have  been  called  upon, 
under  the  responsibilities  of  their  official  oaths,  to  inaugurate  a 
new  system,  and  where  it  is  to  be  presumed,  they  have  carefully 
and  conscientiously  weighed  all  considerations,  and  endeavored 
to  keep  within  the  letter  and  the  spirit  of  the  Constitution.  If 
the  question  involved  is  really  one  of  doubt,  the  force  of  their 
judgment,  especially  in  view  of  the  injurious  consequences  that 
may  result  from  disregarding  it,  is  fairly  entitled  to  turn  the  scale 
in  the  judicial  mind.2 

Where,  however,  no  ambiguity  or  doubt  appears  in  the  law,  we 
think  the  same  rule  obtains  here  as  in  other  cases,  that  the  court 
should  confine  its  attention  to  the  law,  and  not  allow  extrinsic 

1  Ogden  v.  Saunders,  12  Wheat.  290.  See  Pike  v.  Megoun,  44  Mo.  499; 
State  v.  Parkinson,  5  Nev.  15. 

2  Union  Insurance  Co.  v.  Hoge,  21  How.  66 ;  Edward's  Lessee  v.  Darby,  12 
Wheat.  210  ;  Hughes  v.  Hughes,  4  T.  B.  Monr.  42  ;  Chambers  v.  Fisk,  22  Texas, 
504;  Britton  v.  Ferry,  14  Mich.  66  ;  Plummer  v.  Plumraer,  37  Miss.  185  ;  Bur- 
gess v.  Pue,  2  Gill,  11 ;  State  v.  Mayhew,  ib.  487  ;  Coutant  v.  People,  11  Wend. 
511  ;  Baltimore  v.  State,  15  Md.  876  ;  Farmers  and  Mechanics  Bank  v.  Smith, 
3  S.  &  R.  63 ;  N orris  v.  Clymer,  2  Penn.  St.  277  ;  Moers  v.  City  of  Reading, 
21  Penn.  St.  188;  Washington  v.  Page,  4'Cal.  388;  Surgett  v.  Lapice,  8  How. 
68  ;  Bissell  v.  Penrose,  ib.  336  ;  Troup  v.  Haight,  Hopk.  267  ;  United  States  v. 
Gilmore,  8  WalL.SSO ;  Hedgecock  v.  Davis,  64  N.  C.  652;  Lafayette,  &c.  R.R. 
Co.  v.  Geiger,  34  Ind.  203. 

[76] 


CH.  IV.]  CONSTRUCTION   OP   STATE   CONSTITUTIONS.  *  69 

circumstances  to  introduce  a  difficulty  where  the  language  is  plain. 
To  allow  force  to  a  practical  construction  in  such  a  case  would  be 
to  suffer  manifest  perversions  to  defeat  the  evident  pur- 
pose of  the  *  law-makers.  "  Contemporary  construction  [*  70] 
.  .  .  can  never  abrogate  the  text ;  it  can  never  fritter 
away  its  obvious  sense  ;  it  can  never  narrow  down  its  true  limita- 
tions ;  it  can  never  enlarge  its  natural  boundaries."  1  While  we 
conceive  this  to  be  the  true  and  only  safe  rule,  we  shall  be  obliged 
to  confess  that  some  of  the  cases  appear,  on  first  reading,  not  to 
have  observed  these  limitations.  In  the  case  first  cited  of  Stewart 
v.  Laird,2  the  practical  construction  was  regarded  as  conclusive. 
To  the  objection  that  the  judges  of  the  Supreme  Court  had  no 
right  to  sit  as  circuit  judges,  the  court  say :  "  It  is  sufficient  to 
observe  that  practice  and  acquiescence  under  it  for  a  period  of 
several  years,  commencing  with  the  organization  of  the  judicial 
system,  affords  an  irresistible  answer,  and  has  indeed  fixed  the 
construction.  It  is  a  contemporary  interpretation  of  the  most 
forcible  nature.  This  practical  exposition  is  too  strong  and  obsti- 
nate to  be  shaken  or  controlled.  Of  course  the  question  is  at  rest, 
and  ought  not  now  to  be  disturbed."  This  is  certainly  very  strong 
language ;  but  that  of  a  very  similar  character  was  used  by  the 
Supreme  Court  of  Massachusetts  in  one  case  where  large  and  val- 
uable estates  depended  upon  a  particular  construction  of  a  statute, 
and  very  great  mischief  would  follow  from  changing  it.  The  court 
said  that,  "  although  if  it  were  now  res  Integra,  it  might  be  very 
difficult  to  maintain  such  a  construction,  yet  at  this  day  the  argu- 
ment db  inconvenienti  applies  with  great  weight.  We  cannot  shake 
a  principle  which  in  practice  has  so  long  and  so  extensively  pre- 
vailed. If  the  practice  originated  in  error,  yet  the  error  is  now  so 
common  that  it  must  have  the  force  of  law.  The  legal  ground  on 
which  this  provision  is  now  supported  is,  that  long  and  continued 
usage  furnishes  a  contemporaneous  construction  which  must  pre- 
vail over  the  mere  technical  import  of  the  words."  3  Language 
nearly  as  strong  was  also  used  by  the  Supreme  Court  of  Maryland, 
where  the  point  involved  was  the  possession  of  a  certain  power  by 

1  Story  on  Const.  §  407.  And  see  Evans  v.  Myers,  25  Penn.  St.  116; 
Sadler  v.  Langham,  34  Ala.  311 ;  Barnes  v.  First  Parish  in  Falmouth,  6  Mass. 
417. 

2  1  Cranch,  299. 

3  Rogers  v.  Goodwin,  2  Mass.  478. 

[77] 


*  70  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

the  legislature,  which  it  had  constantly  exercised  for  nearly  seventy 
years.1 

It  is  believed,  however,  that  in  each  of  these  cases  an  examina- 
tion of  the  Constitution  left  in  the  minds  of  the  judges 
[*  71]  sufficient  *  doubt  upon  the  question  of  its  violation  to 
warrant  their  looking  elsewhere  for  aids  in  interpretation, 
and  that  the  cases  are  not  in  conflict  with  the  general  rule  as 
above  laid  down.  Acquiescence  for  no  length  of  time  can  legalize 
a  clear  usurpation  of  power,  where  the  people  have  plainly  ex- 
pressed their  will  in  the  constitution,  and  appointed  judicial  tri- 
bunals to  enforce  it.  A  power  is  frequently  yielded  to  merely 
because  it  is  claimed,  and  it  may  be  exercised  for  a  long  period, 
in  violation  of  the  constitutional  prohibition,  without  the  mischief 
which  the  Constitution  was  designed  to  guard  against  appearing, 
or  without  any  one  being  sufficiently  interested  in  the  subject  to 
raise  the  question  ;  but  these  circumstances  cannot  be  allowed  to 
sanction  a  clear  infraction  of  the  Constitution.-2  We  think  we 
allow  to  contemporary  and  practical  construction  its  full  legitimate 
force  when  we  suffer  it,  where  it  is  clear  and  uniform,  to  solve  in 
its  own  favor  the  doubts  which  arise  on  reading  the  instrument  to 
be  construed.3 

1  State  v.  Mayhew,  2  Gill,  487.  In  Essex  Co.  v.  Pacific  Mills,  14  Allen,  389, 
the  Supreme  Court  of  Massachusetts  expressed  the  opinion  that  the  constitu- 
tionality of  the  acts  of  Congress  making  treasury  notes  a  legal  tender,  ought  not 
to  be  treated  by  a  State  court  as  open  to  discussion  after  the  notes  had  practi- 
cally constituted  the  currency  of  the  country  for  five  years.  At  a  still  later  day, 
however,  the  Supreme  Court  of  the  United  States  held  these  acts  void,  though 
they  afterwards  receded  from  this  position. 

2  See  further,  on  this  subject,  the  case  of  Sadler  v.  Langham,  34  Ala.  311, 
334 ;  People  v.  Allen,  42  N.  Y.  384. 

3  There  are  cases  which  clearly  go  further  than  any  we  have  quoted,  and 
which  sustain  legislative  action  which  they  hold  to  be  usurpation,  on  the  sole 
ground  of  long  acquiescence.  Thus  in  Brigham  v.  Miller,  17  Ohio,  446,  the 
question  was,  Has  the  legislature  power  to  grant  divorces  ?  The  court  say : 
"  Our  legislature  have  assumed  and  exercised  this  power  for  a  period  of  more 
than  forty  years,  although  a  clear  and  palpable  assumption  of  power,  and  an 
encroachment  upon  the  judicial  department,  in  violation  of  the  Constitution.  To 
deny  this  long-exercised  power,  and  declare  all  the  consequences  resulting  from 
it  void,  is  pregnant  with  fearful  consequences.  If  it  affected  only  the  rights  of 
property,  we  should  not  hesitate  ;  but  second  marriages  have  been  contracted 
and  children  born,  and  it  would  bastardize  all  these,  although  born  under  the 
sanction  of  an  apparent  wedlock,  authorized  by  an  act  of  the  legislature  before 
they  were  born,  and  in  consequence  of  which  the  relation  was  formed  which  gave 

[78] 


CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS.  *  72 


*  Unjust  Provisions.  [*  72] 

We  have  elsewhere  expressed  the  opinion  that  a  statute  cannot 
be  declared  void  because  opposed  to  a  supposed  general 
intent  or  *  spirit  which  it  is  thought  pervades  or  lies  con-    [*  73] 
cealed  in  the  Constitution,  but  wholly  unexpressed,  or  be- 

them  birth.  On  account  of  these  children,  and  for  them  only,  we  hesitate. 
And  in  view  of  this,  we  are  constrained  to  content  ourselves  with  simply  declar- 
ing that  the  exercise  of  the  power  of  granting  divorces,  on  the  part  of  the  legis- 
lature, is  unwarranted  and  unconstitutional,  an  encroachment  upon  the  duties  of 
the  judiciary,  and  a  striking  down  of  the  dearest  rights  of  individuals,  without 
authority  of  law.  We  trust  we  have  said  enough  to  vindicate  the  Constitution, 
and  feel  confident  that  no  department  of  state  has  any  disposition  to  violate  it, 
and  that  the  evil  will  cease."  So  in  Johnson  v.  Joliet  and  Chicago  Railroad  Co., 
23  111.  207,  the  question  was  whether  railroad  corporations  could  be  created  by 
special  law,  without  a  special  declaration  by  way  of  preamble  that  the  object  to 
be  accomplished  could  not  be  attained  by  general  law.  The  court  say  :  "  It  is 
now  too  late  to  make  this  objection,  since  by  the  action  of  the  General  Assembly 
under  this  clause,  special  acts  have  been  so  long  the  order  of  the  day  and  the 
ruling  passion  with  every  legislature  which  has  convened  under  the  Constitution, 
until  their  acts  of  this  description  fill  a  huge  and  misshapen  volume,  and  impor- 
tant and  valuable  rights  are  claimed  under  them.  The  clause  has  been  wholly 
disregarded,  and  it  would  now  produce  far-spread  ruin  to  declare  such  acts  un- 
constitutional and  void.  It  is  now  safer  and  more  just  to  all  parties,  to  declare 
that  it  must  be  understood,  that  in  the  opinion  of  the  General  Assembly,  at  the 
time  of  passing  the  special  act,  its  object  could  not  be  attained  under  the  general 
law,  and  this  without  any  recital  by  way  of  preamble,  as  in  the  act  to  incorpo- 
rate the  Central  Railroad  Company.  That  preamble  was  placed  there  by  the 
writer  of  this  opinion,  and  a  strict  compliance  with  this  clause  of  the  Constitu- 
tion would  have  rendered  it  necessary  in  every  subsequent  act.  But  the  legisla- 
ture, in  their  wisdom,  have  thought  differently,  and  have  acted  differently,  until 
now  our  special  legislation  and  its  mischiefs  are  beyond  recovery  or  remedy." 
These  cases  certainly  presented  very  strong  motives  for  declaring  the  law  to  be 
what  it  was  not ;  but  it  would  have  been  interesting  and  useful  if  either  of  these 
learned  courts  had  enumerated  the  evils  that  must  be  placed  in  the  opposite  scale 
when  the  question  is  whether  a  constitutional  rule  shall  be  disregarded;  not  the 
least  of  which  is,  the  encouragement  of  a  disposition  on  the  part  of  legislative 
bodies  to  set  aside  constitutional  restrictions,  in  the  belief  that,  if  the  unconsti- 
tutional law  can  once  be  put  in  force,  and  large  interests  enlisted  under  it,  the 
courts  will  not  venture  to  declare  it  void,  but  will  submit  to  the  usurpation,  no 
matter  how  gross  and  daring.  We  agree  with  the  Supreme  Court  of  Indiana, 
that  in  construing  constitutions,  courts  have  nothing  to  do  with  the  argument  ab 
inconvenienti,  and  should  not  "  bend  the  Constitution  to  suit  the  law  of  the  hour." 
Greencastle  Township  v.  Black,  5  Ind.  565 ;  and  with  Bronson,  Ch.  J.,  in  what 
he  says  in  Oakley  v.  Aspinwall,  3  N.  Y.  568:  "  It  is  highly  probable  that  incon- 
veniences will  result  from  following  the  Constitution  as  it  is  written.     But  that 

[79] 


*  73  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

cause,  in  the  opinion  of  the  court,  it  violates  fundamental  rights 
or  principles,  if  it  was  passed  in  the  exercise  of  a  power  which  the 
Constitution  confers.  Still  less  will  the  injustice  of  a  constitu- 
tional provision  authorize  the  courts  to  disregard  it,  or  indirectly 
to  annul  it  by  construing  it  away.  It  is  quite  possible  that  the 
people  may,  under  the  influence  of  temporary  prejudice,  or  mis- 
taken view  of  public  policy,  incorporate  provisions  in  their  charter 
of  government,  infringing  upon  the  right  of  the  individual  man,  or 
upon  principles  which  ought  to  be  regarded  as  sacred  and  funda- 
mental in  republican  government ;  and  quite  possible  also  that 
obnoxious  classes  may  be  unjustly  disfranchised.  The  remedy  for 
such  injustice  must  rest  with  the  people  themselves,  through  an 
amendment  of"  their  work  when  better  counsels  prevail.  Such  pro- 
visions, when  free  from  doubt,  must  receive  the  same  construction 
as  any  other.  We  do  not  say,  however,  that  if  a  clause  should  be 
found  in  a  constitution  which  should  appear  at  first  blush  to  de- 
consideration  can  have  no  force  with  me.  It  is  not  for  us,  but  for  those  who 
made  the  instrument,  to  supply  its  defects.  If  the  legislature  or  the  courts  may 
take  that  office  upon  themselves,  or  if,  under  color  of  construction,  or  upon  any 
other  specious  ground,  they  may  depart  from  that  which  is  plainly  declared,  the 
people  may  well  despair  of  ever  being  able  to  set  any  boundary  to  the  powers  of 
the  government.  Written  constitutions  will  be  more  than  useless.  Believing  as 
I  do  that  the  success  of  free  institutions  depends  upon  a  rigid  adherence  to  the 
fundamental  law,  I  have  never  yielded  to  considerations  of  expediency  in  ex- 
pounding it.  There  is  always  some  plausible  reason  for  latitudinarian  construc- 
tions which  are  resorted  to  for  the  purpose  of  acquiring  power ;  some  evil  to  be 
avoided  or  some  good  to  be  attained  by  pushing  the  powers  of  the  government 
beyond  their  legitimate  boundary.  It  is  by  yielding  to  such  influences  that  con- 
stitutions are  gradually  undermined  and  finally  overthrown.  My  rule  has  ever 
been  to  follow  the  fundamental  law  as  it  is  written,  regardless  of  consequences. 
If  the  law  does  not  work  well,  the  people  can  amend  it ;  and  inconveniences  can 
be  borne  long  enough  to  await  that  process.  But  if  the  legislature  or  the  courts 
undertake  to  cure  defects  by  forced  and  unnatural  constructions,  they  inflict  a 
wound  upon  the  Constitution  which  nothing  can  heal.  One  step  taken  by  the 
legislature  or  the  judiciary,  in  enlarging  the  powers  of  the  government,  opens 
the  door  for  another  which  will  be  sure  to  follow ;  and  so  the  process  goes  on 
until  all  respect  for  the  fundamental  law  is  lost,  and  the  powers  of  the  govern- 
ment are  just  what  those  in  authority  please  to  call  them."  Whether  there  may 
not  be  circumstances  under  which  the  State  can  be  held  justly  estopped  from 
alleging  the  invalidity  of  its  own  action  in  apportioning  the  political  divisions  of  the 
State,  and  imposing  burdens  on  citizens,  where  such  action  has  been  acquiesced 
in  for  a  considerable  period,  and  rights  have  been  acquired  through  bearing  the 
burdens  under  it,  see  Ramsey  v.  People,  19  N.  Y.  41 ;  People  v.  Maynard,  15 
Mich.  470;  Kneeland  v.  Milwaukee,  15  Wis.  454. 

[80] 


CH.  IV.]  CONSTRUCTION   OF    STATE   CONSTITUTIONS.  *  73 

mand  a  construction  leading  to  monstrous  and  absurd  conse- 
quences, it  might  not  be  the  duty  of  the  court  to  question  and 
cross-question  such  clause  closely,  with  a  view  to  discover  in  it,  if 
possible,  some  other  meaning  more  consistent  with  the  general 
purposes  and  aims  of  these  instruments.  When  such  a  case  arises, 
it  will  be  time  to  consider  it.1 

Duty  in   Case  of  Doubt. 

But  when  all  the  legitimate  lights  for  ascertaining  the  mean- 
ing of  the  Constitution  have  been  made  use  of,  it  may  still  happen 
that  the  construction  remains  a  matter  of  doubt.  In  such  a  case 
it  seems  clear  that  every  one  called  upon  to  act  where,  in 
his  *  opinion,  the  proposed  action  would  be  of  doubtful  [*  74] 
constitutionality,  is  bound  upon  the  doubt  alone  to  abstain 
from  acting.  Whoever  derives  power  from  the  Constitution  to 
perform  any  public  function  is  disloyal  to  that  instrument,  and 
grossly  derelict  in  duty,  if  he  does  that  which  he  is  not  reasonably 
satisfied  the  Constitution  permits.  Whether  the  power  be  legisla- 
tive, executive,  or  judicial,  there  is  manifest  disregard  of  constitu- 
tional and  moral  obligation  by  one  who,  having  taken  an  oath  to 
observe  that  instrument,  takes  part  in  an  action  which  he  cannot 
say  he  believes  to  be  no  violation  of  its  provisions.  A  doubt  of  the 
constitutionality  of  any  proposed  legislative  enactment  should  in 
any  case  be  reason  sufficient  for  refusing  to  adopt  it ;  and,  if  legis- 
lators do  not  act  upon  this  principle,  the  reasons  upon  which  are 
based  the  judicial  decisions  sustaining  legislation  in  very  many 
cases  will  cease  to  be  of  force. 

Directory  and  Mandatory  Provisions. 

The  important  question  sometimes  presents  itself,  whether  we 
are  authorized  in  any  case,  when  the  meaning  of  a  clause  of  the 
Constitution  is  arrived  at,  to  give  it  such  practical  construction  as 
will  leave  it  optional  with  the  department  or  officer  to  which  it 
is  addressed  to  obey  it  or  not  as  he  shall  see  fit.  In  respect  to 
statutes  it  has  long  been  settled  that  particular  provisions  may  be 
regarded  as  directory  merely  ;  by  which  is  meant  that  they  are  to 
be  considered  as  giving  directions  which  ought  to  be  followed,  but 

1  McMullen  v.  Hodge,  5  Texas,  34.     See  Clarke  v.  Irwin,  5  Nev.  111. 

6  [81] 


*  74  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

not  as  so  limiting  the  power  in  respect  to  which  the  directions 
are  given  that  it  cannot  be  effectually  exercised  without  observing 
them.  The  force  of  many  of  the  decisions  on  this  subject  will  be 
readily  assented  to  by  all ;  while  others  are  sometimes  thought  to 
go  to  the  extent  of  nullifying  the  intent  of  the  legislature  in  essen- 
tial particulars.  It  is  not  our  purpose  to  examine  the  several  cases 
critically,  or  to  attempt  —  what  we  deem  impossible  —  to  reconcile 
them  all ;  but  we  shall  content  ourselves  with  quoting  from  a  few, 
with  a  view,  if  practicable,  to  ascertaining  some  line  of  principle 
upon  which  they  can  be  classified. 

There  are  cases  where,  whether  a  statute  was  to  be  regarded  as 
merely  directory  or  not,  was  made  to  depend  upon  the  employing 
or  failing  to  employ  negative  words  which  imported  that  the  act 
should  be  done  in  a  particular  manner  or  time,  and  not 
[*  75]    *  otherwise.1     The  use  of  such  words  is  often  very  con- 
clusive of  an  intent  to  impose  a  limitation ;    but  their 
absence  is  by  no  means  equally  conclusive  that  the  statute  was 
not  designed  to  be  mandatory.2     Lord  Mansfield  would  have  the 
question   whether  mandatory  or  not  depend  upon  whether  that 
which  was  directed  to  be  done  was  or  was  not  of  the  essence  of  the 
thing  required.3    The  Supreme  Court  of  New  York,  in  an  opinion 
afterwards  approved  by  the  Court  of  Appeals,  laid  down  the  rule 
as  one  settled  by  authority,  that  "  statutes  directing  the  mode  of 
proceeding  by  public  officers  are  directory,  and  are  not  regarded  as 
essential  to  the  validity  of  the  proceedings  themselves,  unless  it  be 
so  declared  in  the  statute."  4    This  rule  strikes  us  as  very  general, 
and  as  likely  to  include  within  its  scope,  in  many  cases,  things 
which  are  of  the  very  essence  of  the  proceeding.     The  questions 
in  that  case  were  questions  of  irregularity  under  election  laws,  not 
in  any  way  hindering  the  complete  expression  of  the  will  of  the 
electors  ;    and  the  court  was  doubtless  right  in  holding  that  the 
election  was  not  to  be  avoided  for  a  failure  in  the  officers  appointed 
for  its  conduct  to  comply  in  all  respects  with  the  directions   of 
the  statute  there  in  question.     The  same  court  in  another  case 
say :  "  Statutory  requisitions  are  deemed  directory  only  when  they 

1  Slayton  v.  Hulings,  7  Ind.  144 ;  King  v.  Inhabitants  of  St.  Gregory,  2  Ad. 
&  El.  99  ;  King  v.  Inhabitants  of  Hipswell,  8  B.  &  C.  466. 

2  District  Township  v.  Dubuque,  7  Iowa,  284. 

3  Rex  v.  Locksdale,  1  Burr.  447. 

4  People  v.  Cook,  14  Barb.  290 ;  s.  c.  8  N.  Y.  6    . 

[82] 


CH.  IV.]  CONSTRUCTION   OF  STATE   CONSTITUTIONS.  *  75 

relate  to  some  immaterial  matter,  where  a  compliance  is  a  matter 
of  convenience  rather  than  of  substance."  1     The  Supreme  Court 
of  Michigan,  in  a  case  involving  the  validity  of  proceedings  on  the 
sale  of  lands  for  taxes,  laid  down  the  rule  that  "  what  the  law 
requires  to  be  done  for  the  protection  of  the  tax-payer  is  mandatory, 
and  cannot  be  regarded  as  directory  merely."  2    A  similar  rule  was 
recognized  in  a  recent  case  in  Illinois.     Commissioners  had  been 
appointed  to  ascertain  and  assess  the  damage  and  recompense  due 
to  the  owners  of  land  which  might  be  taken,  on  the  real  estate  of 
the  persons  benefited  by  a  certain  local  improvement,  in  proportion 
as  nearly  as  might  be  to  the  benefits  resulting  to  each.     By  the 
statute,  when  the  assessment  was  completed,   the   com- 
missioners were  to  sign  and  return  the  same  to  the  *  city    [*  76] 
council   within    forty  days  of  their   appointment.      This 
provision  was  not  complied  with,  but  return  was  made  afterwards, 
and  the  question  was  raised  as  to  its  validity  when  thus  made.    In 
the  opinion  of  the  court,    this  question  was  to    be  decided   by 
ascertaining   whether    any    advantage    would    be    lost,    or    right 
destroyed,  or  benefit  sacrificed,    either  to  the  public  or  to    any 
individual,  by  holding  the  provision  directory.     After  remarking 
that  they  had  held  an  assessment  under  the  general  revenue  law, 
returned  after  the  time  appointed  by  law,  as  void,  because  the 
person  assessed  would   lose  the  benefit  of  an  appeal   from   the 
assessment,3  they  say  of  the  statute  before  the  court :  "  There  are 
no  negative  words  used  declaring  that  the  functions  of  the  com- 
missioners shall  cease  after  the  expiration  of  the  forty  days,  or 
that  they  shall  not  make  their  return  after  that  time  ;  nor  have 
we  been  able  to  discover  the  least  right,  benefit,  or  advantage  which 
the  property  owner  could  derive    from  having  the  return  made 
within  that  time,  and  not  after.     No  time  is  limited  and  made 
dependent  on  that  time,  within  which  the  owner  of  the  property 
may  apply  to  have  the  assessment  reviewed  or  corrected.     The 

1  People  v.  Schermerhorn,  19  Barb.  558.  If  a  statute  imposes  a  duty  and 
gives  the  means  of  performing  that  duty,  it  must  be  held  to  be  mandatory. 
Veazie  v.  China,  50  Me.  518. 

2  Clark  v.  Crane,  5  Mich.  154.  See  also  Shawnee  County  v.  Carter,  2  Kan- 
sas, 115.  In  Life  Association  v.  Board  of  Assessors,  49  Mo.  512,  it  is  held  that 
a  constitutional  provision  that  "all  property  subject  to  taxation  ought  to  be 
taxed  in  proportion  to  its  value  "  is  a  prohibition  against  its  being  taxed  in  any 
other  mode,  and  the  word  ought  is  mandatory. 

3  Marsh  v.  Chestnut,  14  111.  223. 

[83] 


*  76  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

next  section  requires  the  clerk  to  give  ten  days'  notice  that  the 
assessment  has  been  returned,  specifying  the  day  when  objections 
may  be  made  to  the  assessment  before  the  common  council  by 
parties  interested,  which  hearing  may  be  adjourned  from  day  to 
day  ;  and  the  common  council  is  empowered  in  its  discretion 
to  confirm  or  annul  the  assessment  altogether,  or  to  refer  it  back  to 
the  same  commissioners,  or  to  others  to  be  by  them  appointed.  As 
the  property  owner  has  the  same  time  and  opportunity  to  prepare 
himself  to  object  to  the  assessment  and  have  it  corrected,  whether 
the  return  be  made  before  or  after  the  expiration  of  the  forty  days, 
the  case  differs  from  that  of  Chestnut  v.  Marsh,1  at  the  very  point 
on  which  that  case  turned.  Nor  is  there  any  other  portion  of  the 
chapter  which  we  have  discovered,  bringing  it  within  the  principle 
of  that  case,  which  is  the  well-recognized  rule  in  all  the  books."  2 
The  rule  is  nowhere  more  clearly  stated  than  by  Chief  Justice 
Shaiv,  in  Torrey  v.  Milbury,3  which  was  also  a  tax  case. 
[*  77]  "  In  *  considering  the  various  statutes  regulating  the  as- 
sessment of  taxes,  and  the  measures  preliminary  thereto, 
it  is  not  always  easy  to  distinguish  which  are  conditions  precedent 
to  the  legality  and  validity  of  the  tax,  and  which  are  directory 
merely,  and  do  not  constitute  conditions.  One  rule  is  very  plain 
and  well  settled,  that  all  those  measures  that  are  intended  for  the 
security  of  the  citizen,  for  insuring  equality  of  taxation,  and  to 
enable  every  one  to  know  with  reasonable  certainty  for  what  polls 
and  for  what  real  estate  he  is  taxed,  and  for  what  all  those  who  are 

|  '  14  111.  223. 

2  Wheeler  v.  Chicago,  24  111.  108. 

3  21  Pick.  67.  We  commend  in  the  same  connection  the  views  of  Lewis,  Ch. 
J.,  in  Corbett  v.  Bradley,  7  Nev.  108 :  "  When  any  requirement  of  a  statute  is 
held  to  be  directory,  and  therefore  not  material  to  be  followed,  it  is  upon  the 
assumption  that  the  legislature  itself  so  considered  it,  and  did  not  make  the  right 
conferred  dependent  upon  a  compliance  with  the  form  prescribed  for  securing  it.  It 
is  upon  this  principle  that  the  courts  often  hold  the  time  designated  in  a  statute, 
where  a  thing  is  to  be  done,  to  be  directory.  No  court  certainly  has  the  right  to 
hold  any  requirement  of  a  law  unnecessary  to  be  complied  with,  unless  it  be  mani- 
fest the  legislature  did  not  intend  to  impose  the  consequence  which  would  naturally 
follow  from  a  non-compliance,  or  which  would  result  from  holding  the  requirement 
mandatory  or  indispensable.  If  it  be  clear  that  no  penalty  was  intended  to  be 
imposed  for  a  non-compliance,  then,  as  a  matter  of  course,  it  is  but  carrying  out 
the  will  of  the  legislature  to.  declare  the  statute  in  that  respect  to  be  simply 
directory.  But,  if  there  be  any  thing  to  indicate  the  contrary,  a  full  compliance 
with  it  must  be  enforced." 

[84] 


CH.  IV.]  CONSTRUCTION   OP   STATE   CONSTITUTIONS.  *  77 

liable  with  him  are  taxed,  are  conditions  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  statutes  designed  for 
the  information  of  assessors  and  officers,  and  intended  to  promote 
method,  system,  and  uniformity  in  the  modes  of  proceeding,  a  com- 
pliance or  non-compliance  with  which  does  in  no  respect  affect  the 
rights  of  tax-paying  citizens.  These  may  be  considered  directory. 
Officers  may  be  liable  to  legal  animadversion,  perhaps  to  punish- 
ment, for  not  observing  them  ;  but  yet  their  observance  is  not  a 
condition  precedent  to  the  validity  of  the  tax." 

We  shall  quote  further  only  from  a  single  other  case  upon  this 
point.  The  Supreme  Court  of  Wisconsin,  in  considering  the  va- 
lidity of  a  statute  not  published  within  the  time  required  by  law, 
"  understand  the  doctrine  concerning  directory  statutes  to  be  this  : 
that  where  there  is  no  substantial  reason  why  the  thing  to  be  done 
might  not  as  well  be  done  after  the  time  prescribed  as  before,  no 
presumption  that  by  allowing  it  to  be  so  done  it  may  work  an 
injury  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  assume  that  the  intent  was, 
that  if  not  done  within  the  time  prescribed  it  might  be  done  after- 
wards. But  when  any  of  these  reasons  intervene,  then  the  limit 
is  established."  1 

These  cases  perhaps  sufficiently  indicate  the  rules,  so  far  as  any 
of  general  application  can  be  declared,  which  are  to  be  made  use  of 
in  determining  whether  the  provisions  of  a  statute  are  mandatory 
or  directory.  Those  directions  which  are  not  of  the  essence  of  the 
thing  to  be  done,  but  which  are  given  with  a  view  merely 
*  to  the  proper,  orderly,  and  prompt  conduct  of  the  busi-  [*  78] 
ness,  and  by  a  failure  to  obey  which  the  rights  of  those 
interested  will  not  be  prejudiced,  are  not  commonly  to  be  regarded 
as  mandatory  ;  and  if  the  act  is  performed,  but  not  in  the  time  or 
in  the  precise  mode  indicated,  it  may  still  be  sufficient,  if  that 

1  State  v.  Lean,  9  Wis.  292.  See  further,  for  the  views  of  this  court  on  the 
subject  here  discussed,  Wendel  v.  Durbin,  26  Wis.  390.  The  general  doctrine 
of  the  cases  above  quoted  is  approved  and  followed  in  French  v.  Edwards,  13 
Wall.  506. 

[85] 


*  78  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

which  is  done  accomplishes  the  substantial  purpose  of  the  statute.1 
But  this  rule  presupposes  that  no  negative  words  are  employed  in 
the  statute  which  expressly  or  by  necessary  implication  forbid  the 
doing  of  the  act  at  any  other  time  or  in  any  other  manner  than  as 
directed.  Even -as  thus  laid  down  and  restricted,  the  doctrine  is 
one  to  be  applied  with  much  circumspection  ;  for  it  is  not  to  be 
denied  that  the  courts  have  sometimes,  in  their  anxiety  to  sustain 
the  proceedings  of  careless  or  incompetent  officers,  gone  very  far 
in  substituting  a  judicial  view  of  what  was  essential  for  that 
declared  by  the  legislature.2 

But  the  courts  tread  upon  very  dangerous  ground  when  they 
venture  to  apply  the  rules  which  distinguish  directory  and  manda- 
tory statutes  to  the  provisions  of  a  constitution.  Constitutions  do 
not  usually  undertake  to  prescribe  mere  rules  of  proceeding,  ex- 
cept when  such  rules  are  looked  upon  as  essential  to  the  thing  to 
be  done  ;  and  they  must  then  be  regarded  in  the  light  of  limita- 
tions upon  the  power  to  be  exercised.  It  is  the  province  of  an 
instrument  of  this  solemn  and  permanent  character  to  establish 
those  fundamental  maxims,  and  fix  those  unvarying  rules, 
[*  79]  by  which  all  *  departments  of  the  government  must  at  all 
times  shape  their  conduct ;  and  if  it  descends  to  prescribing 

1  The  following,  in  addition  to  those  cited,  are  some  of  the  cases  in  this  coun- 
try in  which  statutes  have  been  declared  directory  only :  Pond  v.  Negus,  3  Mass. 
230 ;  Williams  v.  School  District,  21  Pick.  75 ;  City  of  Lowell  v.  Hadley,  8  Met. 
180  ;  Holland  v.  Osgood,  8  Vt.  280  ;  Corliss  v.  Corliss,  ib.  390  ;  People  v.  Allen, 
6  Wend.  486 ;  Marchant  v.  Langworthy,  6  Hill,  646 ;  Ex  parte  Heath,  3  Hill, 
43;  People  v.  Holley,  12  Wend.  481  ;  Jackson  v.  Young,  5  Cow.  269;  Striker 
v.  Kelley,  7  Hill,  9;  People  v.  Peck,  11  Wend.  604;  Matter  of  Mohawk  and 
Hudson  Railroad  Co.,  19  Wend.  143 ;  People  v.  Runkel,  9  Johns.  147  ;  Gale  v. 
Mead,  2  Denio,  160  ;  Doughty  v.  Hope,  3  Denio,  252  ;  Elmendorf  v.  Mayor,  &c, 
of  New  York,  25  Wend.  696;  Thames  Manufacturing  Co.  v.  Lathrop,  7  Conn. 
550;  Colt  v.  Eves,  12  Conn.  243;  People  v.  Doe,  1  Mich.  451 ;  Parks  v.  Good- 
win, 1  Dou°\  (Mich.)  56  ,  Hickey  v.  Hinsdale,  8  Mich.  267  ;  People  v.  Hartwell, 
12  Mich.  508;  State  v.  McGinley,  4  Ind.  7;  Slayton  v.  Hillings,  7  Ind.  144; 
New  Orleans  v.  St.  Rowes,  9  La.  An.  573;  Edwards  v.  James,  13  Texas,  52; 
State  v.  Click,  2  Ala.  26;  Savage  v.  Walshe,  26  Ala.  620;  Webster  v.  French, 
12  111.  302;  McKim  v.  Weller,  11  Cal.  47;  State  v.  Co.  Commissioners  of  Bal- 
timore, 29  Md.  516 ;  Fry  v.  Booth,  19  Ohio,  n.  s.  25.  The  list  might  easily  be 
largely  increased. 

2  See  upon  this  subject  the  remarks  of  Mr.  Sedgwick  in  his  work  on  Statutory 
and  Constitutional  Law,  p.  375,  and  those  of  Hubbard,  J.,  in  Briggs  v.  Georgia, 
15  Vt  72.     Also  see  Dryfuss  v.  Budges,  45  Miss.  247. 

[86] 


CH.  IV.]  CONSTRUCTION    OF    STATE    CONSTITUTIONS.  *  79 

mere  rules  of  order  in  unessential  matters,  it  is  lowering  the  proper 
dignity  of  such  an  instrument,  and  usurping  the  proper  province  of 
ordinary  legislation.  We  are  not  therefore  to  expect  to  find  in  a 
constitution  provisions  which  the  people,  in  adopting  it,  have  not 
regarded  as  of  high  importance,  and  worthy  to- be  embraced  in 
an  instrument  which,  for  a  time  at  least,  is  to  control  alike  the 
government  and  the  governed,  and  to  form  a  standard  by  which  is 
to  be  measured  the  power  which  can  be  exercised  as  well  by  the 
delegate  as  by  the  sovereign  people  themselves.  If  directions  are 
given  respecting  the  times  or  modes  of  proceeding  in  which  a 
power  should  be  exercised,  there  is  at  least  a  strong  presumption 
that  the  people  designed  it  should  be  exercised  in  that  time  and 
mode  only  ;  and  we  impute  to  the  people  a  want  of  due  appreciation 
of  the  purpose  and  proper  province  of  such  an  instrument,  when 
we  infer  that  such  directions  are  given  to  any  other  end.  Especially 
when,  as  has  been  already  said,  it  is  but  fair  to  presume  that  the 
people  in  their  constitution  have  expressed  themselves  in  careful 
and  measured  terms,  corresponding  with  the  immense  importance 
of  the  powers  delegated,  and  with  a  view  to  leave  as  little  as 
possible  to  implication.1 

There  are  some  cases,  however,  where  the  doctrine  of  directory 
statutes  has  been  applied  to  constitutional  provisions  ;  but  they  are 
at  variance  with  the  weight  of  authority  upon  the  precise  points 
considered,  and  we  do  not  think,  therefore,  we  should  be  warranted 
in  saying  that  the  judicial  decisions  as  they  now  stand  sanction 
the  application.  In  delivering  the  opinion  of  the  New  York  Court 
of  Appeals  in  one  case,  Mr.  Justice  Willard  had  occasion  to  con- 
sider the  constitutional  provision,  that  on  the  final  passage  of  a 
bill  the  question  shall  be  taken  by  ayes  and  noes,  which  shall  be 
duly  entered  upon  the  journals;  and  he  expressed  the  opinion  that 
it  was  only  directory  to  the  legislature.2  The  remark  was  obiter 
dictum,  as  the  court  had  already  decided  that  the  provision  had 
been  fully  complied  with  ;  and  those  familiar  with  the  reasons 
which  have  induced  the  insertion  of  this  clause  in  our 
*  constitutions  will  not  readily  concede  that  its  sole  design  [*  80] 
was  to  establish  a  mere  rule  of  order  for  legislative  pro- 

1  Wolcott  o.  Wigton,  7  Ind.  49;  per  Bronson,  J.,  in  People  v.  Purdy,  2  Hill, 
36;  Greencastle  Township  v.  Black,  5  Ind.  566;  Opinions  of  Judges,  6  Shep. 
458.     See  People  v.  Lawrence,  36  Barb.  177  ;  State  v.  Johnson,  26  Ark.  281. 

2  People  v.  Supervisors  of  Chenango,  8  N.  Y.  328. 

[87] 


*  80  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

ceedings,  which  might  be  followed  or  not  at  discretion.  Mr.  Chief 
Justice  Thurman,  of  Ohio,  in  a  case  not  calling  for  a  discussion  of 
the  subject,  has  considered  a  statute  whose  validity  was  assailed 
on  the  ground  that  it  was  not  passed  in  the  mode  prescribed  by  the 
constitution.  "  By  the  term  mode"  he  says,  "  I  do  not  mean  to 
include  the  authority  in  which  the  law-making  power  resides,  or  the 
number  of  votes  a  bill  must  receive  to  become  a  law.  That  the 
power  to  make  laws  is  vested  in  the  Assembly  alone,  and  that  no 
act  has  any  force  that  was  not  passed  by  the  number  of  votes 
required  by  the  constitution,  are  nearly,  or  quite,  self-evident 
propositions.  These  essentials  relate  to  the  authority  by  which, 
rather  than  the  mode  in  which,  laws  are  to  be  made.  Now 
to  secure  the  careful  exercise  of  this  power,  and  for  other  good 
reasons,  the  constitution  prescribes  or  recognizes  certain  things  to 
be  done  in  the  enactment  of  laws,  which  things  form  a  course 
or  mode  of  legislative  procedure.  Thus  we  find,  inter  alia,  the 
provision  that  every  bill  shall  be  fully  and  distinctly  read  on  three 
different  days,  unless,  in  case  of  urgency,  three-fourths  of  the  house 
in  which  it  shall  be  pending  shall  dispense  with  this  rule.  This  is 
an  important  provision  without  doubt,  but,  nevertheless,  there  is 
much  reason  for  saying  that  it  is  merely  directory  in  its  character, 
and  that  its  observance  by  the  Assembly  is  secured  by  their  sense 
of  duty  and  official  oaths,  and  not  by  any  supervisory  power  of  the 
courts.  Any  other  construction,  we  incline  to  think,  would  lead 
to  very  absurd  and  alarming  consequences.  If  it  is  in  the  power 
of  every  court  (and  if  one  has  the  power,  every  one  has  it)  to 
inquire  whether  a  bill  that  passed  the  Assembly  was  '  fully  '  and 
'  distinctly  '  read  three  times  in  each  house,  and  to  hold  it  in- 
valid if,  upon  any  reading,  a  word  was  accidentally  omitted,  or 
the  reading  was  indistinct,  it  would  obviously  be  impossible  to 
know  what  is  the  statute  law  of  the  State.  Now  the  requisition  that 
bills  shall  be  fully  and  distinctly  read  is  just  as  imperative  as  that 
requiring  them  to  be  read  three  times  ;  and  as  both  relate  to  the 
mode  of  procedure  merely,  it  would  be  difficult  to  find  any  suf- 
ficient reason  why  a  violation  of  one  of  them  would  be  less  fatal 
to  an  act  than  a  violation  of  the  other."  1 

A  requirement  that  a  law  shall  be  read  distinctly,  whether 

[*  81]    *  mandatory  or  directory,  is,  from  the  very  nature  of  the 

case,  addressed  to  the  judgment  of  the  legislative  body, 

1  Miller  v.  State,  3  Ohio,  n.  s.  483. 
[88] 


CH.  IV.]  CONSTRUQTION   OF  STATE   CONSTITUTIONS.  *  81 

whose  decision  as  to  what  reading  is  sufficiently  distinct  to  be  a 
compliance  cannot  be  subject  to  review.  But  in  the  absence  of 
authority  to  the  contrary,  we  should  not  have  supposed  that  the 
requirement  of  three  successive  readings  on  different  days  stood 
upon  the  same  footing.1  To  this  extent  a  definite  and  certain  rule 
is  capable  of  being,  and  has  been,  laid  down,  which  can  be  literally 
obeyed  ;  and  the  legislative  body  cannot  suppose  or  adjudge  it  to 
have  been  done  if  the  fact  is  otherwise.  The  requirement  has  an 
important  purpose,  in  making  legislators  proceed  in  their  action 
with  caution  and  deliberation  ;  and  there  cannot  often  be  difficulty 
in  ascertaining  from  the  legislative  records  themselves  if  the  con- 
stitution has  been  violated  in  this  particular.  There  is,  therefore, 
no  inherent  difficulty  in  the  question  being  reached  and  passed 
upon  by  the  courts  in  the  ordinary  mode,  if  it  is  decided  that  the 
constitution  intends  legislation  shall  be  reached  through  the  three 
readings,  and  not  otherwise. 

The  opinion  above  quoted  was  recognized  as  law  by  the  Supreme 
Court  of  Ohio  in  a  case  soon  after  decided.  In  that  case  the  court 
proceed  to  say :  "  The  .  .  .  provision  .  .  .  that  no  bill  shall  con- 
tain more  than  one  subject,  which  shall  be  clearly  expressed  in  its 
title,  is  also  made  a  permanent  rule  in  the  introduction  and  passage 
of  bills  through  the  houses.  The  subject  of  the  bill  is  required  to 
be  clearly  expressed  in  the  title  for  the  purpose  of  advising  mem- 
bers of  its  subject,  when  voting  in  cases  in  which  the  reading  has 
been  dispensed  with  by  a  two-thirds  vote.  The  provision  that  a 
bill  shall  contain  but  one  subject  was  to  prevent  combinations 
by  which  various  and  distinct  matters  of  legislation  should  gain  a 
support  which  they  could  not  if  presented  separately.  As  a  rule 
of  proceeding  in  the  General  Assembly,  it  is  manifestly  an  impor- 
tant one.  But  if  it  was  intended  to  effect  any  practical  object  for 
the  benefit  of  the  people  in  the  examination,  construction,  or  oper- 
ation of  acts  passed  and  published,  we  are  unable  to  perceive  it. 
The  title  of  an  act  may  indicate  to  the  reader  its  subject,  and 
under  the  rule  each  act  would  contain  one  subject.  To  suppose 
that  for  such  a  purpose  the  Constitutional  Convention  adopted  the 
rule  under  consideration,  would  impute  to  them  a  most  minute 
provision  for  a  very  imperfect  heading  of  the  chapters  of 
laws   and  their  subdivision.     This  *  provision  .  being   in-    [*  82] 

1  See  People  v.  Campbell,  3  Gilm.  466 ;  McCulloch  v.  State,  11  Ind.  432. 

[89] 


*  82  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

tended  to  operate  upon  bills  in  their  progress  through  the  Gen- 
eral Assembly,  it  must  be  held  to  be  directory  only.  It  relates  to 
bills,  and  not  to  acts.  It  would  be  most  mischievous  in  practice 
to  make  the  validity  of  every  law  depend  upon  the  judgment  of 
every  judicial  tribunal  of  the  State,  as  to  whether  an  act  or  a  bill 
contained  more  than  one  subject,  or  whether  this  one  subject  was 
clearly  expressed  in  the  title  of  the  act  or  bill.  Such  a  question 
would  be  decided  according  to  the  mental  precision  and  mental  dis- 
cipline of  each  justice  of  the  peace  and  judge.  No  practical  benefit 
could  arise  from  such  inquiries.  We  are  therefore  of  opinion  that 
in  general  the  only  safeguard  against  the  violation  of  these  rules 
of  the  houses  is  their  regard  for,  and  their  oath  to  support,  the 
constitution  of  the  State.  We  say,  in  general,  the  only  safeguard  ; 
for  whether  a  manifestly  gross  and  fraudulent  violation  of  these 
rules  might  authorize  the  court  to  pronounce  a  law  unconstitu- 
tional, it  is  unnecessary  to  determine.  It  is  to  be  presumed  no 
such  case  will  ever  occur."  1 

If  the  prevailing  doctrine  of  the  courts  were  in  accord  with  this 
decision,  it  might  become  important  to  consider  whether  the  object 
of  the  clause  in  question,  as  here  disclosed,  was  not  of  such  a 
character  as  to  make  the  provision  mandatory  even  in  a  statute. 
But  we  shall  not  enter  upon  that  subject  here,  as  elsewhere  we 
shall  have  occasion  to  refer  to  decisions  made  by  the  highest 
judicial  tribunals  in  nearly  all  of  the  States,  recognizing  similar 
provisions  as  mandatory,  and  to  be  enforced  by  the  courts.  And 
we  concur  fully  in  what  was  said  by  Mr.  Justice  Emmot,  in 
speaking  of  this  very  provision,  that  "it  will  be  found  upon  full 
consideration  to  be  difficult  to  treat  any  constitutional  provision  as 
merely  directory  and  not  imperative."  2  And  with  what  is  said  by 
Mr.  Justice  Lumpkin,  as  to  the  duty  of  the  courts:  "  It  has  been 
suggested  that  the  prohibition  in  the  seventeenth  section  of  the  first 
article  of  the  constitution,  '  Nor  shall  any  law  or  ordinance  pass 
containing  any  matter  different  from  what  is  expressed  in  the  title 

1  Pirn  v.  Nicholson,  6  Ohio,  N.  s.  179.  See  also  the  case  of  Washington  v. 
Murray,  4  Cal.  388,  for  similar  views.  In  Hill  v.  Boyland,  40  Miss.  618,  a  pro- 
vision requiring  of  all  officers  an  oath  to  support  the  constitution,  was  held  not 
to  invalidate  the  acts  of  officials  who  had  neglected  to  take  such  an  oath.  And 
in  McPherson  v.  Leonard,  29  Md.  377,  the  provision  that  the  style  of  all  laws 
shall  be,  "Be  it  enacted  by  the  General  Assembly  of  Maryland,"  was  held 
directory. 

2  People  v.  Lawrence,  36  Barb.  186. 

[90] 


CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS.  *  82 

thereof,'  is  directory  only  to  the  legislative  and  executive  or  law- 
making departments  of  the  government.  But  we  do  not  so 
understand  it.  On  the  contrary,  we  consider  it  as  much  a 
*  matter  of  judicial  cognizance  as  any  other  provision  in  [*  83] 
that  instrument.  If  the  courts  would  refuse  to  execute  a 
law  suspending  the  writ  of  habeas  corpus  when  the  public  safety 
did  not  require  it,  a  law  violatory  of  the  freedom  of  the  press,  or 
trial  by  jury,  neither  would  they  enforce  a  statute  which  contained 
matter  different  from  what  was  expressed  in  the  title  thereof."  x 

We  have  thus  indicated  some  of  the  rules  which  we  think  are 
to  be  observed  in  the  construction  of  constitutions.  It  will  be 
perceived  that  we  have  not  thought  it  important  to  quote  and  to 
dwell  upon  those  arbitrary  rules  to  which  so  much  attention  is 
sometimes  given,  and  which  savor  rather  of  the  closet  than  of 
practical  life.  Our  observation  would  lead  us  to  the  conclusion 
that  they  are  more  often  resorted  to  as  aids  in  ingenious  attempts 
to  make  the  constitution  seem  to  say  what  it  does  not,  than  with 
a  view  to  make  that  instrument  express  its  real  intent.  All  exter- 
nal aids,  and  especially  all  arbitrary  rules,  applied  to  instruments 
of  this  popular  character,  are  of  very  uncertain  value ;  and  we  do 
not  regard  it  as  out  of  place  to  repeat  here  what  we  have  had 
occasion  already  to  say  in  the  course  of  this  chapter,  that  they 
are  to  be  made  use  of  with  hesitation,  and  only  with  much 
circumspection.2 

1  Protho  v.  Orr,  12  Geo.  36.  See  also  Opinions  of  Judges,  6  Shep.  458; 
Indiana  Central  Railroad  Co.  v.  Potts,  7  Ind.  683  ;  People  v.  Starne,  35  111.  121  ; 
State  v.  Miller,  45  Mo.  495  ;    Weaver  v.  'Lapsley,  43  Ala.  224. 

2  See  People  v.  Cowles,  13  N.  Y.  360,  per  Johnson,  J. ;  Temple  v.  Mead,  4 
Vt.  540,  per  Williams,  J.;  People  v.  Fancher,  50  N.  Y.  291.  "In  construing  so 
important  an  instrument  as  a  constitution,  especially  those  parts  which  affect  the 
vital  principle  of  republican  government,  the  elective  franchise,  or  the  manner  of 
exercising  it,  we  are  not,  on  the  one  hand,  to  indulge  ingenious  speculations  which 
mav  lead  us  wide  from  the  true  sense  and  spirit  of  the  instrument,  nor,  on  the 
other,  to  apply  to  it  such  narrow  and  constrained  views  as  may  exclude  the  real 
object  and  intent  of  those  who  framed  it.  We  are  to  suppose  that  the  authors  of 
such  an  instrument  had  a  thorough  knowledge  of  the  force  and  extent  of  the 
words  they  employ  ;  that  they  had  a  beneficial  end  and  purpose  in  view ;  and 
that,  more  especially  in  any  apparent  restriction  upon  the  mode  of  exercising  the 
right  of  suffrage,  there  was  some  existing  or  anticipated  evil  which  it  was  their 
purpose  to  avoid.  If  an  enlarged  sense  of  any  particular  form  of  expression 
should  be  necessary  to  accomplish  so  great  an  object  as  a  convenient  exercise  of 
the  fundamental  privilege  or  right,  —  that  of  election,  —  such  sense  must  be  at- 

[91] 


*  83  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

tributed.  We  are  to  suppose  that  those  who  were  delegated  to  the  great  business 
of  distributing  the  powers  which  emanated  from  the  sovereignty  of  the  people, 
and  to  the  establishment  of  the  rules  for  the  perpetual  security  of  the  rights  of 
person  and  property,  had  the  wisdom  to  adapt  their  language  to  future  as  well  as 
existing  emergencies,  so  that  words  competent  to  the  then  existing  state  of  the 
community,  and  at  the  same  time  capable  of  being  expanded  to  embrace  more 
extensive  relations,  should  not  be  restrained  to  their  more  obvious  and  immediate 
sense,  if,  consistently  with  the  general  object  of  the  authors  and  the  true  prin- 
ciples of  the  compact,  they  can  be  extended  to  other  relations  and  circumstances 
which  an  improved  state  of  society  may  produce.  Qui  hceret  in  litera  hceret  in 
cortice  is  a  familiar  maxim  of  the  law.  The  letter  killeth,  but  the  spirit  maketh 
alive,  is  the  more  forcible  expression  of  Scripture."  Parker,  Ch.  J.,  in  Henshaw 
v.  Foster,  9  Pick.  316. 

[92] 


CH.  V.]       POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  *  85 


^CHAPTER    V.  [*  85] 

OF  THE  POWERS  WHICH  THE    LEGISLATIVE  DEPARTMENT  MAY  EXERCISE. 

In  considering  the  powers  which  may  be  exercised  by  the  legis- 
lative department  of  one  of  the  American  States,  it  is  natural  that 
we  should  recur  to  those  possessed  by  the  Parliament  of  Great 
Britain,  after  which,  in  a  measure,  the  American  legislatures  have 
been  modelled,  and  from  which  we  derive  our  legislative  usages 
and  customs,  or  parliamentary  common  law,  as  well  as  the  prece- 
dents by  which  the  exercise  of  legislative  power  in  this  country 
has  been  governed.  It  is  natural,  also,  that  we  should  incline  to 
measure  the  power  of  the  legislative  department  in  America  by 
the  power  of  the  like  department  in  Britain  ;  and  to  concede 
without  reflection  that  whatever  the  legislature  of  the  country 
from  which  we  derive  our  laws  can  do,  may  also  be  done  by  the 
department  created  for  the  exercise  of  legislative  authority  in 
this  country.  But  to  guard  against  being  misled  by  a  comparison 
between  the  two,  we  must  bear  in  mind  the  important  distinction 
already  pointed  out,  that  with  the  Parliament  rests  practically 
the  sovereignty  of  the  country,  so  that  it  may  exercise  all  the 
powers  of  the  government  if  it  wills  so  to  do ;  while  on  the  other 
hand  the  legislatures  of  the  American  States  are  not  the  sovereign 
authority,  and,  though  vested  with  the  exercise  of  one  branch  of 
the  sovereignty,  they  are  nevertheless,  in  wielding  it,  hedged  in 
on  all  sides  by  important  limitations,  some  of  which  are  imposed 
in  express  terms,  and  others  by  implications  which  are  equally  im- 
perative. 

"  The  power  and  jurisdiction  of  Parliament,  says  Sir  Edward 
Coke,1  is  so  transcendent  and  absolute,  that  it  cannot  be  con- 
fined, either  for  persons  or  causes,  within  any  bounds.  And  of 
this  high  court  it  may  truly  be  said :  '  Si  antiquitatem  spectes, 
est  vetustissima ;  si  dignitatem  est  honoratissima  ;  si  jurisdic- 
tionem,   est   capacissima.'      It   hath  sovereign   and  uncontrolled 

1  4  Inst.  86. 

[93] 


*  85  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

authority  in  the  making,  confirming,  enlarging,  restraining,  abro- 
gating, repealing,  reviving,  and  expounding  of  laws,  concerning 

matters  of  all    possible    denominations,   ecclesiastical  or 
[*  86  ]  temporal,  *  civil,    military,  maritime,    or    criminal  ;    this 

being  the  place  where  that  absolute  despotic  power,  which 
must  in  all  governments  reside  somewhere,  is  intrusted  by  the 
constitution  of  these  kingdoms.  All  mischiefs  and  grievances, 
operations  and  remedies,  that  transcend  the  ordinary  course  of 
the  laws,  are  within  the  reach  of  this  extraordinary  tribunal.  It 
can  regulate  or  new-model  the  succession  to  the  Crown,  as  was 
done  in  the  reign  of  Henry  VIII.  and  William  III.  It  can  alter 
the  established  religion  of  the  land  ;  as  was  done  in  a  variety  of 
instances,  in  the  reign  of  King  Henry  VIII.  and  his  three  children. 
It  can  change  and  create  afresh  even  the  constitution  of  the  king- 
dom and  of  Parliaments  themselves,  as  was  done  by  the  Act  of 
Union,  and  the  several  statutes  for  triennial  and  septennial  elec- 
tions. It  can,  in  short,  do  every  thing  that  is  not  naturally  impos- 
sible ;  and  therefore  some  have  not  scrupled  to  call  its  power,  by  a 
figure  rather  too  bold,  the  omnipotence  of  Parliament.  True  it  is, 
that  what  the  Parliament  doth,  no  authority  upon  earth  can  undo ; 
so  that  it  is  a  matter  most  essential  to  the  liberties  of  this  king- 
dom that  such  members  be  delegated  to  this  important  trust  as 
are  most  eminent  for  their  probity,  their  fortitude,  and  their 
knowledge ;  for  it  was  a  known  apothegm  of  the  great  Lord 
Treasurer  Burleigh,  '  that  England  could  never  be  ruined  but  by 
a  Parliament ; '  and  as  Sir  Matthew  Hale  observes :  '  This  being 
the  highest  and  greatest  court,  over  which  none  other  can  have 
jurisdiction  in  the  kingdom,  if  by  any  means  a  misgovernment 
should  fall  upon  it,  the  subjects  of  this  kingdom  are  left  without 
all  manner  of  remedy.'  "  1 

The  strong  language  in  which  the  complete  jurisdiction  of 
Parliament  is  here  described  is  certainly  inapplicable  to  any 
authority  in  the  American  States,  unless  it  be  to  the  people  of 
the  States  when  met  in  their  primary  capacity  for  the  formation 
of  their  fundamental  law  ;  and  even  then  there  rest  upon  them 
the  restraints  of  the  Constitution  of  the  United  States,  which  bind 
them  as  absolutely  as  they  do  the  governments  which  they  create. 
It  becomes  important,  therefore,  to  ascertain  in  what  respect  the 

1  1  Bl.  Com.  160. 
[94] 


CH.  V.]        POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  *  86 

State  legislatures  resemble  the  Parliament  in  the  powers  they 
exercise,  and  how  far  we  may  extend  the  comparison  without 
losing  sight  of  the  fundamental  ideas  and  principles  of  the  Amer- 
ican system. 

*  The  first  and  most  notable  difference  is  that  to  which  [*  87  ] 
we  have  already  alluded,  and  which  springs  from  the  dif- 
ferent theory  on  which  the  British  Constitution  rests.  While 
Parliament  is  recognized  as  rightfully  exercising  the  sovereign 
authority  of  the  country,  it  is  evident  that  the  resemblance  between 
it  and  American  legislatures  in  regard  to  their  ultimate  powers 
cannot  be  carried  very  far.  The  American  legislatures  only  exer- 
cise a, certain  portion  of  the  sovereign  power.  The  sovereignty  is 
in  the  people ;  and  the  legislatures  which  they  have  created  are 
only  to  discharge  a  trust  of  which  they  have  been  made  a  depos- 
itory, but  which  has  been  placed  in  their  hands  with  well-defined 
restrictions. 

Upon  this  difference  it  is  to  be  observed,  that  while  Parliament, 
to  any  extent  it  may  choose,  may  exercise  judicial  authority,  one 
of  the  most  noticeable  features  in  American  constitutional  law  is 
the  care  which  has  been  taken  to  separate  legislative,  executive, 
and  judicial  functions.  It  has  evidently  been  the  intention  of  the 
people  in  every  State  that  the  exercise  of  each  should  rest  with  a 
separate  department.  The  different  classes  of  power  have  been 
apportioned  to  different  departments ;  and  as  all  derive  their 
authority  from  the  same  instrument,  there  is  an  implied  exclusion 
of  each  department  from  exercising  the  functions  conferred  upon 
the  others. 

There  are  two  fundamental  rules  by  which  we  may  measure  the 
extent  of  the  legislative  authority  in  the  States  :  — 

1.  In  creating  a  legislative  department  and  "conferring  upon  it 
the  legislative  power,  the  people  must  be  understood  to  have  con- 
ferred the  full  and  complete  power  as  it  rests  in,  and  may  be  exer- 
cised by,  the  sovereign  power  of  any  country,  subject  only  to  such 
restrictions  as  they  may  have  seen  fit  to  impose,  and  to  the  limita- 
tions which  are  contained  in  the  Constitution  of  the  United  States. 
The  legislative  department  is  not  made  a  special  agency,  for  the 
exercise  of  specifically  defined  legislative  powers,  but  is  intrusted 
with  the  general  authority  to  make  laws  at  discretion. 

2.  But  the  apportionment  to  this  department  of  legislative 
power  does  not  sanction  the  exercise' of  executive  or  judicial  func- 

[95] 


*  87  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

tions,  except  in  those  cases,  warranted  by  parliamentary  usage, 
where  they  are  incidental,  necessary,  or  proper  to  the  exercise  of 
legislative  authority,  or  where  the  constitution  itself,  in  specified 
cases,  may  expressly  permit  it.  Executive  power  is  so  intimately 
connected  with  legislative,  that  it  is  not  easy  to  draw  a  line  of 

separation ;  but  the  grant  of  the  judicial  power  to  the 
[*  88  ]   department  *  created  for  the  purpose  of  exercising  it  must 

be  regarded  as  an  exclusive  grant,  covering  the  whole 
power,  subject  only  to  the  limitations  which  the  constitutions 
impose,  and  to  the  incidental  exceptions  before  referred  to. 
While,  therefore,  the  American  legislatures  may  exercise  the 
legislative  powers  which  the  Parliament  of  Great  Britain  wields, 
except  as  restrictions  are  imposed,  they  are  at  the  same  time  ex- 
cluded from  other  functions  which  may  be,  and  sometimes  habit- 
ually are,  exercised  by  the  Parliament. 

"The  people  in  framing  the  constitution,"  says  Denio,  Ch.  J., 
"  committed  to  the  legislature  the  whole  law-making  power  of 
the  State,  which  they  did  not  expressly  or  impliedly  withhold. 
Plenary  power  in  the  legislature,  for  all  purposes  of  civil  govern- 
ment, is  the  rule.  A  prohibition  to  exercise  a  particular  power  is 
an  exception.  In  inquiring,  therefore,  whether  a  given  statute  is 
constitutional,  it  is  for  those  who  question  its  validity  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  legis- 
lative power  contained  in  the  instrument.  The  first  article  lays 
down  the  ancient  limitations  which  have  always  been  considered 
essential  in  a  constitutional  government,  whether  monarchical  or 
popular  ;  and  there  are  scattered  through  the  instrument  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  the  legisla- 
ture. Every  positive  direction  contains  an  implication  against 
every  thing  contrary  to  it,  or  which  would  frustrate  or  disappoint 
the  purpose  of  that  provision.  The  frame  of  the  government,  the 
grant  of  legislative  power  itself,  the  organization  of  the  executive 
authority,  the  erection  of  the  principal  courts  of  justice,  create 
implied  limitations  upon  the  law-making  authority  as  strong  as 
though  a  negative  was  expressed  in  each  instance  ;  but  indepen- 
dently of  these  restraints,  express  or  implied,  every  subject  within 
[96] 


CH.  V.]       POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  *  88 

the  scope  of  civil  government  is  liable  to  be  dealt  with  by  the  legis- 
lature." i 

"  It  has  never  been  questioned,  so  far  as  I  know,"  says  Redfield, 
Ch.  J.,  "  that  the  American  legislatures  have  the  same  unlimited 
power  in  regard  to  legislation  which  resides  in  the  British  Parlia- 
ment, except  where  they  are  restrained  by  written  consti- 
tutions. *  That  must  be  conceded,  I  think,  to  be  a  fun-  [*  89] 
damental  principle  in  the  political  organization  of  the 
American  States.  We  cannot  well  comprehend  how,  upon  prin- 
ciple, it  should  be  otherwise.  The  people  must,  of  course,  possess 
all  legislative  power  originally.  They  have  committed  this  in  the 
most  general  and  unlimited  manner  to  the  several  State  legis- 
latures, saving  only  such  restrictions  as  are  imposed  by  the  Con- 
stitution of  the  United  States,  or  of  the  particular  State  in 
question."  2 

"  I  entertain  no  doubt,"  says  Comstock,  J.,  "  that  aside  from 
the  special  limitations  of  the  constitution,  the  legislature  cannot 
exercise  powers  which  are  in  their  nature  essentially  judicial  or 
executive.  These  are,  by  the  constitution,  distributed  to  other 
departments  of  the  government.  It  is  only  the  '  legislative  power' 
which  is  vested  in  the  senate  and  assembly.  But  where  the  con- 
stitution is  silent,  and  there  is  no  clear  usurpation  of  the  powers 
distributed  to  other  departments,  I  think  there  would  be  great 
difficulty  and  great  danger  in  attempting  to  define  the  limits  of 
this  power.  Chief  Justice  Marshall  said :  '  How  far  the  power  of 
giving  the  law  may  involve  every  other  power,  in  cases  where  the 
constitution  is  silent,  never  has  been,  and  perhaps  never  can  be, 
definitely  stated.' 3  That  very  eminent  judge  felt  the  difficulty; 
but  the  danger  was  less  apparent  then  than  it  is  now,  when  theo- 
ries, alleged  to  be  founded  in  natural  reason  or  inalienable  rights, 
but  subversive  of  the  just  and  necessary  powers  of  government, 
attract  the  belief  of  considerable  classes  of  men,  and  when  too 
much  reverence  for  government  and  law  is  certainly  among  the 

1  People  v.  Draper,  15  N.  Y.  543. 

2  Thorpe  v.  Rutland  &  Burlington  Railroad  Co.,  27  Vt.  142.  See  also  Leg- 
gett  v.  Hunter,  19  N.  Y.  445 ;  Cochran  v.  Van  Surlay,  20  Wend.  365 ;  People 
v.  Morrell,  21  Wend.  563 ;  Sears  v.  Cottrell,  5  Mich.  251 ;  Mason  v.  Wait,  4 
Scam.  134;  People  v.  Supervisors  of  Orange,  27  Barb.  593;  Taylor  v.  Porter, 
4  Hill,  144,  per  Bronson,  J. 

3  Fletcher  v.  Peck,  6  Cranch,  136. 

7  E97] 


*  89  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

least  of  the  perils  to  which  our  institutions  are  exposed.  I  am 
reluctant  to  enter  upon  this  field  of  inquiry,  satisfied,  as  I  am, 
that  no  rule  can  be  laid  down  in  terms  which  may  not  contain  the 
germ  of  great  mischief  to  society,  by  giving  to  private  opinion  and 
speculation  a  license  to  oppose  themselves  to  the  just  and  legiti- 
mate powers  of  government."  1 

Numerous  other  opinions  might  be  cited  to  the  same 
[*  90]  effect  with  *  those  from  which  we  have  here  quoted  ;  but 
as  we  shall  have  occasion  to  refer  to  them  elsewhere,  in 
considering  the  circumstances  under  which  a  statute  may  be 
declared  unconstitutional,  we  shall  refrain  from  further  references 
in  this  place.  Nor  shall  we  enter  upon  a  discussion  of  the  ques- 
tion suggested  by  Chief  Justice  Marshall  as  above  quoted  ;2  since, 
however  interesting  it  may  be  as  an  abstract  question,  it  is  made 
practically  unimportant  by  the  careful  separation  of  duties  between 
the  several  departments  of  the  government  which  has  been  made 
by  each  of  the  State  constitutions.  Had  no  such  separation  been 
made,  the  disposal  of  executive  and  judicial  duties  must  have 
devolved  upon  the  department  vested  with  the  general  authority 
to  make  laws  ; 3  but  assuming  them  to  be  apportioned  already,  we 
are  only  at  liberty  to  liken  the  power  of  the  State  legislature  to 
that  of  the  Parliament,  when  it  confines  its  action  to  an  exercise 
of  legislative  functions ;  and  such  authority  as  is  in  its  nature 

1  Wynehamer  v.  People,  13  N.  Y.  391. 

2  The  power  to  distribute  the  judicial  power,  except  so  far  as  that  has  been 
done  by  the  constitution,  rests  with  the  legislature,  Commonwealth  v.  Hippie,  69 
Perm.  St.  9 ;  but  when  the  constitution  has  conferred  it  upon  certain  specified 
courts,  this  must  be  understood  to  embrace  the  whole  judicial  power,  and  the 
legislature  cannot  vest  any  portion  of  it  elsewhere.  State  v.  Maynard,  14  111. 
420 ;  Gibson  v.  Emerson,  2  Eng.  173 ;  Chandler  v.  Nash,  5  Mich.  409  ;  Succes- 
sion of  Tanner,  22  La.  Ann.  91 ;  Gough  v.  Dorsey,  27  Wis.  130.  But  a  general 
provision  in  the  constitution  for  the  distribution  of  the  judicial. .power,  not  refer- 
ring to  courts-martial,  would  not  be  held  to  forbid  such  courts  by  implication. 
People  v.  Daniel,  50  N.  Y.  274.  Nor  would  it  be  held  to  embrace  administra- 
tive functions  of  a  quasi  judicial  nature,  such  as  the  assessment  of  property  for 
taxation.  State  v.  Commissioners  of  Ormsby  County,  7  Nev.  392,  and  cases  cited. 
See  Auditor  of  State  v.  Atchison,.  &c,  11. R.  Co.,  6  Kan.  500;  s.  c.  7  Am. 
Rep.  575. 

3  Calder  v.  Bull,  2  Root,  350,  and  3  Dall.  38G  ;  Ross  v.  Whitman,  G  Cal.  3G1 ; 
Smith  v.  Judge,  17  Cal.  547  ;  per  Patterson,  J.,  in  Cooper  v.  Telfair,  4  Dall.  19  ; 
Martin  v.  Hunter's  Lessee,  1  Wheat.  304. 

[98] 


CH.    V.]       POWERS   EXERCISED   BY  LEGISLATIVE  DEPARTMENT.  *  90 

either  executive  or  judicial  is  beyond  its  constitutional  powers, 
with  the  few  exceptions  to  which  we  have  already  referred. 

It  will  be  important  therefore  to  consider  those  cases  where 
legislation  has  been  questioned  as  encroaching  upon  judicial 
authority;  and  to  this  end  it  may  be  useful,  at  the  outset,  to 
endeavor  to  define  legislative  and  judicial  power  respectively,  that 
we  may  the  better  be  enabled  to  point  out  the  proper  line  of 
distinction  when  questions  arise  in  their  practical  application  to 
actual  cases. 

The  legislative  power  is  the  authority,  under  the  constitution,  to 
make  laws,  and  to  alter  and  repeal  them.  Laws,  in  the  sense  in 
which  the  word  is  here  employed,  are  rules  of  civil  conduct,  or 
statutes,  which  the  legislative  will  has  prescribed.  "  The  laws  of 
a  State,"  observes  Mr.  Justice  Story,  "  are  more  usually  under- 
stood to  mean  the  rules  and  enactments  promulgated  by  the  legis- 
lative authority  thereof,  or  long-established  local  customs 
having  *  the  force  of  laws."  *  "  The  difference  between  [*  91] 
the  departments  undoubtedly  is,  that  the  legislature 
makes,  the  executive  executes,  and  the  judiciary  construes,  the 
law."2  And  it  is  said  that  that  which  distinguishes  a  judicial 
from  a  legislative  act  is,  that  the  one  is  a  determination  of  what 
the  existing  law  is  in  relation  to  some  existing  thing  already  done 
or  happened,  while  the  other  is  a  predetermination  of  what  the  law 
shall  be  for  the  regulation  of  all  future  cases  falling  under  its  pro- 
visions.3 And  in  another  case  it  is  said :  "  The  legislative  power 
extends  only  to  the  making  of  laws,  and  in  its  exercise  it  is  limited 
and  restrained  by  the  paramount  authority  of  the  federal  and 
State  constitutions.  It  cannot  directly  reach  the  property  or 
vested  rights  of  the  citizen  by  providing  for  their  forfeiture  or 
transfer  to  another,  without  trial  and  judgment  in  the  courts  :  for 
to  do  so  would  be  the  exercise  of  a  power  which  belongs  to  another 
branch  of  the  government,  and  is  forbidden  to  the  legislative."  4 
"  That  is  not  legislation  which  adjudicates  in  a  particular  case, 
prescribes  the  rule  contrary  to  the  general  law,  and  orders  it  to  be 

1  Swift  v.  Tyson,  16  Pet.  18. 

2  Per  Marshall,  Ch.  J.,  in  Way  man  v.  Southard,  10  Wheat.  46  ;  per  Gibson, 
Ch.  J.,  in  Greenough  v.  Greenough,  11  Penn.  St.  494.  See  State  v.  Gleason, 
12  Fla.  190. 

3  Bates  v.  Kimball,  2  Chip.  77. 

4  Newland  v.  Marsh,  19  111.  382. 

[99] 


*  91  CONSTITUTIONAL   LIMITATIONS.  [CH.    V. 

enforced.     Such  power  assimilates  itself  more  closely  to  despotic 
rule  than  any  other  attribute  of  government."  1 

On  the  other  hand,  to  adjudicate,  upon,  and  protect,  the  rights 
and  interests  of  individual  citizens,  and  to  that  end  to  construe 
and  apply  the  laws,  is  the  peculiar  province  of  the  judicial  depart- 
ment.2 "  No  particular  definition  of  judicial  power,"  says  Wood- 
bury, J.,  "is  given  in  the  constitution  [of  New  Hampshire],  and, 
considering  the  general  nature  of  the  instrument,  none  was  to  be 
expected.  Critical  statements  of  the  meanings  in  which  all  im- 
portant words  were  employed  would  have  swollen  into  volumes ; 
and  when  those  words  possessed  a  customary  signification,  a  defi- 
nition of  them  would  have  been  useless.  But  '  powers 
[*  92]  judicial,'  * 'judiciary  powers,'  and  'judicatures'  are  all 
phrases  used  in  the  constitution ;  and  though  not  particu- 
larly defined,  are  still  so  used  to  designate  with  clearness  that 
department  of  government  which  it  was  intended  should  inter- 
pret and  administer  the  laws.  On  general  principles,  therefore, 
those  inquiries,  deliberations,  orders,  and  decrees,  which  are 
peculiar  to  such  a  department,  must  in  their  nature  be  judicial 
acts.  Nor  can  they  be  both  judicial  and  legislative ;  because  a 
marked  difference  exists  between  the  employment  of  judicial  and 
legislative  tribunals.  The  former  decide  upon  the  legality  of 
claims  and  conduct,  and  the  latter  make  rules  upon  which,  in  con- 
nection with  the  constitution,  those  decisions  should  be  founded. 
It  is  the  province  of  judges  to  determine  what  is  the  law  upon 
existing  cases.  In  fine,  the  law  is  applied  by  the  one,  and  made 
by  the  other.  To  do  the  first,  therefore,  —  to  compare  the  claims 
of  parties  with  the  law  of  the  land  before  established,  —  is  in  its 
nature  a  judicial  act.  But  to  do  the  last  —  to  pass  new  rules  for 
the  regulation  of  new  controversies  —  is  in  its  nature  a  legislative 

1  Ervine's  Appeal,  16  Penn.  St.  266.  See  also  Greenough  v.  Greenough,  11 
Penn.  St.  494;  Decbastellux  v.  Fairchild,  15  Penn.  St.  18;  Trustees,  &c,  v. 
Bailey,  10  Fla.  238. 

2  Cincinnati,  &c.,  Railroad  Co.  v.  Commissioners  of  Clinton  Co.,  1  Ohio, 
N.  s.  81.  See  also  King  v.  Dedham  Bank,  15  Mass.  454;  Gordon  v.  Ingraham, 
1  Grant's  Cases,  152 ;  People  v.  Supervisors  of  New  York,  16  N.  Y.  432  ;  Beebe 
v.  State,  6  Ind.  515;  Greenough  v.  Greenough,  11  Penn.  St.  494;  Taylor  v. 
Place,  4  R.  I.  324.  In  State  v.  Adams,  44  Mo.  570,  a  legislative  act  which 
declared  certain  college  officers  to  have  vacated  their  offices  by  failure  to  take  an 
oath  prescribed  by  a  previous  act,  and  which  proceeded  to  ap'point  successors, 
was  held  void  as  an  exercise  of  judicial  power. 

[100] 


CH.  V.]       POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  *  92 

act;  and  if  these  rules  interfere  with  the  past,  or  the  present,  and 
do  not  look  wholly  to  the  future,  they  violate  the  definition  of  a 
law  as  '  a  rule  of  civil  conduct ; ' *  because  no  rule  of  conduct  can 
with  consistency  operate  upon  what  occurred  before  the  rule  itself 
was  promulgated. 

"  It  is  the  province  of  judicial  power,  also,  to  decide  private 
disputes  between  or  concerning  persons ;  but  of  legislative  power 
to  regulate  public  concerns,  and  to  make  laws  for  the  benefit  and 
welfare  of  the  State.  Nor  does  the  passage  of  private  statutes 
conflict  with  these  principles  ;  because  such  statutes,  when  lawful, 
are  enacted  on  petition,  or  by  the  consent  of  all  concerned;  or 
else  they  forbear  to  interfere  with  past  transactions  and  vested 
rights."  2 

With  these  definitions  and  explanations,  we  shall  now  proceed 
to  consider  some  of  the  cases  in  which  the  courts  have  attempted 
to  draw  the  line  of  distinction  between  the  proper  functions  of  the 
legislative  and  judicial  departments,  in  cases  where  it  has  been 
claimed  that  the  legislature  have  exceeded  their  power  by  invading 
the  domain  of  judicial  authority. 

*  Declaratory  Statutes.  [*  93] 

Legislation  is  either  introductory  of  new  rules,  of  it  is  declar- 
atory of  existing  rules.  "  A  declaratory  statute  is  one  which 
is  passed  in  order  to  put  an  end  to  a  doubt  as  to  what  is  the  com- 
mon law,  or  the  meaning  of  another  statute,  and  which  declares 
what  it  is  and  ever  has  been."  3  Such  a  statute,  therefore,  is  always 
in  a  certain  sense  retrospective  ;  because  it  assumes  to  determine 
what  the  law"  was  before  it  was  passed  ;  and  as  a  declaratory  statute 
is  important  only  in  those  cases  where  doubts  have  already  arisen, 
the  statute,  when  passed,  may  be  found  to  declare  the  law  to  be 
different  from  what  it  has  already  been  adjudged  to  be  by  the 
courts.  Thus  Mr.  Fox's  Libel  Act  declared  that,  by  the  law  of 
England,  juries  were  judges  of  the  law  in  prosecutions  for  libel ;  it 

1  1  Bl.  Coram.  44. 

2  Merrill  v.  Sherburne,  1  N.  H.  204.  See  Jones  v.  Perry,  10  Yerg.  69  ;  Tay- 
lor v.  Porter,  4  Hill,  144 ;  Ogden  v.  Blackledge,  2  Cranch,  272 ;  Dash  v.  Van 
Kleek,  7  Johns.  498 ;  Wilkinson  v.  Leland,  2  Pet.  657 ;  Leland  v.  Wilkinson, 
10  Pet.  297. 

3  Bouv.  Law  Diet.  "  Statute." 

[101] 


*  93  CONSTITUTIONAL    LIMITATIONS.  [CH.  V. 

did  not  purport  to  introduce  a  new  rule,  but  to  declare  a  rule 
already  and  always  in  force.  Yet  previous  to  the  passage  of  this 
act  the  courts  had  repeatedly  held  that  the  jury  in  these  cases 
were  only  to  pass  upon  the  fact  of  publication  and  the  truth  of 
the  innuendoes ;  and  whether  the  publication  was  libellous  or  not 
was  a  question  of  law  which  addressed  itself  exclusively  to  the 
court.  It  would  appear,  therefore,  that  the  legislature  declared 
the  law  to  be  what  the  courts  had  declared  it  was  not.  So  in  the 
State  of  New  York,  after  the  courts  had  held  that  insurance  com- 
panies were  taxable  to  a  certain  extent  under  an  existing  statute, 
the  legislature  passed  another  act,  declaring  that  such  companies 
were  only  taxable  at  a  certain  other  rate  ;  and  it  was  thereby 
declared  that  such  was  the  intention  and  true  construction  of  the 
original  statute.1  In  these  cases  it  will  be  perceived  that  the  courts, 
in  the  due  exercise  of  their  authority  as  interpreters  of  the  laws, 
have  declared  what  the  rule  established  by  the  common  law  or  by 
statute  is,  and  that  the  legislature  has  then  interposed,  put  its  own 
construction  upon  the  existing  law,  and  in  effect  declared  the 
judicial  interpretation  to  be  unfounded  and  unwarrantable.  The 
courts  in  these  cases  have  clearly  kept  within  the  proper  limits  of 
their  jurisdiction,  and  if  they  have  erred,  the  error  lias  been  one 
of  judgment  only,  and  has  not  extended  to  usurpation  of  power. 
Was  the  legislature  also  within  the  limits  of  its  authority  when  it 

passed  the  declaratory  statute  ? 
[*  94]  *  The  decision  of  this  question  must  depend  upon  the 
practical  application  which  is  sought  to  be  made  of  the 
declaratory  statute,  and  whether  it  is  designed  to  have  practically 
a  retrospective  operation,  or  only  to  establish  a  construction  of  the 
doubtful  law  for  the  determination  of  cases  that  may  arise  in  the 
future.  It  is  always  competent  to  change  an  existing  law  by  a 
declaratory  statute ;  and  where  it  is  only  to  operate  upon  future 
cases,  it  is  no  objection  to  its  validity  that  it  assumes  the  law  to 
have  been  in  the  past  what  it  is  now  declared  that  it  shall  be  in  the 
future.  But  the  legislative  action  cannot  be  made  to  retroact  upon 
past  controversies,  and  to  reverse  decisions  which  the  courts,  in 
the  exercise  of  their  undoubted  authority,  have  made  ;  for  this 
would  not  only  be  the  exercise  of  judicial  power,  but  it  would  be 
its  exercise  in  the  most  objectionable  and  offensive  form,  since 

1  People  v.  Supervisors  of  New  York,  16  N.  Y.  424. 

[102] 


CH.  V.]      POWERS   EXERCISED   BY   LEGISLATIVE  DEPARTMENT.  *  94 

the  legislature  would  in  effect  sit  as  a  court  of  review  to  which 
parties  might  appeal  when  dissatisfied  with  the  rulings  of  the 
courts.1 

As  the  legislature  cannot  set  aside  the  construction  of  the  law 
already  applied  by  the  courts  to  actual  cases,  neither  can  it  compel 

1  In  several  different  eases  the  courts  of  Pennsylvania  had  decided  that  a 
testator's  mark  to  his  name,  at  the  foot  of  a  testamentary  paper,  but  without 
proof  that  the  name  was  written  by  his  express  direction,  was  not  the  signature 
required  by  the  statute,  and  the  legislature,  to  use  the  language  of  Chief  Justice 
Gibson,  "  declared,  in  order  to  overrule  it,  that  every  last  will  and  testament 
heretofore  made,  or  hereafter  to  be  made,  except  such  as  may  have  been  fully 
adjudicated  prior  to  the  passage  of  this  act,  to  which  the  testator's  name  is  sub- 
scribed by  his  direction,  or  to  which  the  testator  has  made  his  mark  or  cross, 
shall  be  deemed  and  taken  to  be  valid.  How  this  mandate  to  the  courts  to  estab- 
lish a  particular  interpretation  of  a  particular  statute,  can  be  taken  for  any  thing 
else  than  an  exercise  of  judicial  power  in  settling  a  question  of  interpretation,  I 
know  not.  The  judiciary  had  certainly  recognized  a  legislative  interpretation  of 
a  statute  before  it  had  itself  acted,  and  consequently  before  a  purchaser  had  been 
misled  by  its  judgment ;  but  he  might  have  paid  for  a  title  on  the  unmistakable 
meaning  of  plain  words ;  and  for  the  legislature  subsequently  to  distort  or  per- 
vert it,  and  to  enact  that  white  meant  black,  or  that  black  meant  white,  would 
in  the  same  degree  be  an  exercise  of  arbitrary  and  unconstitutional  power." 
Greenough  v.  Greenough,  11  Penn.  St.  491.  The  act  in  this  case  was  held  void 
so  far  as  its  operation  was  retrospective,  but  valid  as  to  future  cases.  And  see 
Reiser  v.  Tell  Association,  39  Penn.  St.  137.  The  constitution  of  Georgia 
entitled  the  head  of  a  family  to  enter  a  homestead,  and  the  courts  decided  that  a 
single  person,  having  no  others  dependent  upon  him,  could  not  be  regarded  the 
head  of  a  family,  though  keeping  house  with  servants.  Afterwards,  the  legislature 
passed  an  act,  declaring  that  any  single  person  living  habitually  as  housekeeper 
to  himself  should  be  regarded  as  the  head  of  a  family.  Held  void  as  an  exercise 
of  judicial  power.  Calhoun  v.  McLendon,  42  Geo.  405.  The  fact  that  the 
courts  had  previously  given  a  construction  to  the  law  may  show  more  clearly 
a  purpose  in  the  legislature  to  exercise  judicial  authority,  but  it  would  not  be 
essential  to  that  end.  As  is  well  said  in  Haley  v.  Philadelphia,  68  Penn.  St.  45 : 
"It  would  be  monstrous  to  maintain  that  when  the  words  and  intention  of  an  act 
were  so  plain  that  no  court  had  ever  been  appealed  to  for  the  purpose  of  declar- 
ing their  meaning,  it  was  therefore  in  the  power  of  the  legislature,  by  a  retro- 
spective law,  to  put  a  construction  upon  them  contrary  to  the  obvious  letter  and 
spirit.  Reiser  v.  William  Tell  Fund  Association,  39  Penn.  St.  137,  is  an  author- 
ity in  point  against  such  a  doctrine.  An  expository  act  of  assembly  is  destitute. 
of  retroactive  force,  because  it  is  an  act  of  judicial  power,  and  is  in  contraven- 
tion of  the  ninth  section  of  the  ninth  article  of  the  constitution,  which  declares 
that  no  man  can  be  deprived  of  his  property  unless  '  by  the  judgment  of  his  peers 
or  the  law  of  the  land.' "  See  8  Am.  Rep.  155,  156.  And  on  the  force  and 
effect  of  declaratory  laws  in  general,  see  Salters  v.  Tobias,  3  Paige,  388 ;  Post- 
master-General v.  Early,  12  Wheat.  148. 

[103] 


*  94  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

the  courts  for  the  future  to  adopt  a  particular  construction  of  a  law 
which  the  legislature  permits  to  remain  in  force.  "  To  declare 
what  the  law  is,  or  has  been,  is  a  judicial  power ;  to  declare  what 
the  law  shall  be,  is  legislative.     One  of  the  fundamental  principles 

of  all  our  governments  is,  that  the  legislative  power 
[*  95  ]  *  shall  be  separate  from  the  judicial."  1     If  the  legislature 

would  prescribe  a  different  rule  for  the  future  from  that 
which  the  courts  enforce,  it  must  be  done  by  statute,  and  cannot  be 
done  by  a  mandate  to  the  courts,  which  leaves  the  law  unchanged, 
but  seeks  to  compel  the  courts  to  construe  and  apply  it,  not  ac- 
cording to  the  judicial,  but  according  to  the  legislative  judgment.2 
But  in  any  case  the  substance  of  the  legislative  action  should 
be  regarded  rather  than  the  form;  and  if  it  appears  to  be  the 
intention  to  establish  by  declaratory  statute  a  rule  of  conduct  for 
the  future,  the  courts  should  accept  and  act  upon  it,  without  too 
nicely  inquiring  whether  the  mode  by  which  the  new  rule  is  estab- 
lished is  or  is  not  the  best,  most  decorous  and  suitable  that  could 
have  been  adopted. 

If  the  legislature  cannot  thus  indirectly  control  the  action  of  the 
courts,  by  requiring  of  them  a  construction  of  the  law  according 
to  its  own  views,  it  is  very  plaiu  it  cannot  do  so  directly,  by  set- 
ting aside  their  judgments,  compelling  them  to  grant  new  trials, 
ordering  the  discharge  of  offenders,3  or  directing  what  particu- 
lar steps  shall  be  taken  in  the  progress   of  a  judicial  inquiry.4 

1  Dash  v.  Van  Kleek,  7  Johns.  498,  per  Thompson,  J. ;  Ogden  v.  Blackledge, 
2  Craneh,  272;  Lambertson  v.  Hogan,  2  Penn.  St.  25. 

2  Governor  v.  Porter,  5  Humph.  165;  People  v.  Supervisors,  &c,  16  N.  Y. 
424;  Reiser  v.  Tell  Association,  39  Penn.  St.  137  ;  O'Conner  v.  Warner,  4  W. 
&  S.  227  ;  Lambertson  v.  Hogan,  2  Penn.  St.  25. 

3  In  State  v.  Fleming,  7  Humph.  152,  a  legislative  resolve  that  "  no  fine,  for- 
feiture, or  imprisonment,  should  be  imposed  or  recovered  under  the  act  of  1837 
[then  in  force],  and  that  all  causes  pending  in  any  of  the  courts  for  such  offence 
should  be  dismissed,"  was  held  void  as  an  invasion  of  judicial  authority.  The 
legislature  cannot  declare  a  forfeiture  of  a  right  to  act  as  curators  of  a  college. 
State  v.  Adams,  44  Mo.  570.  But  to  take  away  by  statute  a  statutory  right  of 
appeal  is  not  an  exercise  of  judicial  authority.  Ex  parte  McCardle,  7  Wall. 
506.  And  it  has  been  held  that  a  statute  allowing  an  appeal  in  a  particular  case' 
was  valid.  Prout  v.  Berry,  2  Gill,  147;  State  v.  Northern  Central  R.  R.  Co., 
18  Md.  193.     But  see  cases  cited  in  next  note. 

*  Opinions  of  Judges  on  the  Dorr  Case,  3  R.  I.  299.     In  the  case  of  Picquet, 
Appellant,  5  Pick.  64,  the  Judge  of  Probate  had  ordered  letters  of  administration 
to  issue  to  an  applicant  therefor,  on  his  giving  bond  in  the  penal  sum  of  $50,000, 
[104] 


CH.  V.]       POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  *  96 

*  And  as  a  court  must  act  as  an  organized  body  of  judges,  [*  96  ] 
and,  where  differences  of  opinion  arise,  they  can  only 
decide  by  majorities,  it  has  been  held  that  it  would  not  be  in  the 
power  of  the  legislature  to  provide  that,  in  certain  contingencies, 
the  opinion  of  the  minority  of  a  court,  vested,  with  power  by  the 
constitution,  should  prevail,  so  that  the  decision  of  the  court 
in  such  cases  should  be  rendered  against  the  judgment  of  its 
members.1 

■with  sureties  within  the  Commonwealth,  for  the  faithful  performance  of  his  duties. 
He  was  unable  to  give  the  bond,  and  applied  to  the  legislature  for  relief.  There- 
upon a  resolve  was  passed  "empowering"  the  Judge  of  Probate  to  grant  the 
letters  of  administration,  provided  the  petitioner  should  give  bond  with  his 
brother,  a  resident  of  Paris,  France,  as  surety,  and  "  that  such  bond  should  be 
in  lieu  of  any  and  all  bond  or  bonds  by  any  law  or  statute  in  this  Commonwealth 
now  in  force  required,"  &c.  The  Judge  of  Probate  refused  to  grant  the  letters 
on  the  terms  specified  in  this  resolve,  and  the  Supreme  Court,  while  holding  that 
it  was  not  compulsory  upon  him,  also  declared  their  opinion  that,  if  it  were  so, 
it  would  be  inoperative  and  void.  In  Bradford  v.  Brooks,  2  Aik.  284,  it  was  de- 
cided that  the  legislature  had  no  power  to  revive  a  commission  for  proving  claims 
against  an  estate  after  it  had  once  expired.  See  also  Bagg's  Appeal,  43  Penn. 
St.  512.  In  Hill  v.  Sunderland,  3  Vt.  507  ;  and  Burch  v.  Newberry,  10  N.  Y. 
374,  it  was  held  that  the  legislature  had  no  power  to  grant  to  parties  a  right  to 
appeal  after  it  was  gone  under  the  general  law.  Besides  the  authorities  referred 
to,  to  show  that  the  legislature  cannot  grant  a  new  trial,  see  Lewis  v.  Webb, 
3  Greenl.  326;  Durham  v.  Lewiston,  4  Greenl.  140;  Bates  v.  Kimball,  2  Chip. 
77  ;  Staniford  v.  Barry,  1  Aik.  314 ;  Merrill  v.  Sherburne,  1  N.  H.  199  ;  Dechas- 
tellux  v.  Fairchild,  15  Penn.  St.  18;  Taylor  v.  Place,  4  R.  I.  324;  Young  v. 
State  Bank,  4  Ind.  301;  Lanier  v.  Gallatas,  13  La.  An.  175;  Miller  v.  State,  8 
Gill,  145  ;  Beebe  v.  State,  6  Ind.  515 ;  Atkinson  v.  Dunlap,  50  Me.  Ill ;  Weaver 
v.  Lapsley,  43  Ala.  224 ;  Saunders  v.  Cabaniss,  ib.  173.  In  Burt  v.  Williams, 
24  Ark.  91,  it  was  held  that  the  granting  of  continuances  of  pending  cases  was 
the  exercise  of  judicial  authority,  and  a  legislative  act  assuming  to  do  this  was 
void.  And  where,  by  the  general  law,  the  courts  have  no  authority  to  grant  a 
divorce  for  a  given  cause,  the  legislature  cannot  confer  the  authority  in  a  particular 
case.  Simmonds  v.  Simmonds,  103  Mass.  572;  s.  c.  4  Am.  Rep.  576.  And 
see  post,  110,  note. 

1  In  Clapp  v.  Ely,  3  Dutch.  622,  it  was  held  that  a  statute  which  provided  that 
no  judgment  of  the  Supreme  Court  should  be  reversed  by  the  Court  of  Errors 
and  Appeals,  unless  a  majority  of  those  members  of  the  court  who  were  com- 
petent to  sit  on  the  hearing  and  decision  should  concur  in  the  reversal,  was 
unconstitutional.  Its  effect  would  be,  if  the  court  were  not  full,  to  make  the 
opinion  of  the  minority  in  favor  of  affirmance  control  that  of  the  majority  in 
favor  of  reversal,  unless  the  latter  were  a  majority  of  the  whole  court.  Such  a 
provision  in  the  constitution  might  be  proper  and  unexceptionable ;  but  if  the 
constitution  has  created  a  Court  of  Appeals,  without  any  restriction  of  this  char- 

[105] 


*  96  CONSTITUTIONAL    LIMITATIONS.  [CH.  V. 

Nor  is  it  in  the  power  of  the  legislature  to  bind  individuals  by  a 
recital  of  facts  in  a  statute,  to  be  used  as  evidence  against  the 
parties  interested.  A  recital  of  facts  in  the  preamble  of  a  statute 
may  perhaps  be  evidence,  where  it  relates  to  matters  of  a  public 
nature,  as  that  riots  or  disorders  exist  in  a  certain  part  of  the 
country ; 1  but  where  the  facts  concern  the  rights  of  individuals, 
the  legislature  cannot  adjudicate  upon  them.  As  private  statutes 
are  generally  obtained  on  the  application  of  some  party  interested, 
and  are  put  in  form  to  suit  his  wishes,  perhaps  their  exclusion 
from  being  made  evidence  against  any  other  party  would  result 
from  other  general  principles  ;  but  it  is  clear  that  the  recital  could 
have  no  force,  except  as  a  judicial  finding  of  facts ;  and  that  such 

finding  is  not  within  the  legislative  province.2 
[*  97]  *  We  come  now  to  a  class  of  cases  in  regard  to  which 
there  has  been  serious  contrariety  of  opinion  ;  springing 
from  the  fact,  perhaps,  that  the  purpose  sought  to  be  accomplished 
by  the  statutes  is  generally  effected  by  judicial  proceedings,  so  that 
if  the  statutes  are  not  a  direct  invasion  of  judicial  authority,  they 
at  least  cover  ground  which  the  courts  usually  occupy  under  gen- 
eral laws  which  confer  the  jurisdiction  upon  them.     We  refer  to 

Statutes  conferring  Power  upon  Guardians  and  other  Trustees  to 

sell  Lands. 

Whenever  it  becomes  necessary  or  proper  to  sell  the  estate  of 
a  decedent  for  the  payment  of  debts,  or  of  a  lunatic  or  other 
incompetent  person  for  the  same  purpose,  or  for  future  support, 
or  of  a  minor  to  provide  the  means  for  his  education  and  nurture, 
or  for  the  more  profitable  investment  of  the  proceeds,  or  of  ten- 
ants in  common  to  effectuate  a  partition  between  them,  it  will 
probably  be  found  in  every  State  that  some  court  is  vested  with 
jurisdiction  to  make  the  necessary  order,  if  the  facts  seem  to 
render  it  important  after  a  hearing  of  the  parties  in  interest. 
The  case  is  eminently  one  for  judicial  investigation.  There  are 
facts  to  be  inquired  into,  in  regard  to  which  it  is  always  possible 
that  disputes  may  arise  ;  the  party  in  interest  is  often  incompetent 
to  act  on  his  own  behalf,  and  his  interest  is  carefully  to  be  in- 

acter,  the  ruling  of  this  case  is  that  the  legislature  cannot  impose  it.     The  court 
was  nearly  equally  divided,  standing  seven  to  six. 

1  Rex  v.  Sutton,  4  M.  &  S.  532. 

2  Elmendorf  v.  Carmichael,  3  Litt.  478 ;  Parmelee  v.  Thompson,  7  Hill,  80. 

[106] 


CH.  Y.]       POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  *  97 

quired  into  and  guarded  ;  and  as  the  proceeding  will  usually  be 
ex  p arte,  there  is  more  than  the  ordinary  opportunity  for  fraud 
upon  the  party  interested,  as  well  as  upon  the  authority  which 
grants  permission.  It  is  highly  and  peculiarly  proper,  therefore, 
that  by  general  laws  judicial  inquiry  should  be  provided  for 
these  cases,  and  that  these  laws  should  provide  for  notice  to  all 
proper  parties,  and  an  opportunity  for  the  presentation  of  any 
facts  which  might  bear  upon  the  propriety  of  granting  the  appli- 
cations. 

But  it  will  sometimes  be  found  that  the  general  laws  provided 
for  these  cases  are  not  applicable  to  some  which  arise  ;  or  if  appli- 
cable, that  they  do  not  always  accomplish  fully  all  that  seems 
desirable ;  and  in  these  cases,  and  perhaps  also  in  some  others 
without  similar  excuse,  it  has  not  been  unusual  for  legislative 
authority  to  intervene,  and  by  special  statute  to  grant  the  power 
which,  under  the  general  law,  is  granted  by  the  courts. 
The  *  power  to  pass  such  statutes  has  often  been  disputed,  [*  98  ] 
and  it  may  be  well  to  see  upon  what  basis  of  authority  as 
well  as  of  reason  it  rests. 

If  in  fact  judicial  inquiry  is  essential  in  these  cases,  it  would 
seem  clear  that  such  statutes  must  be  ineffectual  and  void.  But 
if  judicial  inquiry  is  not  essential,  and  the  legislature  may  confer 
the  power  of  sale  in  such  a  case  upon  an  ex  parte  presentation  of 
evidence,  or  upon  the  representations  of  the  parties  without  any 
proof  whatever,  then  we  must  consider  the  general  laws  to  be 
passed,  not  because  the  cases  fall  within  the  province  of  judicial 
action,  but  because  the  courts  can  more  conveniently  consider, 
and  properly,  safely,  and  inexpensively  pass  upon  such  cases,  than 
the  legislative  body,  where  the  power  primarily  rests.1 

The  rule  upon  this  subject,  as  we  deduce  it  from  the  authorities, 
seems  to  be  this  :  If  the  party  standing  in  position  of  trustee 
applies  for  permission  to  make  the  sale,  for  a  purpose  apparently 
for  the  interest  of  the  cestui  que  trust,  and  there  are  no  adverse 

1  There  are  constitutional  provisions  in  Kentucky,  Virginia,  Missouri,  Oregon, 
Nevada,  Indiana,  Maryland,  New  Jersey,  Arkansas,  Florida,  Illinois,  "Wiscon- 
sin, Texas,  West  Virginia,  and  Michigan,  forbidding  special  laws  licensing  the 
sale  of  the  lands  of  minors  and  other  persons  under  legal  disability.  Perhaps 
the  general  provision  in  some  other  constitutions,  forbidding  special  laws  in  cases 
■where  a  general  law  could  be  made  applicable,  might  also  be  held  to  exclude  such 
special  authorization. 

[107] 


*  98  CONSTITUTIONAL   LIMITATIONS.  [CH.   V. 

interests  to  be  considered  and  adjudicated,  the  case  is  not  one 
which  requires  judicial  action,  but  it  is  optional  with  the  legisla- 
ture to  grant  the  relief  by  statute,  or  to  refer  the  case  to  the 
courts  for  consideration,  according  as  the  one  course  or  the  other, 
on  considerations  of  policy,  may  seem  desirable. 

In  the  case  of  Rice  v.  Parkman,1  it  appeared  that,  certain  minors 
having  become  entitled  to  real  estate  by  descent  from  their  mother, 
the  legislature  passed  a  special  statute  empowering  their  father 
as  guardian  for  them,  and,  after  giving  bond  to  the  judge  of 
probate,  to  sell  and  convey  the  lands,  and  put  the  proceeds  at 
interest  on  good  security  for  the  benefit  of  the  minor  owners. 
A  sale  was  made  accordingly  ;  but  the  children,  after  coming  of 
age,  brought  suit  against  the  party  claiming  under  the  sale,  insist- 
ing that  the  special  statute  was  void.  There  was  in  force  at  the 
time  this  special  statute  was  passed  a  general  statute,  under  which 
license  might  have  been  granted  by  the  courts ;  but  it  was  held 

that  this  general  law  did  not  deprive  the  legislature  of  that 
[*  99  ]    full  *  and  complete  control  over  such  cases  which  it  would 

have  possessed  had  no  such  statute  existed.  "  If,"  say 
the  court,  "  the  power  by  which  the  resolve  authorizing  the  sale  in 
this  case  was  passed  were  of  a  judicial  nature,  it  would  be  very 
clear  that  it  could  not  have  been  exercised  by  the  legislature  with- 
out violating  an  express  provision  of  the  constitution.  But  it 
does  not  seem  to  us  to  be  of  this  description  of  power  ;  for  it  was 
not  a  case  of  controversy  between  party  and  party,  nor  is  there 
any  decree  or  judgment  affecting  the  title  to  property.  The 
only  object  of  the  authority  granted  by  the  legislature  was  to  trans- 
mute real  into  personal  estate,  for  purposes  beneficial  to  all  who 
were  interested  therein.  This  is  a  power  frequently  exercised  by 
the  legislature  of  this  State,  since  the  adoption  of  the  constitution, 
and  by  the  legislature  of  the  province  and  of  the  colony,  while 
under  the  sovereignty  of  Great  Britain,  analogous  to  the  power 
exercised  by  the  British  Parliament  on  similar  subjects,  time  out 
of  mind.  Indeed,  it  seems  absolutely  necessary  for  the  interest  of 
those  who,  by  the  general  rules  of  law,  are  incapacitated  from  dis- 
posing of  their  property,  that  a  power  should  exist  somewhere  of 
converting  lands  into  money.  For  otherwise  many  minors  might 
suffer,  although  having  property  ;  it  not  being  in  a  condition  to  yield 

1  16  Mass.  326. 
[108] 


CH.  V.]      POWERS    EXERCISED    BY  LEGISLATIVE   DEPARTMENT.  *  99 

an  income.  This  power  must  rest  in  the  legislature,  in  this  Com- 
monwealth; that  body  being  alone  competent  to  act  as  the  general 
guardian  and  protector  of  those  who  are  disabled  to  act  for  them- 
selves. 

"  It  was  undoubtedly  wise  to  delegate  this  authority  to  other 
bodies,  whose  sessions  are  regular  and  constant,  and  whose  struct- 
ure may  enable  them  more  easily  to  understand  the  merits  of  the 
particular  application  brought  before  them.  But  it  does  not  fol- 
low that,  because  the  power  has  been  delegated  by  the  legislature 
to  courts  of  law,  it  is  judicial  in  its  character.  For  aught  we  see, 
the  same  authority  might  have  been  given  to  the  selectmen  of 
each  town,  or  to  the  clerks  or  registers  of  the  counties,  it  being 
a  mere  ministerial  act,  certainly  requiring  discretion,  and  some- 
times knowledge  of  law,  for  its  due  exercise,  but  still  partaking 
in  no  degree  of  the  characteristics  of  judicial  power.  It  is  doubt- 
less included  in  the  general  authority  granted  by  the  people  to 
the  legislature  by  the  constitution.  For  full  power  and  authority 
is  given  from  time  to  time  to  make,  ordain,  and  establish  all 
manner  of  wholesome  and  reasonable  orders,  laws,  stat- 
utes, and  ordinances,  directions,  and  restrictions  (so  as  [*100] 
the  same  be  not  repugnant  or  contrary  to  the  constitu- 
tion), as  they  shall  judge  to  be  for  the  good  and  welfare  of  the 
Commonwealth,  and  of  the  subjects  thereof.  No  one  imagines 
that,  under  this  general  authority,  the  legislature  could  deprive  a 
citizen  of  his  estate,  or  impair  any  valuable  contract  in  which  he 
might  be  interested.  But  there  seems  to  be  no  reason  to  doubt 
that,  upon  his  application,  or  the  application  of  those  who  properly 
represent  him  if  disabled  from  acting  himself,  a  beneficial  change 
of  his  estate,  or  a  sale  of  it  for  purposes  necessary  and  convenient 
for  the  lawful  owner,  is  a  just  and  proper  subject  for  the  exercise 
of  that  authority.  It  is,  in  fact,  protecting  him  in  his  property, 
which  the  legislature  is  bound  to  do,  and  enabling  him  to  derive 
subsistence,  comfort,  and  education  from  property  which  might 
otherwise  be  wholly  useless  during  that  period  of  life  when  it  might 
be  most  beneficially  employed. 

"  If  this  be  not  true,  then  the  general  laws,  under  which  so 
many  estates  of  minors,  persons  non  compos  mentis,  and  others, 
have  been  sold  and  converted  into  money,  are  unauthorized  by 
the  constitution,  and  void.  For  the  courts  derive  their  authority 
from  the  legislature,  and,  it  not  being  of  a  judicial  nature,  if  the 

[109] 


*  100  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

legislature  had  it  not,  they  could  not  communicate  it  to  any 
other  body.  Thus,  if  there  were  no  power  to  relieve  those  from 
actual  distress  who  had  unproductive  property,  and  were  disabled 
from  conveying  it  themselves,  it  would  seem  that  one  of  the 
most  essential  objects  of  government  —  that  of  providing  for  the 
welfare  of  the  citizens  —  would  be  lost.  But  the  argument  which 
has  most  weight  on  the  part  of  the  defendants  is,  that  the  legisla- 
ture has  exercised  its  power  over  this  subject  in  the  only  consti- 
tutional way,  by  establishing  a  general  provision  ;  and  that,  having 
done  this,  their  authority  has  ceased,  they  having  no  right  to 
interfere  in  particular  cases.  And  if  the  question  were  one  of 
expediency  only,  we  should  perhaps  be  convinced  by  the  argu- 
ment, that  it  would  be  better  for  all  such  applications  to  be  made 
to  the  courts  empowered  to  sustain  them.  But  as  a  question 
of  right,  we  think  the  argument  fails.  The  constituent,  when  he 
has  delegated  an  authority  without  an  interest,  may  do  the  act 
himself  which  he  has  authorized  another  to  do  ;  and  especially 
when  that  constituent  is  the  legislature,  and  is  not  prohibited 
by  the  constitution  from  exercising  the  authority.  Indeed, 
[*101]  the* whole  authority  might  be  revoked,  and  the  legisla- 
ture resume  the  burden  of  the  business  to  itself,  if  in  its 
wisdom  it  should  determine  that  the  common  welfare  required 
it.  It  is  not  legislation  which  must  be  by  general  acts  and  rules, 
but  the  use  of  a  parental  or  tutorial  power,  for  purposes  of  kind- 
ness, without  interfering  with  or  prejudice  to  the  rights  of  any  but. 
those  who  apply  for  specific  relief.  The  title  of  strangers  is  not 
in  any  degree  affected  by  such  an  interposition." 

A  similar  statute  was  sustained  by  the  Court  for  the  Correction 
of  Errors  in  New  York.  "  It  is  clearly,"  says  the  Chancellor, 
"  within  the  powers  of  the  legislature,  as  parens  patrice,  to  prescribe 
such  rules  and  regulations  as  it  may  deem  proper  for  the  superin- 
tendence, disposition,  and  management  of  the  property  and  effects 
of  infants,  lunatics,  and  other  persons  who  are  incapable  of  managing 
their  own  affairs.  But  even  that  power  cannot  constitutionally  be 
so  far  extended  as  to  transfer  the  beneficial  use  of  the  property  to 
another  person,  except  in  those  cases  where  it  can  legally  be 
presumed  the  owner  of  the  property  would  himself  have  given  the 
use  of  his  property  to  the  other,  if  he  had  been  in  a  situation  to 
act  for  himself,  as  in  the  case  of  a  provision  out  of  the  estate  of  an 
[110] 


CH.  V.]       POWERS   EXERCISED   BY    LEGISLATIVE   DEPARTMENT.         *  101 

infant  or  lunatic  for  the  support  of  an  indigent  parent  or  other 
near  relative."  x 

1  Cochran  v.  Van  Surlay,  20  Wend.  373.  See  the  same  case  in  the  Supreme 
Court,  sub  nom.  Clarke  v.  Van  Surlay,  15  Wend.  436.  See  also  Suydam  v. 
Williamson,  24  How.  427 ;  Williamson  v.  Suydam,  6  Wall.  723 ;  Heirs  of  Hol- 
man  v.  Bank  of  Norfolk,  12  Ala.  3G9  ;  Flo  e  tine  v.  Barton,  2  Wall.  210.  In 
Opinions  of  the  Judges,  4  N.  H.  572,  the  validity  of  such  a  special  statute,  under 
the  constitution  of  New  Hampshire,  was  denied.  The  judges  say:  "The  objec- 
tion to  the  exercise  of  such  a  power  by  the  legislature  is,  that  it  is  in  its  nature 
both  legislative  and  judicial.  It  is  the  province  of  the  legislature  to  prescribe  the 
rule  of  law,  but  to  apply  it  to  particular  cases  is  the  business  of  the  courts  of  law. 
And  the  thirty-eighth  article  in  the  Bill  of  Rights  declares  that  '  in  the  government 
of  the  State  the  three  essential  powers  thereof,  to  wit,  the  legislative,  executive,  and 
judicial,  ought  to  be  kept  as  separate  from,  and  independent  of,  each  other  as  the 
nature  of  a  free  government  will  admit,  or  as  consistent  with  that  chain  of  con- 
nection that  binds  the  whole  fabric  of  the  constitution  in  one  indissoluble  bond  of 
union  and  amity.1  The  exercise  of  such  a  power  by  the  legislature  can  never  be 
necesssary.  By  the  existing  laws,  judges  of  probate  have  very  extensive  juris- 
diction to  license  the  sale  of  real  estate  of  minors  by  their  guardians.  If  the 
jurisdiction  of  the  judges  of  probate  be  not  sufficiently  extensive  to  reach  all 
proper  cases,  it  may  be  a  good  reason  why  that  jurisdiction  should  be  extended, 
but  can  hardly  be  deemed  a  sufficient  reason  for  the  particular  interposition  of  the 
legislature  in  an  individual  case.  If  there  be  a  defect  in  the  laws,  they  should  be 
amended.  Under  our  institutions  all  men  are  viewed  as  equal,  entitled  to  enjoy 
equal  privileges,  and  to  be  governed  by  equal  laws.  If  it  be  fit  and  proper  that 
license  should  be  given  to  one  guardian,  under  particular  circumstances,  to  sell 
the  estate  of  his  ward,  it  is  fit  and  proper  that  all  other  guardians  should,  under 
similar  circumstances,  have  the  same  license.  This  is  the  very  genius  and  spirit 
of  our  institutions.  And  we  are  of  opinion  that  an  act  of  the  legislature  to 
authorize  the  sale  of  the  land  of  a  particular  minor  by  his  guardian  cannot  be 
easily  reconciled  with  the  spirit  of  the  article  in  the  Bill  of  Rights  which  we  have 
just  cited.  It  is  true  that  the  grant  of  such  a  license  by  the  legislature  to  the 
guardian  is  intended  as  a  privilege  and  a  benefit  to  the  ward.  But  by  the  law  of 
the  land  no  minor  is  capable  of  assenting  to  a  sale  of  his  real  estate  in  such  a 
manner  as  to  bind  himself.  And  no  guardian  is  permitted  by  the  same  law  to 
determine  when  the  estate  of  his  ward  ought  and  when  it  ought  not  to  be  sold. 
In  the  contemplation  of  the  law,  the  one  has  not  sufficient  discretion  to  judge  of 
the  propriety  and  expediency  of  a  sale  of  his  estate,  and  the  other  is  not  to  be 
intrusted  with  the  power  of  judging.  Such  being  the  general  law  of  the  land,  it 
is  presumable  that  the  legislature  would  be  unwilling  to  rest  the  justification  of  an 
act  authorizing  the  sale  of  a  minor's  estate  upon  any  assent  which  the  guardian 
or  the  minor  could  give  in  the  proceeding.  The  question  then  is,  as  it  seems  to 
us,  Can  a  ward  be  deprived  of  his  inheritance  without  his  consent  by  an  act  of 
the  legislature  which  is  intended  to  apply  to  no  other  individual  ?  The  fifteenth 
article  of  the  Bill  of  Rights  declares  that  no  subject  shall  be  deprived  of  his  prop- 
erty but  by  the  judgment  of  his  peers  or  the  law  of  the  land.  Can  an  act  of  the 
legislature,  intended  to  authorize  one  man  to  sell  the  land  of  another  without  his 

[111] 


*  102  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

[*  102]       *  The  same  ruling  has  been  made  in  analogous  cases. 

In  Ohio,  a  special  act  of  the  legislature  authorizing  com- 
missioners to  make  sale  of  lands  held  in  fee  tail,  by  devisees  under 
a  will,  in  order  to  cut  off  the  entailment  and  effect  a  partition 
between  them, —  the  statute  being  applied  for  by  the  mother  of 
the  devisees  and  the  executor  of  the  will,  and  on  behalf  of  the 
devisees,  —  was  held  not  obnoxious  to  constitutional  objection,  and 
as  sustainable  on  immemorial  legislative  usage,  and  on  the  same 
ground  which  would  support  general  laws  for  the  same  purpose.1 
In  a  case  in  the  Supreme  Court  of  the  United  States,  where  an 
executrix  who  had  proved  a  will  in  New  Hampshire  made  sale  of 
lands  'without   authority    in   Rhode   Island,  for   the   purpose   of 

satisfying  debts  against  the  estate,  a  subsequent  act  of  the 
[*  103]  Rhode  Island  legislature,  *  confirming  the  sale,  was  held 

not  an  encroachment  upon  the  judicial  power.  The  land, 
it  was  said,  descended  to  the  heirs  subject  to  a  lien  for  the  pay- 
ment of  debts,  and  there  is  nothing  in  the  nature  of  the  act  of 
authorizing  a  sale  to  satisfy  the  lien,  which  requires  that  it  should 
be  performed  by  a  judicial  tribunal,  or  that  it  should  be  performed 
by  a  delegate  rather  than  by  the  legislature  itself.  It  is  remedial 
in  its  nature,  to  give  effect  to  existing  rights.2  The  case  showed 
the  actual  existence  of  debts,  and  indeed  a  judicial  license  for  the 
sale  of  lands  to  satisfy  them  had  been  granted  in  New  Hampshire 
before  the  sale  was  made.  The  decision  was  afterwards  followed 
in  a  carefully  considered  case  in  the  same  court.3  In  each  of  these 
cases  it  is  assumed  that  the  legislature  does  not  by  the  special 
statute  determine  the  existence  or  amount  of  the  debts,  and  dis- 
putes concerning  them  would  be  determinable  in  the  usual  modes. 
Many  other  decisions  have  been  made  to  the  same  effect.4 

consent,  be  '  the  law  of  the  land '  in  a  free  country  ?  If  the  question  proposed 
to  us  can  be  resolved  into  these  questions,  as  it  appears  to  us  it  may,  we  feel  en- 
tirely confident  that  the  representatives  of  the  people  of  this  State  will  agree 
with  us  in  the  opinion  we  feel  ourselves  bound  to  express  on  the  question  sub- 
mitted to  us,  that  the  legislature  cannot  authorize  a  guardian  of  minors,  by  a 
special  act  or  resolve,  to  make  a  valid  conveyance  of  the  real  estate  of  his 
wards." 

1  Carroll  v.  Lessee  of  Olmsted,  16  Ohio,  251. 

2  Wilkinson  v.  Leland,  2  Pet.  660. 

3  Watkins  v.  Holman's  Lessee,  16  Pet.  25-60.   See  also  Florentine  v.  Barton, 
2  Wall.  210;  Doe  v.  Douglass,  8  Blackf.  10. 

4  Thurston  v.  Thurston,  6  R.  I.  296,  302 ;  Williamson  v.  Williamson,  3  S. 

[112] 


CH.  V.]       POWERS    EXERCISED    BY    LEGISLATIVE    DEPARTMENT.        *  103 

This  species  of  legislation  may  perhaps  be  properly  called  pre- 
rogative 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  into  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,  which  at  the  same  time  affects  injuriously  the  rights  of  no 
other.1 

But  a  different  case  is  presented  when  the  legislature  assumes 
to  authorize  a  person  who  does  not  occupy  a  fiduciary  rela- 
tion to  *  the  owner,  to  make  sale  of  real  estate,  to  satisfy  [*  104] 
demands  which  he  asserts,  but  which  are  not  judicially 
determined,  or  for  any  other  purpose  not  connected  with  the  con- 
venience or  necessity  of  the  owner  himself.  An  act  of  the  legis- 
lature of  Illinois  undertook  to  empower  a  party  who  had  applied 
for  it  to  make  sale  of  the  lands  pertaining  to  the  estate  of  a 
deceased  person,  in  order  to  raise  a  certain  specified  sum  of  money 
which  the  legislature  assumed  to  be  due  to  him  and  another  per- 
son, for  moneys  by  them  advanced  and  liabilities  incurred  on 
behalf  of  the  estate,  and  to  apply  the  same  to  the  extinguishment  of 
their  claims.  Now  it  is  evident  that  this  act  was  in  the  nature  of 
a  judicial  decree,  passed  on  the  application  of  parties  adverse  in 
interest  to  the  estate,  and  in  effect  adjudging  a  certain  amount  to 
be  due  them,  and  ordering  lands  to  be  sold  for  its  satisfaction.    As 

&  M.  715;  McComb  v.  Gilkey,  29  Miss.  146;  Boon  v.  Bowers,  30  Miss.  246; 
Stewart  v.  Griffith,  33  Mo.  13 ;  Estep  v.  Hutchman,  14  S.  &  R.  435 ;  Snowhill 
v.  Snowhill,  2  Green,  Ch.  20;  Dorsey  v.  Gilbert,  11  G.  &  J.  87  ;  Norris  v.  Cly- 
mer,  2  Penn.  St.  277  ;  Coleman  v.  Can\  Walker,  258 ;  Davison  v.  Johonnot,  7 
Met.  388  ;  Towle  v.  Forney,  14  N.  Y.  423  ;  Leggett  v.  Hunter,  19  N.  Y.  445 ; 
Kibby  v.  ChetwoodV  Adm'rs,  4  T.  B.  Monr.  94;  Shehan's  Heirs  v.  Barnett's 
Heirs,  6  T.  B.  Monr.  594;  Davis  v.  State  Bank,  7  Ind.  316;  Richardson  v. 
Monson,  22  Conn.  98;  Ward  v.  New  England,  &c.  Co.,  1  Cliff.  565;  Sohier  v. 
Massachusetts,  &c.  Hospital,  3  Cush.  483 ;  Lobrano  v.  Nelligan,  9  Wall.  295. 
In  Moore  v.  Maxwell,  18  Ark.  469,  a  special  statute  authorizing  the  administrator 
of  one  who  held  the  mere  naked  legal  title  to  convey  to  the  owner  of  the  equitable 
title  was  held  valid.  In  Stanley  v.  Colt.  5  Wall.  119,  an  act  permitting  the  sale 
of  real  estate  which  had  been  devised  to  charitable  uses  was  sustained  —  no  diver- 
sion of  the  gift  being  made. 

1  It  would  be  equally  competent  for  the  legislature  to  authorize  a  person  under 
legal  disability  —  e.  g.  an  infant  —  to  convey  his  estate,  as  to  authorize  it  to  be 
conveyed  by  guardian.     McComb  v.  Gilkey,  29  Miss.  146. 

8  [US] 


*  104  CONSTITUTIONAL   LIMITATIONS.  [CH.  T. 

was  well  said  by  the  Supreme  Court  of  Illinois,  in  adjudging  the 
act  void  :  "  If  this  is  not  the  exercise  of  a  power  of  inquiry  into, 
and  a  determination  of  facts,  between  debtor  and  creditor,  and 
that,  too,  ex  parte  and  summary  in  its  character,  we  are  at  a  loss 
to  understand  the  meaning  of  terms  ;  nay,  that  it  is  adjudging  and 
directing  the  application  of  one  person's  property  to  another,  on  a 
claim  of  indebtedness,  without  notice  to,  or  hearing  of,  the  parties 
whose  estate  is  divested  by  the  act.  That  the  exercise  of  such 
power  is  in  its  nature  clearly  judicial,  we  think  too  apparent  to 
need  argument  to  illustrate  its  truth.     It  is  so  self-evident  from 

the  facts  disclosed  that  it  proves  itself."  1 
[*  105]       *  A  case  in  harmony  with  the  one  last  referred  to  was 

decided  by  the  Supreme  Court  of  Michigan.     Under  the 
act  of  Congress  "  for  the  relief  of  citizens  of  towns  upon  the  lands 

1  Lane  v.  Dorman,  3  Scam.  242.  In  Dubois  v.  McLean,  4  McLean,  486,  Judge 
Pope  assumes  that  the  case  of  Lane  v.  Dorman  decides  a  special  act,  authorizing 
an  executor  to  sell  lands  of  the  testator  to  pay  debts  against  his  estate,  would 
be  unconstitutional.  We  do  not  so  understand  that  decision.  On  the  contrary, 
another  case  in  the  same  volume,  Edwards  v.  Pope,  p.  465,  fully  sustains  the 
cases  before  decided,  distinguishing  them  from  Lane  v.  Dorman.  But  that  indeed 
is  also  done  in  the  principal  case,  where  the  court,  after  referring  to  similar  cases 
in  Kentucky,  say:  "These  cases  are  clearly  distinguished  from  the  case  at  bar. 
The  acts  were  for  the  benefit  of  all  the  creditors  of  the  estates,  without  distinc- 
tion ;  and  in  one  case,  in  addition,  for  the  purpose  of  perfecting  titles  contracted 
to  be  made  by  the  intestate.  The  claims  of  the  creditors  of  the  intestate  were  to 
be  established  by  judicial  or  other  satisfactory  legal  proceedings,  and,  in  truth 
in  the  case  last  cited,  the  commissioners  were  nothing  more  than  special  com- 
missioners. The  legislative  department,  in  passing  these  acts,  investigated 
nothing,  nor  did  an  act  which  could  be  deemed  a  judic  al  inquiry.  It  neither 
examined  proof,  nor  determined  the  nature  or  extent  of  claims ;  it  merely  au- 
thorized the  application  of  the  real  estate  to  the  payment  of  debts  generally, 
discriminating  in  favor  of  no  one  creditor,  and  giving  no  one  a  preference  over 
another.  Not  so  in  the  case  before  us ;  the  amount  is  investigated  and  ascer- 
tained, and  the  sale  is  directed  for  the  benefit  of  two  persons  exclusively.  The 
proceeds  are  to  be  applied  to  the  payment  of  such  claims  and  none  other,  for 
liabilities  said  to  be  incurred  but  not  liquidated  or  satisfied;  and  those,  too, 
created  after  the  death  of  the  intestate."  See  also  Mason  v.  Wait,  4  Scam.  127— 
134.  The  case  of  Estep  v.  Dutchman,  14  S.  &  R.  435,  would  seem  to  be 
more  open  to  question  on  this  point  than  any  of  the  others  before  cited.  It  was 
the  case  of  a  special  statute,  author  zing  the  guardian  of  infant  heirs  to  con- 
vey their  lands  in  satisfaction  of  a  contract  made  by  their  ancestor;  and 
which  was  sustained.  Compare  this  with  Jones  v.  Perry,  10  Yerg.  59,  where 
an  act  authorizing  a  guardian  to  sell  lands  to  pay  the  ancestor's  debts  was  held 
void. 

[114] 


CH.  V.]       POWERS    EXERCISED    BY    LEGISLATIVE    DEPARTMENT.         *  105 

of  the  United  States,  under  certain  circumstances,"  approved  May 
23,  1844,  and  which  provided  that  the  trust  under  said  act  should 
be  conducted  under  such  rules  and  regulations  as  may  be  prescribed 
by  the  legislative  authority  of  the  State,"  &c,  the  legislature  passed 
an  act  authorizing  the  trustee  to  give  deeds  to  a  person  named 
therein,  and  those  claiming  under  him  ;  thus  undertaking  to  dis- 
pose of  the  whole  trust  to  the  person  thus  named  and  his  grantees, 
and  authorizing  no  one  else  to  be  considered  or  to  receive  any  relief. 
This  was  very  plainly  an  attempted  adjudication  upon  the  rights 
of  the  parties  concerned ;  it  did  not  establish  regulations  for  the 
administration  of  the  trust,  but  it  adjudged  the  trust  property  to 
certain  claimants  exclusively,  in  disregard  of  any  rights  which 
might  exist  in  others;  and  it  was  therefore  declared  to  be 
void.1  And  it  has  also  been  held  that,  whether  a  *  cor-  [*  106] 
poration  has  been  guilty  of  abuse  of  authority  under  its 

i  Cash,  Appellant,  6  Mich.  193.  The  case  of  Powers  v.  Bergen,  6  N.  Y.  358, 
is  perhaps  to  be  referred  to  another  principle  than  that  of  encroachment  upon 
judicial  authority.  That  was  a  case  where  the  legislature,  by  special  act,  had 
undertaken  to  authorize  the  sale  of  property,  not  for  the  purpose  of  satis  lying 
liens  upon  it,  or  of  meeting  or  in  any  way  providing  for  the  necessities  or 
wants  of  the  owners,  but  solely,  after  paying  expenses,  for  the  investment  of 
the  proceeds.  It  appears  from  that  case  that  the  executors  under  the  will  of  the 
former  owner  held  the  lands  in  trust  for  a  daughter  of  the  testator  during  her 
natural  life,  with  a  vested  remainder  in  fee  in  her  two  children.  The  special  act 
assumed  to  empower  them  to  sell  and  convey  the  complete  fee,  and  apply  the 
proceeds,  first,  to  the  payment  of  their  commissions,  costs,  and  expenses  ;  second, 
to  the  discharge  of  assessments,  liens,  charges,  and  incumbrances  on  the  land, 
of  which,  however,  none  were  shown  to  exist ;  and,  third,  to  invest  the  proceeds 
and  pay  over  the  income,  after  deducting  taxes  and  charges,  to  the  daughter 
during  her  life,  and  after  her  decease  to  convey,  assign,  or  pay  over  the  same  to  the 
persons  who  would  be  entitled  under  the  will.  The  court  regarded  this  as  an  un- 
authorized interference  with  private  property  upon  no  necessity,  and  altogether 
void,  as  depriving  the  owners  of  their  property  contrary  to  the  "law  of  the  land." 
At  the  same  time  the  authority  of  those  cases,  where  it  has  been  held  that  the 
legislature,  acting  as  the  guardian  and  protector  of  those  who  are  disabled  to  act 
for  themselves  by  reason  of  infancy,  lunacy,  or  other  like  cause,  may  constitution- 
ally pass  either  general  or  private  laws,  under  which  an  effectual  disposition  of 
their  property  might  be  made,  was  not  questioned.  The  court  cite,  with  appar- 
ent approval,  the  cases,  among  others,  of  Rice  v.  Parkman,  16  Mass.  326  ;  Coch- 
ran v.  Van  Surlay,  20  Wend.  365 ;  and  Wilkinson  v.  Leland,  2  Pet.  657.  The 
case  of  Ervine's  Appeal,  16  Penn.  St.  256,  was  similar,  in  the  principles  involved, 
to  Powers  v.  Bergen,  and  was  decided  in  the  same  way.  See  also  Kneass's  Ap- 
peal, 31  Penn.  St.  87,  and  compare  with  Kerr  v.  Kitchen,  17  Penn.  St.  438; 
Martin's  Appeal,  23  Penn.  St.  437  ;  Tharp  v.  Fleming,  1  Houston,  592. 

[115] 


*  106  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

charter,  so  as  justly  to  subject  it  to  forfeiture,1  and  whether  a 
widow  is  entitled  to  dower  in  a  specified  parcel  of  land,2  are  judicial 
questions  which  cannot  be  decided  by  the  legislature.  In  these 
cases  there  are  necessarily  adverse  parties  ;  the  questions  that 
would  arise  are  essentially  judicial,  and  over  which  the  courts  pos- 
sess jurisdiction  at  the  common  law ;  and  it  is  presumable  that 
legislative  acts  of  this  character  must  have  been  adopted  carelessly, 
and  without  a  due  consideration  of  the  proper  boundaries  which 
mark  the  separation  of  legislative  from  judicial  duties.3 

1  State  v.  Noyes,  47  Me.  189  ;  Campbell  v.  Union  Bank,  6  How.  (Miss.)  661 ; 
Canal  Co.  v.  Railroad  Co.,  4  G.  &  J.  122  ;  Regents  of  University  v.  Williams,  9 
G.  &  J.  365.  In  Miners  Bank  of  Dubuque  v.  United  States,  1  Morris,  482,  a 
clause  in  a  charter  authorizing  the  legislature  to  repeal  it  for  any  abuse  or  mis- 
user of  corporate  privileges  was  held  to  refer  the  question  of  abuse  to  the  legis- 
lative judgment.  In  Erie  &  North  East  R.  R.  Co.  v.  Casey,  26  Penn.  St.  287, 
on  the  other  hand,  it  was  held  that  the  legislature  could  not  conclude  the 
corporation  by  its  repealing  act,  but  that  the  question  of  abuse  of  corporate 
authority  would  be  one  of  fact  to  be  passed  upon,  if  denied,  by  a  jury,  so  that 
the  act  would  be  valid  or  void  as  the  jury  should  find.  The  authority  of  both 
these  cases  was  denied  in  Flint  &  Fentonville  P.  R.  Co.  v.  Woodhull,  25  Mich. 
99,  in  which  it  was  held  that  the  reservation  of  a  power  to  repeal  a  charter  for 
violation  of  its  provisions  necessarily  presented  a  judicial  question,  and  the  repeal 
must  be  preceded  by  a  proper  judicial  finding.  In  Carey  v.  Gilts,  9  Geo.  523> 
the  appointment  by  the  legislature  of  a  receiver  for  an  insolvent  bank  was  sus- 
tained;  and  in  Hindtnan  v.  Piper,  50  Mo.  292,  a  legislative  appointment  of  a 
trustee  was  also  sustained  in  a  peculiar  case. 

2  Edwards  v.  Pope,  3  Scam.  465. 

3  The  unjust  and  dangerous  character  of  legislation  of  this  description  are 
well  stated  by  the  Supreme  Court  of  Pennsylvania:  "  When,  in  the  exercise  of 
proper  legislative  powers,  general  laws  are  enacted  which  bear,  or  may  bear,  on 
the  whole  community,  if  they  are  unjust  and  against  the  spirit  of  the  constitu- 
tion, the  whole  community  will  be  interested  to  procure  their  repeal  by  a  voice 
potential.  And  that  is  the  great  security  for  just  and  fair  legislation.  But 
when  individuals  are  selected  from  the  mass,  and  laws  are  enacted  affecting 
their  property,  without  summons  or  notice,  at  the  instigation  of  an  interested 
party,  who  is  to  stand  up  for  them,  thus  isolated  from  the  mass,  in  injury  and  in- 
justice, or  where  are  they  to  seek  relief  from  such  acts  of  despotic  power?  They 
have  no  refuge  but  in  the  courts,  the  only  secure  place  for  determining  conflict- 
ing rights  by  due  course  of  law.  But  if  the  judiciary  give  way,  and,  in  the  lan- 
guage of  the  Chief  Justice  in  Greenough  v.  Greenough,  in  11  Penn.  St.  494, 
'  confesses  itself  too  weak  to  stand  against  the  antagonism  of  the  legislature  and 
the  bar,1  one  independent  co-ordinate  branch  of  the  government  will  become  the 
subservient  handmaid  of  the  other,  and  a  quiet,  insidious  revolution  will  be 
effected  in  the  administration  of  the  government,  whilst  its  form  on  paper  re- 
mains the  same."     Ervine's  Appeal,   16  Penn.  St.  268. 

[116] 


CH.  V.]       POWERS    EXERCISED    BY    LEGISLATIVE    DEPARTMENT.         *  107 

*  We'  have  elsewhere  referred  to  a  number  of  cases  where  [*  107] 
statutes  have  been  held  unobjectionable  which  validated 
legal  proceedings,  notwithstanding  irregularities  apparent  in  them.1 
These  statutes  may  as  properly  be  made  applicable  to  judicial  as 
to  ministerial  proceedings ;  and  although,  when  they  refer  to  such 
proceedings,  they  may  at  first  seem  like  an  interference  with 
judicial  authority,  yet  if  they  are  only  in  aid  of  judicial  proceed- 
ings, and  tend  to  their  support  by  precluding  parties  from  taking 
advantage  of  errors  which  do  not  affect  their  substantial  rights, 
they  cannot  be  obnoxious  to  the  charge  of  usurping  judicial  power. 
The  legislature  does,  or  may,  prescribe  the  rules  under  which  the 
judicial  power  is  exercised  by  the  courts  ;  and  in  doing  so,  it  may 
dispense  with  any  of  those  formalities  which  are  not  essential  to 
the  jurisdiction  of  the  court ;  and  whatever  it  may  dispense  with 
by  statute  anterior  to  the  proceedings,  we  believe  it  may  also  dis- 
pense with  by  statute  after  the  proceedings  have  been  taken,  if  the 
court  has  failed  to  observe  any  of  those  formalities.  But  it  would 
not  be  competent  for  the  legislature  to  authorize  a  court  to  pro- 
ceed and  adjudicate  upon  the  rights  of  parties,  without  giving 
them  an  opportunity  to  be  heard  before  it ;  and,  for  the  same  rea- 
son, it  would  be  incompetent  for  it,  by  retrospective  legislation,  to 
make  valid  proceedings  which  had  been  had  in  the  courts,  but 
which  were  void  for  want  of  jurisdiction  over  the  parties.  Such  a 
legislative  enactment  would  be  doubly  objectionable :  first,  as  an 
exercise  of  judicial  power,  since,  the  proceedings  in  court  being 
void,  it  would  be  the  statute  alone  which  would  constitute  an 
adjudication  upon  the  rights  of  the  parties;  and,  second,  because, 
in  all  judicial  proceedings,  notice  to  parties  and  an  opportunity 
to  defend  are  essential,  —  both,  of  which  they  would  be  deprived 
of  in  such  a  case.2      And  for   like  reasons  a   statute  validating 

1  See  post,  pp.  371-381. 

2  In  McDaniel  v.  Correll,  19  111.  226,  it  appeared  that  a  statute  had  been  passed 
to  make  valid  certain  legal  proceedings  by  which  an  alleged  will  was  adjudged 
void,  and  which  were  had  against  non-resident  defendants,  over  whom  the  courts 
had  obtained  no  jurisdiction.  The  court  say  :  "  If  it  was  competent  for  the  legis- 
lature to  make  a  void  proceeding  valid,  then  it  has  been  done  in  this  case. 
Upon  this  question  we  cannot  for  a  moment  doubt  or  hesitate.  They  can  no 
more  impart  a  binding  efficacy  to  a  void  proceeding,  than  they  can  take  one  man's 
property  from  him  and  give  it  to  another.  Indeed,  to  do  the  one  is  to  accomplish 
the  other.  By  the  decree  in  this  case  the  will  in  question  was  declared  void, 
and,  consequently,  if  effect  be  given  to  the  decree,  the  legacies  -given  to  those 

[117] 


*  107  CONSTITUTIONAL    LIMITATIONS.  [CH.  V. 

[*  108]  proceedings  *  had  before  an  intruder  into  a  judicial  office, 
before  whom  no  one  is  authorized  or  required  to  appear, 
and  who  could  have  jurisdiction  neither  of  the  parties  nor  of  the 
subject-matter,  would  also  be  void.1 

absent  defendants  by  the  will  are  taken  from  them  and  given  to  others,  according 
to  our  statute  of  descents.  Until  the  passage  of  the  act  in  question,  they  were 
not  bound  by  the  verdict  of  the  jury  in  this  case,  and  it  could  not  form  the  basis 
of  a  valid  decree.  Had  the  decree  been  rendered  before  the  passage  of  the  act, 
it  would  have  been  as  competent  to  make  that  valid  as  it  was  to  validate  the  ante- 
cedent proceedings  upon  which  alone  the  decree  could  rest.  The  want  of  juris- 
diction over  the  defendants  was  as  fatal  to  the  one  as  it  could  be  to  the  other.  If 
we  assume  the  act  to  be  valid,  then  the  legacies  which  before  belonged  to  the 
legatees  have  now  ceased  to  be  theirs,  and  this  result  has  been  brought  about 
by  the  legislative  act  alone.  The  effect  of  the  act  upon  them  is  precisely  the 
same  as  if  it  had  declared  in  direct  terms  that  the  legacies  bequeathed  by  this  will 
to  these  defendants  should  not  go  to  them,  but  should  descend  to  the  heirs-at-law 
of  the  testator,  according  to  our  law  of  descents.  This  it  will  not  be  pretended 
that  they  could  do  directly,  and  they  had  no  more  authority  to  do  it  indirectly, 
by  making  proceedings  binding  upon  them  which  were  void  in  law."  See,  to  the 
same  effect,  Richards  v.  Rote,  68  Penn.  St.  248. 

1  In  Denny  v.  Mattoon,  2  Allen,  361,  a  judge  in  insolvency  had  made  certain 
orders  in  a  case  pending  in  another  jurisdiction,  and  which  the  courts  subse- 
quently declared  to  be  void.  The  legislature  then  passed  an  act  declaring  that 
they  "  are  hereby  confirmed,  and  the  same  shall  be  taken  and  deemed  good  and 
valid  in  law,  to  all  intents  and  purposes  whatsoever."  On  the  question  of  the 
validity  of  this  act  the  court  say :  "  The  precise  question  is,  whether  it  can  be 
held  to  operate  so  as  to  confer  a  jurisdiction  over  parties  and  proceedings  which 
it  has  been  judicially  determined  does  not  exist,  and  give  validity  to  acts  and  proc- 
esses which  have  been  adjudged  void.  The  statement  of  this  question  seems  to 
us  to  suggest  the  obvious  and  decisive  objection  to  any  construction  of  the  statute 
which  would  lead  to  such  a  conclusion.  It  would  be  a  direct  exercise  by  the 
legislature  of  a  power  in  its  nature  clearly  judicial,  from  the  use  of  which  it  is 
expressly  prohibited  by  the  thirtieth  article  of  the  Declaration  of  Rights.  The 
line  which  marks  and  separates  judicial  from  legislative  duties  and  functions  is 
often  indistinct  and  uncertain,  and  it  is  sometimes  difficult  to  decide  within  which 
of  the  two  classes  a  particular  subject  falls.  All  statutes  of  a  declaratory  nature, 
which  are  designed  to  interpret  or  give  a  meaning  to  previous  enactments,  or  to 
confirm  the  rights  of  parties  either  under  their  own  contracts  or  growing  out  of 
the  proceedings  of  courts  or  public  bodies,  which  lack  legal  validity,  involve  in 
a  certain  sense  the  exercise  of  a  judicial  power.  They  operate  upon  subjects 
which  might  properly  come  within  the  cognizance  of  the  courts  and  form  the 
basis  of  judicial  consideration  and  judgment.  But  they  may,  nevertheless,  be 
supported  as  being  within  the  legitimate  sphere  of  legislative  action,  on  the  ground 
that  they  do  not  declare  or  determine,  but  only  confirm  rights ;  that  they  give 
effect  to  the  acts  of  parties  according  to  their  intent;  that  they  furnish  new  and 
more  efficacious  remedies,  or  create  a  more  beneficial  interest  or  tenure,  or,  by 

[118] 


CH.  V.]       POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.        *  109 


*  Legislative  Divorces.  [*  109] 

There  is  another  class  of  cases  in  which  it  would  seem  that 
action  ought  to  be  referred  exclusively  to  the  judicial  tribunals, 
but  in  respect  to  which  the  prevailing  doctrine  seems  to  be,  that 

supplying  defects  and  curing  informalities  in  the  proceedings  of  courts,  or  of 
public  officers  acting  within  the  scope  of  their  authority,  they  give  effect  to  acts  to 
which  there  was  the  express  or  implied  assent  of  the  parties  interested.  Statutes 
which  are  intended  to  accomplish  such  purposes  do  not  necessarily  invade  the 
province,  or  directly  interfere  with  the  action  of  judicial  tribunals.  But  if  we  adopt 
the  broadest  and  most  comprehensive  view  of  the  power  of  the  legislature,  we 
must  place  some  limit  beyond  which  the  authority  of  the  legislature  cannot  go 
without  trenching  on  the  clear  and  well-defined  boundaries  of  judicial  power." 
"Although  it  may  be  difficult,  if  not  impossible,  to  lay  down  any  general  rule 
which  may  serve  to  determine,  in  all  cases,  wh°ther  the  limits  of  constitutional 
restraint  are  overstepped  by  the  exercise  by  one  branch  of  the  government  of 
powers  exclusively  delegated  to  another,  it  certainly  is  practicable  to  apply  to 
each  case  as  it  arises  some  test  by  which  to  ascertain  whether  this  fundamental 
principle  is  violated.  If,  for  example,  the  practical  operation  of  a  statute  is  to 
determine  adversary  suits  pending  between  party  and  party,  by  substituting  in 
place  of  the  well-settled  rules  of  law  the  arbitrary  will  of  the  legislature,  and 
thereby  controlling  the  action  of  the  tribunal  before  which  the  suits  are  pending, 
no  one  can  doubt  that  it  would  be  an  unauthorized  act  of  legislation,  because  it 
directly  infringes  on  the  peculiar  and  appropriate  functions  of  the  judiciary.  It 
is  the  exclusive  province  of  the  courts  of  justice  to  apply  established'  principles 
to  cases  within  their  jurisdiction,  and  to  enforce  their  jurisdiction  by  rendering 
judgments  and  executing  them  by  suitable  process.  The  legislature  have  no 
power  to  interfere  with  this  jurisdiction  in  such  manner  as  to  change  the  decision 
of  cases  pending  before  courts,  or  to  impair  or  set  aside  their  judgments,  or  to 
take  cases  out  of  the  settled  course  of  judicial  proceeding.  It  is  on  this  principle 
that  it  has  been  held,  that  the  legislature  have  no  power  to  grant  a  new  trial  or 
direct  a  rehearing  of  a  cause  which  has  been  once  judicially  settled.  The  right 
to  a  review,  or  to  try  anew  facts  which  have  been  determined  by  a  verdict  or 
decree,  depends  on  fixed  and  well-settled  principles,  which  it  is  the  duty  of  the 
court  to  apply  in  the  exercise  of  a  sound  judgment  and  discretion.  These  can- 
not be  regulated  or  governed  by  legislative  action.  Taylor  v.  Place,  4  R.  I.  324, 
337 ;  Lewis  v.  Webb,  3  Me.  326  ;  Dechastellux  v.  Fairchild,  15  Penn.  St.  18. 
A  fortiori,  an  act  of  the  legislature  cannot  set  aside  or  amend  final  judgments 
or  decrees."  The  court  further  consider  the  general  subject  at  length,  and  ad- 
judge the  particular  enactment  under  consideration  void,  both  as  an  exercise  of 
judicial  authority,  and  also  because,  in  declaring  valid  the  void  proceedings  in 
insolvency  against  the  debtor,  under  which  assignees  had  been  appointed,  it  took 
away  from  the  debtor  his  property,  "  not  by  due  process  of  law  or  the  law  of  the 
land,  but  by  an  arbitrary  exercise  of  legislative  will."  See,  further,  Griffin's 
Executor  v.  Cunningham,  20  Grat.  109. 

[119] 


*  109  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

[*  110]  the  legislature  *  has  complete  control  unless  specially 
restrained  by  the  State  constitution.  The  granting  of 
divorces  from  the  bonds  of  matrimony  was  not  confided  to  the 
courts  in  England,  and  from  the  earliest  days  the  Colonial  and 
State  legislatures  in  this  country  have  assumed  to  possess  the  same 
power  over  the  subject  which  was  possessed  by  the  Parliament,  and 
from  time  to  time  they  have  passed  special  laws  declaring  a  disso- 
lution of  the  bonds  of  matrimony  in  special  cases.  Now  it  is  clear 
that  "  the  question  of  divorce  involves  investigations  which  are 
properly  of  a  judicial  nature,  and  the  jurisdiction  over  divorces 
ought  to  be  confined  exclusively  to  the  judicial  tribunals,  under 
the  limitations  to  be  prescribed  bylaw;"1  and  so  strong  is  the 
general  conviction  of  this  fact,  that  the  people  in  framing  their 
constitutions,  in  a  majority  of  the  States,  have  positively  forbidden 
any  such  special  laws.2 

1  2  Kent,  106.     See  Levins  v.  Sleator,  2  Greene  (Iowa),  607. 

2  The  following  are  constitutional  provisions:  —  Alabama:  Divorces  from  the 
bonds  of  matrimony  shall  not  be  granted  but  in  the  cases  by  law  provided  for, 
and  by  suit  in  chancery ;  but  decrees  in  chancery  for  divorce  shall  be  final,  un- 
less appealed  from  in  the  manner  prescribed  by  law,  within  three  months  from  the 
date  of  the  enrolment  thereof.  Arkansas  :  The  General  Assembly  shall  not 
have  power  to  pass  any  bill  of  divorce,  but  may  prescribe  by  law  the  manner  in 
■which  such  cases  may  be  investigated  in  the  courts  of  justice,  and  divorces  granted. 
California:  No  divorce  shall  be  granted  by  the  legislature.  The  provision  is 
the  same  or  similar  in  Iowa,  Indiana,  Maryland,  Michigan,  Minnesota,  Nevada, 
Nebraska,  Oregon,  New  Jersey,  Texas,  and  Wisconsin.  Florida:  Divorces  from 
the  bonds  of  matrimony  shall  not  be  allowed  but  by  the  judgment  of  a  court,  as 
shall  be  prescribed  by  law.  Georgia  :  The  Superior  Court  shall  have  exclusive 
jurisdiction  in  all  cases  of  divorce,  both  total  and  partial.  Illinois :  The  Gen- 
eral Assembly  shall  not  pass  .  .  .  special  laws  .  .  .  for  granting  divorces.  Kan- 
sas:  And  power  to  grant  divorces  is  vested  in  the  District  Courts  subject  to 
regulations  bylaw.  Kentucky:  The  General  Assembly  shall  have  no  power  to 
grant  divorces,  .  .  .  but  by  general  laws  shall  confer  such  powers  on  the  courts 
of  justice.  Louisiana :  The  legislature  may  enact  general  laws  regulating  the  .  .  . 
granting  of  divorce  ;  but  no  special  laws  shall  be  enacted  relating  to  particular 
or  individual  cases.  Massachusetts :  All  causes  of  marriage,  divorce,  and  alimony 
.  .  .  shall  be  heard  and  determined  by  the  Governor  and  Council,  until  the  legis- 
lature shall  by  law  make  other  provision.  Mississippi:  Divorces  from  the  bonds 
of  matrimony  shall  not  be  granted  but  in  cases  provided  for  by  law,  and  by 
suit  in  chancery.  New  Hampshire :  All  causes  of  marriage,  divorce,  and  alimony 
.  .  .  shall  be  heard  and  tried  by  the  Superior  Court,  until  the  legislature  shall 
by  law  make  other  provision.  Neva  York :  .  .  .  nor  shall  any  divorce  be  granted 
otherwise  than  by  due  judicial  proceedings.  North  Carolina:  The  General 
Assembly  shall  have  power  to  pass  general  laws  regulating  divorce  and  alimony, 

[120] 


CH.  V.]      POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.        *  111 

*  Of  the  judicial  decisions  on  the  subject  of  legislative  [*  111] 
power  over  divorces  there  seem  to  be  three  classes  of  cases. 
The  doctrine  of  the  first  class  seems  to  be  this :  The  granting  of  a 
divorce  may  be  either  a  legislative  or  a  judicial  act,  according  as 
the  legislature  shall  refer  its  consideration  to  the  courts,  or  reserve 
it  to  itself.  The  legislature  has  the  same  full  control  over  the  sta- 
tus of  husband  and  wife  which  it  possesses  over  the  other  domestic 
relations,  and  may  permit  or  prohibit  it  according  to  its  own  views 
of  what  is  for  the  interest  of  the  parties  or  the  good  of  the  public. 
In  dissolving  the  relation,  it  proceeds  upon  such  reasons  as  to  it 
seem  sufficient ;  and  if  inquiry  is  made  into  the  facts  of  the  past, 
it  is  no  more  than  is  needful  when  any  change  of  the  law  is  con- 
templated, with  a  view  to  the  establishment  of  more  salutary  rules 
for  the  future.  The  inquiry,  therefore,  is  not  judicial  in  its  nature, 
and  it  is  not  essential  that  there  be  any  particular  finding  of  mis- 
conduct or  unfitness  in  the  parties.     As  in  other  cases  of  legisla- 

but  shall  not  have  power  to  grant  a  divorce  or  secure  alimony  in  any  particular 
case.  Ohio :  The  General  Assembly  shall  grant  no  divorce,  nor  exercise  any 
judicial  power,  not  herein  expressly  conferred.  Pennsylvania:  The  legislature 
shall  not  have  power  to  enact  laws  annulling  the  contract  of  marriage  in  any  case 
where  by  law  the  courts  of  this  Commonwealth  are,  or  hereafter  may  be,  empow- 
ered to  decree  a  divorce.  Tennessee:  The  legislature  shall  have  no  power  to 
grant  divorces,  but  may  authorize  the  courts  of  justice  to  grant  them  for  such 
causes  as  may  be  specified  by  law ;  but  such  laws  shall  be  general  and  uniform 
in  their  operation  throughout  the  State.  Virginia:  The  legislature  shall  confer 
on  the  courts  the  power  to  grant  divorces,  .  .  .  but  shall  not,  by  special  legis- 
lation, grant  relief  in  such  cases.  West  Virginia  :  The  Circuit  Courts  shall  have 
power  under  such  general  regulations  as  may  be  prescribed  by  law,  to  grant 
divorces,  .  .  .  but  relief  shall  not  be  granted  by  special  legislation  in  such 
cases.  Missouri :  The  legislature  shall  not  pass  special  laws  divorcing  any 
named  parties.  Under  the  Constitution  of  Michigan  it  was  held  that,  as  the 
legislature  was  prohibited  from  granting  divorces,  they  could  pass  no  special  act 
authorizing  the  courts  to  divorce  for  a  cause  which  was  not  a  legal  cause  for 
divorce  under  the  general  laws.  Teft  v.  Teft,  3  Mich.  67.  See  also  Clark  v. 
Clark,  10  N.  H.  387;  Simonds  v.  Simonds,  103  Mass.  572;  s.  c.  4  Am.  Hep. 
576.  The  case  of  White  v.  White,  105  Mass.  325,  was  peculiar.  A  woman  pro- 
cured a  divorce  from  her  husband,  and  by  the  law  then  in  force  he  was  prohibited 
from  marrying  again  except  upon  leave  procured  from  the  court.  He  did  marry 
again,  however,  and  the  legislature  passed  a  special  act  to  affirm  this  marriage. 
In  pursuance  of  a  requirement  of  the  constitution,  jurisdiction  of  all  cases  of 
marriage  and  divorce  had  previously  been  vested  by  law  in  the  courts.  Held, 
that  this  took  from  the  legislature  all  power  to  act  upon  the  subject  in  special 
cases,  and  the  attempt  to  validate  the  marriage  was  consequently  ineffectual. 

[121] 


*  111  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

tive  action,  the  reasons  or  the  motives  of  the  legislature  cannot  be 
inquired  into ;  the  relation  which  the  law  permitted  before  is  now 
forbidden,  and  the  parties  are  absolved  from  the  obligations  grow- 
ing out  of  that  relation  which  continued  so  long  as  tlie  relation 
existed,  but  which  necessarily  cease  with  its  termination.  Mar- 
riage is  not  a  contract,  but  a  status  ;  the  parties  cannot  have  vested 
rights  of  property  in  a  domestic  relation  ;  therefore  the  legislative 

act  does  not  come  under  condemnation  as  depriving  parties 
[*  112]  of  *  rights  contrary  to  the  law  of  the  land,  but,  as  in  other 

cases  within  the  scope  of  the  legislative  authority,  the  leg- 
islative will  must  be  regarded  as  sufficient  reason  for  the  rule 
which  it  promulgates.1 

1  The  leading  ease  on  this  subject  is  Starr  v.  Pease,  8  Conn.  541.  On  the 
question  whether  a  divorce  is  necessarily  a  judicial  act,  the  court  say:  "  A  fur- 
ther objection  is  urged  against  this  act;  viz.,  that  by  the  new  constitution  of  1818, 
there  is  an  entire  separation  of  the  legislative  and  judicial  departments,  and  that 
the  legislature  can  now  pass  no  act  or  resolution  not  clearly  warranted  by  that 
constitution ;  that  the  constitution  is  a  grant  of  power,  and  not  a  limitation  of 
powers  already  possessed;  and,  in  short,  that  there  is  no  reserved  power  in  the 
legislature  since  the  adoption  of  this  constitution.  Precisely  the  opposite  of  this 
is  true.  From  the  settlement  of  the  State  there  have  been  certain  fundamental 
rules  by  which  power  has  been  exercised.  These  rules  were  embodied  in  an 
instrument  called  by  some  a  constitution,  by  others  a  charter.  All  agree  that  it 
was  the  first  constitution  ever  made  in  Connecticut,  and  made,  too,  by  the  people 
themselves.  It  gave  very  extensive  powers  to  the  legislature,  and  left  too  much 
(for  it  left  every  thing  almost)  to  their  will.  The  constitution  of  1818  proposed 
to,  and  in  fact  did,  limit  that  will.  It  adopted  certain  general  principles  by  a 
preamble  called  a  Declaration  of  Rights  ;  provided  for  the  election  and  appoint- 
ment of  certain  organs  of  the  government,  such  as  the  legislative,  executive,  and 
judicial  departments;  and  imposed  upon  them  certain  restraints.  It  found  the 
State  sovereign  and  independent,  with  a  legislative  power  capable  of  making  all 
laws  necessary  for  the  good  of  the  people,  not  forbidden  by  the  Constitution  of 
the  United  States,  nor  opposed  to  the  sound  maxims  of  legislation  ;  and  it  left 
them  in  the  same  condition,  except  so  far  as  limitations  were  provided.  There 
is  now  and  has  been  a  law  in  force  on  the  subject  of  divorces.  The  law  was 
passed  a  hundred  and  thirty  years  ago.  It  provides  for  divorces  a  vinculo  matri- 
monii in  four  cases  ;  viz.,  adultery,  fraudulent  contract,  wilful  desertion,  and  seven 
years'  absence  unheard  of.  The  law  has  remained  in  substance  the  same  as  it 
was  when  enacted  in  1667.  During  all  this  period  the  legislature  has  interfered 
like  the  Parliament  of  Great  Britain,  and  passed  special  acts  of  divorce  a  vin- 
culo matrimonii;  and  at  almost  every  session  since  the  Constitution  of  the  United 
States  went  into  operation,  now  forty-two  years,  and  for  the  thirteen  years  of 
the  existence  of  the  Constitution  of  Connecticut,  such  acts  have  been,  in  multi- 
plied cases,  passed  and  sanctioned  by  the  constituted  authorities  of  our  State. 
We  are  not  at  liberty  to  inquire  into  the  wisdom  of  our  existing  law  upon  this 

[122] 


CH.  V.]       POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.        *  113 

*The  second  class  of  cases  to  which  we  have  alluded  [*  113] 
hold  that  divorce  is  a  judicial  act  in  those  cases  upon 
which  the  general  laws  confer  on  the  courts  power  to  adjudicate ; 
and  that  consequently  in  those  cases  the  legislature  cannot  pass 
special  laws,  but  its  full  control  over  the  relation  of  marriage  will 
leave  it  at  liberty  to  grant  divorces  in  other  cases,  for  such  causes 
as  shall  appear  to  its  wisdom  to  justify  them.1 

A  third  class  of  cases  deny  altogether  the  authority  of  these 
special  legislative  enactments,  and  declare  the  act  of  divorce  to 
be  in  its  nature  judicial,  and  not  properly  within  the  province  of 
the  legislative  power.2  The  most  of  these  decisions,  however, 
lay  more  or  less  stress  upon  clauses  in  the  constitutions  other 
than  those  which  in  general  terms  separate  the  legislative  and 
judicial  functions,  and  some  of  them  would  perhaps  have  been 
differently  decided  but  for  those  other  clauses.  But  it  is  safe  to 
say,  that  the  general  sentiment  in  the  legal  profession  is  against 
the  rightfulness  of  special  legislative  divorces ;  and  it  is  believed 

subject;  nor  into  the  expediency  of  such  frequent  interference  of  the  legislature. 
"We  can  only  inquire  into  the  constitutionality  of  the  act  under  consideration. 
The  power  is  not  prohibited  either  by  the  Constitution  of  the  United  States  or 
by  that  of  this  State.  In  view  of  the  appalling  consequences  of  declaring  the 
general  law  of  the  State,  or  the  repeated  acts  of  our  legislature,  unconstitutional 
and  void,  consequences  easily  perceived,  but  not  easily  expressed,  —  such  as 
bastardizing  the  issue  and  subjecting  the  parties  to  punishment  for  adultery, — 
the  court  should  come  to  the  result  only  on  a  solemn  conviction  that  their  oaths 
of  office  and  these  constitutions  imperiously  demand  it.  Feeling  myself  no  such 
conviction,  I  cannot  pronounce  the  act  void."  Per  Daggett,  J.,  Hosmer,  Ch.  J., 
and  Bissell,  J.,  concurring.  Peters,  J.,  dissented.  Upon  the  same  subject,  see 
Crane  v.  Meginnis,  1  G.  &  J.  463  ;  Wright  v.  Wright,  2  Md.  429  ;  Gaines  v. 
Gaines,  9.  B.  Monr.  295;  Cabell  v.  Cabell,  1  Met.  (Ky.)  819  ;  Dickson  v.  Dick- 
son, 1  Yerg.  110;  Melizet's  Appeal,  17  Penn.  St.  449;  Cronise  v.  Cronisc,  54 
Penn.  St.  255  ;  Adams  v.  Palmer,  51  Me.  4S0  ;  Townsend  v.  Griffin,  4  Harr.  440  ; 
Noel  v.  Ewing,  9  Ind.  37 ;  and  the  examination  of  the  whole  subject  by  Mr. 
Bishop,  in  his  work  on  Marriage  and  Divorce. 

1  Levins  v.  Sleator,  2  Greene  (Iowa),  604;  Opinions  of  Judges,  16  Me.  479; 
Adams  v.  Palmer,  51  Me.  480.  See  also  Townsend  v.  Griffin,  4  Harr.  440.  In 
a  well-reasoned  case  in  Kentucky,  it  was  held  that  a  legislative  divorce  obtained 
on  the  application  of  one  of  the  parties  while  suit  for  divorce  was  pending  in  a 
court  of  competent  jurisdiction,  would  not  affect  the  rights  to  property  of  the 
other,  growing  out  of  the  relation.     Gaines  v.  Gaines,  9  B.  Monr.  295. 

2  Bri^ham  v.  Miller,  17  Ohio,  445  ;  Clark  ».  Clark,  10  N.  H.  380 ;  Ponder 
v.  Graham,  4  Flor.  23;  State  v.  Fry,  4  Mo.  120;  Bryson  v.  Campbell,  12  Mo. 
498;  Bryson  v.  Bryson,  17  Mo.  590.  See  also  Jones  v.  Jones,  12  Penn.  St. 
353,  354. 

[123] 


*  113  CONSTITUTIONAL  LIMITATIONS.  [CH.  V. 

that,  if  the  question  could  originally  have  been  considered  by  the 
courts,  unembarrassed  by  any  considerations  of  long  acquiescence, 
and  of  the  serious  consequences  which  must  result  from  affirming 
their  unlawfulness,  after  so  many  had  been  granted  and  new 
relations  formed,  it  is  highly  probable  that  these  enactments  would 
have  been  held  to  be  usurpations  of  judicial  authority,  and  we 
should  have  been  spared  the  necessity  for  the  special  constitu- 
tional provisions  which  have  since  been  introduced.  Fortunately, 
these  provisions  render  the  question  now  discussed  of  little  prac- 
tical importance  ;  at  the  same  time  that  they  refer  the 
[*  111]  decision  *  upon  applications  for  divorce  to  those  tribunals 
which  must  proceed  upon  inquiry,  and  cannot  condemn 
without  a  hearing.1 

The  force  of  a  legislative  divorce  must  in  any  case  be  confined 
to  a  dissolution  of  the  relation  ;  it  can  only  be  justified  on  the 
ground  that  it  merely  lays  down  a  rule  of  conduct  for  the  parties 
to  observe  towards  each  other  for  the  future.  It  cannot  inquire 
into  the  past,  with  a  view  to  punish  the  parties  for  their  offences 
against  the  marriage  relation,  except  so  far  as  the  divorce  itself 
can  be  regarded  as  a  punishment.  It  cannot  order  the  payment  of 
alimony,  for  that  would  be  a  judgment;2  it  cannot  adjudge  upon 
conflicting  claims  to  property  between  the  parties,  but  it  must  leave 
all  questions  of  this  character  to  the  courts.  Those  rights  of 
property  which  depend  upon  the  continued  existence  of  the  relation 
will  be  terminated  by  the  dissolution,  but  only  as  in  any  other  case 

1  If  marriage  is  a  natural  right,  then  it  would  seem  that  any  particular  mar- 
riage that  parties  might  lawfully  form  they  must  have  a  lawful  right  to  continue 
in,  unless  by  misbehavior  they  subject  themselves  to  a  forfeiture  of  the  right. 
And  if  the  legislature  can  annul  the  relation  in  one  case,  without  any  finding 
that  a  breach  of  the  marriage  contract  has  been  committed,  then  it  would  seem 
that  they  might  annul  it  in  every  case,  and  even  prohibit  all  parties  from  entering 
into  the  same  relation  in  the  future.  The  recognition  of  a  full  and  complete 
control  of  the  relation  in  the  legislature,  to  be  exercised  at  its  will,  leads  in- 
evitably to  this  conclusion  ;  so  that,  under  the  "  rightful  powers  of  legislation" 
which  our  constitutions  confer  upon  the  legislative  department,  a  relation  essen- 
tial to  organized  civil  society  might  be  abrogated  entirely.  Single  legislative 
divorces  are  but  single  steps  towards  this  barbarism  which  the  application  of  the 
same  principle  to  every  individual  case,  by  a  general  law,  would  necessarily  bring 
upon  us.  See  what  is  said  by  the  Supreme  Court  of  Missouri  in  Bryson  v.  Bry- 
son,  17  Mo.  593,  594. 

2  Crane  v.  Meginnis,  1  G.  &  J.  463 ;  Potter's  Dwarris  on  Statutes,  486. 

[124] 


CH.  V.]       POWERS   EXERCISED    BY   LEGISLATIVE    DEPARTMENT.        *  114 

rights  in  the  future  may  be  incidentally  affected  by  a  change  in 
the  law.1 

Legislative  Encroachments  upon  Executive  Power. 

If  it  is  difficult  to  point  out  the  precise  boundary  which  sep- 
arates legislative  from  judicial  duties,  it  is  still  more  difficult  to 
discriminate,  in  particular  cases,  between  what  is  properly  legis- 
lative and  what  is  properly  executive  duty.  The  authority  that 
makes  the  laws  has  large  discretion  in  determining  the  means 
through  which  they  shall  be  executed ;  and  the  perform- 
ance of  *  many  duties  which  they  may  provide  for  by  law,  [*115] 
they  may  refer  either  to  the  chief  executive  of  the  State, 
or,  at  their  option,  to  any  other  executive  or  ministerial  officer,  or 
even  to  a  person  specially  named  for  the  duty.2  What  can  be  def- 
initely said  on  this  subject  is  this  :  That  such  powers  as  are  specially 
conferred  by  the  constitution  upon  the  governor,  or  upon  any  other 
specified  officer,  the  legislature  cannot  require  or  authorize  to  be 
performed  by  any  other  officer  or  authority  ;  and  from  those  duties 
which  the  constitution  requires  of  him  he  cannot  be  excused  by  law.3 

1  Starr  v.  Pease,  8  Conn.  545. 

2  This  is  affirmed  in  the  recent  case  of  Bridges  v.  Shallcross,  in  the  Supreme 
Court  of  West  Virginia,  not  yet  reported.  The  constitution  of  that  State  pro- 
vides that  the  governor  shall  nominate,  and  by  and  with  the  advice  and  consent  of 
the  Senate  appoint,  all  officers  whose  offices  are  established  by  the  constitution, 
or  shall  be  created  by  law,  and  whose  appointment  or  election  is  not  otherwise  pro- 
vided for,  and  that  no  such  officers  shall  be  appointed  or  elected  by  the  legislature. 
The  Court  decided  that  this  did  not  preclude  the  legislature  from  creating  a  Board 
of  Public  Works  of  which  the  State  officers  should  be  ex  officio  the  members. 

3  Attorney-General  v.  Brown,  1  Wis.  522.  4i  Whatever  power  or  duty  is 
expressly  given  to,  or  imposed  upon,  the  executive  department,  is  altogether  free 
from  the  interference  of  the  other  branches  of  the  government.  Especially  is 
this  the  case  where  the  subject  is  committed  to  the  discretion  of  the  chief  executive 
officer,  either  by  the  constitution  or  by  the  laws.  So  long  as  the  power  is  vested 
in  him,  it  is  to  be  by  him  exercised,  and  no  other  branch  of  the  government  can 
control  its  exercise."  Under  the  Constitution  of  Ohio,  which  forbids  the  exercise 
of  any  appointing  power  by  the  legislature,  except  as  therein  authorized,  it  Mas 
held  that  the  legislature  could  not,  by  law,  constitute  certain  designated  persons 
a  State  board,  with  power  to  appoint  commissioners  of  the  State  House,  and 
directors  of  the  penitentiary,  and  to  remove  such  directors  for  cause.  State  v. 
Kennon,  7  Ohio,  N.  s.  546.  And  see  Davis  v.  State,  7  Md.  101  ;  also,  Bridges 
v.  Shallcross,  Sup.  Court  of  West  Va.,  not  yet  reported.  As  to  what  are  public 
officers,  see  State  v.  Stanley,  66  N.  C.  59  ;  s.  c.  8  Am.  R  p.  488.  An  appointment 
to  office  was  said  in  Taylor  v.  Commonwealth,  3  J.  J.  Marsh.  404,  to  be  intrinsi- 

[125] 


*  115  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

But  other  powers  or  duties  the  executive  cannot  exercise  or  assume 
except  by  legislative  authority,  and  the  power  which  in  its  discre- 
tion it  confers  it  may  also  in  its  discretion  withhold,  or  confide  to 
other  hands.1  Whether  in  those  cases  where  power  is  given  by  the 
constitution  to  the  governor,  the  legislature  have  the  same  author- 
ity to  make  rules  for  the  exercise  of  the  power,  that  they  have  to 

make  rules  to  govern  the  proceedings  in  the  courts,  may 
[*116]   perhaps  be  a  question.2     It  would  seem  *  that  this  must 

depend  generally  upon  the  nature  of  the  power,  and  upon 

cally  an  executive  act.  In  a  certain  sense  this  is  doubtless  so,  but  it  would  not 
follow  that  the  legislature  could  exercise  no  appointing  power,  or  could  confer 
none  on  others  than  the  chief  executive  of  the  State.  Where  the  constitution 
contains  no  negative  words  to  limit  the  legislative  authority  in  this  regard,  the 
legislature  in  enacting  a  law  must  decide  for  itself  what  are  the  suitable,  con- 
venient, or  necessary  agencies  for  its  execution,  and  the  authority  of  the  executive 
must  be  limited  to  taking  care  that  the  law  is  executed  by  such  agencies. 

1  "In  deciding  this  question  [as  to  the  authority  of  the  governor],  recurrence 
must  be  had  to  the  constitution.  That  furnishes  the  only  rule  by  which  the  court 
can  be  governed.  That  is  the  charter  of  the  governor's  authority.  All  the  pow- 
ers delegated  to  him  by  or  in  accordance  with  that  instrument,  life  is  entitled  to 
exercise,  and  no  others.  The  constitution  is  a  limitation  upon  the  powers  of  the 
legislative  department  of  the  government,  but  it  is  to  be  regarded  as  a  grant  of 
powers  to  the  other  departments.  Neither  the  executive  nor  the  judiciary, 
therefore,  can  exercise  any  authority  or  power  except  such  as  is  clearly  granted 
by  the  constitution."   Field  v.  People,  2  Scam.  80. 

2  Whether  the  legislature  can  constitutionally  remit  a  fine,  when  the  pardon- 
ing power  is  vested  in  the  governor  by  the  constitution,  has  been  made  a  question  ; 
and  the  cases  of  Haley  v.  Clarke,  26  Ala.  439,  and  People  v.  Bircham,  12  Cal. 
50,  are  opposed  to  each  other  upon  the  point.  If  the  fine  is  payable  to  the 
State,  perhaps  the  legislature  should  be  considered  as  having  the  same  right  to 
discharge  it  that  they  would  have  to  release  any  other  debtor  to  the  State  from 
his  obligation.  In  Morgan  v.  Buffington,  21  Mo.  549,  it  was  held  that  the  State 
Auditor  was  not  obliged  to  accept  as  conclusive  the  certificate  from  the  Speaker 
of  the  House  as  to  the  sum  due  a  member  of  the  House  for  attendance  upon  it, 
but  that  he  might  lawfully  inquire  whether  the  amount  had  been  actually  earned 
by  attendance  or  not.  The  legislative  rule,  therefore,  cannot  go  to  the  extent 
of  compelling  an  executive  officer  to  do  something  else  than  his  duty,  under  any 
pretence  of  regulation.  The  power  to  pardon  offenders  is  vested  by  the  several 
State  constitutions  in  the  governor.  It  is  not,  however,  a  power  which  neces- 
sarily inheres  in  the  executive.  State  v.  Dunning,  9  Ind.  22.  And  several  of 
the  State  constitutions  have  provided  that  it  shall  be  exercised  under  such  regu- 
lations as  shall  be  prescribed  by  law.  There  are  provisions  more  or  less  broad 
to  this  purport  in  those  of  Kansas,  Florida,  Alabama,  Arkansas,  Texas,  Mississippi, 
Oregon,  Indiana,  Iowa,  and  Virginia.  In  State  v.  Dunning,  9  Ind.  20,  an  act  of 
the  legislature  .requiring  the  applicant  for  the  remission  of  a  fine  or  forfeiture 

[126] 


CH.  V.]       POWERS    EXERCISED    BY    LEGISLATIVE    DEPARTMENT.  *  116 

the  question  whether  the  constitution,  in  conferring  it,  has  fur- 
nished a  sufficient  rule  for  its  exercise.  Where  complete  power  to 
pardon  is  conferred  upon  the  executive,  it  may  he  doubted  if  the 
legislature  can  impose  restrictions  under  the  name  of  rules  or  reg- 
ulations ;  but  where  the  governor  is  made  commander-in-chief  of 
the  military  forces  of  the  State,  it  is  obvious  that  his  authority 
must  be  exercised  under  such  proper  rules  as  the  legislature  may 
prescribe,  because  the  military  forces  are  themselves  under  the 
control  of  the  legislature,  and  military  law  is  prescribed  by  that 
department.  There  would  be  this  clear  limitation  upon  the  power 
of  the  legislature  to  prescribe  rules  for  the  executive  department ; 
that  they  must  not  be  such  as,  under  pretence  of  regulation, 
divest  the  executive  of,  or  preclude  his  exercising,  any  of  his  con- 
stitutional prerogatives  or  powers.  Those  matters  which  the 
constitution  specifically  confides  to  him  the  legislature  cannot 
directly  or  indirectly  take  from  his  control. 

Delegating  Legislative  Power. 

One  of  the  settled  maxims  in  constitutional  law  is,  that  the 
power  conferred  upon  the  legislature  to  make  laws  cannot  be 
delegated  by  that  department  to  any  other  body  or  authority. 
Where  the  sovereign  power  of  the  State  has  located  the  authority, 
there  it  must  remain ;  and  by  the  constitutional  agency 
alone  *  the  laws  must  be  made  until  the  constitution  [*117] 
itself  is  changed.  The  power  to  whose  judgment,  wis- 
dom, and  patriotism  this  high  prerogative  has  been  intrusted 
cannot  relieve  itself  of  the  responsibility  by  choosing  other  agen- 

to  forward  to  tbe  governor,  with  his  application,  the  opinion  of  certain  county- 
officers  as  to  the  propriety  of  the  remission,  was  sustained  as  an  act  within  the 
power  conferred  by  the  constitution  upon  the  legislature  to  prescribe  regulations 
in  these  cases.  And  see  Branham  v.  Lange,  16  Ind.  500.  The  power  to  reprieve 
is  not  included  in  the  power  to  pardon.  Ex  parte  Howard,  17  N.  H.  515.  It 
has  been  decided  that  to  give  parties  who  have  been  convicted  and  fined  the 
benefit  of  the  iusolvent  laws  is  not  an  exercise  of  the  pardoning  power.  Ex  parte 
Scott,  19  Ohio,  N.  s.  581.  And  where  the  constitution  provided  that  "In  all 
criminal  and  penal  cases,  except  those  of  treason  and  impeachment,  [the 
governor]  shall  have  power  to  grant  pardons  after  conviction,  and  remit  fines 
and  forfeitures,"  &c,  it  was  held  that  this  did.  not  preclude  the  legislature  from 
passing  an  act  of  pardon  and  amnesty  for  parties  liable  to  prosecution,  but  not 
yet  convicted.     State  v.  Nichols,  26  Ark.  7-4 ;  s.  c.  7  Am.  Rep.  600. 

[127] 


*  117  CONSTITUTIONAL    LIMITATIONS.  [CH.  V. 

cies  upon  which  the  power  shall  be  devolved,  nor  can  it  substitute 
the  judgment,  wisdom,  and  patriotism  of  any  other  body  for  those 
to  which  alone  the  people  have  seen  fit  to  confide  this  sovereign 
trust.1 

But  it  is  not  always  essential  that  a  legislative  act  should  be  a 
completed  statute  which  must  in  any  event  take  effect  as  law,  at  the 
time  it  leaves  the  hands  of  the  legislative  department.  A  statute 
may  be  conditional,  and  its  taking  effect  may  be  made  to  depend 
upon  some  subsequent  event.2  Affirmative  legislation  may  in  some 
cases  be  adopted,  of  which  the  parties  interested  are  at  liberty  to 
avail  themselves  or  not  at  their  option.  A  private  act  of  incor- 
poration cannot  be  forced  upon  the  corporators  ;  they  may  refuse 

the  franchise  if  they  so  choose.3     In  these  cases  the  legis- 
[*  118]  lative  *  act  is  regarded  as  complete  when  it  has  passed 

through  the  constitutional    formalities   necessary  to  per- 

1  "  These  ai*e  the  bounds  which  the  trust  that  is  put  in  them  by  the  society,  and 
the  law  of  God  and  nature,  have  set  to  the  legislative  power  of  every  common- 
wealth, in  all  forms  of  government :  — 

"  First.  They  are  to  govern  by  promulgated  established  laws,  not  to  be  varied 
in  particular  cases,  but  to  have  one  rule  for  rich  and  poor,  for  the  favorite  at 
court  and  the  countryman  at  plough. 

"  Secondly.  These  laws  also  ought  to  be  designed  for  no  other  end  ultimately 
but  the  good  of  the  people. 

"  Thirdly.  They  must  not  raise  taxes  on  the  property  of  the  people  without 
the  consent  of  the  people,  given  by  themselves  or  their  deputies.  And  this 
properly  concerns  only  such  governments  where  the  legislative  is  always  in  being, 
or  at  least  where  the  people  have  not  reserved  any  part  of  the  legislative  to 
deputies,  to  be  from  time  to  time  chosen  by  themselves. 

"  Fourthly.  The  legislative  neither  must  nor  can  transfer  the  power  of  making 
laws  to  anybody  else,  or  place  it  anywhere  but  where  the  people  have."  Locke 
on  Civil  Government,  §  142. 

That  legislative  power  cannot  be  delegated,  see  Thorne  v.  Cramer,  15  Barb. 
112  ;  Bradley  v.  Baxter,  ib.  122  ;  Barto  v.  Himrod,  8  N.  Y.  483  ;  People  v.  Stout, 
23  Barb.  349 ;  Rice  v.  Foster,  4  Harr.  479 ;  Santo  v.  State,  2  Iowa,  165 ;  Gee- 
brick  v.  State,  5  Iowa,  491  ;  State  v.  Beneke,  9  Iowa,  203 ;  State  v.  Weir,  33 
Iowa,  134  ;  People  v.  Collins,  3  Mich.  343  ;  Railroad  Company  v.  Commissioners 
of  Clinton  County,  1  Ohio,  N.  s.  77  ;  Parker  v.  Commonwealth,  6  Penn.  St.  507; 
Commonwealth  v.  McWilliams,  11  Penn.  St.  61;  Maize  v.  State,  4  Ind.  342; 
Meshmeier  v.  State,  11  Ind.  482  ;  State  v.  Parker,  26  Vt.  362;  State  v.  Swisher, 
17  Texas,  441 ;  State  v.  Copeland,  3  R.  I.  33 ;    State  v.  Wilcox,  45  Mo.  458. 

2  Brig  Aurora  v.  United  States,  7  Cranch,  382 ;  Bull  v.  Read,  13  Grat.  78 ; 
State  v.  Parker,  26  Vt.  357;  Peck  v.  Weddell,  17  Ohio,  N.  s.  271;  State  o. 
Kirkley,  29  Md.  85. 

3  Angell  and  Ames  on  Corp.  §  81. 

[128] 


CH.  V.]       POWERS   EXERCISED    BY   LEGISLATIVE   DEPARTMENT.  *  118 

fected  legislation,  notwithstanding  its  actually  going  into  operation 
as  law  may  depend  upon  its  subsequent  acceptance.  We  have 
elsewhere  spoken  of  municipal  corporations,  and  of  the  powers  of 
legislation  which  may  be  and  commonly  are  bestowed  upon  them, 
and  the  bestowal  of  which  is  not  to  be  considered  as  trenching 
upon  the  maxim  that  legislative  power  is  not  to  be  delegated,  since 
that  maxim  is  to  be  understood  in  the  light  of  the  immemorial 
practice  of  this  country  and  of  England,  which  has  always  recog- 
nized the  propriety  of  vesting  in  the  municipal  organizations  cer- 
tain powers  of  local  regulation,  in  respect  to  which  the  parties 
immediately  interested  may  fairly  be  supposed  more  competent  to 
judge  of  their  needs  than  any  central  authority.  As  municipal 
organizations  are  mere  auxiliaries  of  the  State  government  in  the 
important  business  of  municipal  rule,  the  legislature  may  create 
them  at  will  from  its  own  views  of  propriety  or  necessity,  and 
without  consulting  the  parties  interested  ;  and  it  also  possesses  the 
like  power  to  abolish  them,  without  stopping  to  inquire  what  may 
be  the  desire  of  the  corporators  on  that  subject.1 

Nevertheless,  as  the  corporators  have  a  special  and  peculiar 
interest  in  the  terms  and  conditions  of  the  charter,  in  the  powers 
conferred  and  liabilities  imposed,  as  well  as  in  the  general  ques- 
tion whether  they  shall  originally  be  or  afterwards  remain  incor- 
porated at  all  or  not,  and  as  the  burdens  of  municipal  government 
must  rest  upon  their  shoulders,  and  especially  as  by  becoming 
incorporated  they  are  held,  in  law,  to  undertake  to  discharge  the 
duties  the  charter  imposes,  it  seems  eminently  proper  that  their 
voice  should  be  heard  on  the  question  of  their  incorporation,  and 
that  their  decision  should  be  conclusive,  unless,  for  strong  reasons 
of  State  policy  or  local  necessity,  it  should  seem  important  for  the 
State  to  overrule  the  opinion  of  the  local  majority.  The  right  to 
refer  any  legislation  of  this  character  to  the  people  peculiarly 
interested  does  not  seem  to  be  questioned,  and  the  reference  is 
by  no  means  unusual.2 

1  City  of  Patterson  v.  Society,  &c,  4  Zab.  3S5 ;  Cheany  v.  Hooser,  9  B.  Monr. 
330 ;  Berlin  v.  Gorhani,  34  N.  H.  266.  The  question  of  a  levee  tax  may  lawfully 
be  referred  to  the  voters  of  the  district  of  territory  over  which  it  is  proposed  to 
spread  the  tax,  regardless  of  municipal  divisions.  Alcorn  v.  Hamer,  38  Miss. 
652.  And  see,  in  general,  Angell  and  Ames  on  Corp.  §  31  and  note ;  also  post, 
pp.  190-192. 

2  Bull  v.  Read,  13  Grat.  78 ;  Corning  v.  Greene,  23  Barb.  33 ;  Morford  v. 

9  [  129  ] 


*  119  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

[*119]  *For  the  like  reasons  the  question  whether  a  county  or 
township  shall  be  divided  and  a  new  one  formed,1  or  two 
townships  or  school  districts  formerly  one  be  reunited,2  or  a  county 
seat  located  at  a  particular  place,  or  after  its  location  removed 
elsewhere,3  or  the  municipality  contract  particular  debts,  or  engage 
in  a  particular  improvement,4  is  always  a  question  which  may 
with  propriety  be  referred  to  the  voters  of  the  municipality  for 
decision. 

Unger,  8  Iowa,  82;  City  of  Patterson  v.  Society,  &c,  4  Zab.  385;  Gorham 
v.  Springfield,  21  Me.  58  ;  Commonwealth  v.  Judges  of  Quarter  Sessions,  8  Penn. 
St.  391;  Commonwealth  v.  Painter,  10  Penn.  St.  214;  Call  v.  Chadbourne,  46 
Me.  206;  State  v.  Scott,  17  Mo.  521 ;  State  v.  Wilcox,  45  Mo.  458;  Hobart  v. 
Supervisors,  &c,  17  Cal.  23;  Bank  of  Chenango  v.  Brown,  26  N.  Y.  467; 
Steward  v.  Jefferson,  3  Harr.  335;  Burgess  v.  Pue,  2  Gill,  11 ;  Lafayette,  &c, 
R.  R.  Co.  v.  Geiger,  34  Ind.  185.  The  right  to  refer  to  the  people  of  several 
municipalities  the  question  of  their  consolidation  was  disputed  in  Smith  v. 
McCarthy,  56  Penn.  St.  359,  but  sustained  by  the  court. 

1  State  v.  Reynolds,  5  Gilm.  1.  See  State  v.  McNiell,  24  Wis.  149.  The 
question  whether  a  general  school  law  shall  be  accepted  in  a  particular  munici- 
pality may  be  referred  to  its  voters.     State  v.  Wilcox,  45  Mo.  458. 

2  Commonwealth  v.  Judges,  &c,  8  Penn.  St.  391;  Call  v.  Chadbourne,  46 
Me.  206. 

3  Commonwealth  v.  Painter,  10  Penn.  St.  214.      See  People  v.  -Salomon,  51 

111.  37. 

4  The  following  are  cases  in  which  municipal  subscriptions  to  works  of  inter- 
nal improvement,  under  statutes  empowering  them  to  be  made,  have  been  sus- 
tained: Goddin  v.  Crump,  8  Leigh,  120;  Bridgeport  v.  Housatonic  Railroad 
Co.,  15  Conn.  475;  Thomas  v.  Leland,  24  Wend.  65;  Clarke  v.  Rochester,  24 
Barb.  446  ;  Benson  v.  Mayor,  &c,  of  Albany,  21  Barb.  248  ;  Corning  v.  Greene, 
23  Barb.  33;  Grant  v.  Courter,  24  Barb.  232;  Starin  v.  Genoa,  29  Barb.  442, 
and  23  N.  Y.  439 ;  Bank  of  Rome  v.  Village  of  Rome,  18  1ST.  Y.  38 ;  Pretty- 
man  v.  Supervisors,  &c,  19  111.  406  ;  Robertson  v.  Rockford,  21  111.  451 ;  John- 
son v.  Stack,  24  111.  75;  Perkins  v.  Perkins,  ib.  208  ;  Bushnell  v.  Beloit,  10  Wis. 
195 ;  Clark  v.  Janesville,  ib.  136 ;  Stein  v.  Mobile,  24  Ala.  591 ;  Mayor  of 
Wetumpka  v.  Winter,  29  Ala.  651 ;  Pattison  v.  Yuba,  13  Cal.  175 ;  Blanding 
v.  Burr,  ib.  343  ;  Hobart  v.  Supervisors,  &c,  17  Cal.  23 ;  Dubuque  County  v. 
Railroad  Co.,  4  Greene  (Iowa),  1;  State  v.  Bissell,  ib.  328;  Clapp  v.  Cedar 
County,  5  Iowa,  15  ;  Gaines  v.  Robb,  8  Iowa,  193  ;  McMillen  v.  Boyles,  6  Iowa, 
304 ;  Taylor  v.  Newberne,  2  Jones  Eq.  141 ;  Caldwell  v.  Justices  of  Burke,  4 
Jones  Eq.  323  ;  Louisville,  &c,  Railroad  Co.  v.  Davidson,  1  Sneed,  637  ;  Nichol 
v.  Mayor  of  Nashville,  9  Humph.  252;  Railroad  Co.  v.  Commissioners  of  Clinton 
Co.,  1  Ohio,  N.  s.  77;  Trustees  of  Paris  v.  Cherry,  8  Ohio,  N.  8.  564;  Cass 
v.  Dillon,  2  Ohio,  N.  s.  607;  State  v.  Commissioners  of  Clinton  Co.,  6  Ohio, 
N.  s.  280 ;  State  v.  Van  Home,  7  Ohio,  n.  s.  327  ;  State  u.  Trustees  of  Union, 
8  Ohio,  N.  s.  394;    Trustees,  &c.  v.  Shoemaker,  12  Ohio,  N.  s.  624;  State  v. 

[130] 


CH.  V.]       POWERS   EXERCISED    BY   LEGISLATIVE   DEPARTMENT.        *  119 

The  question  then  arises,  whether  that  which  may  be 
done  in  *  reference  to  any  municipal  organization  within  [*  120] 
the  State  may  not  also  be  done  in  reference  to  the  State 
at  large  ?  May  not  any  law  framed  for  the  State  at  large  be  made 
conditional  on  an  acceptance  by  the  people  at  large,  declared 
through  the  ballot-box  ?  If  it  is  not  unconstitutional  to  delegate 
to  a  single  locality  the  power  to  decide  whether  it  will  be  governed 
by  a  particular  charter,  must  it  not  quite  as  clearly  be  within  the 
power  of  the  legislature  to  refer  to  the  people  at  large,  from  whom 
all  power  is  derived,  the  decision  upon  any  proposed  statute  affect- 
ing the  whole  State  ?  And  can  that  be  called  a  delegation  of  power 
which  consists  only  in  the  agent  or  trustee  referring  back  to  the 
principal  the  final  decision  in  a  case  where  the  principal  is  the 
party  concerned,  and  where  perhaps  there  are  questions  of-  policy 
and  propriety  involved  which  no  authority  can  decide  so  satis- 
factorily and  so  conclusively  as  the  principal  to  whom  they  are 
referred  ? 

If  the  decision  of  these  questions  is  to  depend  upon  the  weight 
of  judicial  authority  up  to  the  present  time,  it  must  be  held  that 
there  is  no  power  to  refer  the  adoption  or  rejection  of  a  general 
law  to  the  people  of  the  State,  any  more  than  there  is  to  refer  it  to 

Commissioners  of  Hancock,  12  Ohio,  N.  s.  596;  Powers  v.  Dougherty  Co.,  23 
Geo.  65;  San  Antonio  v.  Jones,  28  Texas,  19;  Commonwealth  v.  McWillianis, 
11  Penn.  St.  61;  Sharpless  v.  Mayor,  &c,  21  Penn.  St.  147;  Moers  U.Reading, 
ib.  18S ;  Talbot  v.  Dent,  9  B.  Monr.  526  ;  Slack  v.  Railroad  Co.,  13  B.  Monr.  1 ; 
City  of  St.  Louis  v.  Alexander,  23  Mo.  483;  City  of  Aurora  v.  West,  9  Ind.  74; 
Cotton  v.  Commissioners  of  Leon,  6  Fla.  610;  Copes  v.  Charleston,  10  Rich. 
491 ;  Commissioners  of  Knox  County  v.  Aspinwall,  21  How.  539,  and  24  How. 
326;  Same  v.  Wallace,  21  How.  547;  Zabriske  v.  Railroad  Co.,  2:J  How.  381; 
Amey  v.  Mayor,  &c,  24  How.  365  ;  Gelpecke  v.  Dubuque,  1  Wal.  175  ;  Thomp- 
son v.  Lee  County,  3  Wall.  327 ;  Rogers  v.  Burlington,  ib.  654  ;  Butler  v.  Dun- 
ham, 27  111.  474;  Gibbons  v.  Mobile  &  Great  Northern  Railroad  Co.,  36  Ala. 
410;  St.  Joseph,  &c,  Railroad  Co.  v.  Buchanan  Co.  Court,  39  Mo.  485;  State 
v.  Linn  Co.  Court,  44  Mo.  504;  Stewart  v.  Supervisors  of  Polk  Co.,  30  Iowa, 
9  ;  John  v.  C.  R.  &  F.  W.  R.  R.  Co.,  35  Ind.  539  ;  Leavenworth  County  v.  Mil- 
ler, 7  Kan.  479;  Walker  v.  Cincinnati,  21  Ohio,  N.  s.  14;  Ex  parte  Selma,  &c, 
R.R.  Co.,  45  Ala.  696  ;  S.  &  V.  R.R.  Co.  v.  Stockton,  41  Cal.  149.  In  several 
of  them  the  power  to  authorize  the  municipalities  to  decide  upon  such  subscrip- 
tions has  been  contested  as  a  delegation  of  legislative  authority,  but  the  courts  — 
even  those  which  hold  the  subscriptions  void  on  other  grounds  —  do  not  look  upon 
these  cases  as  being  obnoxious  to  the  constitutional  principle  referred  to  in  the 
text. 

[  131  ] 


*  120  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

any  other  authority.  The  prevailing  doctrine  in  the  courts  appears 
to  be,  that,  except  in  those  cases  where,  by  the  constitution,  the 
people  have  expressly  reserved  to  themselves  a  power  of  decision, 
the  function  of  legislation  cannot  be  exercised  by  them,  even  to  the 
extent  of  accepting  or  rejecting  a  law  which  has  been  framed  for 
their  consideration.  "  The  exercise  of  this  power  by  the  people  in 
other  cases  is  not  expressly  and  in  terms  prohibited  by  the  constitu- 
tion, but  it  is  forbidden  by  necessary  and  unavoidable  implication. 
The  Senate  and  Assembly  are  the  only  bodies  of  men  clothed  with 
the  power  of  general  legislation.  They  possess  the  entire  power, 
with  the  exception  above  stated.  The  people  reserved  no  part  of 
it  to  themselves  [with  that  exception],  and  can  therefore  exercise 
it  in  no  other  case."  It  is  therefore  held  that  the  legislature  have 
no  power  to  submit  a  proposed  law  to  the  people,  nor  have  the 
people  power  to  bind  each  other  by  acting  upon  it.  They  volun- 
tarily surrendered  that  power  when  they  adopted  the  constitution. 
The  government  of  the  State  is  democratic,  but  it  is  a  represen- 
tative democracy,  and  in  passing  general  laws  the  people  act  only 

through  their  representatives  in  the  legislature.1 
f*  121]       *Nor,  it  seems,  can  such  legislation  be  sustained   as 

legislation  of  a  conditional  character,  whose  force  is  to 
depend  upon  the  happening  of  some  future  event,  or  upon  some 
future  change  of  circumstances.  "  The  event  or  change  of  circum- 
stances on  which  a  law  may  be  made  to  take  effect  must  be  such 
as,  in  the  judgment  of  the  legislature,  affects  the  question  of  the 

1  Per  Buggies,  Ch.  J.,  in  Barto  v.  Himrod,  8  N.  Y.  489.  It  is  worthy  of  con- 
sideration, however,  whether  there  is  any  thing  in  the  reference  of  a  statute  to 
the  people  for  acceptance  or  rejection  which  is  inconsistent  with  the  representa- 
tive system  of  government.  To  refer  it  to  the  people  to  frame  and  agree  upon 
a  statute  for  themselves  would  be  equally  impracticable  and  inconsistent  with 
the  representative  system ;  but  to  take  the  opinion  of  the  people  upon  a  bill 
already  framed  by  representatives  and  submitted  to  them,  is  not  only  practicable, 
but  is  in  precise  accordance  with  the  mode  in  which  the  constitution  of  the  State 
is  adopted,  and  with  the  action  which  is  taken  in  many  other  cases.  The  repre- 
sentative in  these  cases  has  fulfilled  precisely  those  functions  which  the  people  as 
a  democracy  could  not  fulfil ;  and  where  the  case  has  reached  a  stage  when  the 
body  of  the  people  can  act  without  confusion,  the  representative  has  stepped 
aside  to  allow  their  opinion  to  be  expressed.  The  legislature  is  not  attempting 
in  such  a  case  to  delegate  its  authority  to  a  new  agency,  but  the  trustee,  vested 
with  a  large  discretionary  authority,  is  taking  the  opinion  of  the  principal  upon 
the  necessity,  policy,  or  propriety  of  an  act  which  is  to  govern  the  principal 
himself.     See  Smith  v.  Janesville,  26  Wis.  291. 

[132] 


CH.  V.]       POWERS    EXERCISED  "BY   LEGISLATIVE    DEPARTMENT.         *  121 

expediency  of  the  law ;  an  event  on  which  the  expediency  of  the 
law  in  the  opinion  of  the  law-makers  depends.  On  this  question 
of  expediency,  the  legislature  must  exercise  its  own  judgment 
definitively  and  finally.  When  a  law  is  made  to  take  effect  upon 
the  happening  of  such  an  event,  the  legislature  in  effect  declared 
the  law  inexpedient  if  the  event  should  not  happen,  but  expedient 
if  it  should  happen.  They  appeal  to  no  other  man  or  men  to  judge 
for  them  in  relation  to  its  present  or  future  expediency.  They 
exercise  that  power  themselves,  and  then  perform  the  duty  which 
the  constitution  imposes  upon  them."  But  it  was  held  that  in  the 
case  of  the  submission  of  a  proposed  free-school  law  to  the  people, 
no  such  event  or  change  of  circumstances  affecting  the  expediency 
of  the  law  was  expected  to  happen.  The  wisdom  or  expediency 
of  the  School  Act,  abstractly  considered,  did  not  depend  on  the 
vote  of  the  people.  If  it  was  unwise  or  inexpedient  before  that 
vote  was  taken,  it  was  equally  so  afterwards.  The  event  on  which 
the  act  was  to  take  effect  was  nothing  else  than  the  vote  of  the 
people  on  the  identical  question  which  the  constitution  makes 
it  the  duty  of  the  legislature  itself  to  decide.  The  legislature 
has  no  power  to  make  a  statute  dependent  on  such  a 
*  contingency,  because  it  would  be  confiding  to  others  [*  122] 
that  legislative  discretion  which  they  are  bound  to  exer- 
cise themselves,  and  which  they  cannot  delegate  or  commit  to 
any  other  man  or  men  to  be  exercised.1 

1  Per  Ruggles,  Ch.  J.,  in  Barto  v.  Himrod,  8  N.  Y.  490.  And  see  Santo  v. 
State,  2  Iowa,  165;  State  v.  Beneke,  9  Iowa,  203;  State  v.  Swisher,  17  Texas, 
441 ;  State  v.  Field,  17  Mo.  529  :  Bank  of  Chenango  v.  Brown,  26  N.  Y.  470; 
People  v.  Stout,  23  Barb.  349 ;  State  v.  Wilcox,  45  Mo.  458.  But  upon  this 
point  there  is  great  force  in  what  is  said  by  Redfield,  Ch.  J.,  in  State  v.  Parker, 
26  Vt.  357  :  "  If  the  operation  of  a  law  may  fairly  be  made  to  depend  upon  a 
future  contingency,  then,  in  my  apprehension,  it  makes  no  essential  difference 
what  is  the  nature  of  the  contingency,  so  it  be  an  equal  and  fair  one,  a  moral  and 
legal  one,  not  opposed  to  sound  policy,  and  so  far  connected  with  the  object  and 
purpose  of  the  statute  as  not  to  be  a  mere  idle  and  arbitrary  one.  And  to  us  the 
contingency,  upon  which  the  present  statute  was  to  be  suspended  until  another 
legislature  should  meet  and  have  opportunity  of  reconsidering  it,  was  not  only 
proper  and  legal,  and  just  and  moral,  but  highly  commendable  and  creditable  to 
the  legislature  who  passed  the  statute  ;  for  at  the  very  threshold  of  inquiry  into 
the  expediency  of  such  a  law  lies  the  other  and  more  important  inquiry,  Are  the 
people  prepared  for  such  a  law  ?  Can  it  be  successfully  enforced  ?  These  ques- 
tions being  answered  in  the  affirmative,  he  must  be  a  bold  man  who  would  even 
vote  against  the  law;  and  something  more  must  he  be  who  would,  after  it  had 

[133] 


*  123  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

[*  123]       *The  same  reasons  which  preclude  the  original  enact- 
ment of  a  law  from  being  referred  to  the  people  would 

been  passed  with  that  assurance,  be  willing  to  embarrass  its  operation  or  rejoice 
at  its  defeat. 

"  After  a  full  examination  of  the  arguments  by  which  it  is   attempted  to  be 
sustained  that  statutes  made  dependent  upon  such  contingencies  are  not  valid 
laws,   and  a  good  deal  of  study  and  reflection,  I  must  declare  that  I  am  fully 
convinced — although  at  first,  without  much  examination,  somewhat  inclined  to 
the  same  opinion  —  that  the  opinion  is  the  result  of  false  analogies,  and  so  founded 
upon  a  latent  fallacy.     It  seems  to  me  that  the  distinction  attempted  between 
the  contingency  of  a  popular  vote  and  other  future  contingencies  is  without  all 
just  foundation  in  sound  policy  or  sound  reasoning,  and  tbat  it  has  too  often  been 
made  more  from  necessity  than  choice,  — rather  to  escape  from  an  overwhelming 
analogy  than  from  any  obvious  difference  in  principle  in  the  two  classes  of  cases ; 
for  .  .  .  one  may  find  any  number  of  cases  in  the  legislation  of  Congress,  where 
statutes  have  been  made  dependent  upon  the  shifting   character  of  the  revenue 
laws,  or  the  navigation  laws,  or  commercial  rules,  edicts,  or  restrictions  of  other 
countries.     In  some,  perhaps,  these  laws  are  made  by  representative  bodies,  or, 
it  may  be,  by  the  people  of  these  States,  and  in  others  by  the  lords  of  the  treas- 
ury, or  the  boards  of  trade,  or  by  the  proclamation  of  the  sovereign ;  and  in  all 
these  cases  no  question  can  be  made  of  the  perfect  legality  of  our  acts  of  Congress 
being  made  dependent  upon  such  contingencies.     It  is,  in  fact,  the  only  possible 
mode  of  meeting  them,  unless  Congress  is  kept  constantly  in  session.     The  same 
is  true  of  acts  of  Congress  by  which  power  is  vested  in  the  President  to  levy 
troops  or  draw  money  from  the  public  treasury,  upon  the  contingency  of  a  decla- 
ration or  an  act  of  war  committed  by  some  foreign  state,  empire,  kingdom,  prince, 
or  potentate.     If  these  illustrations  are  not  sufficient  to  show  the  fallacy  of  the 
argument,  more  would  not  avail."     See  also  State  v.  Noyes,  10  Fost.  292  ;  Bull 
v.  Read,  13  Grat.  78  ;  Johnson  v.  Rich,  9  Barb.  680 ;  State  v.  Reynolds,  5  Gilm. 
1 ;  Robinson  v.  Bidwell,  22  Cal.  349.     In  the  recent  case  of  Smith  v.  Janesville, 
26  Wis.  291,   Chief  Justice   Dixon  discusses  this  subject  in  the  following  lan- 
guage :   "  But  it  is  said  that  the  act  is  void,  or  at  least  so  much  of  it  as  pertains 
to  the  taxation  of  shares  in  national  banks,  because  it  was  submitted  to  a  vote 
of  the  people,  or  provided  that  it  should   take   effect  only  after  approval  by  a 
majority  of  the  electors  voting  on  the  subject  at  the  next  general  election.    This 
was  no  more  than  providing  that  the  act  should  take  effect  on  the  happening  of 
a  certain  future  contingency,  that  contingency  being  a  popular  vote  in  its  favor. 
No  one  doubts  the  general  power  of  the  legislature  to  make  such  regulations  and 
conditions  as  it  pleases  with  regard  to  the  taking  effect  or  operation  of  laws. 
They  may  be  absolute,  or  conditional  and  contingent ;  and  if  the  latter,  they 
may  take  effect  on  the  happening  of  any  event  which  is  future  and  uncertain. 
Instances  of  this  kind  of  legislation  are  not  unfrequent.     The  law  of  Congress 
suspending  the  writ  of  habeas  corpus  during  the  late  rebellion  is  one,  and  several 
others  are  referred  to  in  the  case  In  re  Richard  Oliver,  17  Wis.  681.     It  being 
conceded  that  the  legislature  possesses  this  general  power,  the  only  question  here 
would  seem  to  be,  whether  a  vote  of  the  people  in  favor  of  a  law  is  to  be  excluded 
from  the  number  of  those  future  contingent  events  upon  which  it  may  be  pro- 

[  134  ] 


CH.  V.]      POWERS   EXERCISED   BY  LEGISLATIVE   DEPARTMENT.         *  123 

render  it  equally  incompetent  to  refer  to  their  decision  the  ques- 
tion, whether  an  existing  law  should  be  repealed.  If  the  one  is 
"  a  plain  surrender  to  the  people  of  the  law-making  power,"  so 
also  is  the  other.1  It  would  seem,  however,  that  if  a  legislative 
act  is,  by  its  terms,  to  take  effect  in  any  contingency,  it  is  not 
unconstitutional  to  make  the  time  when  it  shall  take  effect  depend 
upon  the  event  of  a  popular  vote  being  for  or  against  it,  —  the 
time  of  its  going  into  operation  being  postponed  to  a  later  day  in 
the  latter  contingency.2  It  would  also  seem  that  if  the  question 
of  the  acceptance  or  rejection  of  a  municipal  charter  can  be 
referred  to  the  voters  of  the  locality  specially  interested,  it  would 
be  equally  competent  to  refer  to  them  the  question  whether  a 
State  law  establishing  a  particular  police  regulation  should  be  of 
force  in  such  locality  or  not.  Municipal  charters  refer  most 
questions  of  local  government,  including  police  regulations,  to  the 
local  authorities ;  on  the  supposition  that  they  are  better  able  to 

vided  that  it  shall  take  effect.  A  similar  question  was  before  this  court  in  a  late 
case  (State  ex  rel.  Attorney-General  v.  O'Neill,  Mayor,  &c,  24  Wis.  149),  and 
was  very  elaborately  discussed.  We  came  unanimously  to  the  conclusion  in  that 
case  that  a  provision  for  a  vote  of  the  electors  of  the  city  of  Milwaukee  in  favor 
of  an  act  of  the  legislature,  before  it  should  take  effect,  was  a  lawful  contingency, 
and  that  the  act  was  valid.  That  was  a  law  affecting  the  people  of  Milwaukee 
particularly,  while  this  was  one  affecting  the  people  of  the  whole  State.  There 
the  law  was  submitted  to  the  voters  of  that  city,  and  here  it  was  submitted  to 
those  of  the  State  at  large.  What  is  the  difference  between  the  two  cases  ?  It 
is  manifest,  on  principle,  that  there  cannot  be  any.  The  whole  re'asoning  of  that 
case  goes  to  show  that  this  act  must  be  valid,  and  so  it  has  been  held  in  the  best- 
considered  cases,  as  will  be  seen  by  reference  to  that  opinion.  We  are  con- 
strained to  hold,  therefore,  that  this  act  is  and  was  in  all  respects  valid  from  the 
time  it  took  effect,  in  November,  1866  ;  and  consequently  that  there  was  no  want 
of  authority  for  the  levy  and  collection  of  the  taxes  in  question."  This  decision, 
though  opposed  to  many  others,  appears  to  us  entirely  sound  and  reasonable. 

1  Geebrick  v.  State,  5  Iowa,  491 ;  Rice  v.  Foster,  4  Harr.  492 ;  Parker  v.  Com- 
monwealth, 6  Penn.  St.  507. 

2  State  v.  Parker,  26  Yt.  357.  The  act  under  consideration  in  that  case  was, 
by  its  terms,  to  take  effect  on  the  second  Tuesday  of  March  after  its  passage, 
unless  the  people,  to  whose  votes  it  was  submitted,  should  declare  against  it,  in 
which  case  it  should  take  effect  in  the  following  December.  The  case  was  dis- 
tinguished from  Barto  v.  Himrod,  8  N.  Y.  483,  and  the  act  sustained.  At  the 
same  time  the  court  express  their  dissent  from  the  reasoning  upon  which  the  New 
York  case  rests.  In  People  v.  Collins,  3  Mich.  343,  the  court  was  equally  divided 
in  a  case  similar  to  that  in  Vermont,  except  that  in  the  Michigan  case  the  law, 
which  was  passed  and  submitted  to  the  people  in  1853,  was  not  to  go  into  effect 
until  1870,  if  the  vote  of  the  people  was  against  it. 

[135] 


*  123  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

decide  for  themselves  upon  the  needs,  as  well  as  the  sentiments,  of 
their  constituents,  than  the  legislature  possibly  can  be,  and  are 
therefore  more  competent  to  judge  what  local  regulations  are 
important,  and  also  how  far  the  local  sentiment  will  assist  in  their 
enforcement.  The  same  reasons  would  apply  in  favor  of  permit- 
ting the  people  of  the  locality  to  accept  or  reject  for  themselves  a 
particular  police  regulation,  since  this  is  only  allowing  them  less 
extensive  powers  of  local  government  than  a  municipal  charter 
would  confer ;  and  the  fact  that  the  rule  of  law  on  that 
[*  124]  subject  might  be  different  in  different  *  localities,  accord- 
ing as  the  people  accepted  or  rejected  the  regulation, 
would  not  seem  to  affect  the  principle,  when  the  same  result  is 
brought  about  by  the  different  regulations  which  municipal  cor- 
porations establish  for  themselves  in  the  exercise  of  an  undisputed 
authority.1  It  is  not  to  be  denied,  however,  that  there  is  con- 
siderable authority  against  the  right  of  legislative  delegation  in 
these  cases. 

The  legislature  of  Delaware,  in  1847,  passed  an  act  to  authorize 
the  citizens  of  the  several  counties  of  the  State  to  decide  by  bal- 
lot whether  the  license  to  retail  intoxicating  liquors  should  be  per- 
mitted. By  this  act  a  general  election  was  to  be  held  ;  and  if  a 
majority  of  votes  in  any  county  should  be  cast  against  license,  it 

1  In  New  Hampshire  an  act  was  passed  declaring  bowling-alleys,  situate  within 
twenty-five  rods  of  a  dwelling-house,  nuisances ;  but  the  statute  was  to  be  in 
force  only  in  those  towns  in  which  it  should  be  adopted  in  town  meeting.  In 
State  v.  Noyes,  10'  Fost.  293,  this  act  was  held  to  be  constitutional.  "Assuming," 
say  the  court,  "that  the  legislature  has  the  right  to  confer  the  power  of  local 
regulation  upon  cities  and  towns,  that  is,  the  power  to  pass  ordinances  and  by- 
laws, in  such  terms  and  with  such  provisions,  in  the  classes  of  cases  to  which  the 
power  extends,  as  they  may  think  proper,  it  seems  to  us  hardly  possible  seriously 
to  contend  that  the  legislature  may  not  confer  the  power  to  adopt  within  such 
municipality  a  law  drawn  up  and  framed  by  themselves.  If  they  may  pass  a 
law  authorizing  towns  to  make  ordinances  to  punish  the  keeping  of  billiard-rooms, 
bowling-alleys,  and  other  places  of  gambling,  they  may  surely  pass  laws  to  punish 
the  same  acts,  subject  to  be  adopted  by  the  town  before  they  can  be  of  force  in 
it."  And  it  seems  to  us  difficult  to  answer  this  reasoning,  if  it  be  confined  to  such 
laws  as  fall  within  the  proper  province  of  local  government,  and  which  are  there- 
fore usually  referred  to  the  judgment  of  the  municipal  authorities  or  their  constit- 
uency. A  similar  question  arose  in  Smith  v.  Village  of  Adrian,  1  Mich.  495,  but 
was  not  decided.  In  Bank  of  Chenango  v.  Brown,  26  N.  Y.  467,  it  was  held 
competent  to  authorize  the  electors  of  an  incorporated  village  to  determine  for 
themselves  what  sections  of  the  general  act  for  the  incorporation  of  villages  should 
apply  to  their  village.  See,  further,  People  v.  Salomon,  51  111.  37. 
[136] 


CH.  V.]       POWERS   EXERCISED   BY  LEGISLATIVE   DEPARTMENT.         *  124 

should  not  thereafter  be  lawful  for  any  person  to  retail  intoxicat- 
ing liquors  within  such  county  ;  but  if  the  majority  should  be  cast 
in  favor  of  license,  then  licenses  might  be  granted  in  the  county 
so  voting,  in  the  manner  and  under  the  regulations  in  said  act 
prescribed.  The  Court  of  Errors  and  Appeals  of  that  State  held 
this  act  void,  as  an  attempted  delegation  of  the  trust  to  make  laws, 
and  upon  the  same  reasons  which  support  the  cases  before  cited, 
where  acts  have  been  held  void  which  referred  to  the  people  of  the 
State  for  approval  a  law  of  general  application.1  The  same  de- 
cision was  made  near  the  same  time  by  the  Supreme 
*  Court  of  Pennsylvania,2  followed  afterwards  in  an  elabo-  [*  125] 
rate  opinion  by  the  Supreme  Court  of  Iowa.3 

By  statute  in  Indiana  it  was  enacted  that  no  person  should  retail 
spirituous  liquors,  except  for  sacramental,  mechanical,  chemical, 
medicinal,  or  culinary  purposes,  without  the  consent  of  the 
majority  of  the  legal  voters  of  the  proper  township  who  might 
cast  their  votes  for  license  at  the  April  election,  nor  without  filing 
with  the  county  auditor  a  bond  as  therein  provided  ;  upon  the  filing 
of  which  the  auditor  was  to  issue  to  the  person  filing  the  same  a 
license  to  retail  spirituous  liquors,  which  was  to  be  good  for  one 
year  from  the  day  of  the  election.  This  act  was  held  void  upon 
similar  reasons  to  those  above  quoted.4  This  case  follows  the 
decisions  in  Pennsylvania  and  Delaware,5  and  it  has  since  been 
followed  by  another  decision  of  the  Supreme  Court  of  that  State, 
except  that  while  in  the  first  case  only  that  portion  of  the  statute 
which  provided  for  submission  to  the  people  was  held  void,  in  the 
later  case  that  unconstitutional  provision  was  held  to  affect  the 
whole  statute  with  infirmity,  and  render  the  whole  invalid.6 

Irrepealable  Laivs. 

Similar  reasons  to  those  which  forbid  the  legislative  department 
of  the  State  from  delegating  its  authority  will  also  forbid  its  pass- 

1  Rice  v.  Foster,  4  Harr.  479. 

2  Parker  v.  Commonwealth,  6  Perm.  St.  507. 

3  Geebrick  v.  State,  5  Iowa,  495. 

4  Maize  v.  State,  4  Ind.  342. 

5  Parker  v.  Commonwealth,  6  Penn.  St.  507  ;  Rice  v.  Foster,  4  Harr.  479 . 
See  also  State  v.  Field,  17  Mo.  529;  Commonwealth  v.  McWilliams,  11  Penn. 
St.  61 ;  State  v.  Copeland,  3  R.  I.  33. 

6  Meshmeier  v.  State,  11  Ind.  481. 

[137] 


*  125  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

ing  any  irrepealable  law.  The  constitution,  in  conferring  the  leg- 
islative authority,  has  prescribed  to  its  exercise  any  limitations 
which  the  people  saw  fit  to  impose ;  and  no  other  power  than  the 
people  can  superadd  other  limitations.  To  say  that  the  legislature 
may  pass  irrepealable  laws,  is  to  say  that  it  may  alter  the  very 
constitution  from  which  it  derives  its  authority  ;  since  in  so  far  as 
one  legislature  could  bind  a  subsequent  one  by  its  enactments,  it 
could  in  the  same  degree  reduce  the  legislative  power  of  its  suc- 
cessors, and  the  process  might  be  repeated  until,  one  by  one,  the 
subjects  of  legislation  would  be  excluded  altogether  from 
[*  126]  their  control,  and  the  constitutional  provision,  that  the  *  leg- 
islative power  shall  be  vested  in  two  houses,  would  be  to  a 
greater  or  less  degree  rendered  ineffectual.1 

"  Acts  of  Parliament,"  says  Blackstone,  "  derogatory  to  the 
power  of  subsequent  Parliaments,  bind  not ;  so  the  statute  11 
Henry  VII.  c.  1,  which  directs  that  no  person  for  assisting  a  king 
de  facto  shall  be  attainted  of  treason  by  act  of  Parliament  or 
otherwise,  is  held  to  be  good  only  as  to  common  prosecutions  for 
high  treason,  but  it  will  not  restrain  or  clog  any  parliamentary 
attainder.  Because  the  legislature,  being  in  truth  the  sovereign 
*f  power,  is  always  of  equal,  and  always  of  absolute  authority  ;  it 
acknowledges  no  superior  upon  earth,  which  the  prior  legislature 
must  have  been  if  its  ordinances  could  bind  a  subsequent  Parlia- 
ment. And  upon  the  same  principle,  Cicero,  in  his  letters  to  Atti- 
cus,  treats  with  a  proper  contempt  those  restraining  clauses  which 
endeavor  to  tie  up  the  hands  of  succeeding  legislatures.     '  When 

1  "  Unlike  the  decision  of  a  court,  a  legislative  act  does  not  bind  a  subsequent 
legislature.  Each  body  possesses  the  same  power,  and  has  a  right  to  exercise 
the  same  discretion.  Measures,  though  often  rejected,  may  receive  legislative 
sanction.  There  is  no  mode  by  which  a  legislative  act  can  be  made  irrepealable, 
except  it  assume  the  form  and  substance  of  a  contract.  If  in  any  line  of 
legislation,  a  permanent  character  could  be  given  to  acts,  the  most  injurious 
consequences  would  result  to  the  country.  Its  policy  would  become  fixed  and 
unchangeable  on  great  national  interests,  which  might  retard,  if  not  destroy,  the 
public  prosperity.  Every  legislative  body,  unless  restricted  by  the  constitution, 
may  modify  or  abolish  the  acts  of  its  predecessors ;  whether  it  would  be  wise  to 
do  so,  is  a  matter  for  legislative  discretion."  Bloomer  v.  Stolley,  5  McLean, 
161.  See  this  subject  considered  in  Wall  v.  State,  23  Ind.  150,  and  State  v. 
Oskins,  28  Ind.  364.  In  Kellogg  v.  Oshkosh,  14  Wis.  623,  it  was  held  that  one 
legislature  could  not  bind  a  future  one  to  a  particular  mode  of  appeal. 
[138] 


CH.  V.]       POWERS    EXERCISED    BY   LEGISLATIVE   DEPARTMENT.         *  127 

you  repeal  the  law  itself,'  says  he, '  you  at  the  same  time  repeal  the 
prohibitory  clause  which  guards  against  such  repeal.'  "  1 

Although  this  reasoning  does  not  in  all  its  particulars  apply  to 
the  American  legislatures,  the  principle  applicable  in  each  case  is 
the  same.  There  is  a  modification  of  the  principle,  however,  by 
an  important  provision  of  the  Constitution  of  the  United  States, 
forbidding  the  States  from  passing  any  laws  impairing  the  obliga- 
tion of  contracts.  Legislative  acts  are  sometimes  in  substance 
contracts  between  the  State  and  the  party  who  is  to  derive  some 
right  under  them,  and  they  are  not  the  less  under  the  protection 
of  the  clause  quoted  because  of  having  assumed  this  form.  Char- 
ters of  incorporation,  except  those  of  a  municipal  character, — 
and  which,  as  we  have  already  seen,  create  mere  agencies 
of  government,  —  *  are  held  to  be  contracts  between  the  [*  127]  ^ 
State  and  the  corporators,  and  not  subject  to  modification 
or  change  by  the  act  of  the  State  alone,  except  as  may  be  author- 
ized by  the  terms  of  the  charters  themselves.2  And  it  now  seems 
to  be  settled,  by  the  decisions  of  the  Supreme  Court  of  the  United 
States,  that  a  State,  by  contract  to  that  effect,  based  upon  a  con- 
sideration, may  exempt  the  property  of  an  individual  or  corpora- 
tion from  taxation  for  any  specified  period  or  even  permanently. 
And  it  is  also  settled,  by  the  same  decisions,  that  where  a  charter 
containing  an  exemption  from  taxes,  or  an  agreement  that  the 
taxes  shall  be  to  a  specified  amount  only,  is  accepted  by  the  cor- 
porators, the  exemption  is  presumed  to  be  upon  sufficient  con- 
sideration, and  consequently  binding  upon  the  State.3 

1  1  Bl.  Com.  90. 

2  Dartmouth  College  v.  Woodward,  4  Wheat.  518 ;  Planters  Bank  v.  Sharp, 
6  How.  301. 

3  Gordon  v.  Appeal  Tax  Court,  3  How.  133  ;  New  Jersey  v.  Wilson,  7  Cranch, 
164 ;  Piqua  Branch  Bank  v.  Knoop,  16  How.  369  ;  Ohio  Life  Ins.  and  Trust  Co. 
v.  Debolt,  16  How.  416,  432 ;  Dodge  v.  Woolsey,  18  How.  331  ;  Mechanics  and 
Traders  Bank  v.  Debolt,  18  How.  381 ;  Jefferson  Branch  Bank  v.  Skelly,  1  Black, 
436.  See  also  Hunsaker  v.  Wright,  30  Bl.  146  ;  Spooner  v.  McConnell,  1  McLean, 
847  ;  post,  280.  The  right  of  a  State  legislature  to  grant  away  the  right  of  tax- 
ation, which  is  one  of  the  essential  attributes  of  sovereignty,  has  been  strenuously 
denied.  See  Debolt  v.  Ohio  Life  Ins.  and  Trust  Co.,  1  Ohio,  n.  s.  563 ;  Mechanics 
and  Traders  Bank  v.  Debolt,  ib.  591;  Brewster  v.  Hough,  10  N.  H.  143;  Mott 
v.  Pennsylvania  Railroad  Co.,  30  Penn.  St.  9.  And  see  Thorpe  v.  Rutland  and 
B.  Railroad  Co.,  27  Vt.  146 ;  post,  280  and  note.  In  Brick  Presbyterian  Church 
v.  Mayor,  &c,  of  New  York,  5  Cow.  538,  it  was  held  that  a  municipal  corpora- 
tion had  no  power,  as  a  party,  to  make  a  contract  which  should  control  or  em- 

[139  ] 


I 


127  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 


Territorial  Limitation  to  State  Legislative  Authority. 

The  legislative  authority  of  every  State  must  spend  its 
[*  128]  force  *  within  the  territorial  limits  of  the  State.  The 
legislature  of  one  State  cannot  make  laws  by  which  people 
outside  the  State  must  govern  their  actions,  except  as  they  may 
have  occasion  to  resort  to  the  remedies  which  the  State  provides, 
or  to  deal  with  property  situated  within  the  State.  It  can  have  no 
authority  upon  the  high  seas  beyond  State  lines,  because  there  is 
the  point  of  contact  with  other  nations,  and  all  international  ques- 
tions belong  to  the  national  government.1  It  cannot  provide  for  the 
punishment  as  crimes  of  acts  committed  beyond  the  State  boundary, 
because  such  acts,  if  offences  at  all,  must  be  offences  against  the 
sovereignty  within  whose  limits  they  have  been  done.2  But  if  the 
consequences  of  an  unlawful  act  committed  outside  the  State  have 
reached  their  ultimate  and  injurious  result  within  it,  it  seems 
that  the  perpetrator  may  be  punished  as  an  offender  against  such 
State.3 

barrass  its  discharge  of  legislative  duties.  And  see  post,  p.  206.  In  Coats  v. 
Mayor,  &c,  of  New  York,  7  Cow.  585,  it  was  decided  that  though  a  municipal 
corporation  grant  lands  for  cemetery  purposes,  and  covenant  for  their  quiet 
enjoyment,  it  will  not  thereby  be  estopped  afterwards  to  forbid  the  use  of  the 
land,  by  by-law,  for  that  purpose,  when  such  use  becomes  or  is  likely  to  become  a 
nuisance.  See  also,  on  the  same  subject,  Morgan  v.  Smith,  4  Minn.  104; 
Kincaid's  Appeal,  66  Penn.  St.  411 ;  s.  c.  5  Am.  Rep.  377  ;  Hamrick  v.  Rouse, 
17  Geo.  56,  where  it  was  held  that  the  legislature  could  not  bind  its  successors 
not  to  remove  a  county  seat;  Bass  v.  Fontleroy,  11  Texas,  698  ;  Shaw  v.  Macon, 
21  Geo.  280;  Regents  of  University  v.  Williams,  9  G.  &  J.  390;  Mott  v.  Penn- 
sylvania Railroad  Co.,  30  Penn.  St.  9.  In  Bank  of  Republic  v.  Hamilton,  21  HI. 
53,  it  was  held  that,  in  construing  a  statute,  it  will  hot  be  intended  that  the 
legislature  designed  to  abandon  its  right  as  to  taxation.  This  subject  is  con- 
sidered further,  post,  pp.  280-284. 

1  1  Bish.  Cr.  Law,  §  120. 

2  State  v.  Knight,  2  Hayw.  109 ;  People  v.  Merrill,  2  Park.  Cr.  R.  590 ; 
Adams  v.  People,  1  N.  Y.  173;  Tyler  v.  People,  8  Mich.  320;  Morrissey  v. 
People,  11  Mich.  327 ;  Bromley  v.  People,  7  Mich.  472 ;  State  v.  Main,  16  Wis. 
398. 

3  In  Tyler  v.  People,  8  Mich.  320,  it  was  held  constitutional  to  punish  in 
Michigan  a  homicide  committed  by  a  mortal  blow  in  Canadian  waters,  from  which 
death  resulted  in  the  State.  In  Morrissey  v.  People,  11  Mich.  327,  the  court 
was  divided  on  the  question  whether  the  State  could  lawfully  provide  for  the 
punishment  of  persons  who,  having  committed  larceny  abroad,  brought  the  stolen 

[140] 


CH.  V.]       POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.        *  128 


Other  Limitations  of  Legislative  Authority. 

Besides  the  limitations  of  legislative  authority  to  which  we  have 
referred,  others  exist  which  do  not  seem  to  call  for  special  remark. 
Some  of  these  are  prescribed  by  constitutions,1  but 
*  others  spring  from  the  very  nature  of  free  government.  [*  129] 
The  latter  must  depend  for  their  enforcement  upon  legis- 
lative wisdom,  discretion,  and  conscience.  The  legislature  is  to 
make  laws  for  the  public  good,  and  not  for  the  benefit  of  individu- 
als.    It  has  control  of  the  public  moneys,  and  should  provide  for 

property  within  the  State.  The  power  was  sustained  in  People  v.  Williams, 
24  Mich.  156,  where  the  larceny  was  in  another  State.  And  see  State  v.  Main, 
16  Wis.  398. 

1  The  restrictions  upon  State  legislative  authority  are  much  more  extensive  in 
some  constitutions  than  in  others.  The  Constitution  of  Missouri  has  the  following 
provision:  "The  General  Assembly  shall  not  pass  special  laws  divorcing  any 
named  parties,  or  declaring  any  named  person  of  age,  or  authorizing  any  named 
minor  to  sell,  lease,  or  encumber  his  or  her  property,  or  providing  for  the  sale 
of  the  real  estate  of  any  named  minor  or  other  person  laboring  under  legal 
disability,  by  any  executor,  administrator,  guardian,  trustee,  or  other  person,  or 
establishing,  locating,  altering  the  course,  or  effecting  the  construction  of  roads, 
or  the  building  or  repairing  of  bridges,  or  establishing,  altering,  or  vacating  any 
street,  avenue,  or  alley  in  any  city  or  town,  or  extending  the  time  for  the  assess- 
ment or  collection  of  taxes,  or  otherwise  relieving  any  assessor  or  collector  of 
taxes  from  the  due  performance  of  his  official  duties,  or  giving  effect  to  informal 
or  invalid  wills  or  deeds,  or  legalizing,  except  as  against  the  State,  the  unauthor- 
ized or  invalid  acts  of  any  officer,  or  granting  to  any  individual  or  company  the 
right  to  lay  down  railroad  tracks  in  the  streets  of  any  city  or  town,  or  exempting 
any  property  of  any  named  person  or  corporation  from  taxation.  The  General 
Assembly  shall  pass  no  special  law  for  any  case  for  which  provision  can  be  made 
by  a  general  law,  but  shall  pass  general  laws  providing,  so  far  as  it  may  deem 
necessary,  for  the  cases  enumerated  in  this  section,  and  for  all  other  cases  where 
a  general  law  can  be  made  applicable."  Constitution  of  Missouri,  art.  4,  §  27. 
We  should  suppose  that  so  stringent  a  provision  would,  in  some  of  these  cases, 
lead  to  the  passage  of  general  laws  of  doubtful  utility  in  order  to  remedy  the 
hardships  of  particular  cases.  As  to  when  a  general  law  can  be  made  appli- 
cable, see  Thomas  v.  Board  of  Commissioners,  5  Ind.  4;  State  v.  Squires,  26 
Iowa,  340;  Johnson  v.  Railroad  Co.,  23  111.  202.  In  State  v.  Hitchcock,  1  Kan- 
sas, 178,  it  was  held  that  the  constitutional  provision,  that  "  in  all  cases  where  a 
general  law  can  be  made  applicable,  no  special  law  shall  be  enacted,"  left  a  dis- 
cretion with  the  legislature  to  determine  the  cases  in  which  special  laws  should 
be  passed.  See  to  the  same  effect  Gentile  v.  State,  29  Ind.  409,  and  Marks  v. 
Trustees  of  Pardue  University,  37  Ind.  163,  overruling  Thomas  v.  Board  of 
Commissioners,  supra.     To  the  same  effect  is  State  v.  County  Court  of  Boone, 

[141] 


*  129  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

disbursing  them  only  for  public  purposes.  Taxes  should  only 
be  levied  for  those  purposes  which  properly  constitute  a  public 
burden.  But  what  is  for  the  public  good,  and  what  are  public 
purposes,  and  what  does  properly  constitute  a  public  burden,  are 
questions  which  the  legislature  must  decide  upon  its  own  judgment, 
and  in  respect  to  which  it  is  vested  with  a  large  discretion  which 
cannot  be  controlled  by  the  courts,  except,  perhaps,  where  its  action 
is  clearly  evasive,  and  where,  under  pretence  of  a  lawful  authority, 
it  has  assumed  to  exercise  one  that  is  unlawful.  Where  the  power 
which  is  exercised  is  legislative  in  its  character,  the  courts  can 
enforce  only  those  limitations  which  the  constitution  imposes,  and 
not  those  implied  restrictions  which,  resting  in  theory  only,  the 
people  have  been  satisfied  to  leave  to  the  judgment,  patriotism,  and 
sense  of  justice  of  their  representatives.1 

50  Mo.  317.  Compare  Hess  v.  Pegg,  7  Nev.  23;  Darling  v.  Rogers,  7  Kan. 
592 ;  Ex  parte  Pritz,  9  Iowa,  30.  Where  the  legislature  is  forbidden  to  pass 
special  or  local  laws  regulating  county  or  township  business,  a  special  act  allow- 
ing and  ordering  payment  of  a  particular  claim  is  void,  even  though  the  claim, 
being  merely  an  equitable  one,  cannot  be  audited  by  any  existing  board.  Wil- 
liams v.  Bidleman,  7  Nev.  68.  See  Darling  v.  Rogers,  7  Kan.  592.  An  act 
creating  a  criminal  court  for  a  particular  county  is  not  in  coullict  with  the  consti- 
tutional prohibition  of  special  legislation.  Eitel  v.  State,  33  Ind.  201.  See 
Matter  of  Boyle,  9  Wis.  264.  A  constitutional  provision  that  requires  all  laws 
of  a  general  nature  to  have  uniform  operation  throughout  the  State  is  complied 
with  in  a  statute  applicable  to  all  cities  of  a  certain  class  having  less  than  one 
hundred  thousand  inhabitants,  though  in  fact  there  be  but  one  city  in  the  State 
of  that  class.  Welker  v.  Potter,  18  Ohio,  n.  s.  85.  See,  further,  Bourland  v. 
Hildreth,  26  Cal.  162  ;  Brooks  v.  Hyde,  37  Cal.  366 ;  McAurich  v.  Mississippi, 
&c,  R.R.  Co.,  20  Iowa,  338;  Rice  v.  State,  3  Kansas,  141;  Jackson  v.  Shawl, 
29  Cal.  267 ;  Gentile  v.  State,  29  Ind.  409 ;  State  v.  Parkinson,  5  Nev.  15 ; 
Ensworth  v.  Albin,  46  Mo.  450. 

1  State  v.  McCann,  21  Ohio  St.  211,212. 

[  142J 


CH.  VI.]  OP  THE  ENACTMENT  OP  LAWS.  *  130 


*  CHAPTER  VI.  [*130] 

OF   THE   ENACTMENT   OF   LAWS. 

When  the  supreme  power  of  a  country  is  wielded  by  a  single 
man,  or  by  a  single  body  of  men,  few  questions  can  arise  in  the 
courts  concerning  the  manner  of  its  exercise,  and  any  discussion  of 
rules  by  which  it  is  to  be  governed,  in  the  enactment  of  laws,  can  be 
of  very  little  practical  value.  For  whenever  the  sovereign  power 
expresses  its  will  that  a  certain  rule  shall  be  established,  that 
expression  must  be  conclusive,  whether  such  forms  have  been  ob- 
served in  making  the  declaration  as  are  customary  and  proper  or 
not.  We  may  query  whether  the  will  has  been  declared  ;  we  may 
question  and  cross-question  the  words  employed,  to  ascertain  the 
real  sense  that  they  express ;  we  may  doubt  and  hesitate  as  to  the 
intent ;  but  when  discovered,  it  must  govern,  and  it  is  idle  to  talk 
of  forms  that  should  have  surrounded  the  expression,  but  do  not. 
But  when  the  legislative  power  of  a  State  is  to  be  exercised  by  a 
department  composed  of  two  branches,  or,  as  in  most  of  the 
American  States,  of  three  branches,  and  these  brandies  have  their 
several  duties  marked  out  and  prescribed  by  the  law  to  which  they 
owe  their  origin,  and  which  provides  for  the  exercise  of  their 
powers  in  certain  modes  and  under  certain  forms,  there  are  other 
questions  to  arise  than  those  of  the  mere  intent  of  the  law-makers, 
and  sometimes  forms  become  of  the  last  importance.  For  in  such 
case  not  only  is  it  important  that  the  will  of  the  law-makers  be 
clearly  expressed,  but  it  is  also  essential  that  it  be  expressed  in 
due  form  of  law  ;  since  nothing  becomes  law  simply  and  solely 
because  men  who  possess  the  legislative  power  will  that  it  shall  be, 
unless  they  express  their  determination  to  that  effect,  in  the  mode 
pointed  out  by  the  instrument  which  invests  them  with  the  power, 
and  under  all  the  forms  which  that  instrument  has  rendered 
essential.  And  if,  when  the  constitution  was  adopted,  there  were 
known  and  settled  rules  and  usages,  forming  a  part  of  the  law  of 
the  country,  in  reference  to  which  the  constitution  has  evidently 
been  framed,  and  these  rules  and  usages  required  the  observance  of 

[143] 


*  130  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

particular  forms,  the  constitution  itself  must  also  be  understood  as 
requiring  them,  because  in  assuming  their  existence,  and 
[*  131]  being  *  framed  with  reference  to  them,  it  has  in  effect 
adopted  them  as  a  part  of  itself,  as  much  as  if  they  were 
expressly  incorporated  in  its  provisions.  Where,  for  an  instance, 
the  legislative  power  is  to  be  exercised  by  two  houses,  and  by 
settled  and  well-understood  parliamentary  law,  these  two  houses 
are  to  hold  separate  sessions  for  their  deliberations,  and  the  deter- 
mination of  the  one  upon  a  proposed  law  is  to  be  submitted  to  the 
separate  determination  of  the  other,  the  constitution,  in  providing 
for  two  houses,  has  evidently  spoken  in  reference  to  this  settled 
custom,  incorporating  it  as  a  rule  of  constitutional  interpretation  ; 
so  that  it  would  require  no  prohibitory  clause  to  forbid  the  two 
houses  from  combining  in  one,  and  jointly  enacting  laws  by  the 
vote  of  a  majority  of  all.  All  those  rules  which  are  of  the  essentials 
of  law-making  must  be  observed  and  followed  ;  and  it  is  only  the 
customary  rules  of  order  and  routine,  such  as  in  every  deliberative 
body  are  always  understood  to  be  under  its  control,  and  subject  to 
constant  change  at  its  will,  that  the  constitution  can  be  understood 
to  have  left  as  matters  of  discretion,  to  be  established,  modified,  or 
abolished  by  the  bodies  for  whose  government  in  non-essential 
matters  they  exist. 

Of  the  tivo  Houses  of  the  Legislature.1 

In  the  enactment  of  laws  the  two  houses  of  the  legislature  are 
of  equal  importance,  dignity,  and  power,  and  the  steps  which  result 
in  laws  may  originate  indifferently  in  either.  This  is  the  general 
rule  ;  but  as  one  body  is  more  numerous  than  the  other  and  more 
directly  represents  the  people,  and  in  many  of  the  States,  is 
renewed  by  more  frequent  elections,  the  power  to  originate  all  money 
bills,  or  bills  for  the  raising  of  revenue,  is  left  exclusively,  by  the 
constitutions  of  some  of  the  States,  with  this  body,  in  accordance 

1  The  wisdom  of  a  division  of  the  legislative  department  has  been  demon- 
strated by  the  leading  writers  on  constitutional  law,  as  well  as  by  general  expe- 
rience. See  De  Lolme,  Const,  of  England,  b.  2,  c.  3 ;  Federalist,  No.  22;  1 
Kent,  208  ;  Story  on  Const.  §§  545-570.  The  early  experiments  in  Pennsylvania 
and  Georgia,  based  on  Franklin's  views,  for  which  see  his  Works,  Vol.  V.  p.  165, 
were  the  only  ones  made  by  any  of  the  original  States  with  a  single  house.  The 
first  Constitution  of  Vermont  also  provided  for  a  single  legislative  body. 

[144] 


CH.  VI.]  OF  THE  ENACTMENT  OP  LAWS.  *  131 

with  the  custom  in  England  which  does  not  permit  bills  of  this 
character  to  originate  with  the  House  of  Lords.1  To  these 
*  bills,  however,  the  other  house  may  propose  alterations,  [*132] 
and  they  require  the  assent  of  that  house  to  their  passage, 
the  same  as  other  bills.  The  time  for  the  meeting  of  the  legisla- 
ture will  be  such  time  as  is  fixed  by  the  constitution  or  by  statute  ; 
but  it  may  be  called  together  by  the  executive  in  special  session  as 
the  constitution  may  prescribe,  and  the  two  houses  may  also 
adjourn  any  general  session  to  a  time  fixed  by  them  for  the  holding 
of  a  special  session,  if  an  agreement  to  that  effect  can  be  arrived 
at ;  and  if  not,  power  is  conferred  by  a  majority  of  the  constitutions 
upon  the  executive  to  prorogue  and  adjourn  them.  And  if  the 
executive  in  any  case  undertake  to  exercise  this  power  to  prorogue 
and  adjourn,  on  the  assumption  that  a  disagreement  exists  between 
the  two  houses  which  warrants  his  interference,  and  his  action  is 
acquiesced  in  by  those  bodies,  who  thereupon  cease  to  hold  their 
regular  sessions,  the  legislature  must  be  held  in  law  to  have 
adjourned,  and  no  inquiry  can  be  entered  upon  as  to  the  rightful- 
ness of  the  governor's  assumption  that  such  a  disagreement 
existed.2 

1  There  are  provisions  in  the  Constitutions  of  Massachusetts,  Delaware,  Min- 
nesota, Mississippi,  New  Hampshire,  New  Jersey,  Pennsylvania,  South  Carolina, 
Vermont,  Indiana,  Oregon,  Kentucky,  Louisiana,  Alabama,  Arkansas,  Georgia, 
Virginia,  and  Maine,  requiring  revenue  bills  to  originate  in  the  more  popular 
branch  of  the  legislature,  but  allowing  the  Senate  the  power  of  amendment  usual 
in  other  cases.  During  the  second  session  of  the -forty-first  Congress,  the  House 
of  Representatives  by  their  vote  denied  the  right  of  the  Senate  under  the  Con- 
stitution to  originate  a  bill  repealing  a  law  imposing  taxes;  but  the  Senate  did 
not  assent  to  this  conclusion.  In  England  the  Lords  are  not  allowed  to  amend 
money  bills,  and  by  resolutions  of  oth  and  6th  July,  1860,  the  Commons  deny 
their  right  even  to  reject  them. 

2  This  question  became  important  and  was  passed  upon  in  People  v.  Hatch, 
33  111.  9.  The  Senate  had  passed  a  resolution  for  an  adjournment  of  the  session 
sine  die  on  a  day  named,  which  was  amended  by  the  House  by  fixing  a  different 
day.  The  Senate  refused  to  concur,  and  the  House  then  passed  a  resolution 
expressing  a  desire  to  recede  from  its  action  in  amending  the  resolution,  and 
requesting  a  return  of  the  resolution  by  the  Senate.  While  matters  sti>od  thus, 
the  governor,  assuming  that  such  a  disagreement  existed  as  empowered  him  to 
interfere,  sent  in  his  proclamation,  declaring  the  legislature  adjourned  to  a  day 
named,  and  which  was  at  the  very  end  of  the  official  term  of  the  members.  The 
message  created  excitement ;  it  does  not  seem  to  have  been  at  once  acquiesced 
in,  and  a  protest  against  the  governor's  authority  was  entered  upon  the  journal ; 
but  for  eleven  days  in  one  house  and  twelve  in  the  other  no  entries  were  made 

io  [  145  ] 


*  133  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

[*  133]  *  There  are"  certain  matters  which  each  house  deter- 
mines for  itself,  and  in  respect  to  which  its  decision  is 
conclusive.  It  chooses  its  own  officers,  except  where,  by  consti- 
tution or  statute,  it  is  otherwise  provided  ;  it  determines  its  own 
rules  of  proceeding,  it  decides  upon  the  election  and  qualification 
of  its  own  members.1  These  powers  it  is  obviously  proper  should 
rest  with  the  body  immediately  interested,  as  essential  to  enable  it 
to  enter  upon  and  proceed  with  its  legislative  functions,  without 
liability  to  interruption  and  confusion.  In  determining  questions 
concerning  contested  seats,  the  house  will  exercise  judicial  power, 
but  generally  in  accordance  with  a  course  of  practice  which  has 
sprung  from  precedents  in  similar  cases,  and  no  other  authority  is 
at  liberty  to  interfere. 

Each  house  has  also  the  power  to  punish  members  for  disor- 
derly behavior,  and  other  contempts  of  its  authority,  as  well  as  to 
expel  a  member  for  any  cause  which  seems  to  the  body  to  render 
it  unfit  that  he  continue  to  occupy  one  of  its  seats.  This  power 
is  generally  enumerated  in  the  constitution  among  those  which 
the  two  houses  may  exercise,  but  it  need  not  be  specified  in  that 
instrument,  since  it  would  exist  whether  expressly  conferred  or 
not.  It  is  "  a  necessary  and  incidental  power,  to  enable  the  house 
to  perforin  its  high  functions,  and  is  necessary  to  the  safety  of 

upon  their  journals,  and  it  was  unquestionable  that  practically  they  had  acqui- 
esced in  the  action  of  the  governor,  and  adjourned.  At  the  expiration  of  the 
twelve  days,  a  portion  of  the  members  came  together  again,  and  it  was  claimed 
by  them  that  the  message  of  the  governor  was  without  authority,  and  the  two 
houses  must  be  considered  as  having  been,  in  point  of  law,  in  session  during  the 
intervening  period,  and  that  consequently  any  bills  which  had  before  been  passed 
by  them  and  sent  to  the  governor  for  his  approval,  and  which  he  had  not  returned 
within  ten  days,  Sundays  excepted,  had  become  laws  under  the  constitution. 
The  Supreme  Court  held  that,  as  the  two  houses  had  practically  acquiesced  in 
the  action  of  the  governor,  the  session  had  come  to  an  end,  and  that  the  mem- 
bers had  no  power  to  reconvene  on  their  own  motion,  as  had  been  attempted. 
The  case  is  a  very  full  and  valuable  one  on  several  points  pertaining  to  legisla- 
tive proceedings  and  authority. 

1  In  People  v.  Mahaney,  13  Mich.  481,  it  was  held  that  the  correctness  of  a 
decision  by  one  of  the  houses,  that  certain  persons  had  been  chosen  members, 
could  not  be  inquired  into  by  the  courts.  In  that  case  a  law  was  assailed  as  void, 
on  the  ground  that  a  portion  of  the  members  who  voted  for  it,  and  without  whose 
votes  it  would  not  have  had  the  requisite  majority,  had  been  given  their  seats  in 
the  House  in  defiance  of  law,  and  to  the  exclusion  of  others  who  had  a  majority 
of  legal  votes.  See  the  same  principle  in  State  v.  Jarrett,  17  Md.  309.  See 
also  Lamb  v.  Lynd,  44  Penn.  St.  336. 

[146] 


CH.  VI.]  OF  THE  ENACTMENT  OP  LAWS.  *  133 

the  State.  It  is  a  power  of  protection.  A  member  may  be  phys- 
ically, mentally,  or  morally  wholly  unfit ;  he  may  be  affected  with  a 
contagious  disease,  or  insane,  or  noisy,  violent,  and  disorderly,  or  in 
the  habit  of  using  profane,  obscene,  and  abusive  language."  And, 
"  independently  of  parliamentary  customs  and  usages,  our  legisla- 
tive houses  have  the  power  to  protect  themselves  by  the  punish- 
ment and  expulsion  of  a  member  "  ;  and  the  courts  cannot  inquire 
into  the  justice  of  the  decision,  or  even  so  much  as  examine  the 
proceedings  to  see  whether  opportunity  for  defence  was  furnished 
or  not.1 

*  Each  house  may  also  punish  contempts  of  its  authority  [*  134] 
by  other  persons,  without  express  authority  from  the  con- 
stitution therefor  ;  2  but  where  imprisonment  is  imposed  as  a  pun- 
ishment, it  must  terminate  with  the  final  adjournment  of  the  house, 
and  if  the  prisoner  be  not  then  discharged  by  its  order,  he  may  be 
released  on  habeas  corpus? 

By  common  parliamentary  law,  the  members  of  the  legislature 
are  privileged  from  arrest  on  civil  process  during  the  session  of 
that  body,  and  for  a  reasonable  time  before  and  after  to  enable 
them  to  go  to  and  return  from  the  same.  '  By  the  constitutions  of 
some  of  the  States  this  privilege  has  been  enlarged,  so  as  to 
exempt  the  persons  of  legislators  from  any  service  of  civil  process,4 
and  in  others  their  estates  are  exempt  from  attachment  for  some 
prescribed  period.5      For  any  arrest  contrary  to  the  parliamentary 

1  Hiss  v.  Bartlett,  3  Gray,  468.     And  see  Anderson  v.  Dunn.  6  Wheat.  204. 

2  Anderson  v.  Dunn,  G  Wheat.  204;  Burdett  v.  Abbott,  14  East,  1;  Stock- 
dale  v.  Hansard,  9  Ad.  &  El.  231;  Burnham  v.  Morissey,  14  Gray,  226;  State 
v.  Matthews,  37  N.  H.  450. 

8  Jefferson's  Manual,  §  18 ;  Prichard's  Case,  1  Lev.  165. 

4  "  Senators  and  representatives  shall,  in  all  cases  except  treason,  felony,  or 
breach  of  the  peace,  be  privileged  from  arrest.  They  shall  not  be  subject  to 
any  civil  process  daring  the  session  of  the  legislature,  or  for  fifteen  days  next 
before  the  commencement  and  after  the  termination  of  each  session."  Const,  of 
Mich.  art.  4,  §  7.  The  same  exemption  from  civil  process  is  found  in  the  Con- 
stitutions of  Kansas,  Nebraska,  Alabama,  Arkansas,  California,  Missouri,  Mis- 
sissippi, Wisconsin,  Indiana,  and  Oregon:  Exemption  from  arrest  is  not  vio- 
lated by  the  service  of  citations  or  declarations  in  civil  cases.  Gentry  v.  Griffith, 
27  Texas,  461 ;  Case  v.  Rorabacker,   15  Mich.  537. 

5  The  Constitution  of  Rhode  Island  provides  that  "the  person  of  every 
member  of  the  General  Assembly  shall  be  exempt  from  arrest,  and  his 
estate  from  attachment,  in  any  civil  action,  during  the  session  of  the  General 
Assembly,    and   two   days   before   the   commencement  and  two  days  after  the 

[147] 


*  134  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

law  or  to  these  provisions,  the  house  of  which  the  person  arrested 
is  a  member  may  give  summary  relief  by  ordering  his  discharge, 
and  if  the  order  is  not  complied  with,  by  punishing  the  persons 
concerned  in  the  arrest  as  for  a  contempt  of  its  authority.  The 
remedy  of  the  member,  however,  is  not  confined  to  this  mode  of 
relief.  His  privilege  is  not  the  privilege  of  the  house  mereJy,  but 
of  the  people,  and  is  conferred  to  enable  him  to  discharge  the  trust 
confided  to  him  by  his  constituents  ; 1  and  if  the  house  neglect  to 
interfere  the  court  from  which  the  process  issued  should  set  it 
aside  on  the  facts  being  represented,  and  any  court  or  officer 
having  authority  to  issue  writs  of  habeas  corpus  may  also 
[*  135]  *  inquire  into  the  case,  and  release  the  party  from  the  un- 
lawful imprisonment.2 

Each  house  must  also  be  allowed  to  proceed  in  its  own  way  in 
the  collection  of  such  information  as  may  seem  important  to  a 
proper  discharge  of  its  functions,  and  whenever  it  is  deemed 
desirable  that  witnesses  should  be  examined,  the  power  and 
authority  to  do  so  is  very  properly  referred  to  a  committee,  with 
any  such  powers  short  of  final  legislative  or  judicial  action  as 
may  seem  necessary  or  expedient  in  the  particular  case.  Such  a 
committee  has  no  authority  to  sit  during  a  recess  of  the  house 
which  has  appointed  it,  without  its  permission  to  that  effect ;  but 
the  house  is  at  liberty  to  confer  such  authority  if  it  see  fit.3  A 
refusal  to  appear  or  to  testify  before  such  committee,  or  to  pro- 
duce books  or  papers,  would  be  a  contempt  of  the  house;4  but 
the  committee  cannot  punish  for  contempts ;  it  can  only  report 
the  conduct  of  the  offending  party  to  the  house  for  its  action. 
The  power  of  the  committee  will  terminate  with  the  final  dissolu- 
tion of  the  house  appointing  it. 

Each  house  keeps  a  journal  of  its  proceedings,  which  is  a  public 

termination  thereof,  and  all  process    served   contrary   hereto    shall    be  void." 
Art.  4,  §  5. 

1  Coffin  v.  Coffin,  4  Mass.  27. 

2  On  this  subject,  dishing  on  Law  and  Practice  of  Parliamentary  Assemblies, 
§§  546-597,  will  be  consulted  with  profit. 

3  Branham  v.  Lange,  16  Ind.  497;  Marshall  v.  Harwood,  7  Md.  466.  See 
also  parliamentary  cases,  5  Grey,  374 ;  9  Grey,  350 ;   1  Chandler,  50. 

4  Burnham  v.  Morrissey,  14  Gray,  226.  But  the  privilege  of  a  witness  to  be 
exempt  from  a  compulsory  disclosure  of  his  own  criminal  conduct  is  the  same 
when  examined  by  a  legislative  body  or  committee  as  when  sworn  in  court. 
Emery 's  Case,  107  Mass.  172. 

[-148] 


CH.  VI.]  OF  THE  ENACTMENT  OF  LAWS.  *  135 

record,  and  of  which  the  courts  are  at  liberty  to  take  judicial 
notice.1  If  it  should  appear  from  these  journals  that  any  act  did 
not  receive  the  requisite  majority,  or  that  in  respect  to  it  the  legis- 
lature did  not  follow  any  requirement  of  the  constitution,  or  that 
in  any  other  respect  the  act  was  not  constitutionally  adopted, 
the  courts  may  act  upon  this  evidence,  and  adjudge  the  statute 
void.2  But  whenever  it  is  acting  in  the  apparent  performance 
of  legal  functions,  every  reasonable  presumption  is  to  be  made 
in  favor  of  the  action  of  a  legislative  body  ;  it  will  not  be  pre- 
sumed in  any  case,  from  the  mere  silence  of  the  journals,  that 
either  house  has  exceeded  its  authority,  or  disregarded  a 
*  constitutional  requirement  in  the  passage  of  legislative  [*  136] 
acts,  unless  where  the  constitution  has  expressly  required 
the  journals  to  show  the  action  taken,  as,  for  instance,  where  it 
requires  the  yeas  and  nays  to  be  entered.3 

The  law  also  seeks  to  cast  its  protection  around  legislative  ses- 
sions, and  to  shield  them  against  corrupt  and  improper  influences, 
by  making  void  all  contracts  which  have  for  their  object  to  influ- 
ence legislation  in  any  other  manner  than  by  such  open  and  pub- 
lic presentation  of  facts  and  arguments  and  appeals  to  reason  as 
are  recognized  as  proper  and  legitimate  with  all  public  bodies. 
While  counsel  may  be  properly  employed  to  present  the  reasons 
in  favor  of  any  public  measure  to  the  body  authorized  to  pass 
upon  it,  or  to  any  of  its  committees  empowered  to  collect  facts 

!  Spangler  v.  Jacoby,  14  111.  297  ;  Miller  v.  State,  3  Ohio,  N.  s.  475 ;  People 
v.  Mabaney,  13  Mich.  481  ;  Soutbwark  Bank  v.  Commonwealth,  2  Penn.  St.  44(3 ; 
McCulloch  v.  State,  11  Ind.  430;  State  v.  Moffit,  5  Ohio,  358;  Turley  v.  Logan 
Co.  17  111.  151;  People  v.  Supervisors  of  Chenango,  8  N.  Y.  317;  Jones  v. 
Hutchinson,  43  111.  721;  Fordyce  v.  Goodman,  20  Ohio,  N.  s.  1. 

2  See  cases  cited  in  preceding  note.  Also  Prescott  v.  Trustees  of  111.  &  Mich. 
Canal,  19  111.  324.  The  case  of  Sherman  v.  Story,  30  Cat.  253,  appears  to  be 
contra.  And  see  Louisiana  State  Lottery  Co.  v.  Richoux,  23  La.  An.  458 ;  s.  c. 
8  Am.  Rep.  600.  A  remarkable  case  recently  came  under  judgment  in  South 
Carolina.  An  act  to  simplify  practice  passed  the  two  houses  of  the  legislature. 
By  the  previous  law  the  courts  for  the  county  of  Barnwell  were  held  at  Black- 
ville,  and  the  new  act  contained  a  provision  continuing  them  at  that  place.  As 
presented  to  and  signed  by  the  governor,  however,  it  substituted  Barnwell  for 
Blackville.  Held  that  the  provision  thus  changed  was  void,  —  the  journals  show- 
ing the  change,  —  and  that  the  courts  must  still  be  held  at  Blackville.  State  v. 
Piatt,  2   S.  C.   (n.  s.)   150. 

3  Miller  v.  State,  3  Ohio,  n.  s.  475 ;  McCulloch  v.  State,  11  Ind.  424  ;  Super- 
visors v.  People,  25  111.  181. 

[149] 


*  136  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

and  hear  arguments,  and  parties  interested  may  lawfully  contract 
to  pay  for  this  service,  yet  to  secretly  approach  the  members  of 
such  a  body  with  a  view  to  influence  their  action  at  a  time  and 
in  a  manner  that  do  not  allow  the  presentation  of  opposite  views, 
is  improper  and  unfair  to  the  opposing  interest  ;  and  a  contract 
to  pay  for  this  irregular  and  improper  service  would  not  be  en- 
forced by  the  law.1 

1  This  whole  subject  was  very  fully  considered  in  the  case  of  Frost  v.  Inhabi- 
tants of  Belmont,  6  Allen,  152,  which  was  a  bill  filed  to  restrain  the  payment  by 
the  town  of  demands  to  the  amount  of  nearly  $9000,  which  the  town  had  voted 
to  pay  as  expenses  in  obtaining  their  act  of  incorporation.     By  the  court,  Chap- 
man, J.:   "It  is  to  be  regretted  that  any  persons  should  have  attempted  to 
procure  an  act  of  legislation  in  this  Commonwealth,  by  such  means  as  some  of 
these  items  indicate.     By  the  regular  course  of  legislation,  organs  are  provided 
through  which  any  parties  may  fairly  and  openly  approach  the  legislature,  and 
be  heard  with  proofs  and  arguments  respecting  any  legislative  acts  which  they 
may  be  interested  in,  whether  public  or  private.     These  organs  are  the  various 
committees  appointed  to  consider  and  report  upon  the  matters  to  be  acted  upon 
by  the  whole  body.     When  private  interests  are  to  be  affected,  notice  is  given 
of   the   hearings  before  these  committees ;    and  thus   opportunity  is  given   to 
adverse  parties  to  meet  face  to  face  and  obtain  a  fair  and  open  hearing.     And 
though  these  committees  properly  dispense  with  many  of  the  rules  which  regu- 
late hearings  before  judicial  tribunals,  yet  common  fairness  requires  that  neither 
party  shall  be  permitted  to  have  secret  consultations,  and  exercise  secret  influ- 
ences that  are  kept  from  the  knowledge  of  the  other  party.     The  business  of 
'  lobby  members  '  is  not  to  go  fairly  and  openly  before  the  committees,  and  present 
statements,  proofs,  and  arguments  that  the  other  side  has  an  opportunity  to  meet 
and  refute,  if  they  are  wrong,  but  to  go  secretly  to  the  members  and  ply  them 
with  statements  and  arguments  that  the  other  side  cannot  openly  meet,  however 
erroneous  they  may  be,  and  to  bring  illegitimate  influences  to  bear  upon  them. 
If  the  '  lobby  member  '  is  selected  because  of  his  political  or  personal  influence, 
it  aggravates  the  wrong.     If  his  business  is  to  unite  various  interests  by  means 
of  projects  that  are  called  '  log  rolling,'  it  is  still  worse.     The  practice  of  pro- 
curing members  of  the  legislature  to  act  under  the  influence  of  what  they  have 
eaten  and  drank  at  houses  of  entertainment  tends  to  render  those  who  yield  to 
such  influences  wholly  unfit  to  act  in  such  cases.     They  are  disqualified  from 
acting  fairly  towards  interested  parties  or  towards  the  public.     The  tendency 
and  object  of  these  influences  are  to  obtain  by  corruption  what  it  is  supposed 
cannot  be  obtained  fairly. 

"  It  is  a  well-established  principle,  that  all  contracts  which  are  opposed  to 
public  policy,  and  to  open,  upright,  and  fair  dealing,  are  illegal  and  void.  The 
principle  was  fully  discussed  in  Fuller  v.  Dame,  18  Pick.  472.  In  several  other 
States  it  has  been  applied  to  cases  quite  analogous  to  the  present  case. 

"In  Pingrey  v.  Washburn,  1  Aiken,  261,  it  was  held  in  Vermont  that  an 
agreement,  on  the  part  of  a  corporation,  to  grant  to  individuals  certain  privileges 

[150] 


CH.  VI.]  OP  THE  ENACTMENT  OP  LAWS.  *  137 


*  The  Introduction  and  Passage  of  Bills.         [*  137] 

Any  member  may  introduce  a  bill  in  the  house  to  which  he 
belongs,   in    accordance   with    its   rules ;    and   this    he    may   do 

in  consideration  that  they  would  withdraw  their  opposition  to  the  passage  of  a 
legislative  act  touching  the  interests  of  the  corporation,  is  against  sound  policy, 
prejudicial  to  just  and  correct  legislation,  and  void.  In  Gulick  v.  Ward,  5  Halst. 
87,  it  was  decided  in  New  Jersey  that  a  contract  which  contravenes  an  act  of 
Congress,  and  tends  to  defraud  the  United  States,  is  void.  A.  had  agreed  to 
give  B.  $100,  on  condition  that  B.  would  forbear  to  propose  or  offer  himself 
to  the  Postmaster-General  to  carry  the  mail  on  a  certain  mail  route,  and  it  was 
held  that  the  contract  was  against  public  policy  and  void.  The  general  principle 
as  to  contracts  contravening  public  policy  was  discussed  in  that  case  at  much 
length.  In  Wood  v.  McCann,  6  Dana,  366,  the  defendant  had  employed  the 
plaintiff  to  assist  him  in  obtaining  a  legislative  act  in  Kentucky  legalizing  his 
divorce  from  a  former  wife,  and  his  marriage  with  his  present  wife.  The  court 
say :  '  A  lawyer  may  be  entitled  to  compensation  for  writing  a  petition,  or  even 
for  making  a  public  argument  before  the  legislature  or  a  committee  thereof; 
but  the  law  should  not  hold  him  or  any  other  person  to  a  recompense  for  exer- 
cising any  personal  influence  in  any  way,  in  any  act  of  legislation.  It  is  certainly 
important  to  just  and  wise  legislation,  and  therefore  to  the  most  essential  interest 
of  the  public,  that  the  legislature  should  be  perfectly  free  from  any  extraneous 
influence  which  may  either  corrupt  or  deceive  the  members,  or  any  of  them.' 

"  In  Clippinger  v.  Hepbaugh,  5  Watts  &  S.  315,  it  was  decided  in  Pennsyl- 
vania that  a  contract  to  procure  or  endeavor  to  procure  the  passage  of  an  act  of 
the  legislature,  by  using  personal  influence  with  the  members,  or  by  any  sinister 
means,  was  void,  as  being  inconsistent  with  public  policy  and  the  integrity  of 
our  political  institutions.  And  an  agreement  for  a  contingent  fee  to  be  paid  on 
the  passage  of  a  legislative  act  was  held  to  be  illegal  and  void,  because  it  would 
be  a  strong  incentive  to  the  exercise  of  personal  and  sinister  influences  to  effect 
the  object. 

"  The  subject  has  been  twice  adjudicated  upon  in  New  York.  In  Harris  v. 
Roof,  10  Barb.  489,  the  Supreme  Court  held  that  one  could  not  recover  for  ser- 
vices performed  in  going  to  see  individual  members  of  the  house,  to  get  them  to 
aid  in  voting  for  a  private  claim,  the  services  not  being  performed  before  the 
house  as  a  body,  nor  before  its  authorized  committees.  In  Sedgwick  v.  Stanton, 
4  Kernan,  289,  the  Court  of  Appeals  held  the  same  doctrine,  and  stated  its  proper 
limits.  Selden,  J.,  makes  the  following  comments  on  the  case  of  Harris  v.  Roof: 
'  Now  the  court  did  not  mean  by  this  decision  to  hold  that  one  who  has  a  claim 
against  the  State  may  not  employ  competent  persons  to  aid  him  in  properly  pre- 
senting such  claim  to  the  legislature,  and  in  supporting  it  with  the  necessary 
proofs  and  arguments.  Mr.  Justice  Hand,  who  delivered  the  opinion  of  the  court, 
very  justly  distinguishes  between  services  of  the  nature  of  those  rendered  in  that 
case,  and  the  procuring  and  preparing  the  necessary  documents  in  support  of  a 
claim,  or  acting  as  counsel  before  the  legislature  or  some  committee  appointed 

[151] 


*  137  CONSTITUTIONAL    LIMITATIONS.  [CH.  VI. 

[*  138]  at  any  *  time  when  the  house  is  in  session,  unless  the 
constitution,  the  law,  or  the  rules  of  the  house  forbid. 
[*  139]  The  Constitution  of  Michigan  *  provides  that  no  new  bill 
shall  be  introduced  into  either  house  of  the  legislature 
after  the  first  fifty  days  of  the  session  shall  have  expired  ;  1  and  the 
Constitution  of  Maryland  provides  that  no  bill  shall  originate  in 
either  house  within  the  last  ten  days  of  the  session.2  The  purpose 
of  these  clauses  is  to  prevent  hasty  and  improvident  legislation, 
and  to  compel,  so  far  as  any  previous  law  can   accomplish  that 

by  that  body.  Persons  may,  no  doubt,  be  employed  to  conduct  an  application  to 
the  legislature,  as  well  as  to  conduct  a  suit  at  law ;  and  may  contract  for  and  re- 
ceive pay  for  their  services  in  preparing  documents,  collecting  evidence,  making 
statements  of  facts,  or  preparing  and  making  oral  or  written  arguments,  provided 
all  these  are  used  or  designed  to  be  used  before  the  legislature  or  some  committee 
thereof  as  a  body ;  but  they  cannot,  with  propriety,  be  employed  to  exert  their 
personal  influence  with  individual  members,  or  to  labor  in  any  form  privately  with 
such  members  out  of  the  legislative  halls.  Whatever  is  laid  before  the  legislature 
in  writing,  or  spoken  openly  or  publicly  in  its  presence  or  that  of  a  committee,  if 
false  in  fact,  may  be  disproved,  or  if  wrong  in  argument  may  be  refuted ;  but 
that  which  is  whispered  into  the  private  ear  of  individual  members  is  frequently 
beyond  the  reach  of  correction.  The  point  of  objection  in  this  class  of  cases  then 
is,  the  personal  and  private  nature  of  the  services  to  be  rendered.' 

"  In  Fuller  v.  Dame,  cited  above,  Shaw,  Ch.  J.,  recognizes  the  well-established 
right  to  contract  and  pay  for  professional  services  when  the  promisee  is  to  act  as 
attorney  and  counsel,  but  remarks  that  '  the  fact  appearing  that  persons  do  so  act 
prevents  any  injurious  effects  from  such  proceeding.  Such  counsel  is  considered 
as  standing  in  the  place  of  his  principal,  and  his  arguments  and  representations 
are  weighed  and  considered  accordingly.'  He  also  admits  the  right  of  disinter- 
ested persons  to  volunteer  advice ;  as  when  a  person  is  about  to  make  a  will,  one 
may  represent  to  him  the  propriety  and  expediency  of  making  a  bequest  to  a  par- 
ticular person  ;  and  so  may  one  volunteer  advice  to  another  to  marry  another 
person  ;  but  a  promise  to  pay  for  such  service  is  void. 

"  Applying  the  principles  stated  in  these  cases  to  the  bills  which  the  town  voted 
to  pay,  it  is  manifest  that  some  of  the  money  was  expended  for  objects  that  are 
contrary  to  public  policy,  and  of  a  most  reprehensible  character,  and  which  could 
not,  therefore,  form  a  legal  consideration  for  a  contract:" 

See  further  a  full  discussion  of  the  same  subject,  and  reaching  the  same  con- 
clusion, by  Mr.  Justice  Orier,  in  Marshall  v.  Baltimore  &  Ohio  R.R.  Co.,  16  How. 
314.  See  also  Hatzfield  v.  Gulden,  7  Watts,  152;  Frankfort  v.  Winterport,  54 
Me.  250.  A  contract  to  assist  by  money  and  influence  to  secure  the  election  of 
a  candidate  to  a  public  office  in  consideration  of  a  share  of  its  emoluments,  in  the 
event  of  election,  is  void  as  opposed  to  public  policy,  and  if  voluntarily  rescinded 
by  the  parties  a  recovery  cannot  be  had  of  the  moneys  advanced  under  it.  Mar- 
tin v.  Wade,  37  Cal.  168. 

1  Art,  4,  §  28.  2  Art.  3,  §  2G. 

[152] 


CH.  VI.]  OP  THE  ENACTMENT  OF  LAWS.  *  139 

result,  the  careful  examination  of  proposed  laws,  or  at  least  the 
affording  of  opportunity  for  that  purpose  ;  which  will  not  always  be 
done  when  bills  may  be  introduced  up  to  the  very  hour  of  adjourn- 
ment, and,  with  the  concurrence  of  the  proper  majority,  put  im- 
mediately upon  their  passage.1 

For  the  same  reason  it  is  required  by  the  constitutions  of  several 
of  the  States,  that  no  bill  shall  have  the  force  of  law  until  on  three 
several  days  it  be  read  in  each  house,  and  free  discussion  allowed 
thereon  ;  unless,  in  case  of  urgency,  four-fifths  or  some  other 
specified  majority  of  the  house  shall  deem  it  expedient  to  dispense 
with  this  rule.  The  journals  which  each  house  keeps  of  its  pro- 
ceedings ought  to  show  whether  this  rule  is  complied  with  or  not ; 
but  in  case  they  do  not,  the  passage  in  the  manner  provided  by 
the  constitution  must  be  presumed  in  accordance  with  the  gen- 
eral rule  which  presumes  the  proper  discharge  of  official  duty.2 

1  A  practice  has  sprung  up  of  evading  these  constitutional  provisions  by  intro- 
ducing a  new  bill  after  the  time  has  expired  when  it  may  constitutionally  be 
done,  as  an  amendment  to  some  pending  bill,  the  whole  of  which,  except  the 
enacting  clause,  is  struck  out  to  make  way  for  it.  Thus,  the  member  who  thinks 
he  may  possibly  have  occasion  for  the  introduction  of  a  new  bill  after  the  consti- 
tutional period  has  expired,  takes  care  to  introduce  sham  bills  in  due  season 
which  he  can  use  as  stocks  to  graft  upon,  and  which  he  uses  irrespective  of  their 
character  or  contents.  The  sham  bill  is  perhaps  a  bill  to  incorporate  the  city  of 
Siam.  One  of  the  member's  constituents  applies  to  him  for  legislative  permission 
to  construct  a  dam  across  the  Wild  Cat  River.  Forthwith,  by  amendment,  the 
bill  entitled  a  bill  to  incorporate  the  city  of  Siam  has  all  after  the  enacting  clause 
stricken  out,  and  it  is  made  to  provide,  as  its  sole  object,  that  John  Doe  may  con- 
struct a  dam  across  the  Wild  Cat.  With  this  title  and  in  this  form  it  is  passed  ; 
but  the  house  then  considerately  amends  the  title  to  correspond  with  the  purpose 
of  the  bill,  and  the  law  is  passed,  and  the  constitution  at  the  same  time  saved ! 
This  dodge  is  so  transparent,  and  so  clearly  in  violation  of  the  constitution,  and 
the  evidence  at  the  same  time  is  so  fully  spread  upon  the  record,  that  it  is  a  matter 
of  surprise  to  find  it  so  often  resorted  to. 

2  Supervisors  of  Schuyler  Co.  v.  People,  25  111.  181;  Miller  v.  State,  3  Ohio, 
N.  s.  480.  In  People  v.  Starne,  35  111.  121,  it  is  said  the  courts'  should  not 
enforce  a  legislative  act  unless  there  is  record  evidence,  from  the  journals  of  the 
two  houses,  that  every  material  requirement  of  the  constitution  has  been  satisfied. 
The  clause  in  the  Constitution  of  Ohio  is:  "  Every  bill  shall  be  fully  and  dis- 
tinctly read  on  three  different  days,  unless,  in  case  of  urgency,  three-fourths  of 
the  house  in  which  it  shall  be  pending  shall  dispense  with  this  rule  " ;  and  in  Mil- 
ler v.  State,  3  Ohio,  n.  s.  481,  and  Pirn  v.  Nicholson,  6  Ohio,  N.  s.  178,  this 
provision  was  held  to  be  merely  directory.  The  distinctness  with  which  any  bill 
must  be  read  cannot  possibly  be  defined  by  any  law ;  and  it  must  always,  from 
the  necessity  of  the  case,  rest  with  the  house  to  determine  finally  whether  in  this 

[153] 


*  140  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

[*  140]  *  As  to  what  shall  constitute  a  reading  of  a  bill,  it  seems 
to  be  held  sufficient  to  read  the  written  instrument  that 
is  adopted  by  the  two  houses ;  and  if  any  thing  else  becomes  law 
in  consequence  of  its  passage,  and  by  reason  of  being  referred  to 
in  it,  it  is  nevertheless  not  essential  that  it  be  read  with  the  reading 
of  the  bill.1  Thus,  a  statute  which  incorporated  a  military  company 
by  reference  to  its  constitution  and  by-laws,  was  held  valid  notwith- 
standing the  constitution  and  by-laws,  which  would  acquire  the 
force  of  law  by  its  passage,  were  not  read  in  the  two  houses  as  a 
part  of  it.2  But  there  cannot  be  many  cases,  we  should  suppose, 
to  which  this  ruling  would  be  applicable. 

It  is  also  provided  in  the  constitutions  of  some  of  the  States  that, 
on  the  final  passage  of  every  bill  the  yeas  and  nays  shall  be  entered 
on  the  journal.  Such  a  provision  is  designed  to  serve  an  important 
purpose  in  compelling  each  member  present  to  assume  as  well  as 
to  feel  his  due  share  of  responsibility  in  legislation  ;  and  also  in 
furnishing  definite  and  conclusive  evidence  whether  the  bill  has 
been  passed  by  the  requisite  majority  or  not.  "  The  constitution 
prescribes  this  as  the  test  by  which  to  determine  whether  the 
requisite  number  of  members  vote  in  the  affirmative.  The  office  of 
the  journal  is  to  record  the  proceedings  of  the  house,  and  authen- 
ticate and  preserve  the  same.  It  must  appear  on  the  face  of 
the  journal  that  the  bill  passed  by  a  constitutional  majority. 
These  directions  are  all  clearly  imperative.  They  are 
[*  141]  *  expressly  enjoined  by  the  fundamental  law,  and  cannot 
be  dispensed  with  by  the  legislature."3 

particular  the  constitution  has  been  complied  with  or  not ;  but  the  rule  respect- 
ing three  several  readings  on  different  days  is  specific,  and  capable  of  being 
precisely  complied  with,  and  we  do  not  see  how,  even  under  the  rules  applied  to 
statutes,  it  can  be  regarded  as  directory  merely,  provided  it  has  a  purpose  beyond 
the  mere  regular  and  orderly  transaction  of  business.  That  it  has  such  a  pur- 
pose, that  it  is  designed  to  prevent  hasty  and  improvident  legislation,  and  is 
therefore  not  a  mere  rule  of  order,  but  one  of  protection  to  the  public  interests 
and  to  the  citizens  at  large,  is  very  clear  ;  and  independent  of  the  question  whether 
definite  constitutional  principles  can  be  dispensed  with  in  any  case  on  the  ground 
of  their  being  merely  directory,  we  cannot  see  how  this  can  be  treated  as  any 
thing  but  mandatory.  See  People  v.  Campbell,  3  Gilm.  466  ;  McCulloch  v.  State, 
11  Ind.  424. 

1  Dew  v.  Cunningham,  28  Ala.  466. 

2  Bibb  County  Loan  Association  v.  Richards,  21  Geo.  592. 

3  Spangler  v.  Jacoby,  14  111.  297  ;  Supervisors  of  Schuyler  Co.  v.  People,  25 
111.  183.     There  have  been  cases,  as  we  happen  to  know,  in  which  several  bills 

[154] 


CH.  VI.]  OF  THE  ENACTMENT  OP  LAWS.  *  141 

For  the  vote  required  in  the  passage  of  any  particular  law, 
the  reader  is  referred  to  the  constitution  of  his  State.  A  sim- 
ple majority  of  a  quorum  is  sufficient,  unless  the  constitution 
establishes  some  other  rule  ;  and  where,  by  the  constitution,  a  two- 
thirds  or  three-fourths  vote  is  made  essential  to  the  passage  of  any 
particular  class  of  bills,  two-thirds  or  three-fourths  of  a  quorum 
will  be  understood,  unless  the  terms  employed  clearly  indicate 
that  this  proportion  of  all  the  members,  or  of  all  those  elected,  is 
intended.1 

The  Title  of  a  Statute. 

The  title  of  an  act  was  formerly  considered  no  part  of  it  ;  and 
although  it  might  be  looked  to  as  a  guide  to  the  intent  of  the  law- 
makers when  the  body  of  the  statute  appeared  to  be  in  any  respect 
ambiguous  or  doubtful,2  yet  it  could  not  enlarge  or  restrain  the 
provisions  of  the  act  itself,3  and  the  latter  might  therefore  be 
good  when  that  and  the  title  were  in  conflict.  The  reason  for  this 
was  that  anciently  titles  were  not  prefixed  at  all,  and  when  after- 
wards they  came  to  be  introduced,  they  were  usually  prepared  by 
the  clerk  of  the  house  in  which  the  bill  first  passed,  and  attracted 
but  little  attention  from  the  members.  They  indicated  the  clerk's 
understanding  of  the  contents  or  purpose  of  the  bills,  rather  than 
that  of  the  house  ;   and  they  therefore  were  justly  regarded  as 

have  been  put  on  their  passage  together,  the  yeas  and  nays  being  once  called  for 
them  all,  though  the  journal  is  made  to  state  falsely  a  separate  vote  on  each.  We 
need  hardly  say  that  this  is  a  manifest  violation  of  the  constitution,  which  requires 
separate  action  in  every  case,  and  that  when  resorted  to,  it  is  usually  for  the  pur- 
pose of  avoiding  another  provision  of  the  constitution  which  seeks  to  preclude 
"  log-rolling"  legislation,  by  forbidding  the  incorporation  of  distinct  measures 
in  one  and  the  same  statute. 

1  Southworth  v.  Palmyra  &  Jacksonburg  Railroad  Co.,  2  Mich.  287  ;  State  v. 
McBride,  4  Mo.  303.  By  most  of  the  constitutions  either  all  the  laws,  or  laws 
on  some  particular  subjects,  are  required  to  be  adopted  by  a  majority  vote  or 
some  other  proportion  of  "  all  the  members  elected,"  or  of  "  the  whole  repre- 
sentation." These  and  similar  phrases  require  all  the  members  to  be  taken  into 
account  whether  present  or  not.  Where  a  majority  of  all  the  members  elected  is 
required  in  the  passage  of  a  law,  an  ineligible  person  is  not  on  that  account  to  be 
excluded  in  the  count.     Satterlee  v.  San  Francisco,  22  Cal.  314. 

2  United  States  v.  Palmer,  3  Wheat.  610 ;  Burgett  v.  Burgett,  1  Ohio,  480 ; 
Eastman  v.  McAlpin,  1  Kelley,  157  ;  Cohen  v.  Barrett,  5  Call,  195.  See  Dwarris 
on  Statutes,  502. 

3  Hadden  v.  The  Collector,  5  Wal.  107. 

[155] 


*  141  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

furnishing  very  little  insight  into  the  legislative  intention.  Titles 
to  legislative  acts,  however,  have  recently,  in  some  States,  come  to 
possess  very  great  importance,  by  reason  of  constitutional  pro- 
visions, which  not  only  require  that  they  shall  correctly  indicate 
the  purpose  of  the  law,  but  which  absolutely  make  the  title  to 
control  and  exclude  every  thing  from  effect  and  operation  as  law 
which  is  incorporated  in  the  body  of  the  act  but  is  not  within  the 
purpose  indicated  by  the  title.  These  provisions  are  given  in  the 
note,  and  it  will  readily  be  perceived  that  they  make  a  very  great 

change  in  the  law.1 
[*  142]  *  In  considering  these  provisions  it  is  important  to  re- 
gard, — 
1.  The  evils  designed  to  be  remedied.  The  Constitution  of  New 
Jersey  refers  to  these  as  "  the  improper  influences  which  may 
result  from  intermixing  in  one  and  the  same  act  such  things  as 
have  no  proper  relation  to  each  other."     In  the  language  of  the 

1  The  Constitutions  of  Minnesota,  Kansas,  Maryland,  Kentucky,  Nebraska, 
Ohio,  and  Pennsylvania  provide  that  "  no  law  shall  embrace  more  than  one  sub- 
ject, which  shall  be  expressed  in  its  title."  Those  of  Michigan,  New  Jersey, 
Louisiana,  and  Texas  are  similar,  substituting  the  word  object  for  subject.  The 
Constitutions  of  South  Carolina,  Alabama,  Tennessee,  Arkansas,  and  California 
contain  similar  provisions.  The  Constitution  of  New  Jersey  provides  that,  "  to 
avoid  improper  influences  which  may  result  from  intermixing  in  one  and  the  same 
act  such  things  as  have  no  proper  re  ation  to  each  other,  every  law  shall  embrace 
but  one  object,  and  that  shall  be  expressed  in  the  title."  The  Constitution  of 
Missouri  contains  a  similar  provision,  with  the  addition,  that,  "if  any  subject 
embraced  in  an  act  be  not  expressed  in  the  title,  such  act  shall  be  void  only  as  to 
so  much  thereof  as  is  not  so  expressed."  The  Constitutions  of  Indiana,  Oregon, 
and  Iowa  provide  that  "  every  act  shall  embrace  but  one  subject,  and  matters  prop- 
erly connected  therewith,  which  subject  shall  be  expressed  in  the  title.  But  if  any 
subject  shall  be  embraced  in  an  act  which  shall  not  be  expressed  in  the  title,  such 
act  shall  be  void  only  as  to  so  much  thereof  as  shall  not  be  expressed  in  the  title." 
The  Constitution  of  Nevada  provides  that  "  every  law  enacted  by  the  legislature 
shall  embrace  but  one  subject,  and  matters  properly  connected  therewith,  which 
subject  shall  be  briefly  expressed  in  the  title."  The  Constitutions  of  New  York 
and  Wisconsin  provide  that  "  no  private  or  local  bill  which  may  be  passed  by  the 
legislature  shall  embrace  more  than  one  subject,  and  that  shall  be  expressed  in 
the  title."  The  Constitution  of  Illinois  is  in  this  regard  nearly  identical  with  that 
of  Missouri.  Whether  the  word  object  is  to  have  any  different  construction  from 
the  word  subject,  as  used  in  these  provisions,  is  a  question  which  may  some,  time 
require  discussion  ;  but  as  it  is  evidently  employed  for  precisely  the  same  purpose, 
it  would  seem  that  it  ought  not  to  have.  Compare  Hingle  v.  State,  21  Ind.  28, 
and  People  v.  Lawrence,  36  Barb.  192. 

[156] 


CH.  VI.]  OP  THE  ENACTMENT  OF  LAWS.  *  142 

Supreme  Court  of  Louisiana,  speaking  of  the  former  practice  : 
"  The  title  of  an  act  often  afforded  no  clue  to  its  contents.  Im- 
portant general  principles  were  found  placed  in  acts  private  or 
local  in  their  operation  ;  provisions  concerning  matters  of  practice 
or  judicial  proceedings  were  sometimes  included  in  the  same 
statute  with  matters  entirely  foreign  to  them,  the  result  of  which 
was  that  on  many  important  subjects  the  statute  law  had  become 
almost  unintelligible,  as  they  whose  duty  it  has  been  to  examine 
or  act  under  it  can  well  testify.  To  prevent  any  further  accu- 
mulation to  this  chaotic  mass  was  the  object  of  the  constitutional 
provision  under  consideration."  1  The  Supreme  Court  of  Michigan 
say  :  "  The  history  and  purpose  of  this  constitutional  pro- 
vision are  too  well  understood  to  require  any  *  elucidation  [*  143] 
at  our  hands.  The  practice  of  bringing  together  into  one 
bill  subjects  diverse  in  their  nature  and  having  no  necessary  con- 
nection with  a  view  to  combine  in  their  favor  the  advocates  of  all, 
and  thus  secure  the  passage  of  several  measures,  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  secured  through  legislative  bodies  whose  members 
were  not  generally  aware  of  their  intention  and  effect.  There  was 
no  design  by  this  clause  to  embarrass  legislation  by  making  laws 
unnecessarily  restrictive  in  their  scope  and  operation,  and  thus 
multiplying  their  number  ;  but  the  trainers  of  the  constitution 
meant  to  put  an  end  to  legislation  of  the  vicious  character  referred 
to,  which  was  little  less  than  a  fraud  upon  the  public,  and  to  re- 
quire that  in  every  case  the  proposed  measure  should  stand  upon 
its  own  merits,  and  that  the  legislature  should  be  fairly  satisfied 
of  its  design  when  required  to  pass  upon  it."  2  The  Court  of 
Appeals  of  New  York  declare  the  object  of  this  provision  to  be 
"  that  neither  the  members  of  the  legislature  nor  the  people  should 
be  misled  by  the  title."  3    The  Supreme  Court  of  Iowa  say  :    "  The 

1  Walker  v.  Caldwell,  4  La.  An.  2JS.     See  Fletcher  v.  Oliver,  25  Ark.  298. 

8  People  v.  Mahaney,  13  Mich.  494.  And  see  Board  of  Supervisors  v.  Heenan, 
2  Minn.  336 ;  Davis  v.  Bank  of  Fulton,  31  Geo.  69  ;  St.  Louis  v.  Tiefel,  42  Mo. 
578. 

3  Sun  Mutual  Insurance  Co.  v.  Mayor,  &c,  of  New  York,  8  N.  Y.  253. 

[157] 


*  143  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

intent  of  this  provision  of  the  constitution  was,  to  prevent  the 
union,  in  the  same  act,  of  incongruous  matters,  and  of  objects 
having  no  connection,  no  relation.  And  with  this  it  was  designed 
to  prevent  surprise  in  legislation,  by  having  matter  of  one  nature 
embraced  in  a  bill  whose  title  expressed  another."  1  And  similar 
expressions  will  be  found  in  many  other  reported  cases.2  It  may 
therefore  be  assumed  as  settled  that  the  purpose  of  these  provi- 
sions was  :  first,  to  prevent  hodge  podge,  or  "  log-rolling  "  legis- 
lation ;  second,  to  prevent  surprise  or  fraud  upon  the  legislature, 
by  means  of  provisions  in  bills  of  which  the  titles 
[*  144]  *  gave  no  intimation,  and  which  might  therefore  be  over- 
looked and  carelessly  and  unintentionally  adopted  ;  and, 
third,  to  fairly  apprise  the  people,  through  such  publication  of 
legislative  proceedings  as  is  usually  made,  of  the  subjects  of 
legislation  that  are  being  considered,  in  order  that  they  may  have 
opportunity  of  being  heard  thereon,  by  petition  or  otherwise,  if 
they  shall  so  desire. 

2.  The  particularity  required  in  stating  the  object.  The  gen- 
eral purpose  of  these  provisions  is  accomplished  when  a  law  has 
but  one  general  object,  which  is  fairly  indicated  by  its  title.  To 
require  every  end  and  means  necessary  or  convenient  for  the 
accomplishment  of  this  general  object  to  be  provided  for  by  a 
separate  act  relating  to  that  alone,  would  not  only  be  unreason- 
able, but  would  actually  render  legislation  impossible.  It  has 
accordingly  been  held  that  the  title  of  "  an  act  to  establish  a 
police  government  for  the  city  of  Detroit,"  was  not  objectionable 
for  its  generality,  and  that  all  matters  properly  connected  with 
the  establishment  and  efficiency  of  such  a  government,  including 
taxation  for  its  support,  and  courts  for  the  examination  and  trial 
of  offenders,  might  constitutionally  be  included  in  the  bill  under 
this  general  title.  Under  any  different  ruling  it  was  said,  "  the 
police  government  of  a  city  could  not  be  organized  without  a  dis- 
tinct act  for  each  specific  duty  to  be  devolved  upon  it,  and  these 
could  not  be  passed  until  a  multitude  of  other  statutes  had  taken 

1  State  v.  County  Judge  of  Davis  Co.,  2  Iowa,  282. 

*  See  Conner  v.  Mayor,  &c.,  of  New  York,  5  N.  Y.  293  ;  Davis  v.  State,  7  Md. 
151.  The  Supreme  Court  of  Indiana  also  understand  the  provision  in  the  con- 
stitution of  that  State  to  be  designed,  among  other  things,  to  assist  in  the  codifi- 
cation of  the  laws.  Indiana  Central  Railroad  Co.  v.  Potts,  7  Ind.  685 ;  Hingle 
v.  State,  24  Ind.  28. 

[158] 


CH.  VI.]  OP  THE  ENACTMENT  OF  LAWS.  *  144 

the  same  duties  from  other  officers  before  performing  them.  And 
these  several  statutes,  fragmentary  as  they  must  necessarily  be, 
would  often  fail  of  the  intended  object,  from  the  inherent  diffi- 
culty in  expressing  the  legislative  will  when  restricted  to  such 
narrow  bounds."  1  The  generality  of  a  title  is  therefore  no  objec- 
tion to  it,  so  long  as  it  is  not  made  a  cover  to  legislation  incongru- 
ous in  itself,  and  which  by  no  fair  intendment  can  be  considered 
as  having  a  necessary  or  proper  connection.2  The  legislature  must 
determine  for  itself  how  broad  and  comprehensive  shall  be  the 
object  of  a  statute,  and  how  much  particularity  shall  be  employed 
in  the  title  in  defining  it.3  One  thing,  however,  is  very 
*  plain  ;  that  the  use  of  the  words  "  other  purposes,"  which  [*  145] 
has  heretofore  been  so  common  in  the  title  to  acts,  with  a 

1  People  v.  Mahaney,  13  Mich.  495.  See  also  Morford  v.  Unger,  8  Iowa,  82, 
and  Whiting  v.  Mount  Pleasant,  11  Iowa,  482 ;  Bright  v.  McCulloch,  27  Ind. 
223;  Mayor,  &c,  of  Annapolis  v.  State,  30  Md.  112;  State  v.  Union,  33  N.  J. 
354 ;  Humboldt  County  v.  Churchill  Co.  Commissioners,  6  Nev.  30. 

2  Indiana  Central  Railroad  Co.  v.  Potts,  7  Ind.  681 ;  People  v.  Briggs,  50 
N.  Y.  553. 

3  In  State  v.  Powers,  14  Ind.  195,  an  act  came  under  consideration,  the  title 
to  which  was,  "An  act  to  amend  the  first  section  of  an  act  entitled  'An  act 
concerning  1  censes  to  vend  foreign  merchandise,  to  exhibit  any  caravan,  mena- 
gerie, circus,  rope  and  wire  dancing  puppet-shows,  and  legerdemain,'  approved 
June  15,  1852,  and  for  the  encouragement  of  agi'iculture,  and  concerning  the 
licensing  of  stock  and  exchange  brokers."  It  was  held  that  the  subject  of  the 
act  was  licenses,  and  that  it  was  not  unconstitutional  as  containing  more  than 
one  subject.  But  it  was  held  also  that,  as  the  licenses  which  it  author  zed  and 
required  were  specified  in  the  title,  the  act  could  embrace  no  others,  and  conse- 
quently a  provision  in  the  act  requiring  concerts  to  be  licensed  was  void.  In 
State  v.  County  Judge  of  Davis  County,  2  Iowa,  280,  the  act  in  question  was 
entitled  "  An  act  in  relation  to  certain  State  roads  therein  named."  It  contained 
sixty-six  sections,  in  which  it  established  some  forty-six  roads,  vacated  some,  and 
provided  for  the  re-location  of  others.  The  court  sustained  the  act.  "The 
object  of  an  act  may  be  broader  or  narrower,  more  or  less  extensive;  and  the 
broader  it  is,  the  more  particulars  will  it  embrace.  .  .  .  There  is  undoubtedly 
great  objection  to  uniting  so  many  particulars  in  one  act,  but  so  long  as  they  are 
of  the  same  nature,  and  come  legitimately  under  one  general  determination  or 
object,  we  cannot  say  that  the  act  is  unconstitutional.1'  P.  284.  Upon  this  sub- 
ject see  Indiana  Central  Railroad  Co.  v.  Potts,  7  Ind.  684,  where  it  is  considered 
at  length.  Also  Brewster  v.  Syracuse,  19  N.  Y.  116;  Hall  v.  Bunte,  20  Ind. 
304  ;  People  v.  McCalluin,  1  Neb.  182.  An  act  entitled  "  An  act  fixing  the  time 
and  mode  of  electing  State  printer,  defining  his  duties,  fixing  compensation,  and 
repealing  all  laws  coming  in  conflict  with  this  act,"  was  sustained  in  Walker  v. 
Dunham,  17  Ind.  483. 

[159] 


*  145  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

view  to  cover  any  and  every  tiling,  whether  connected  with  the 
main  purpose  indicated  by  the  title  or  not,  can  no  longer  be  of  any 
avail  !  ere  these  provisions  exist.  As  was  said  by  the  Supreme 
Court  of  New  York  in  a  case  where  these  words  had  been  made 
use  of  in  the  title  to  a  local  bill :  "  The  words  '  for  other  purposes  ' 
must  be  laid  out  of  consideration.  They  express  nothing,  and 
amount  to  nothing  as  a  compliance  with  this  constitutional  require- 
ment. Nothing  which  the  act  could  not  embrace  without  them  can 
be  brought  in  by  their  aid."  1 

3.  What  is  embraced  by  the  title.  The  repeal  of  a  statute  on  a 
given  subject,  it  is  held,  is  properly  connected  with  the  subject- 
matter  of  a  new  statute  on  the  same  subject ;  and  therefore  a 
repealing   section   in    the   new   statute  is    valid,  notwithstanding 

the  title  is  silent  on  that  subject.2  So  an  act  to  incorpo- 
[*  146J   rate  a  railroad  *  company,  it  has  been  held,  may  authorize 

counties  to  subscribe  to  its  stock,  or  otherwise  aid  the 
construction  of  the  road.3  So  an  act  to  incorporate  the  Firemen's 
Benevolent  Association  may  lawfully  include  under  this  title  pro- 
visions for  levying  a  tax  upon  the  income  of  foreign  insurance 
companies,  at  the  place  of  its  location,  for  the  benefit  of  the  corpo- 
ration.4 So  an  act  to  provide  a  homestead  for  widows  and  children 
was  held  valid,  though  what  it  provided  for  was  the  pecuniary  means 

1  Town  of  Fishkill  v.  Fisbkill  and  Beekman  Plank  Road  Co.,  22  Barb.  642. 
See,  to  the  same  effect,  Ryerson  v.  Utley,  1G  Mich.  269;  St.  Louis  v.  Tiefel,  42 
Mo.  578.  An  act  entitled  "  An  act  to  repeal  certain  acts  therein  named,"  is 
void.  People  v.  Mellen,  32  111.  181.  An  act,  having  for  its  sole  object  to  legal- 
ize certain  proceedings  of  the  Common  Council  of  Janesville,  but  entitled  merely 
"  An  act  to  legalize  and  authorize  the  assessment  of  street  improvements  and 
assessments,"  was  held  not  to  express  the  subject,  because  failing  to  specify  the 
locality.     Durkee  v.  Janesville,  26  Wis.  697. 

2  Gabbert  v.  Railroad  Co.,  11  Ind.  365.  The  constitution  under  which  this 
decision  was  made  required  the  law  to  contain  but  one  subject,  and  mailers 
properly  connected  therewith;  but  the  same  decision  was  made  under  the  New 
York  Constitution,  which  omits  the  words  here  italicized;  and  it  may  well  be 
doubted  whether  the  legal  effect  of  the  provision  is  varied  by  the  addition  of 
those  words.     See  Guilford  v.  Cornell,  18  Barb.  640. 

3  Supervisors,  &c.  v.  People,  25  111.  181.  So  a  provision  for  the  costs  on 
appeal  from  a  justice,  is  properly  connected  with  the  subject  of  an  act  entitled 
of  "the  election  and  qualification  of  justices  of  the  peace,  and  defining  their 
jurisdiction,  powers,  and  duties  in  civil  cases."     Robinson  v.  Skipworth,  23  Ind. 

811. 

4  Firemen's  Association  v.  Lounsbury,  21  111.  511. 

[160] 


CH.  VI.]  OF  THE  ENACTMENT  OP  LAWS.  *  146 

sufficient  to  purchase  a  homestead.1  So  an  act  "  to  regulate  pro- 
ceedings in  the  county  court"  was  held  to  properly  embrace  a 
provision  giving  an  appeal  to  the  District  Court,  and  regulating 
the  proceedings  therein  on  the  appeal.2  So  an  act  entitled  "  an  act 
for  the  more  uniform  doing  of  township  business  "  may  properly 
provide  for  the  organization  of  townships.3  So  it  is  held  that  the 
changing  of  the  boundaries  of  existing  counties  is  a  matter  properly 
connected  with  the  subject  of  forming  new  counties  out  of  those 
existing.4  So  a  provision  for  the  organization  and  sitting  of  courts 
in  new  counties  is  properly  connected  with  the  subject  of  the 
formation  of  such  counties,  and  may  be  included  in  "  an  act  to 
authorize  the  formation  of  new  counties,  and  to  change  county 
boundaries."  5  Many  other  cases  are  referred  to  in  the  note  which 
will  further  illustrate  the  views  of  the  courts  upon  this  subject. 
There  has  been  a  general  disposition  to  construe  the  constitutional 
provision  liberally,  rather  than  to  embarrass  legislation  by  a  con- 
struction whose  strictness  is  unnecessary  to  the  accomplishment  of 
the  beneficial  purposes  for  which  it  has  been  adopted.6 

1  Succession  of  Lanzetti,  9  La.  An.  329. 

2  Murpkey  v.  Menard,  11  Texas,  673. 

3  Clinton  v.  Draper,  14  Ind.  295. 

4  Haggard  v.  Hawkins,  14  Ind.  299.  And  see  Duncombe  v.  Prindle,  12 
Iowa,  1. 

5  Brandon  v.  State,  16  Ind.  197.  In  this  case,  and  also  in  State  v.  Bowers, 
14  Ind.  198,  it  was  held  that  if  the  title  to  an  original  act  is  sufficient  to  embrace 
the  matters  covered  by  the  provisions  of  an  act  amendatory  thereof,  it  is  unneces- 
sary to  inquire  whether  the  title  of  an  amendatory  act  would,  of  itself,  be  sufficient. 
And  see  Morford  v.  Unger,  8  Iowa,  82. 

6  Green  v.  Mayor,  &c,  R.  M.  Charlt.  368;  Martin  v.  Broach,  6  Geo.  21; 
Protho  v.  Orr,  12  Geo.  36 ;  Wheeler  v.  State,  23  Geo.  9 ;  Hill  v.  Commissioners, 
22  Geo.  203;  Jones  v.  Columbus,  25  Geo.  610;  Denham  v.  Holeman,  26  Geo. 
182;  Cannon  v.  Hemphill,  7  Texas,  184;  Battle  v.  Howard,  13  Texas,  345; 
Robinson  v.  State,  15  Texas,  311 ;  Conner  v.  Mayor,  &c,  of  New  York,  2  Sandf. 
355,  and  5  N.  Y.  285;  Fishkill  v.  Plank  Road  Co.,  22  Barb.  634;  Brewster  v. 
Syracuse,  19  N.  Y.  116;  People  v.  McCann,  16  N.  Y.  58;  Williams  v.  People, 
24  N.  Y.  405  ;  People  v.  Lawrence,  36  Barb.  177  ;  Sharp  v.  Mayor,  &c,  of  New 
York,  31  Barb.  572;  Davis  v.  State,  7  Md.  51;  Keller  v.  State,  11  Md.  525; 
Parkinson  v.  State,  14  Md.  184;  Bossier  v.  Steele,  13  La.  An.  433;  La;fon  v. 
Dufoe,  9  La.  An.  329;  State  v.  Harrison,  11  La.  An.  722;  Williams  v.  Payson, 
14  La.  An.  7  ;  Fletcher  v.  Oliver,  25  Ark.  298 ;  Mewherter  v.  Price,  11  Ind.  199  ; 
Gabbert  v.  Railroad  Co.,  ib.  365  ;  Railroad  Co.  v.  Whiteneck,  8  Ind.  217  ;  Wil- 
kins  v.  Miller,  9  Ind.  100;  Foley  v.  State,  ib.  363;  Gillespie  v.  State,  ib.  380; 
Henry  v.  Henry,  13  Ind.  250  ;  Igoe  v.  State,  14  Ind.  239  ;  Haggard  v.  Hawkins, 

11  [  161  ] 


*  147  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

[*  147]       *  4.   Tfie  effect  if  the  title  embrace  more  than  one  object. 
Perhaps  in  those  States  where  this  constitutional  provision 

ib.  299 ;  Reed  v.  State,  12  Ind.  641 ;  Sturgeon  v.  Hitchens,  22  Ind.  107  ;  Lauer 
v.  State,  ib.  461;  Central  Plank  Road  Co.  v.  Hannaman,  ib.  484;  Gifford  v. 
Railroad  Co.,  2  Stockt.  171 ;  Johnson  v.  Higgins,  3  Met.  (Ky.)  566  ;  Chiles  v. 
Drake,  2  Met.  (Ky.)  146;  Louisville,  &c,  Co.  v.  Ballard,  ib.  165;  Phillips 
v.  Covington,  &c.,  Co.,  ib.  219;  Chiles  v.  Monroe,  4  Met.  (Ky.)  72;  Common- 
wealth v.  Dewey,  15  Grat.  1 ;  Whiting  v.  Mount  Pleasant,  11  Iowa,  482  ;  Tuttle 
v.  Strout,  7  Minn.  465 ;  Supervisors,  &c.  v.  Heenan,  2  Minn.  330 ;  Railroad  Co. 
r.  Gregory,  15  111.  20  ;  People  p.  Mellen,  32  111.  181 ;  Cutlip  v.  Sheriff,  3  W.  Va. 
588 ;  McAunich  v.  Mississippi,  &c.  R.R.  Co.,  20  Iowa,  338 ;  State  v.  Gut,  13 
Minn.  341  ;  People  v.  Allen,  42  N.Y.  404;  State  v.  Miller,  45  Mo.  495. 

In  Davis  v.  Woolnough,  9  Iowa,  104,  an  act  entitled  "  An  act  for  revising 
and  consolidating  the  laws  incorporating  the  city  of  Dubuque,  and  to  establish 
a  city  court  therein,"  was  held  to  express  by  its  title  but  one  object,  which 
was,  the  revising  and  consolidating  the  laws  incorporating  the  city ;  and  the 
city  court,  not  being  an  unusual  tribunal  in  such  a  municipality,  might  be  pro- 
vided for  by  the  act,  whether  mentioned  in  the  title  or  not.  "  An  act  to  enable 
the  supervisors  of  the  city  and  county  of  New  York  to  raise  money  by  tax," 
provided  for  raising  money  to  pay  judgments  then  existing,  and  also  any  there- 
after to  be  recovered ;  and  it  also  contained  the  further  provision,  that  whenever 
the  controller  of  the  city  should  have  reason  to  believe  that  any  judgment  then 
of  record  or  thereafter  obtained  had  been  obtained  by  collusion,  or  was  founded 
in  fraud,  he  should  take  the  proper  and  necessary  means  to  open  and  reverse  the 
same,  &c.  This  provision  was  held  constitutional,  as  properly  connected  with 
the  subject  indicated  by  the  title,  and  necessary  to  confine  the  payments  of  the 
tax  to  the  objects  for  which  the  moneys  were  intended  to  be  raised.  Sharp  v. 
Mayor,  &c,  of  New  York,  31  Barb.  572.  In  O'Leary  v.  Cook  Co.,  28  111.  534, 
it  was  held  that  a  clause  in  an  act  incorporating  a  college,  prohibiting  the  sale 
of  ardent  spirits  within  a  distance  of  four  miles,  was  so  germane  to  the  primary 
object  of  the  charter  as  to  be  properly  included  within  it.  By  the  first  section 
of  "an  act  for  the  relief  of  the  creditors  of  the  Lockport  and  Niagara  Falls 
Railroad  Company,"  it  was  made  the  duty  of  the  president  of  the  corporation,  or 
one  of  the  directors  to  be  appointed  by  the  president,  to  advertise  and  sell  the 
real  and  personal  estate,  including  the  franchise  of  the  company,  at  public  auction 
to  the  highest  bidder.  It  was  then  declared  that  the  sale  should  be  absolute, 
and  that  it  should  vest  in  the  purchaser  or  purchasers  of  the  property,  real  or 
personal,  of  the  company,  all  the  franchise,  rights,  and  privileges  of  the  cor- 
poration, as  fully  and  as  absolutely  as  the  same  were  then  possessed  by  the 
company.  The  money  arising  from  the  sale,  after  paying  costs,  was  to  be  applied, 
first,  to  the  payment  of  a  certain  judgment,  and  then  to  other  liens  according 
to  priority ;  and  the  surplus,  if  any,  was  to  be  divided  ratably  among  the  other 
creditors,  and  then  if  there  should  be  an  overplus,  it  was  to  be  divided  ratably 
among  the  then  stockholders.  By  the  second  section  of  the  act,  it  was  declared 
that  the  purchaser  or  purchasers  should  have  the  right  to  sell  and  distribute 
stock  to  the  full  amount  which  was  authorized  by  the  act  of  incorporation,  and 

[  162  ] 


CH.  VI.]  OF  THE  ENACTMENT  OF  LAWS.  *  147 

is  limited  *  in  its  operation  to  private  and  local  bills,  it  [*148] 
might  be  held  that  an  act  was  not  void  for  embracing  two 
or  more  objects  which  were  indicated  by  its  title,  provided  one  of 
them  only  was  of  a  private  and  local  nature.  It  has  been  held  in 
New  York  that  a  local  bill  was  not  void  because  embracing  general 
provisions  also  ; 2  and  if  they  may  constitutionally  be  embraced  in 
the  act,  it  is  presumed  they  may  also  be  constitutionally  embraced 
in  the  title.  But  if  the  title  to  the  act  actually  indicates,  and  the 
act  itself  actually  embraces,  two  distinct  objects,  when  the  consti- 
tution says  it  shall  embrace  but  one,  the.whole  act  must  be  treated 
as  void,  from  the  manifest  impossibility  in  the  court  choosing 
between  the  two,  and  holding  the  act  valid  as  to  the  one  and  void 
as  to  the  other. 

5.  The  effect  ivhere  the  act  is  broader  than  the  title.  But  if  the 
act  is  broader  than  the  title,  it  may  happen  that  one  part  of  it  can 
stand  because  indicated  by  the  title,  while  as  to  the  object  not 
indicated  by  the  title  it  must  fail.  Some  of  the  State  constitutions, 
it  will  be  perceived,  have  declared  that  this  shall  be  the  rule  ;  but 
the  declaration  was  unnecessary  ;  as  the  general  rule,  that  so  much 
of  the  act  as  is  not  in  conflict  with  the  constitution  must  be  sus- 
tained, would  have  required  the  same  declaration  from  the  courts. 
If  by  striking  from  the  act  all  that  relates  to  the  object  not 
indicated  by  the  title,  that  which  is  left  is  complete  in  itself, 
sensible,  capable  of  being  executed,  and  wholly  independent  of 
that  which  is  rejected,  it  must  be  sustained  as  constitu- 
tional. *  The  principal  questions  in  each  case  will  there-  [*149] 
fore  be,  whether  the  act  is  in  truth  broader  than  the  title ; 
and  if  so,  then  whether  the  other  objects  in  the  act  are  so  intimately 
connected  with  the  one  indicated  by  the  title  that  the  portion  of  the 

the  several  amendments  thereto ;  and  to  appoint  an  election,  choose  directors, 
and  organize  a  corporation  anew,  with  the  same  powers  as  the  existing  company. 
There  was  then  a  proviso,  that  nothing  in  the  act  should  impair  or  affect  the 
subscriptions  for  new  stock,  or  the  obligations  or  liabilities  of  the  company 
which  had  been  made  or  incurred  in  the  extension  of  the  road  from  Lockport  to 
Rochester,  &c.  The  whole  act  was  held  to  be  constitutional.  Hosier  v.  Hilton, 
15  Barb.  657.  And  see  Mills  v.  Charleton,  29  Wis.  400,  —  a  very  liberal  case; 
Erlinger  v.  Boneau,  51  111.  94;  State  v.  Newark,  34  1ST.  J.  286;  Smith  v.  Com- 
monwealth, 8  Bush,  108;  State  v.  St.  Louis  Cathedral,  23  La.  An.  720;  Simpson 
v.  Bailey,  3  Oreg.  515 ;  Neifing  v.  Pontiac,  56  111.  172. 
1  People  v.  McCann,  16  N.  Y.  58. 

[163] 


*  149  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

act  relating  to  them  cannot  be  rejected,  and  leave  a  complete  and 
sensible  enactment  which  is  capable  of  being  executed.1 

As  the  legislature  may  make  the  title  to  an  act  as  restrictive  as 
they  please,  it  is  obvious  that  they  may  sometimes  so  frame  it  as 
to  preclude  many  matters  being  included  in  the  act  which  might 
with  entire  propriety  have  been  embraced  in  one  enactment  with 
the  matters  indicated  by  the  title,  but  which  must  now  be  excluded, 
because  the  title  has  been  made  unnecessarily  restrictive.  The 
courts  cannot  enlarge  the  scope  of  the  title  ;  they  are  vested  with 
no  dispensing  power  ;  the  constitution  has  made  the  title  the 
conclusive  index  to  the  legislative  intent  as  to  what  shall  have 
operation  ;  it  is  no  answer  to  say  that  the  title  might  have  been 
made  more  comprehensive,  if  in  fact  the  legislature  have  not  seen 
fit  to  make  it  so.  Thus,  "  An  act  concerning  promissory  notes  and 
bills  of  exchange  "  provided  that  all  promissory  notes,  bills  of 
exchange,  or  other  instruments  in  writing,  for  the  payment  of  money, 
or  for  the  delivery  of  specific  articles,  or  to  convey  property,  or 
to  perform  any  other  stipulation  therein  mentioned,  should  be 
negotiable,  and  assignees  of  the  same  might  sue  thereon  in  their 
own  names.  It  was  held  that  this  act  was  void,  as  to  all  the 
instruments  mentioned  therein  except  promissory  notes  and 
bills  of  exchange;2  though  it  is  obvious  that  it  would  have 
been  easy  to  frame  a  title  to  the  act  which  would  have  embraced 
them  all,  and  which  would  have  been  unobjectionable.  It  has 
also  been  held  that  an  act  for  the  preservation  of  the  Muskegon 
River  Improvement  could  not  lawfully  provide  for  the  levy  and 
collection  of  tolls  for  the  payment  of  the  expense  of  constructing 
the  improvement,  as  the  operation  of  the  act  was  carefully  limited 
by  its  title  to  the  future.3  So  also  it  has  been  held  that  "  an  act 
to  limit  the  number  of  grand  jurors,  and  to  point  oiyt  the  mode  of 

1  People  v.  Briggs,  50  N.  Y.  566.  "  ISTone  of  the  provisions  of  a  statute 
should  be  regarded  as  unconstitutional  where  they  all  relate,  directly  or  indirectly, 
to  the  same  subject,  have  a  natural  connection,  and  are  not  foreign  to  the  subject 
expressed  in  the  title."'  Phillips  v.  Bridge  Co.,  2  Met.  (Ky.)  222,  approved, 
Smith  v.  Commonwealth,  8  Bush,  112.     See  Ex  parte  Upshaw,  45  Ala.  234. 

2  Mewherter  v.  Price,  11  Ind.  199.     See  also  State  v.  Kinsella,  14  Minn.  524. 

3  Byerson  v.  Utley,  16  Mich.  269.  See  further  Weaver  v.  Lapsley,  43  Ala. 
229 ;  Tuscaloosa  Bridge  Co.  v.  Ohnstead,  41  Ala.  9  ;  Stuart  v.  Kinsella,  14  Minn. 
524.  In  Cutlip  v.  Sheriff,  3  W.  Va.  588,  it  was  held  that  if  an  act  embraces  two 
objects,  only  one  of  which  is  specified  in  the  title,  the  whole  is  void ;  but  this  is 
opposed  to  the  authorities  generally. 

[164] 


CH.  VI.]  OF   THE    ENACTMENT   OF   LAWS.  *  149 

their  selection,  defining  their  jurisdiction,  and  repealing  all  laws 
inconsistent  therewith,"  courd  not  constitutionally  contain  pro- 
visions which  should  authorize  a  defendant  in  a  criminal  case,  on 
a  trial  for  any  offence,  to  be  found  guilty  of  any  lesser 
offence  necessarily  *  included  therein.1  These  cases  must  [*  150] 
suffice  upon  this  point ;  though  the  cases  before  referred 
to  will  furnish  many  similar  illustrations. 

In  all  we  have  said  upon  this  subject  we  have  assumed  the  con- 
stitutional provision  to  be  mandatory.  Such  has  been  the  view  of 
the  courts  almost  without  exception.  In  California,  however,  a 
different  view  has  been  taken,  the  court  saying:  "  We  regard  this 
section  of  the  constitution  as  merely  directory ;  and,  if  we  were 
inclined  to  a  different  opinion,  would  be  careful  how  we  lent  our- 
selves to  a  construction  which  must  in  effect  obliterate  almost 
every  law  from  the  statute-book,  unhinge  the  business  and  destroy 
the  labor  of.  the  last  three  years.  The  first  legislature  that  met 
under  the  constitution  seems  to  have  considered  this  section  as 
directory  ;  and  almost  every  act  of  that  and  the  subsequent  sessions 
would  be  obnoxious  to  this  objection.  The  contemporaneous 
exposition  of  the  first  legislature,  adopted  or  acquiesced  in  by 
every  subsequent  legislature,  and  tacitly  assented  to  by  the  courts, 
taken  in  connection  with  the  fact  that  rights  have  grown  up  under 
it,  so  that  it  has  become  a  rule  of  property,  must  govern  our 
decision."  2  Similar  views  have  also  been  expressed  in  the  State 
of  Ohio.3  These  cases,  and  especially  what  is  said  by  the  Califor- 
nia court,  bring  forcibly  before  our  minds  a  fact,  which  cannot  be 
kept  out  of  view  in  considering  this  subject,  and  which  has  a  very 
important  bearing  upon  the  precise  point  which  these  decisions 
cover.  The  fact  is  this :  that  whatever  constitutional  provision  can 
be  looked  upon  as  directory  merely  is  very  likely  to  be  treated  by 
the  legislature  as  if  it  was  devoid  even  of  moral  obligation,  and  to 
be  therefore  habitually  disregarded.  To  say  that  a  provision  is 
directory  seems,  with  many  persons,  to  be  equivalent  to  saying 
that  it  is  not  law  at  all.  That  this  ought  not  to  be  so  must  be  con- 
ceded ;  that  it  is  so  we  have  abundant  reason  and  good  authority 

1  Foley  v.  State,  9  Ind.  363 ;  Gillespie  v.  State,  ib.  380.  See  also  Indiana 
Cent.  Railroad  Co.  v.  Potts,  7  Ind.  681;  State  v.  Squires,  26  Iowa,  340;  State 
v.  Lafeyette  Co.  Court,  41  Mo.  39;  People  v.  Denahy,  20  Mich.  349. 

2  Washington  v.  Murray,  4  Cal.  388. 

3  Miller  v.  State,  3  Ohio,  n.  s.  475;  Pim  v.  Nicholson,  6  Ohio,  n.  s.  177. 

[165] 


*  150  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

for  saying.  If,  therefore,  a  constitutional  provision  is  to  be  enforced 
at  all,  it  must  be  treated  as  mandatory.  And  if  the  legislature  habit- 
ually disregard  it,  it  seems  to  us  that  there  is  all  the  more  urgent 
necessity  that  the  courts  should  enforce  it.  And  it  also 
[*  151]  seems  to  us  that  there  are  few  evils  which  *  can  be  inflict- 
ed by  a  strict  adherence  to  the  law,  so  great  as  that  which 
is  done  by  the  habitual  disregard,  by  any  department  of  the  gov- 
ernment, of  a  plain  requirement  of  that  instrument  from  which  it 
derives  its  authority,  and  which  ought,  therefore,  to  be  scrupulously 
observed  and  obeyed.  Upon  this  subject  we  need  only  refer  here 
to  what  we  have  said  concerning  it  in  another  place.1 

Amendatory  Statutes. 

It  has  also  been  deemed  important,  in  some  of  the  States,  to 
provide  by  their  constitutions,  that  "  no  act  shall  ever  be  revised 
or  amended  by  mere  reference  to  its  title ;  but  the  act  revised  or 
section  amended  shall  be  set  forth  and  published  at  full  length."  2 
Upon  this  provision  an  important  query  arises.  Does  it  mean 
that  the  act  or  section  revised  or  amended  shall  be  set  forth  and 
published  at  full  length  as  it  stood  before,  or  does  it  mean  only 
that  it  shall  be  set  forth  and  published  at  full  length  as  amended 
or  revised  ?  Upon  this  question  perhaps  a  consideration  of  the 
purpose  of  the  provision  may  throw  some  light.  "  The  mischief 
designed  to  be  remedied  was  the  enactment  of  amendatory  stat- 
utes in  terms  so  blind  that  legislators  themselves  were  sometimes 
deceived  in  regard  to  their  effects,  and  the  public,  from  the  diffi- 
culty in  making  the  necessary  examination  and  comparison,  failed 
to  become  apprised  of  the  changes  made  in  the  laws.  An 
amendatory  act  which  purported  only  to  insert  certain  words,  or  to 

1  Ante,  p.  74. 

2  This  is  the  provision  as  it  is  found  in  the  Constitutions  of  Indiana,  Nevada, 
Oregon,  Texas,  and  Virginia.  In  Kansas,  Ohio,  [Nebraska,  Michigan,  Louisiana, 
Wisconsin,  Missouri,  and  Maryland  there  are  provisions  of  similar  import.  In 
Tennessee  the  provision  is:  "All  acts  which  revive,  repeal,  or  amend  former 
laws,  shall  recite,  in  their  caption  or  otherwise,  the  title  or  substance  of  the  law 
repealed,  revived,  or  amended."     Art.  1,  §  17. 

In  Texas  it  appears  to  be  held  that  the  legislature  may  repeal  a  definite  por- 
tion of  a  section  without  the  re-enactment  of  the  section  with  such  portion  omitted. 
Chambers  v.  State,  25  Texas,  307.  But  qncere  of  this.  Any  portion  of  a  section 
amended  which  is  not  contained  in  the  amendatory  section  as  set  forth  and  pub- 
lished is  repealed.     State  v.  Ingersoll,  17  Wis.  631. 

[166] 


CH.  VI.]  OF   THE   ENACTMENT   OF   LAWS.  *  151 

substitute  one  phrase  for  another  in  an  act  or  section  which  was 
only  referred  to,  but  not  published,  was  well  calculated  to  mis- 
lead the  careless  as  to  its  effect,  and  was,  perhaps,  sometimes 
drawn  in  that  form  for  the  express  purpose.  Endless  confusion 
was  thus  introduced  into  the  law,  and  the  constitution  wisely  pro- 
hibited such  legislation."  x  If  this  is  a  correct  view  of  the  pur- 
pose of  the  provision,  it  does  not  seem  to  be  at  all  important  to 
its  accomplishment  that  the  old  law  should  be  republished,  if  the 
law  as  amended  is  given  in  full,  with  such  reference  to  the  old 
law  as  will  show  for  what  the  new  law  is  substituted. 
Nevertheless,  *  it  has  been  decided  in  Louisiana  that  the  [*  152] 
constitution  requires  the  old  law  to  be  set  forth  and  pub- 
lished ; 2  and  the  courts  of  Indiana,  assuming  the  provision  in  their 
own  constitution  to  be  taken  from  that  of  Louisiana  after  the  deci- 
sions referred  to  had  been  made,  at  one  time  adopted  and  followed 
them  as  precedents.3  It  is  believed,  however,  that  the  general 
understanding  of  the  provision  in  question  is  different,  and  that 
it  is  fully  complied  with  in  letter  and  spirit,  if  the  act  or  section 
revised  or  amended  is  set  forth  and  published  as  revised  or  amended, 
and  that  any  thing  more  only  tends  to  render  the  statute  unneces- 
sarily cumbrous.4  Statutes  which  amend  others  by  implication, 
however,  are  not  within  this  provision  ;  and  it  is  not  essential  that 
they  even  refer  to  the  acts  or  sections  which  by  implication  they 
amend.5 

1  People  v.  Mabaney,  13  Mich.  497. 

2  Walker  v.  Caldwell,  4  La.  An.  297  ;  Heirs  of  Duverge  v.  Salter,  5  La.  An. 
94. 

3  Langdon  v.  Applegate,  5  Ind.  327;  Rogers  v.  State,  6  Ind.  31.  These 
cases  were  overruled  in  Greencastle,  &c,  Co.  v.  State,  28  Ind.  382. 

4  See  Tuscaloosa  Bridge  Co.  v.  Olmstead,  41  Ala.  9;  People  v.  Pritehard,  21 
Mich.  236;  People  v.  McCallun,  1  Neb.  182;  State  v.  Draper,  47  Mo.  29; 
Booneville  v.  Trigg,  46  Mo.  288.  Under  sucb  a  constitutional  provision  where 
a  statute  simply  repeals  others,  it  is  not  necessary  to  set  them  out.  Falconer  v. 
Robinson,  46  Ala.  340.     Compare  Bird  v.  Wasco  County,  3  Oreg.  282. 

5  People  v.  Mabaney,  13  Mich.  496  ;  Spencer  v.  State,  5  Ind.  41 ;  Branham  v. 
Lange,  16  Ind.  497 ;  Lehman  v.  McBride,  15  Ohio,  N.  s.  573.  Repeals  by 
implication,  however,  are  not  favored.  Ibid.  And  see  Naylor  v.  Field,  5  Dutch. 
287;  State  v.  Berry,  12  Iowa,  58;  Attorney-General  v.  Brown,  1  Wis.  525; 
Dodge  v.  Gridley,  10  Ohio,  177 ;  Hirn  v.  State,  1  Ohio,  N.  s.  20 ;  McCool  v. 
Smith,  1  Black,  459 ;  New  Orleans  v.  Southern  Bank,  15  La.  An.  89  ;  Blain  v. 
Bailey,  25  Ind.  165;  Swann  v.  Buck,  40  Miss.  268;  Davis  v.  State,  7  Md.  151 ; 
State  v.  The  Treasurer,  41  Mo.  16 ;  Henderson's  Tobacco,  11  Wal.  652. 

[167] 


*  152  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

It  was  a  parliamentary  rule  that  a  statute  should  not  be  re- 
pealed at  the  same  session  of  its  enactment,  unless  a  clause  per- 
mitting it  was  inserted  in  the  statute  itself;1  but  this  rule  did 
not  apply  to  repeals  by  implication,2  and  it  is  possibly  not  recog- 
nized in  this  country  at  all,  except  where  it  is  incorporated  in  the 
State  constitution.3 

Signing  of  Bills. 

When  a  bill  has  passed  the  two  houses,  it  is  engrossed  for  the 
signatures  of  the  presiding  officers.  This  is  a  constitutional  re- 
quirement in  most  of  the  States,  and  therefore  cannot  be  dis- 
pensed with  ;  though,  in  the  absence  of  any  such  requirement,  it 

would  seem  not  to  be  essential.4  And  if,  by  the  consti- 
[*  153]  tution  of  *  the  State,  the  governor  is  a  component  part  of 

the  legislature,  the  bill  is  then  presented  to  him  for  his 
approval. 

Approval  of  Laivs. 

The  qualified  veto  power  of  the  governor  is  regulated  by  the 
constitutions  of  those  States  which  allow  it,  and  little  need  be  said 
here  beyond  referring  to  the  constitutional  provisions  for  informa- 
tion concerning  them.  It  has  been  held  that  if  the  governor,  by 
statute,  was  entitled  to  one  day,  previous  to  the  adjournment  of  the 
legislature,  for  the  examination  and  approval  of  laws,  this  is  to  be 
understood  as  a  full  day  of  twenty-four  hours,  before  the  hour  of 
the  final  adjournment.5  It  has  also  been  held  that,  in  the  approval 
of  laws,  the  governor  is  a  component  part  of  the  legislature,  and 
that  unless  the  constitution  allows  further  time  for  the  purpose,  he 

1  Dwarris  on  Statutes,  Vol.  I.  p.  269;  Sedgw.  on  Stat,  and  Const.  Law,  122  ; 
Smith  on  Stat,  and  Const.  Construction,  908. 

2  Ibid.     And  see  Spencer  v.  State,  5  Ind.  41. 

8  Spencer  v.  State,  5  Ind.  41 ;  Attorney-General  v.  Brown,  1  Wis.  513  ;  Smith 
on  Stat,  and  Const.  Construction,  908 ;  Mobile  &  Ohio  Railroad  Co.  v.  State,  29 
Ala.  573. 

4  Speer  v.  Plank  Road  Co.,  22  Penn.  St.  376. 

5  Hyde  v.  White,  24  Texas,  137.  The  five  days  allowed  in  New  Hampshire 
for  the  governor  to  return  bills  which  have  not  received  his  assent,  include  days 
on  which  the  legislature  is  not  in  session,  if  it  has  not 'finally  adjourned.  Opinions 
of  Judges,  45  N.  H.  607.  But  the  day  of  presenting  the  bill  to  the  governor 
should  be  excluded.     Ibid.     As  to  the  power  of  the  governor,  derived  from  long 

[168] 


CH.  VI.]  OF  THE  ENACTMENT  OP  LAWS.  *  153 

must  exercise  Ins  power  of  approval  before  the  two  houses  adjourn, 
or  his  act  will  be  void.1  But  under  a  provision  of  the  Constitution 
of  Minnesota,  that  the  governor  may  approve  and  sign  "  within 
three  days  of  the  adjournment  of  the  legislature  any  act  passed 
during  the  last  three  days  of  the  session,"  it  has  been  held  that 
Sundays  were  not  to  be  included  as  a  part  of  the  prescribed  time  ; 2 
and  under  the  Constitution  of  New  York,  which  provided  that,  "  if 
any  bill  shall  not  be  returned  by  the  governor  within  ten  days, 
Sundays  excepted,  after  it  shall  have  been  presented  to  him,  the 
same  shall  be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless 
the  legislature  shall,  by  their  adjournment,  prevent  its  return,  in 
which  case  it  shall  not  be  a  law,"  it  was  held  that  the  governor 
might  sign  a  bill  after  the  adjournment,  at  any  time  within  the  ten 
days.3  The  governor's  approval  is  not  complete  until  the 
bill  has  passed  beyond  his  control  *  by  the  constitutional  [*  154] 
and  customary  mode  of  legislation  ;  and  at  any  time  prior 
to  that  he  may  reconsider  and   retract  any  approval  previously 

usage,  to  approve  and  sign  bills  after  the  adjournment  of  the  legislature,  see 
Solomon  v.  Cartersville,  41  Geo.  157. 

Neither  house  can,  without  the  consent  of  the  other,  recall  a  bill  after  its 
transmission  to  the  governor.     People  v.  Devlin,  33  N.  Y.  269. 

The  delivery  of  a  bill  passed  by  the  two  houses  to  the  secretary  of  the  com- 
monwealth according  to  custom,  is  not  a  presentation  to  the  governor  for  his 
approval,  within  the  meaning  of  the  constitutional  clause  which  limits  him  to  a 
certain  number  of  days  after  the  presentation  of  the  bill  to  veto  it.  Opinions  of 
the  Justices,  99  Mass.  636. 

1  Fowler  v.  Peirce,  2  Cal.  165.  The  court  also  held  in  this  case  that,  notwith- 
standing an  act  purported  to  have  been  approved  before  the  actual  adjournment, 
it  was  competent  to  show  by  parol  evidence  that  the  actual  approval  was  not 
until  the  next  day.  In  support  of  this  ruling,  People  v.  Purdy,  2  Hill,  31,  was 
cited,  where  it  was  held  that  the  court  might  go  behind  the  statute-book  and  in- 
quire whether  an  act  to  which  a  two-thirds  vote  was  essential  had  constitutionally 
passed.  That,  however,  would  not  be  in  direct  contradiction  of  the  record, 
but  it  would  be  inquiring  into  a  fact  concerning  which  the  statute  was  silent,  and 
other  records  supplied  the  needed  information. 

2  Stinson  v.  Smith,  8  Minn.  366. 

3  People  v.  Bowen,  30  Barb.  2-4.  Where  on  the  tenth  day  the  governor  sent 
a  bill  with  his  objections  to  the  house  with  which  it  originated,  but  the  messenger, 
finding  the  house  had  adjourned  for  the  day,  returned  it  to  the  governor,  who 
retained  it,  it  was  held  that  to  prevent  the  bill  becoming  a  law  it  should  have 
been  left  with  the  proper  officer  of  the  house  instead  of  being  retained  by  the 
governor.     Harpending  v.  Haight,  39  Cal.  189. 

[169] 


*  154  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

made.1  His  disapproval  of  a  bill  is  communicated  to  the  house  in 
which  it  originated,  with  his  reasons  ;  and  it  is  there  reconsidered, 
and  may  be  again  passed  over  the  veto  by  such  vote  as  the  consti- 
tution prescribes.2 

1  People  v.  Hatch,  19  111.  283.  An  act  apportioning  the  representatives  was 
passed  by  the  legislature  and  transmitted  to  the  governor,  who  signed  his  appro- 
val thereon  by  mistake,  supposing  at  the  time  that  he  was  subscribing  one  of 
several  other  bills  then  lying  before  him,  and  claiming  his  official  attention  ;  his 
private  secretary  thereupon  reported  the  bill  to  the  legislature  as  approved,  not 
by  the  special  direction  of  the  governor,  nor  with  his  knowledge  or  special  assent, 
but  merely  in  his  usual  routine  of  customary  duty,  the  governor  not  being  con- 
scious that  he  had  placed  his  signature  to  the  bill  until  after  information  was 
brought  to  him  of  its  having  been  reported  approved ;  whereupon  he  sent  a  mes- 
sage to  the  speaker  of  the  house  to  which  it  was  reported,  stating  that  it  had 
been  inadvertently  signed  and  not  approved,  and  on  the  same  day  completed  a 
veto  message  of  the  bill  which  was  partially  written  at  the  time  of  signing  his 
approval,  and  transmitted  it  to  the  house  where  the  bill  originated,  having  first 
erased  his  signature  and  approval.  It  was  held  that  the  bill  had  not  become  a 
law.  It  had  never  passed  out  of  the  governor's  possession  after  it  was  received 
by  him  until  after  he  had  erased  his  signature  and  approval,  and  the  court  was 
of  opinion  that  it  did  not  pass  from  his  control  until  it  had  become  a  law  by  the 
lapse  often  days  under  the  constitution,  or  by  his  depositing  it  with  his  approval 
in  the  office  of  the  secretary  of  state.  It  had  long  been  the  practice  of  the  gov- 
ernor to  report,  formerly  through  the  secretary  of  state,  but  recently  through  his 
private  secretary,  to  the  house  where  bills  originated,  his  approval  of  them ;  but 
this  was  only  a  matter  of  formal  courtesy,  and  not  a  proceeding  necessary  to  the 
making  or  imparting  vitality  to  the  law.  By  it  no  act  could  become  a  law  which 
without  it  would  not  be  a  law.  Had  the  governor  returned  the  bill  itself  to  the 
house,  with  his  message  of  approval,  it  would  have  passed  beyond  his  control, 
and  the  approval  could  not  have  been  retracted,  unless  the  bill  had  been  with- 
drawn by  consent  of  the  house  ;  and  the  same  result  would  have  followed  his 
filing  the  bill  with  the  secretary  of  state  with  his  approval  subscribed. 

The  Constitution  of  Indiana  provides,  art.  5,  §  14,  that,  "  if  any  bill  shall  not 
be  returned  by  the  governor  within  three  days,  Sundays  excepted,  after  it  shall 
have  been  presented  to  him,  it  shall  be  a  law  without  his  signature,  unless  the 
general  adjournment  shall  prevent  its  return  ;  in  which  case  it  shall  be  a  law 
unless  the  governor,  within  five  days  next  after  the  adjournment,  shall  file  such 
bill  with  his  objections  thereto,  in  the  office  of  the  secretary  of  state,"  &c.  Under 
this  provision  it  was  held  that  where  the  governor,  on  the  day  of  the  final  ad- 
journment of  the  legislature,  and  after  the  adjournment,  filed  a  bill  received  that 
day,  in  the  office  of  the  secretary  of  state,  without  approval  or  objections  thereto, 
it  thereby  became  a  law,  and  he  could  not  file  objections  afterwards.  Tarlton  v. 
Peggs,  18  Ind.  24. 

2  A  bill  which,  as  approved  and  signed,  differs  in  important  particulars  from 
the  one  signed,  is  no  law.     Jones  v.  Hutchinson,  43  Ala.  721. 

If  the  governor  sends  back  a  bill  which  has  been  submitted  to  him,  stating 

[170] 


CH.  VI.]  OF  THE  ENACTMENT  OF  LAWS.  *  155 


*  Other  Powers  of  the   Governor.  [*  155] 

The  power  of  the  governor  as  a  branch  of  the  legislative  depart- 
ment is  almost  exclusively  confined  to  the  approval  of  bills.  As 
executive,  he  communicates  to  the  two  houses  information  con- 
cerning the  condition  of  the  State,  and  may  recommend  measures 
to  their  consideration,  but  he  cannot  originate  or  introduce  bills. 
He  may  convene  the  legislature  in  extra  session  whenever  extra- 
ordinary occasion  seems  to  have  arisen  ;  but  their  powers  when 
convened  are  not  confined  to  a  consideration  of  the  subjects  to 
which  their  attention  is  called  by  his  proclamation  or  his  message, 
and  they  may  legislate  on  any  subject  as  at  the  regular  sessions.1 
An  exception  to  this  statement  exists  in  those  States  where,  by  the 
express  terms 'of  the  constitution,  it  is  provided  that  when  convened 
in  extra  session  the  legislature  shall  consider  no  subject  except 
that  for  which  they  were  specially  called  together,  or  which  may 

that  he  cannot  act  upon  it  because  of  some  supposed  informality  in  its  passage, 
this  is  in  effect  an  objection  to  the  bill,  and  it  can  only  become  a  law  by  further 
action  of  the  legislature,  even  though  the  governor  may  have  been  mistaken  as 
to  the  supposed  informality.     Birdsall  v.  Carrick,  3  Nev.  154. 

In  practice  the  veto  power,  although  very  great  and  exceedingly  important  in 
this  country,  is  obsolete  in  Great  Britain,  and  no  king  now  ventures  to  resort  to 
it.  As  the  Ministry  must  at  all  times  be  in  accord  with  the  House  of  Commons, 
—  except  where  the  responsibility  is  taken  of  dissolving  the  Parliament  and 
appealing  to  the  people,  —  it  must  follow  that  any  bill  which  the  two  houses  have 
passed  must  be  approved  by  the  monarch.  The  approval  has  become  a  matter 
of  course,  and  the  governing  power  in  Great  Britain  is  substantially  in  the  House 
of  Commons.     1  Bl.  Com.  184-5,  and  notes. 

1  The  Constitution  of  Iowa,  art.  4,  §  11,  provides  that  the  governor  "  may, 
on  extraordinary  occasions,  convene  the  General  Assembly  by  proclamation,  and 
shall  state  to  both  houses,  when  assembled,  the  purpose  for  which  they  have  been 
convened."  It  was  held  in  Morford  v.  Unger,  8  Iowa,  82,  that  the  General 
Assembly,  when  thus  convened,  were  not  confined  in  their  legislation  to  the  pur- 
poses specified  in  the  message.  "  When  lawfully  convened,  whether  in  virtue  of 
the  provision  in  the  constitution  or  the  governor's  proclamation,  it  is  the  '  General 
Assembly '  of  the  State,  in  which  the  full  and  exclusive  legislative  authority  of 
the  State  is  vested.  Where  its  business  at  such  session  is  not  restricted  by  some 
constitutional  provision,  the  General  Assembly  may  enact  any  law  at  a  special  or 
extra  session  that  it  might  at  a  regular  session.  Its  powers,  not  being  derived 
from  the  governor's  proclamation,  are  not  confined  to  the  special  purpose  for 
which  it  may  have  been  convened  by  him." 

[171] 


*  155  CONSTITUTIONAL  LIMITATIONS.  [CH.  VI. 

have  been   submitted   to   them   by  special  message  of  the  gov- 
ernor.1 

When  Acts  are  to  take  Effect. 

The  old  rule  was  that  statutes,  unless  otherwise  ordered,  took 
effect  from  the  first  day  of  the  session  on  which  they  were 
[*  156]  passed  ; 2  *  but  this  rule  was  purely  arbitrary,  based  upon 
no  good  reason,  and  frequently  working  very  serious  in- 
justice. The  present  rule  is  that  an  act  takes  effect  from  the  time 
when  the  formalities  of  enactment  are  actually  complete  under  the 
constitution,  unless  it  is  otherwise  ordered,  or  unless  there  is  some 
constitutional  or  statutory  rule  on  the  subject  which  prescribes 
otherwise.  By  the  Constitution  of  Mississippi,3  "  no  law  of  a  gen- 
eral nature,  unless  otherwise  provided,  shall  be  enforced  until  sixty 
days  after  the  passage  thereof."  By  the  Constitution  of  Illinois,4 
no'  act  of  the  General  Assembly  shall  take  effect  until  the  first  day 
of  July  next  after  its  passage,  unless  in  case  of  emergency  (which 
emergency  shall  be  expressed  in  the  preamble  or  body  of  the  act) 
the  General  Assembly  shall,  by  a  vote  of  two-thirds  of  all  the  mem- 
bers elected  to  each  house,  otherwise  direct.  By  the  Constitution 
of  Michigan,5  no  public  act  shall  take  effect,  or  be  in  force,  until 
the  expiration  of  ninety  days  from  the  end  of  the  session  at  which 
the  same  is  passed,  unless  the  legislature  shall  otherwise  direct  by 
a  two-thirds  vote  of  the  members  elected  to  each  house.  These 
and  similar  provisions  are  designed  to  secure,  as  far  as  possible, 
the  public  promulgation  of  the  law  before  parties  are  bound  to 
take  notice  of  and  act  under  it,  and  to  obviate  the  injustice  of  a 
rule  which  should  compel  parties  at  their  peril  to  know  and  obey  a 
law  of  which,  in  the  nature  of  things,  they  could  not  possibly  have 
heard  ;  they  give  to  all  parties  the  full  constitutional  period  in 
which  to  become  acquainted  with  the  terms  of  the  statutes  which 

1  Provisions  to  this  effect  will  be  found  in  the  Constitutions  of  Illinois,  Michi- 
gan, Missouri,  and  Nevada;  perhaps  in  some  others. 

2  1  Lev.  91 ;  Latless  v.  Holmes,  4  T.  R.  660.  This  is  changed  by  33  Geo. 
III.  c.  13,  by  which  statutes  since  passed  take  effect  from  the  day  when  they 
receive  the  royal  assent,  unless  otherwise  ordered  therein.  Where  an  act  is  to 
take  effect  from  and  after  its  passage,  it  will  do  so,  even  though  not  promulgated 
in  the  official  journal.  Thomas  v.  Scott,  23  La.  An.  689.  And  its  effect  covers 
the  whole  day  of  its  approval.     Wood  v.  Fort,  42  Ala.  641. 

3  Art.  7,  §  6.  4  Art.  3,  §  23.  6  Art.  4,  §  20. 

[172] 


CH.  VI.]  OF   THE   ENACTMENT   OF  LAWS.  *  156 

are  passed,  except  when  the  legislature  has  otherwise  directed  ;  and 
no  one  is  bound  to  govern  his  conduct  by  the  new  law  until  that 
period  has  elapsed.1  And  the  fact  that,  by  the  terms  of  the  statute, 
something  is  to  be  done  under  it  before  the  expiration  of  the  consti- 
tutional period  for  it  to  take  effect,  will  not  amount  to  a  legislative 
direction  that  the  act  shall  take  effect  at  that  time,  if  the  act  itself 
is  silent  as  to  the  period  when  it  shall  go  into  operation.2 

*  The  Constitution  of  Indiana  provides3  that  "no  act  [*  157] 
shall  take  effect  until  the  same  shall  have  been  published 
and  circulated  in  the  several  counties  of  this  State,  by  authority, 
except  in  case  of  emergency ;  which  emergency  shall  be  declared 
in  the  preamble,  or  in  the  body  of  the  law."  Unless  the  emer- 
gency is  thus  declared,  it  is  plain  that  the  act  cannot  take  earlier 
effect.4  But  the  courts  will  not  inquire  too  nicely  into  the  mode 
of  publication.  If  the  laws  are  distributed  in  bound  volumes,  in 
a  manner  and  shape  not  substantially  contrary  to  the  statute  on 
that  subject,  and  by  the  proper  authority,  it  will  be  held  sufficient, 
notwithstanding  a  failure  to  comply  with  some  of  the  directory 
provisions  of  the  statute  on  the  subject  of  publication.5 

1  Price  v.  Hopkin,  13  Mich.  318.  See,  however,  Smith  v.  Morrison,  22  Pick. 
430;  Stine  v.  Bennett,  13  Minn.  153.  Where  a  law  has  failed  to  take  effect  for 
want  of  publication,  all  parties  are  chargeable  with  notice  of  that  fact.  Clark 
v.  Janesville,  10  Wis.  136. 

2  Supervisors  of  Iroquois  Co.  v.  Keady,  34  111.  293.  An  act  for  the  removal 
of  a  county  seat  provided  for  taking  the  vote  of  the  electors  of  the  county  upon 
it  on  the  17th  of  March,  1863,  at  which  time  the  legislature  had  not  adjourned. 
It  was  not  expressly  declared  in  the  act  at  what  time  it  should  take  effect,  and  it 
was  therefore  held  that  it  would  not  take  effect  until  sixty  days  from  the  end  of 
the  session,  and  a  vote  of  the  electors  taken  on  the  17th  of  March  was  void. 
And  it  was  also  held  in  this  case,  and  in  Wheeler  v.  Chubbuck,  16  111.  361,  that 
"  the  direction  must  be  made  in  a  clear,  distinct,  and  unequivocal  provision,  and 
could  not  be  helped  out  by  any  sort  of  intendment  or  implication,"  and  that  the 
act  must  all  take  effect  at  once,  and  not  by  piecemeal. 

3  Art.  4,  §  28. 

4  Carpenter  v.  Montgomery,  7  Blackf.  415;  Hendrickson  v.  Hendrickson,  7 
Ind.  13;  Mark  v.  State,  15  Ind.  98.  The  legislature  must  necessarily  in  these 
cases  be  judge  of  the  existence  of  the  emergency.  Carpenter  v.  Montgomery, 
supra.  The  Constitution  of  Tennessee  provides  that  "  No  law  of  a  general 
nature  shall  take  effect  until  forty  days  after  its  passage,  unless  the  same,  or  the 
caption,  shall  state  that  the  public  welfare  requires  that  it  should  take  effect 
sooner."     Art.  1,  §  20. 

5  State  v.  Bailey,  16  Ind.  46.  See  further,  as  to  this  constitutional  provision, 
Jones  v.  Gavins,  4  Ind.  305. 

[173] 


*  157  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

The  Constitution  of  Wisconsin,  on  the  other  hand,  provides1 
that  "  no  general  law  shall  be  in  force  until  published  "  ;  thus 
leaving  the  time  when  it  should  take  effect  to  depend,  not  alone 
upon  the  legislative  direction,  but  upon  the  further  fact  of  publi- 
cation. But  what  shall  be  the  mode  of  publication  seems  to  be 
left  to  the  legislative  determination.  It  has  been  held,  however, 
that  a  general  law  was  to  be  regarded  as  published  although 
printed  in  the  volume  of  private  laws,  instead  of  the  volume  of 
public  laws  as  the  statute  of  the  State  would  require.2  But  an 
unauthorized  publication  —  as,  for  example,  of  an  act  for  the  in- 
corporation of  a  city  in   two  local  papers   instead  of  the    State 

paper  —  is  no  publication  in  the  constitutional  sense.3 
[*  158]  *  The  Constitution  of  Iowa  provides  that  "  no  law  of  the 
General  Assembly,  passed  at  a  regular  session,  of  a  public 
nature,  shall  take  effect  until  the  fourth  day  of  July  next  after  the 
passage  thereof.  Laws  passed  at  a  special  session  shall  take 
effect  ninety  days  after  the  adjournment  of  the  General  Assembly 
by  which  they  were  passed.  If  the  General  Assembly  shall  deem 
any  law  of  immediate  importance,  they  may  provide  that  the  same 
shall  take  effect  by  publication  in  newspapers  in  the  State." 4 
Under  this  section  it  is  not  competent  for  the  legislature  to  con- 
fer upon  the  governor  the  discretionary  power  which  the  consti- 
tution gives  to  that  body,  to  fix  an  earlier  day  for  the  law  to  take 
effect.5 

1  Art.  7,  §  21. 

2  Matter  of  Boyle,  9  Wis.  264.  Under  this  provision  it  has  been  decided  that 
a  law  establishing  a  municipal  court  in  a  city  is  a  general  law.  Matter  of  Boyle, 
supra.  See  Eitel  v.  State,  33  Ind.  201.  Also  a  statute  jbr  the  removal  of  a 
county  seat.  State  v.  Lean,  9  Wis.  279.  Also  a  statute  incorporating  a  muni- 
cipality, or  authorizing  k  to  issue  bonds  in  aid  of  a  railroad.  Clark  v.  Janes- 
ville,  10  Wis.  136.     And  see  Scott  v.  Clark,  1  Iowa,  70. 

3  Clark  v.  Janesville,  10  Wis.  136.  See;  further,  Mills  v.  Jefferson,  20  Wis. 
50. 

4  Art.  3,  §  26. 

6  Scott  v.  Clark,  1  Iowa,  70 ;  Pilkey  v.  Gleason,  ib.  522. 

[174] 


CH.  VII.]  DECLARING   STATES   UNCONSTITUTIONAL.  *  159 


*  CHAPTER    VII.  [*159] 

OF   THE   CIRCUMSTANCES   UNDER   WHICH   A   LEGISLATIVE    ENACTMENT 
MAY    BE    DECLARED    UNCONSTITUTIONAL. 

We  have  now  examined  somewhat  briefly  the  legislative  power 
of  the  State,  and  the  bounds  which  expressly  or  by  implication  are 
set  to  it,  and  also  some  of  the  conditions  necessary  to  its  proper 
and  valid  exercise.  In  so  doing  it  has  been  made  apparent  that, 
under  some  circumstances,  it  may  become  the  duty  of  the  courts 
to  declare  that  what  the  legislature  has  assumed  to  enact  is  void, 
either  from  want  of  constitutional  power  to  enact  it,  or  because  the 
constitutional  forms  or  conditions  have  not  been  observed.  In  the 
further  examination  of  our  subject,  it  will  be  important  to  consider 
what  the  circumstances  are  under  which  the  courts  will  feel  im- 
pelled to  exercise  this  high  prerogative,  and  what  precautions 
should  be  observed  before  assuming  to  do  so. 

It  must  be  evident  to  any  one  that  the  power  to  declare  a  legis- 
lative enactment  void  is  one  which  the  judge,  conscious  of  the 
fallibility  of  the  human  judgment,  will  shrink  from  exercising  in 
any  case  where  he  can  conscientiously  and  with  due  regard  to  duty 
and  official  oath  decline  the  responsibility.  The  legislative  and 
judicial  are  co-ordinate  departments  of  the  government,  of  equal 
dignity ;  each  is  alike  supreme  in  the  exercise  of  its  proper  func- 
tions, 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  wThich,  by  the  constitution,  is  not  conferred  upon  it.  The 
constitution  apportions  the  powers  of  government,  but  it  does  not 
make  any  one  of  the  three  departments  subordinate  to  another, 
when  exercising  the  trust  committed  to  it.  The  courts  may  declare 
legislative  enactments  unconstitutional  and  void  in  some  cases,  but 
not  because  the  judicial  power  is  superior  in  degree  or  dignity  to 
the  legislative.  Being  required  to  declare  what  the  law  is  in  the 
cases  which  come  before  them,  they  must  enforce  the  con- 
stitution as  the  paramount  law,  whenever  a  legislative  *  en-  [*  160] 

[175] 


*  160  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

actment  comes  in  conflict  with  it.1  But  the  courts  sit,  not  to 
review  or  revise  the  legislative  action,  but  to  enforce  the  legisla- 
tive will ;  and  it  is  only  where  they  find  that  the  legislature  has 
failed  to  keep  within  its  constitutional  limits,  that  they  are  at 
liberty  to  disregard  its  action  ;  and  in  doing  so,  they  only  do  what 
every  private  citizen  may  do  in  respect  to  the  mandates  of  the 
courts  when  the  judges  assume  to  act  and  to  render  judgments  or 
decrees  without  jurisdiction.  "  In  exercising  this  high  authority, 
the  judges  claim  no  judicial  supremacy  ;  they  are  only  the  adminis- 
trators of  the  public  will.  If  an  act  of  the  legislature  is  held  void, 
it  is  not  because  the  judges  have  any  control  over  the  legislative 
power,  but  because  the  act  is  forbidden  by  the  constitution,  and 
because  the  will  of  the  people,  which  is  therein  declared,  is  para- 
mount to  that  of  their  representatives  expressed  in  any  law."  2 

Nevertheless,  in  declaring  a  law  unconstitutional,  a  court  must 
necessarily  cover  the  same  ground  which  has  already  been  covered 
by  the  legislative  department  in  deciding  upon  the  propriety  of 
enacting  the  law,  and  they  must  indirectly  overrule  the  decision  of 
that  co-ordinate  department.  The  task  is  therefore  a  delicate  one, 
and  only  to  be  entered  upon  with  reluctance  and  hesitation.  It  is 
a  solemn  act  in  any  case  to  declare  that  that  body  of  men  to  whom 
the  people  have  committed  the  sovereign  function  of  making  the 
laws  for  the  commonwealth,  have  deliberately  disregarded  the  limi- 
tations imposed  upon  this  delegated  authority,  and  usurped  power 
which  the  people  have  been  careful  to  withhold  ;  and  it  is  almost 
equally  so  when  the  act  which  is  adjudged  to  be  unconstitutional 
appears  to  be  chargeable  rather  to  careless  and  improvident  action, 
or  error  in  judgment,  than  to  intentional  disregard  of  obligation. 
But  the  duty  to  do  this  in  a  proper  case,  though  at  one  time 
doubted,  and  by  some  persons  persistently  denied,  it  is  now  gener- 
ally agreed  that  the  courts  cannot  properly  decline,  and  in  its  per- 
formance they  seldom  fail  of  proper  support  if  they  proceed  with 
due  caution  and  circumspection,  and  under  a  proper  sense  as  well 
of  their  own  responsibility,  as  of  the  respect  due  to  the  action  and 
judgment  of  the  law-makers.3 

1  Rice  v.  State,  7  Ind.  334 ;  Bloodgood  v.  Mohawk  and  Hudson  Railroad  Co., 
18  Wend.  53. 

2  Lindsay  o.  Commissioners,  &c,  2  Bay,  61. 

3  There  are  at  least  two  cases  in  American  judicial  history  where  judges  have 
been  impeached  as  criminals  for  refusing  to  enforce  unconstitutional  enactments. 

[  176  ] 

,  7L  •  ''  ^ 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  *  161 

*  I.  In  view  of  the  considerations  which  have  been  sug-  [*  161] 
gested,  the  rule  which  is  adopted  by  some  courts,  that  they 

One  of  these  —  the  case  of  Trevett  v.  Weedon,  decided  by  the  Superior  Court  of 
Rhode  Island  in  1786  —  is  particularly  interesting  as  being  the  first  case  in  which 
a  legislative  enactment  was  declared  unconstitutional  and  void  on  the  ground  of 
incompatibility  with  the  State  constitution.  Mr.  Arnold,  in  his  history  of  Rhode 
Island,  vol.  2,  ch.  24,  gives  an  account  of  this  case;  and  the  printed  brief  in 
opposition  to  the  law,  and  in  defence  of  the  impeached  judges,  is  in  possession 
of  the  present  writer.  The  act  in  question  was  one  which  imposed  a  heavy 
penalty  on  any  one  who  should  refuse  to  receive  on  the  same  terms  as  specie  the 
bills  of  a  bank  chartered  by  the  State,  or  who  should  in  any  way  discourage 
the  circulation  of  such  bills.  The  penalty  was  made  collectible  on  summary 
conviction,  without  jury  trial ;  and  the  act  was  held  void  on  the  ground  that  jury 
trial  was  expressly  given  by  the  colonial  charter,  which  then  constituted  the 
constitution  of  the  State.  Although  the  judges  were  not  removed  on  impeach- 
ment, the  legislature  refused  to  re-elect  them  when  their  terms  expired  at  the 
end  of  the  year,  and  supplanted  them  by  more  pliant  tools,  by  whose  assistance 
the  paper  money  was  forced  into  circulation,  and  public  and  private  debts  extin- 
guished by  means  of  it.  Concerning  the  other  case,  we  copy  from  the  Western 
Law  Monthly,  "  Sketch  of  Hon.  Calvin  Pease,"  vol.  5,  p.  3,  June,  1863 :  "  The 
first  session  of  the  Supreme  Court  [of  Ohio]  under  the  constitution  was  held  at 
Warren,  Trumbull  County,  on  the  first  Tuesday  of  June,  1803.  The  State  was 
divided  into  three  circuits.  .  .  .  The  third  circuit  of  the  State  was  composed  of 
the  counties  of  Washington,  Belmont,  Jefferson,  Columbiania,  and  Trumbull. 
At  this  session  of  the  legislature,  Mr.  Pease  was  appointed  President  Judge  of 
the  Third  Circuit  in  April,  1803,  and  though  nearly  twenty-seven  years  old,  he 
was  very  youthful  in  his  appearance.  He  held  the  office  until  March  4,  1810, 
when  he  sent  his  resignation  to  Governor  Huntingdon.  .  .  .  During  his  term  of 
service  upon  the  bench  many  interesting  questions  were  presented  for  decision, 
and  among  them  the  constitutionality  of  some  portion  of  the  act  of  1805,  defining 
the  duties  of  justices  of  the  peace ;  and  he  decided  that  so  much  of  the  fifth 
section  as  gave  justices  of  the  peace  jurisdiction  exceeding  $20,  and  so  much  of 
the  twenty-ninth  section  as  prevented  plaintiffs  from  recovering  costs  in  actions 
commenced  by  original  writs  in  the  Court  of  Common  Pleas,  for  sums  between 
$20  and  $50,  were  repugnant  to  the  Constitution  of  the  United  States  and  of  the 
State  of  Ohio,  and  therefore  null  and  void.  .  .  .  The  clamor  and  abuse  to  which 
this  decision  gave  rise  was  not  in  the  least  mitigated  or  diminished  by  the  circum- 
stance that  it  was  concurred  in  by  a  majority  of  the  judges  of  the  Supreme  Court, 
Messrs.  Huntingdon  and  Tod.  ...  At  the  session  of  the  legislature  of  1807-8, 
steps  were  taken  to  impeach  him  and  the  judges  of  the  Supreme  Court  who  con- 
curred with  him ;  but  the  resolutions  introduced  into  the  house  were  not  acted 
upon  during  the  session.  But  the  scheme  was  not  abandoned.  At  an  early  day 
of  the  next  session,  and  with  almost  indecent  haste,  a  committee  was  appointed 
to  inquire  into  the  conduct  of  the  offending  judges,  and  with  leave  to  exhibit 
articles  of  impeachment,  or  report  otherwise,  as  the  facts  might  justify.  The 
committee  without  delay  reported  articles  of  impeachment  against  Messrs.  Pease 

12  [  177  ] 


*  162  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

[*  162]  will  not  *  decide  a  legislative  act  to  be  unconstitutional  by 
a  majority  of  a  bare  quorum  of  the  judges  only,  —  less  than 
a  majority  of  all, —  but  will  instead  postpone  the  argument  until 
the  bench  is  full,  seems  a  very  prudent  and  proper  precaution  to 
be  observed  before  entering  upon  questions  so  delicate  and  so  im- 
portant. The  benefit  of  the  wisdom  and  deliberation  of  every 
judge  ought  to  be  had  under  circumstances  so  grave.  Something 
more  than  private  rights  are  involved  ;  the  fundamental  law  of  the 
State  is  in  question,  as  well  as  the  correctness  of  legislative  action  ; 
and  considerations  of  courtesy,  as  well  as  the  importance  of  the 
question  involved,  should  lead  the  court  to  decline  to  act  at  all, 
where  they  cannot  sustain  the  legislative  action,  until  a  full  bench 
has  been  consulted,  and  its  deliberate  opinion  is  found  to  be  against 
it.  But  this  is  a  rule  of  propriety,  not  of  constitutional  obligation ; 
and  though  generally  adopted  and  observed,  each  court  will  regu- 
late, in  its  own  discretion,  its  practice  in  this  particular.1 

and  Tod,  but  not  against  Huntingdon,  who  in  the  mean  time  had  been  elected 
governor  of  the  State.  .  .  .  The  articles  of  impeachment  were  preferred  by  the 
House  of  Representatives  on  the  23d  day  of  December,  1808.  He  was  sum- 
moned at  once  to  appear  before  the  Senate  as  a  high  court  of  impeachment,  and 
he  promptly  obeyed  the  summons.  The  managers  of  the  prosecution  on  the 
part  of  the  House  were  Thomas  Morris,  afterwards  Senator  in  Congress  from 
Ohio,  Joseph  Sharp,  James  Pritchard,  Samuel  Marrett,  and  OthnielTooker.  .  .  . 
Several  days  were  consumed  in  the  investigation,  but  the  trial  resulted  in  the 
acquittal  of  the  respondent."  Sketch  of  Hon.  George  Tod,  August  number  of 
same  volume  :  "  At  the  session  of  the  legislature  of  1808-9,  he  was  impeached 
for  concurring  in  decisions  made  by  Judge  Pease,  in  the  counties  of  Trumbull 
and  Jefferson,  that  certain  provisions  of  the  act  of  the  legislature,  passed  in 
1805,  defining  the  duties  of  justices  of  the  peace,  were  in  conflict  with  the  Con- 
stitution of  the  United  States  and  of  the  State  of  Ohio,  and  therefore  void. 
These  decisions  of  the  courts  of  Common  Pleas  and  of  the  Supreme  Court,  it 
was  insisted,  were  not  only  an  assault  upon  the  wisdom  and  dignity,  but  also 
upon  the  supremacy  of  the  legislature,  which  passed  the  act  in  question.  This 
could  not  be  endured;  and  the  popular  fury  against  the  judges  rose  to  a  very 
high  pitch,  and  the  senator  from  the  county  of  Trumbull  in  the  legislature  at 
that  time,  Calvin  Cone,  Esq.,  took  no  pains  to  soothe  the  offended  dignity  of  the 
members  of  that  body,  or  their  sympathizing  constituents,  but  pressed  a  con- 
trary line  of  conduct.  The  udges  must  be  brought  to  justice,  he  insisted 
vehemently,  and  be  punished,  so  that  others  might  be  terrified  by  the  example, 
and  deterred  from  committing  similar  offences  in  the  future.  The  charges  against 
Mr.  Tod  were  substantially  the  same  as  those  against  Mr.  Pease.  Mr.  Tod  was 
first  tried,  and  acquitted.  The  managers  of  the  impeachment,  as  well  as  the 
result,  were  the  same  in  both  cases." 

1  Briscoe  v.  Commonwealth  Bank  of  Kentucky,  8  Pet.   118.     It  has  been 

[178] 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  *  163 

*  II.  Neither  will  a  court,  as  a  general  rule,  pass  upon  a  [*  163] 
constitutional  question,  and  decide  a  statute  to  be  invalid, 
unless  a  decision  upon  that  very  point  becomes  necessary  to  the 
determination  of  the  cause.  "  While  the  courts  cannot  shun  the 
discussion  of  constitutional  questions  when  fairly  presented,  they 
will  not  go  out  of  their  way  to  find  such  topics.  They  will  not  seek 
to  draw  in  such  weighty  matters  collaterally,  nor  on  trivial  occa- 
sions. It  is  both  more  proper  and  more  respectful  to  a  co-ordinate 
department  to  discuss  constitutional  questions  only  when  that  is 
the  very  lis  mota.  Thus  presented  and  determined,  the  decision 
carries  a  weight  with  it  to  which  no  extra-judicial  disquisition  is 
entitled."  l  In  any  case,  therefore,  where  a  constitutional  question 
is  raised,  though  it  may  be  legitimately  presented  by  the  record, 
yet  if  the  record  also  presents  some  other  and  clear  ground  upon 

intimated  that  inferior  courts  should  not  presume  to  pass  upon  constitutional 
questions,  but  ought  in  all  cases  to  treat  statutes  as  valid.  Ortman  v.  Greenman, 
4  Mich.  291.  But  no  tribunal  can  exercise  judicial  power,  unless  it  is  to  decide 
according  to  its  judgment ;  and  it  is  difficult  to  discover  any  principle  of  justice 
■which  can  require  a  magistrate  to  enter  upon  the  execution  of  a  statute  when  he 
believes  it  to  be  invalid,  especially  when  he  must  thereby  subject  himself  to 
prosecution,  without  any  indemnity  in  the  law  if  it  proves  to  be  invalid.  Undoubt- 
edly when  the  highest  courts  in  the  land  hesitate  to  declare  a  law  unconsti- 
tutional, and  allow  much  weight  to  the  legislative  judgment,  the  inferior  courts 
should  be  still  more  reluctant  to  exercise  this  power,  and  a  becoming  modesty 
would  at  least  be  expected  of  those  judicial  officers  who  have  not  been  trained 
to  the  investigation  of  legal  and  constitutional  questions.  But  in  any  case  a 
judge  or  justice,  being  free  from  doubt  in  his  own  mind,  and  unfettered  by  any 
judicial  decision  properly  binding  upon  him,  must  follow  his  own  sense  of  duty 
upon  constitutional  as  well  as  upon  any  other  questions.  See  Miller  v.  State, 
3  Ohio,  n.  s.  483;  Pirn  v.  Nicholson,  6  Ohio,  n.  s.  180;  Mayberry  v.  Kelly, 
1  Kansas,  116.  In  the  case  last  cited  it  is  said:  "  It  is  claimed  by  counsel  for 
the  plaintiff  in  error,  that  the  point  raised  by  the  instruction  is,  that  inferior 
courts  and  ministerial  officers  have  no  right  to  judge  of  the  constitutionality  of  a 
law  passed  by  a  legislature.  But  is  this  law  ?  If  so,  a  court  created  to  interpret 
the  law  must  disregard  the  constitution  in  forming  its  opinions.  The  constitution 
is  law,  —  the  fundamental  law,  —  and  must  as  much  be  taken  into  consideration 
by  a  justice  of  the  peace  as  by  any  other  tribunal.  When  two  laws  apparently 
conflict,  it  is  the  duty  of  all  courts  to  construe  them.  If  the  conflict  is  irrec- 
oncilable, they  must  decide  which  is  to  prevail ;  and  the  constitution  is  not  an 
exception  to  this  rule  of  construction.  If  a  law  were  passed  in  open,  flagrant 
violation  of  the  constitution,  should  a  justice  of  the  peace  regard  the  law,  and 
pay  no  attention  to  the  constitutional  provision?  If  that  is  his  duty  in  a  plain 
case,  is  it  less  so  when  the  construction  becomes  more  difficult  ?  " 

1  Hoover  v.  Wood,  9  Ind.  287 ;  Ireland  v.  Turnpike  Co.,  19  Ohio,  n.  s.  373. 

[179] 


*  163  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

which  the  court  may  rest  its  judgment,  and  thereby  render  the 
constitutional  question  immaterial  to  the  case,  that  course  will  be 
adopted,  and  the  question  of  constitutional  power  will  be  left  for 
consideration  until  a  case  arises  which  cannot  be  disposed  of  with- 
out considering  it,  and  when  consequently  a  decision  upon  such 
question  will  be  unavoidable.1 

III.  Nor  will  a  court  listen  to  an  objection  made  to  the  constitu- 
tionality of  an  act  by  a  party  whose  rights  it  does  not  affect,  and 
who  has  therefore  no  interest  in  defeating  it.  On  this  ground  it 
has  been  held  that  the  objection  that  a  legislative  act  was 
unconstitutional,  because  divesting  the  rights  of  remainder-men 
against  their  will,  could  not  be  successfully  urged  by  the  owner  of 

the  particular  estate,  and  could  only  be  made  on  behalf 
[*  164]  *  of  the  remainder-men  themselves.2  And  a  party  who  has 

assented  to  his  property  being  taken  under  a  statute 
cannot  afterwards  object  that  the  statute  is  in  violation  of  a 
provision  in  the  constitution  designed  for  the  protection  of  private 
property.3  The  statute  is  assumed  to  be  valid,  until  some  one 
complains  whose  rights  it  invades.  "  Prima  facie,  and  on  the  face 
of  the  act  itself,  nothing  will  generally  appear  to  show  that  the  act 
is  not  valid  ;  and  it  is  only  when  some  person  attempts  to  resist  its 
operation,  and  calls  in  the  aid  of  the  judicial  power  to  pronounce 
it  void,  as  to  him,  his  property  or  his  rights,  that  the  objection  of 
unconstitutionality  can  be  presented  and  sustained.  Respect  for 
the  legislature,  therefore,  concurs  with  well-established  principles 
of  law  in  the  conclusion  that  such  an  act  is  not  void,  but  voidable 
only  ;  and  it  follows,  as  a  necessary  legal  inference  from  this 
position,  that  this  ground  of  avoidance  can  be  taken  advantage  of 
by  those  only  who  have  a  right  to  question  the  validity  of  the  act, 
and  not  by  strangers.  To  this  extent  only  is  it  necessary  to  go,  in 
order  to  secure  and  protect  the  rights  of  all  persons  against  the 
unwarranted  exercise  of  legislative  power,  and  to  this  extent  only, 
therefore,  are  courts  of  justice  called  on  to  interpose."  4 

1  Ex  parte  Randolph,  2  Brock.  447;  Frees  v.  Ford,  6  N.  Y.  177,  178; 
White  v.  Scott,  4  Barb.  56  ;  Mobile  and  Ohio  Railroad  Co.  v.  State,  29  Ala.  573. 

2  Sinclair  v.  Jackson,  8  Cow.  543.  See  also  Smith  v.  McCarthy,  56  Penn. 
St.  359 ;  Antoni  v.  Wright,  22  Grat.  857. 

3  Embury  v.  Conner,  3  N.  Y.  511 ;  Baker  v.  Braman,  6  Hill,  47 ;  Mobile  and 
Ohio  Railroad  Co.  v.  State,  29  Ala.  586. 

4  Wellington,  Petitioner,  16  Pick.  96.  And  see  Hingham,  &c,  Turnpike  Co. 

[180] 


CH.  VII.]  DECLARING    STATUTES   UNCONSTITUTIONAL.  *  16-1 

IV.  Nor  can  a  court  declare  a  statute  unconstitutional  and  void, 
solely    on    the   ground   of  unjust   and    oppressive   provisions,  or 
because  it  is  supposed  to  violate  the  natural,  social,  or  political 
rights  of  the  citizen,  unless  it  can  be  shown  that  such  injustice  is 
prohibited  or  such  rights  guaranteed  or  protected  by  the  constitu- 
tion.    It  is  true  there  are  some  reported  cases  in  which  judges 
have  been  understood  to  intimate  a  doctrine  different  from  what 
is  here  asserted  ;  but  it  will  generally  be  found,  on  an  examination 
of  those  cases,  that  what  is  said  is  rather  by  way  of  argument  and 
illustration,  to  show  the  unreasonableness  of  putting  upon  consti- 
tutions such  a  construction  as  would  permit  legislation  of  the 
objectionable  character  then  in  question,  and  to  induce  a  more 
cautious  and  patient  examination  of  the  statute,  with  a 
view  to  *  discover  in  it,  if  possible,  some  more  just  and  [*  165] 
reasonable  legislative  intent,  than  as  laying  down  a  rule 
by  which  courts  would  be  at  liberty  to  limit,  according  to  their 
own  judgment  and  sense  of  justice  and  propriety,  the  extent  of 
legislative  power  in  directions  in  which  the  constitution  had  im- 
posed no  restraint.     Mr.  Justice  Story,  in  one  case,  in  examining 
the  extent  of  power   granted    by  the   charter  of  Rhode    Island, 
which  authorized  the  General  Assembly  to  make  laws  in  the  most 
ample  manner,  "  so  as  such  laws,  &c,  be  not  contrary  and  repug- 
nant unto,  but  as  near  as  may  be  agreeable  to,  the  laws  of  Eng- 
land, considering   the  nature  and  constitution  of  the  place  and 
people  there,"  expresses  himself  thus :  "  What  is  the  true  extent 
of  the  power  thus  granted  must  be  open  to  explanation  as  well  by 
usage  as  by  construction  of  the  terms  in  which  it  is  given.     In 
a  government  professing  to  regard  the  great  rights  of  personal 
liberty  and  of  property,  and  which  is  required  to  legislate  in  sub- 
ordination to  the  general  laws  of  England,  it  would  not  lightly 
be  presumed  that  the  great  principles  of  Magna  Charta  were  to  be 
disregarded,  or  that  the  estates  of  its  subjects  were  liable  to  be 
taken  away  without  trial,  without  notice,   and  without  offence. 
Even  if  such  authority  could  be  deemed  to  have  been  confided  by 
the  charter  to  the  General  Assembly  of  Rhode  Island,  as  an  exer- 
tt .  Norfolk  Co.,  6  Allen,  353;  De  Jarnette  v.  Haynes,  23  Miss.  600;  Sinclair  v. 
Jackson,  8  Cow.  543,  579  ;  Hey  ward  v.  Mayor,  &c,  of  New  York,  8  Barb.  489  ; 
Matter  of  Albany  St.,  11  Wend.  149;  Williamson  v.  Carlton,  51  Me.  449;  State 
v.  Rich,  20  Miss.  393. 

[181] 


*  165  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

cise  of  transcendental  sovereignty  before  the  Revolution,  it  can 
scarcely  be  imagined  that  that  great  event  could  have  left  the 
people  of  that  State  subjected  to  its  uncontrolled  and  arbitrary 
exercise.  That  government  can  scarcely  be  deemed  to  be  free, 
where  the  rights  of  property  are  left  solely  dependent  upon  the 
will  of  a  legislative  body,  without  any  restraint.  The  fundamental 
maxims  of  a  free  government  seem  to  require  that  the  rights  of 
personal  liberty  and  private  property  should  be  held  sacred.  At 
least  no  court  of  justice  in  this  country  would  be  warranted  in 
assuming  that  the  power  to  violate  and  disregard  them  —  a  power 
so  repugnant  to  the  common  principles  of  justice  and  civil  liberty 
—  lurked  under  any  general  grant  of  legislative  authority,  or 
ought  to  be  implied  from  any  general  expressions  of  the  will  of  the 
people.  The  people  ought  not  to  be  presumed  to  part  with  rights 
so  vital  to  their  security  and  well-being,  without  very  strong  and 
direct  expressions  of  such  an  intention."  "  We  know  of  no  case  in 
which  a  legislative  act  to  transfer  the  property  of  A.  to  B.,  without 

his  consent,  has  ever  been  held  a  constitutional  exercise  of 
[*  166]  legislative  power  in  any  State  in  *  the  Union.      On    the 

contrary,  it  has  been  constantly  resisted,  as  inconsistent 
with  just  principles,  by  every  judicial  tribunal  in  which  it  has  been 
attempted  to  be  enforced."  i  The  question  discussed  by  the 
learned  judge  in  this  case  is  perceived  to  have  been,  What  is  the 
scope  of  a  grant  of  legislative  power  to  be  exercised  in  conformity 
with  the  laws  of  England  ?  Whatever  he  says  is  pertinent  to  that 
question  ;  and  the  considerations  he  suggests  are  by  way  of  argu- 
ment to  show  that  the  power  to  do  certain  unjust  and  oppressive 

1  Wilkinson  v.  Leland,  2  Pet.  657.  See  also  what  is  said  by  the  same  judge 
in  Terrett  v.  Taylor,  9  Cranch,  43.  "  It  is  clear  that  statutes  passed  against  plain 
and  obvious  principles  of  common  right  and  common  reason  are  absolutely  null 
and  void,  so  far  as  they  are  calculated  to  operate  against  those  principles."  Ham 
v.  McClaws,  1  Bay,  98.  But  the  question  in  that  case  was  one  of  construction; 
whether  the  court  should  give  to  a  statute  a  construction  which  would  make  it 
operate  against  common  right  and  common  reason.  In  Bowman  v.  Middleton,  1 
Bay,  282,  the  court  held  an  act  which  divested  a  man  of  his  freehold  and  passed 
it  over  to  another,  to  be  void  "  as  against  common  right  as  well  as  against  Magna 
Charta."  In  Regents  of  University  v.  Williams,  9  Gill  &  J.  365,  it  was  said 
that  an  act  was  void  as  opposed  to  fundamental  principles  of  right  and  justice 
inherent  in  the  nature  and  spirit  of  the  social  compact.  But  the  court  had 
already  decided  that  the  act  was  opposed,  not  only  to  the  constitution  of  the 
State,  but  to  that  of  the  United  States  also.  See  Mayor,  &c,  of  Baltimore 
v.  State,   15  Md.  376. 

[182] 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  *  166 

acts  was  not  covered  by  the  grant  of  legislative  power.  It  is  not 
intimated  that  if  they  were  within  the  grant,  they  would  be  im- 
pliedly prohibited  because  unjust  and  oppressive. 

In  another  case  arising  in  the  Supreme  Court  of  New  York, 
one  of  the  judges,  in  considering  the  rights  of  the  city  of  New 
York  to  certain  corporate  property,  has  said  :  "  The  inhabitants 
of  the  city  of  New  York  have  a  vested  right  in  the  City  Hall,  mar- 
kets, water-works,  ferries,  and  other  public  property,  which  cannot 
be  taken  from  them  any  more  than  their  individual  dwellings  or 
storehouses.  Their  rights,  in  this  respect,  rest  not  merely  upon 
the  constitution,  but  upon  the  great  principles  of  eternal  justice 
which  lie  at  the  foundation  of  all  free  governments."  1  The  great 
principles  of  eternal  justice  which  affected  the  particular  case 
had  been  incorporated  in  the  constitution  ;  and  it  therefore  be- 
came unnecessary  to  consider  what  would  otherwise  have  been 
the  rule  ;  nor  do  we  understand  the  court  as  intimating  any 
opinion  upon  that  subject.  It  was  sufficient  for  the  case, 
to  find.  *  that  the  principles  of  right  and  justice  had  been  [*  167] 
recognized  and  protected  by  the  constitution,  and  that  the 
people  had  not  assumed  to  confer  upon  the  legislature  a  power  to 
deprive  the  city  of  rights  which  did  not  come  from  the  constitution, 
but  from  principles  antecedent  to  and  recognized  by  it. 

So  it  is  said  by  Rosmer,  Ch.  J.,  in  a  Connecticut  case:  "  With 
those  judges  who  assert  the  omnipotence  of  the  legislature  in  all 
cases  where  the  constitution  has  not  interposed  an  explicit  re- 
straint, I  cannot  agree.  Should  there  exist  —  what  I  know  is  not 
only  an  incredible  supposition,  but  a  most  remote  improbability  — 
a  case  of  direct  infraction  of  vested  rights,  too  palpable  to  be  ques- 
tioned and  too  unjust  to  admit  of  vindication,  I  could  not  avoid 
considering  it  as  a  violation  of  the  social  compact,  and  within  the 
control  of  the  judiciary.  If,  for  example,  a  law  were  made  without 
any  cause  to  deprive  a  person  of  his  property,  or  to  subject  him  to 
imprisonment,  who  would  not  question  its  legality,  and  who  would 
aid  in  carrying  it  into  effect  ?  On  the  other  hand  I  cannot  harmo- 
nize with  those  who  deny  the  power  of  the  legislature,  in  any  case, 
to  pass  laws  which,  with  entire  justice,  operate  on  antecedent  legal 
rights.  A  retrospective  law  may  be  just  and  reasonable,  and  the 
right  of  the  legislature  to  enact  one  of  this  description  I  am  not 

1  Benson  v.  Mayor,  &c,  of  New  York,  10  Barb.  244. 

[183] 


*  167  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

speculatist  enough  to  question."  1  The  cases  here  supposed  of 
unjust  and  tyrannical  enactments  would  probably  be  held  not  to 
be  within  the  power  of  any  legislative  body  in  the  Union.  One 
of  them  would  be  clearly  a  bill  of  attainder  ;  the  other,  unless  it 
was  in  the  nature  of  remedial  legislation,  and  susceptible  of  being 
defended  on  that  theory,  would  be  an  exercise  of  judicial  power, 
and  therefore  in  excess  of  legislative  authority,  because  not  included 
in  the  apportionment  of  power  made  to  that  department.  No  ques- 
tion of  implied  prohibition  would  arise  in  either  of  these  cases  ; 
but  if  the  grant  of  power  had  covered  them,  and  there  had  been 
no  express  limitation,  there  would,  as  it  seems  to  us,  be  very 
great  probability  of  unpleasant  and  dangerous  conflict  of  author- 
ity if  the  courts  were  to  deny  validity  to  legislative  action  on 
subjects  within  their  control,  on  the  assumption  that  the  legis- 
lature had  disregarded  justice  or  sound  policy.  The  moment 
a  court  ventures  to  substitute  its  own  judgment  for  that  of  the 
legislature,  in  any  case  where  the  constitution  has  vested  the 
legislature  with  power  over  the  subject,  that  moment  it 
[*  168]  enters  *upon  a  field  where  it  is  impossible  to  set  limits  to 
its  authority,  and  where  its  discretion  alone  will  measure 
the  extent  of  its  interference.2 

The  rule  of  law  upon  this  subject  appears  to  be,  that,  except 
where  the  constitution  has  imposed  limits  upon  the  legislative 
power,  it  must  be  considered  as  practically  absolute,  whether  it 

1  Goshen  v.  Stonington,  4  Conn.  225. 

2  "  If  the  legislature  should  pass  a  law  in  plain  and  unequivocal  language, 
within  the  general  scope  of  their  constitutional  powers,  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  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."  Per  Rogers,  J., 
in  Commonwealth  v.  McCloskey,  2  Rawle,  374.  "  All  the  courts  can  do  with 
odious  statutes  is  to  chasten  their  hardness  by  construction.  Such  is  the  imper- 
fection of  the  best  human  institutions,  that,  mould  them  as  we  may,  a  large  dis- 
cretion must  at  last  be  rei>osed  somewhere.  The  best  and  in  many  cases  the 
only  security  is  in  the  wisdom  and  integrity  of  public  servants,  and  their  identity 
with  the  people.  Governments  cannot  be  administered  without  committing  powers 
in  trust  and  confidence."  Beebe  v.  State,  G  Ind.  528,  per  Stuart,  J.  And  see 
Johnston  v.  Commonwealth,  1  Bibb,  603 ;  Flint  River  Steamboat  Co.  v.  Foster, 
5  Geo.  194 ;  State  v.  Kruttschnitt,  4  Nev.  178. 

[184] 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  *  168 

operate  according  to  natural  justice  or  not  in  any  particular  case. 
The  courts  are  not  the  guardians  of  the  rights  of  the  people  of  the 
State,  except  as  those  rights  are  secured  by  some  constitutional 
provision  which  comes  within  the  judicial  cognizance.  The  protec- 
tion against  unwise  or  oppressive  legislation,  within  constitutional 
bounds,  is  by  an  appeal  to  the  justice  and  patriotism  of  the  repre- 
sentatives of  the  people.  If  this  fail,  the  people  in  their  sovereign 
capacity  can  correct  the  evil ;  but  courts  cannot  assume  their 
rights.1  The  judiciary  can  only  arrest  the  execution  of  a  statute 
when  it  conflicts  with  the  constitution.  It  cannot  run  a  race  of 
opinions  upon  points  of  right,  reason,  and  expediency  with  the  law- 
making power.2  Any  legislative  act  which  does  not  encroach  upon 
the  powers  apportioned  to  the  other  departments  of  the  govern- 
ment, being  prima  facie  valid,  must  be  enforced,  unless  restrictions 
upon  the  legislative  authority  can  be  pointed  out  in  the  constitu- 
tion, and  the  case  shown  to  come  within  them.3 

1  Bennett  v.  Bull,  Baldw.  74. 

2  Perkins,  J.,  in  Madison  &  Indianapolis  Railroad  Co.  v.  Whiteneck,  8  Ind. 
222 :  Bull  v.  Read,  13  Grat.  98,  per  Lee,  J. 

3  Sill  v.  Village  of  Corning,  15  N.  Y.  303 ;  Varick  v.  Smith,  5  Paige,  137 ; 
Cochran  v.  Van  Surlay,  20  Wend.  365 ;  Morris  v.  People,  3  Denio,  381 ;  Wyne- 
hauier  v.  People,  13  N.  Y.  430 ;  People  v.  Supervisors  of  Orange,  17  N.  Y.  235 ; 
People  v.  New  York  Central  Railroad  Co.,  34  Barb.  138  ;  People  v.  Toynbee,  2 
Park.  Cr.  R.  490;  Dow  v.  Norris,  4  N.  H.  16  ;  Derby  Turnpike  Co.  v.  Parks,  10 
Conn.  522,  543  ;  Hartford  Bridge  Co.  v.  Union  Ferry  Co.,  29  Conn.  210  ;  Holden 
v.  James,  11  Mass.  396  ;  Norwich  v.  County  Commissioners,  13  Pick.  60;  Daw- 
son v.  Shaver,  1  Blackf.  206 ;  Beauchamp  v.  State,  6  Blackf.  305 ;  Doe  v.  Doug- 
lass, 8  Blackf.  10 ;  Maize  v.  State,  4  Ind.  342 ;  Stocking  v.  State,  7  Ind.  327 ; 
Beebe  v.  State,  6  Ind.  528;  Newland  v.  Marsh,  19  111.  376,  384;  Bliss  v.  Com- 
monwealth, 2  Litt.  90 ;  State  v.  Ashley,  1  Ark.  513 ;  Campbell  v.  Union  Bank, 
6  How.  Miss.  672  ;  Tate's  Ex'r  v.  Bell,  4  Yerg.  206  ;  Andrews  v.  State,  3  Heis. 
165;  s.  c.  8  Am.  Rep.  8;  Whittington  v.  Polk,  1  Harr.  &  J.  236;  Norris  v. 
Abingdon  Academy,  7  Gill.  &  J.  7  ;  Harrison  v.  State,  22  Md.  491;  State  v. 
Lyles,  1  McCord,  238;  Myers  v.  English,  9  Cal.  341;  Ex  parte  Newman,  ib. 
502  ;  Hobart  v.  Supervisors,  17  Cal.  23  ;  Crenshaw  v.  Slate  River  Co.,  6  Rand. 
245;  Lewis  v.  AVebb,  3  Greenl.  326;  Durham  v.  Lewiston,  4  Greenl.  140; 
Lunt's  Case,  6  Greenl.  412 ;  Scott  v.  Smart's  Ex'rs,  1  Mich.  306  ;  Williams  v. 
Detroit,  2  Mich.  560  ;  Tyler  v.  People,  8  Mich.  320 ;  Cotton  v.  Commissioners 
of  Leon  County,  6  Fla.  610;  State  v.  Robinson,  1  Kansas,  27;  Santo  v.  State, 
2  Iowa,  165;  Morrison  v.  Springer,  15  Iowa,  304;  Stoddart  v.  Smith,  5  Binn. 
355 ;  Moore  v.  Houston.  3  S.  &  R.  169 ;  Braddee  v.  Brownfield,  2  W.  &  S.  271 ; 
Harvey  v.  Thomas,  10  Watts,  63  ;  Commonwealth  v.  Maxwell,  27  Penn.  St. 
456  ;  Carey  v.  Giles,  9  Geo.  253 ;  Macon  and  Western  Railroad  Co.  v.  Davis, 
13  Geo.  68 ;  Franklin  Bridge  Co.  v.  Wood,  14  Geo.  80 ;  Boston  v.  Cummins,  16 

[185] 


*  169  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

[*  169]       *  V.   If  the  courts  are  not  at  liberty  to  declare  statutes 
void  because  of  their  apparent  injustice  or  impolicy,  neither 
can  they  do  so  because  they  appear  to  the  minds  of  the  judges  to 
violate  fundamental  principles  of  republican  government,  unless  it 
shall  be  found  that  those  principles  are  placed  beyond  legislative 
encroachment  by  the  constitution.     The  principles  of  republican 
government  are  not  a  set  of  inflexible  rules,  vital  and  active  in 
the    constitution,  though   unexpressed,  but  they  are    subject  to 
variation   and   modification   from   motives   of  policy    and    public 
necessity  ;   and  it  is  only  in  those  particulars  in  which  experience 
has  demonstrated  any  departure  from  the  settled  practice  to  work 
injustice  or  confusion,  that  we  shall  discover  an  incorporation  of 
them  in  the  constitution  in  such  form  as  to  make  them  definite 
rules  of  action   under   all   circumstances.      It  is  undoubtedly  a 
maxim   of   republican    government,    as   we   understand   it,    that 
taxation  and  representation  should  be  inseparable ;  but  where  the 
legislature  interferes,  as  in  many  cases  it  may  do,  to  compel  taxa- 
tion by  a  municipal  corporation  for  local  purposes,  it  is  evident 
that  this  maxim  is  applied  in  the  case  in  a  much  restricted 
[*  170]   and  very  imperfect  sense  only,  since  the  *  representation 
of  the  locality  taxed  is  but  slight  in  the  body  imposing 
the  tax,  and  the  burden  may  be  imposed,  not  only  against  the  pro- 
test of  the  local  representative,  but  against  the  general  opposition 
of  the  municipality.     The  property  of  married  women  is  taxable, 
notwithstanding  they  are  not  allowed  a  voice  in  choosing  repre- 
sentatives.1    The  maxim  is  not  entirely  lost  sight  of  in  such  cases, 
but  its  application  in  the  particular  case,  and  the  determination 
how  far  it  can  properly  and  justly  be  made  to  yield  to  considerations 
of  policy  and  expediency,  must  rest  exclusively  with  the  law-making 
power,  in  the  absence  of  any  definite  constitutional  provisions  so 
embodying  the  maxim  as  to  make  it  a  limitation  upon  legislative 
authority.2   It  is  also  a  maxim  of  republican  government  that  local 

Geo.  102 ;  Van  Home  v.  Dorrance,  2  Dall.  309 ;  Calder  v.  Bull,  3  Dall.  386 ; 
Cooper  v.  Telfair,  4  Dall.  18 ;  Fletcher  v.  Peck,  6  Cranch,  128. 

1  Wheeler  v.  Wall,  6  Allen,  558. 

2  "  There  are  undoubtedly  fundamental  principles  of  morality  and  justice  which 
no  legislature  is  at  liberty  to  disregard,  but  it  is  equally  undoubted  that  no 
court,  except  in  the  clearest  cases,  can  properly  impute  the  disregard  of  those 
principles  to  the  legislature.  .  .  .  This  court  can  know  nothing  of  public  policy 
except  from  the  constitution  and  the  laws,  and  the  course  of  administration  and 

[186] 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  *  170 

concerns  shall  be  managed  in  the  local  districts,  which  shall  choose 
their  own  administrative  and  police  officers,  and  establish  for  them- 
selves police  regulations  ;  but  this  maxim  is  subject  to  such  excep- 
tions as  the  legislative  power  of  the  State  shall  see  fit  to  make  ;  and 
when  made,  it  must  be  presumed  that  the  public  interest,  con- 
venience, and  protection  are  subserved  thereby.1  The  State  may 
interfere  to  establish  new  regulations  against  the  will  of  the  local 
constituency  ;  and  if  it  shall  think  proper  in  any  case  to  assume 
to  itself  those  powers  of  local  police  which  should  be  executed  by 
the  people  immediately  concerned,  we  must  suppose  it  has  been 
done  because  the  local  administration  has  proved  imperfect  and 
inefficient,  and  a  regard  to  the  general  well-being  has  demanded 
the  change.  In  these  cases  the  maxims  which  have  prevailed  in 
the  government  address  themselves  to  the  wisdom  of  the  legis- 
lature, and  to  adhere  to  them  as  far  as  possible  is  doubtless  to 
keep  in  the  path  of  wisdom  ;  but  they  do  not  constitute  restrictions 
so  as  to  warrant  the  other  departments  in  treating  the  exceptions 
which  are  made  as  unconstitutional.2 

decision.  It  has  no  legislative  powers.  It  cannot  amend  or  modify  any  legis- 
lative acts.  It  cannot  examine  questions  as  expedient  or  inexpedient,  as  pol- 
itic or  impolitic.  Considerations  of  that  sort  must  in  general  be  addressed  to 
the  legislature.  Questions  of  policy  there  are  concluded  here."  Chase,  Ch,  J., 
in  License  Tax  Cases,  5  Wall.  469. 

1  People  v.  Draper,  15  N.  Y.  547.     Seejoosif,  p.  191,  192. 

2  In  People  v.  Mahaney,  13  Mich.  500,  where  the  Metropolitan  Police  Act  of 
Detroit  was  claimed  to  be  unconstitutional  on  various  grounds,  the  court  say : 
"Besides  the  specific  objections  made  to  the  act  as  opposed  to  the  provisions  of 
the  constitution,  the  counsel  for  respondent  attacks  it  on  '  general  principles,1  and 
especially  because  violating  fundamental  principles  in  our  system,  that  govern- 
ments exist-by  consent  of  the  governed,  and  that  taxation  and  representation  go 
together.  The  taxation  under  the  act,  it  is  said,  is  really  in  the  hands  of  a  police 
board,  a  body  in  the  choice  of  which  the  people  of  Detroit  have  no  voice.  This 
argument  is  one  which  might  be  pressed  upon  the  legislative  department  with 
great  force,  if  it  were  true  in  point  of  fact.  But  as  the  people  of  Detroit  are 
really  represented  throughout,  the  difficulty  suggested  can  hardly  be  regarded  as 
fundamental.  They  were  represented  in  the  legislature  which  passed  the  act, 
and  had  the  same  proportionate  voice  there  with  the  other  municipalities  in  the 
State,  all  of  which  receive  from  that  body  their  powers  of  local  government,  and 
such  only  as  its  wisdom  shall  prescribe  within  the  constitutional  limit.  They  were 
represented  in  that  body  when  the  present  police  board  were  appointed  by  it, 
and  the  governor,  who  is  hereafter  to  fill  vacancies,  will  be  chosen  by  the  State 
at  large,  including  their  city.  There  is  nothing  in  the  maxim  that  taxation  and 
representation  go  together  which  requires  that  the  body  paying  the  tax  shall 

[187] 


*  171  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

[*  171]  *  VI.  Nor  are  the  courts  at  liberty  to  declare  an  act 
void,  because  in  their  opinion  it  is  opposed  to  a  spirit  sup- 
posed to  pervade  the  constitution,  but  not  expressed  in  words. 
"  When  the  fundamental  law  has  not  limited,  either  in  terms  or  by 
necessary  implication,  the  general  powers  conferred  upon  the  legis- 
lature, we  cannot  declare  a  limitation  under  the  notion  of  having 
discovered  something  in  the  spirit  of  the  constitution  which  is 
not  even  mentioned  in  the  instrument." *  "  It  is  difficult,"  says 
Mr.  Senator  Verplanck,  "  upon  any  general  principles,  to  limit 
the  omnipotence  of  the  sovereign  legislative  power  by  judicial 
interposition,  except  so  far  as  the  express  words  of  a  written  con- 
stitution give  that  authority.  There  are  indeed  many  dicta  and 
some  great  authorities  holding  that  acts  contrary  to  the  first 
principles  of  right  are  void.  The  principle  is  unquestion- 
[*  172]  ably  *  sound  as  the  governing  rule  of  a  legislature  in  rela- 
tion to  its  own  acts,  or  even  those  of  a  preceding  legislature. 
It  also  affords  a  safe  rule  of  construction  for  courts,  in  the  inter- 
pretation of  laws  admitting  of  any  doubtful  construction,  to  pre- 
sume that  the  legislature  could  not  have  intended  an  unequal  and 
unjust  operation  of  its  statutes.  Such  a  construction  ought  never 
to  be  given  to  legislative  language  if  it  be  susceptible  of  any  other 
more  conformable  to  justice  ;  but  if  the  words  be  positive  and 
without  ambiguity,  I  can  find  no  authority  for  a  court  to  vacate  or 

alone  be  consulted  in  its  assessment;  and  if  there  were,  we  should  find  it  violated 
at  every  turn  in  our  system.  The  State  legislature  not  only  has  a  control  in  this 
respect  over  inferior  municipalities,  which  it  exercises  by  general  laws,  but  it 
sometimes  finds  it  necessary  to  interpose  its  power  in  special  cases  to  prevent 
unjust  or  burdensome  taxation,  as  well  as  to  compel  the  performance  of  a  clear 
duty.  The  constitution  itself,  by  one  of  the  clauses  referred  to.  requires  the 
legislature  to  exercise  its  control  over  the  taxation  of  municipal  corporations,  by 
restricting  it  to  what  that  body  may  regard  as  proper  bounds.  And  municipal 
bodies  are  frequently  compelled  most  unwillingly  to  levy  taxes  for  the  payment 
of  claims,  by  the  judgments  or  mandates  of  courts  in  which  their  representation 
is  quite  as  remote  as  that  of  the  people  of  Detroit  in  this  police  board.  It  can- 
not therefore  be  said  that  the  maxims  referred  to  have  been  entirely  disregarded 
by  the  legislature  in  the  passage  of  this  act.  But  as  counsel  do  not  claim  that, 
in  so  far  as  they  have  been  departed  from,  the  constitution  has  been  violated,  we 
cannot,  with  propriety,  be  asked  to  declare  an  act  void  on  any  such  general 
objection."  And  see  Wynehamer  v.  People,  13  N.  Y.  429,  per  Selden,  J.  ; 
Benson  v.  Mayor,  &c,  of  Albany,  24  Barb.  256  et  seq. ;  Baltimore  v.  State,  15 
Md.  376 ;  People  v.  Draper,  15  N.  Y.  532 ;  White  v.  Stamford,  37  Conn.  587. 
1  People  v.  Fisher,  24  Wend.  220;  State  v.  Staten,  6  Cold.  233. 
[188] 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  *  172 

repeal  a  statute  on  that  ground  alone.  But  it  is  only  in  express 
constitutional  provisions,  limiting  legislative  power  and  controlling 
the  temporary  will  of  a  majority,  by  a  permanent  and  paramount 
law,  settled  by  the  deliberate  wisdom  of  the  nation,  that  I  can 
find  a  safe  and  solid  ground  for  the  authority  of  courts  of  justice 
to  declare  void  any  legislative  enactment.  Any  assumption  of 
authority  beyond  this  would  be  to  place  in  the  hands  of  the 
judiciary  powers  too  great  and  too  undefined  either  for  its  own 
security  or  the  protection  of  private  rights.  It  is  therefore  a 
most  gratifying  circumstance  to  the  friends  of  regulated  liberty, 
that  in  every  change  in  their  constitutional  polity  which  has  yet 
taken  place  here,  whilst  political  power  has  been  more  widely 
diffused  among  the  people,  stronger  and  better-defined  guards 
have  been  given  to  the  rights  of  property."  And  after  quoting 
certain  express  limitations,  he  proceeds  :  "  Believing  that  we  are 
to  rely  upon  these  and  similar  provisions  as  the  best  safeguards 
of  our  rights,  as  well  as  the  safest  authorities  for  judicial  direction, 
I  cannot  bring  myself  to  approve  of  the  power  of  courts  to  annul 
any  law  solemnly  passed,  either  on  an  assumed  ground  of  its  being 
contrary  to  natural  equity,  or  from  a  broad,  loose,  and  vague  in- 
terpretation of  a  constitutional  provision  beyond  its  natural  and 
obvious  sense.'"  1 

The  accepted  theory  upon  this  subject  appears  to  be  this :  In 
every  sovereign  State  there  resides  an  absolute  and  uncontrolled 
power  of  legislation.  In  Great  Britain  this  complete  power  rests 
in  the  Parliament :  in  the  American  States  it  resides  in  the  people 
themselves  as  an  organized  body  politic.  But  the  people, 
by  *  creating  the  Constitution  of  the  United  States,  have  [*  173] 
delegated  this  power  as  to  certain  subjects,  and  under 
certain  restrictions  to  the  Congress  of  the  Union ;  and  that 
portion  they  cannot  resume,  except  as  it  may  be  done  through 
amendment  of  the  national  Constitution.  For  the  exercise  of  the 
legislative  power,  subject  to  this  limitation,  they  create,  by  their 
State  constitution,  a  legislative  department  upon  which  they  confer 
it ;  and  granting  it  in  general  terms,  they  must  be  understood  to 
grant  the  whole  legislative  power  which  they  possessed,  except  so 

1  Cochran  v.  Van  Surlay,  20  Wend.  381-383.  See  also  People  v.  Gallagher, 
4  Mich.  244  ;  Benson  v.  Mayor,  &c.,  of  Albany,  24  Barb.  252  et  seq. ;  Grant  v. 
Courter,  ib.  232  ;  Wynehamer  v.  People,  13  N.  Y.  391,  per  Comsiock,  J. ;  ib. 
p.  453,  per  Selden,  J. ;  ib.  p.  477,  per  Johnson,  J. 

[189] 


*  173  CONSTITUTIONAL  LIMITATIONS.  [CH.  VII. 

far  as  at  the  same  time  they  saw  fit  to  impose  restrictions.  While, 
therefore,  the  Parliament  of  Britain  possesses  completely  the  abso- 
lute and  uncontrolled  power  of  legislation,  the  legislative  bodies  of 
the  American  States  possess  the  same  power,  except,  first,  as  it 
may  have  been  limited  by  the  Constitution  of  the  United  States ; 
and,  second,  as  it  may  have  been  limited  by  the  constitution  of 
the  State.  A  legislative  act  cannot,  therefore,  be  declared  void, 
unless  its  conflict  with  one  of  these  two  instruments  can  be  pointed 
out.1 

It  is  to  be  borne  in  mind,  however,  that  there  is  a  broad  dif- 
ference between  the  Constitution  of  the  United  States  and  the 
constitutions  of  the  States  as  regards  the  power  which  may  be 
exercised  under  them.  The  government  of  the  United  States  is 
one  of  enumerated  powers  ;  the  governments  of  the  States  are 
possessed  of  all  the  general  powers  of  legislation.  When  a  law 
of  Congress  is  assailed  as  void,  we  look  in  the  national  Constitu- 
tion to  see  if  the  grant  of  specified  powers  is  broad  enough  to 
embrace  it;  but  when  a  State  law  is  attacked  on  the  same  ground, 
it  is  presumably  valid  in  any  case,  and  this  presumption  is  a  con- 
clusive one,  unless  in  the  Constitution  of  the  United  States  or  of 
the  State  we  are  able  to  discover  that  it  is  prohibited.  We  look 
in  the  Constitution  of  the  United  States  for  grants  of  legislative 
power,  but  in  the  constitution  of  the  State  to  ascertain  if  any 
limitations  have  been  imposed  upon  the  complete  power  with 
which  the  legislative  department  of  the  State  was  vested  in  its 
creation.  Congress  can  pass  no  laws  but  such  as  the  Constitution 
authorizes  either  expressly  or  by  clear  implication  ;  while  the 
State  legislature  has  jurisdiction  of  all  subjects  on  which  its 
legislation  is  not  prohibited.2  "  The  law-making  power  of 
[*  174]  the  *  State,"  it  is  said  in  one  case,  "  recognizes  no  re- 
straints, and  is  bound  by  none,  except  such  as  are  imposed 
by  the  constitution.      That  instrument  has  been  aptly  termed  a 

1  People  v.  New  York  Central  Railroad  Co.,  34  Barb.  138  ;  Gentry  v.  Grif- 
fith, 27  Texas,  461.      And  see  the  eases  cited,  ante,  p.  168,  note  4. 

2  Sill  v.  Village  of  Coming,  15  N.  Y.  303  ;  People  v.  Supervisors  of  Orange, 
27  Barb.  593 ;  People  v  Gallagher,  4  Mich.  244  ;  Sears  v.  Cottrell,  5  Mich.  257  ; 
People  v.  New  York  Central  Railroad  Co.,  24  N.  Y.  497,  504;  People  v. 
Toynbee,  2  Park.  Cr.  R.  490;  State  v.  Gutierrez,  15  La.  An.  190;  Walpole  v. 
Elliott,  18  Ind.  258 ;  Smith  v.  Judge,  17  Cal.  547 ;  Commonwealth  v.  Hartman, 
17  Penn.  St.  119 ;  Kirby  v.  Shaw,  19  Penn.  St.  260;  Weister  v.  Hade,  52  Penn. 
St.  477. 

[190] 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  *  174 

legislative  act  by  the  people  themselves  in  their  sovereign  capacity,  k 
and  is  therefore  the  paramount  law.  Its  object  is  not  to  grant 
legislative  power,  but  to  confine  and  restrain  it.  Without  the 
constitutional  limitations,  the  power  to  make  laws  would  be  abso-/ 
lute.  These  limitations  are  created  and  imposed  by  express  words, 
or  arise  by  necessary  implication.  The  leading  feature  of  the  con- 
stitution is  the  separation  and  distribution  of  the  powers  of  the 
government.  It  takes  cue  to  separate  the  executive,  legislative, 
and  judicial  powers,  and  to  define  their  limits.  The  executive  can 
do  no  legislative  act,  nor  the  legislature  any  executive  act,  and 
neither  can  exercise  judicial  authority."  1 

It  does  not  follow,  however,  that  in  every  case  the  courts,  be- 
fore they  can  set  aside  a  law  as  invalid,  must  be  able  to  find  in 
the  constitution  some  specific  inhibition  which  has  been  disre- 
garded, or  some  express  command  which  has  been  disobeyed. 
Prohibitions  are  only  important  where  they  are  in  the  nature  of 
exceptions  to  a  general  grant  of  power ;  and  if  the  authority  to 
do  an  act  has  not  been  granted  by  the  sovereign  to  its  represent- 
ative, it  cannot  be  necessary  to  prohibit  its  being  done.  If  in 
one  department  was  vested  the  whole  power  of  the  government, 
it  might  be  essential  for  the  people,  in  the  instrument  delegating 
this  complete  authority,  to  make  careful  and  particular  exception 
of  all  those  cases  which  it  was  intended  to  exclude  from  its  cog- 
nizance ;  for  without  such  exception  the  government  might  do 
whatever  the  people  themselves,  when  met  in  their  sovereign 
capacity,  would  have  power  to  do.  But  when  only  the  legislative 
power  is  delegated  to  one  department,  and  the  judicial  to  another, 
it  is  not  important  that  the  one  should  be  expressly  forbidden  to 
try  causes,  or  the  other  to  make  laws.  The  assumption  of  judi- 
cial power  by  the  legislature  in  such  a  case  is  unconstitutional, 
because,  though  not  expressly  forbidden,  it  is  nevertheless 
*  inconsistent  with  the  provisions  which  have  conferred  [*  175] 
upon  another  department  the  power  the  legislature  is 
seeking  to  exercise.2  And  for  similar  reasons  a  legislative  act 
which  should  undertake  to  make  a  judge  the  arbiter  in  his  own 
controversies  would  be  void,  because,  though  in  form  a  provision 
for  the  exercise  of  judicial  power,  in  substance  it  would  be  the  crea- 

'  Sill  v.  Corning,  15  N.  Y.  303. 
2  Ante,  p.  87-114,  and  cases  cited. 

[  191  ] 


*  175  CONSTITUTIONAL    LIMITATIONS.  [CH.  VII. 

tion  of  an  arbitrary  and  irresponsible  authority,  neither  legislative, 
executive,  nor  judicial,  and  wholly  unknown  to  constitutional 
government.1  It  could  not  be  necessary  to  forbid  the  judiciary 
to  render  judgment  without  suffering  the  party  to  make  defence  ; 
because  it  is  implied  in  judicial  authority  that  there  shall  be  a 
hearing  before  condemnation.2  Taxation  cannot  be  arbitrary,  be- 
cause its  very  definition  includes  apportionment,  nor  can  it  be  for 
a  purpose  not  public,  because  that  would  be  a  contradiction  in 
terms.3  The  right  of  local  self-government  cannot  be  taken  away, 
because  all  our  constitutions  assume  its  continuance  as  the  un- 
doubted right  of  the  people,  and  as  an  inseparable  incident  to 
republican  government.4  The  bills  of  rights  in  the  American  con- 
stitutions forbid  that  parties  shall  be  deprived  of  property  except 
by  the  law  of  the  land  ;  but  if  the  prohibition  had  been  omitted,  a 
legislative  enactment  to  pass  one  man's  property  over  to  another 
would  nevertheless  be  void.  If  the  act  proceeded  upon  the  assump- 
tion that  such  other  person  was  justly  entitled  to  the  estate,  and 
therefore  it  was  transferred,  it  would  be  void,  because  judicial  in  its 
nature  ;  and  if  it  proceeded  without  reasons,  it  would  be  equally  void, 
as  neither  legislative  nor  judicial,  but  a  mere  arbitrary  fiat.5  There 
is  no  difficulty  in  saying  that  any  such  act,  which  under  pretence 
of  exercising  one  power  is  usurping  another,  is  opposed  to  the  con- 

1  Post,  410-413,  and  cases  cited. 

2  Post,  353-4.  On  this  subject  in  general,  reference  is  made  to  those  very 
complete  recent  works,  Bigelow  on  Estoppel  and  Freeman  on  Judgments. 

3  Post,  ch.  14.  And  see  Curtis  v.  Whipple,  24  Wis.  350 ;  Tyson  v.  School 
Directors,  51  Penn.  St.  9 ;  Freeland  v.  Hastings,  10  Allen,  575 ;  Opinions  of 
Judges,  58  Me.  590;  People  v.  Bacheller,  N.Y.  Court  of  Appeals,  Albany 
Law  Jour.  vol.  8,  p.  120;  Lowell  v.  Boston,  Sup.  Court  of  Mass.,  not  yet 
reported. 

4  People  v.  Mayor,  &c.  of  Chicago,  51  111.  31 ;  People  v.  Hurlbut,  24 
Mich.  44. 

5  Bowman  v.  Middleton,  1  Bay,  252 ;  Wilkinson  v.  Leland,  2  Pet.  657 ;  Ter- 
rett  v.  Taylor,  9  Cranch,  43;  Ervine's  Appeal,  16  Penn.  St.  266.  It  is  now 
considered  an  universal  and  fundamental  proposition  in  every  well-regulated 
and  properly  administered  government,  whether  embodied  in  a  constitutional 
form  or  not,  that  private  property  cannot  be  taken  for  a  strictly  private  purpose 
at  all,  nor  for  public  without  a  just  compensation  ;  and  that  the  obligation  of 
contracts  cannot  be  abrogated  or  essentially  impaired.  These  and  other  vested 
rights  of  the  citizen  are  held  sacred  and  inviolable,  even  against  the  plenitude 
of  power  in  the  legislative  department."  Nelson,  J.,  in  People  v.  Morris,  13 
Wend.  328. 

[192] 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  *  175 

stitution  and  void.  It  is  assuming  a  power  which  the  people,  if  they 
have  not  granted  it  at  all,  have  reserved  to  themselves.  The  max- 
ims of  Magna  Charta  and  the  common  law  are  the  interpreters  of 
constitutional  grants  of  power,  and  those  acts  which  by  those  max- 
ims the  several  departments  of  government  are  forbidden  to  do 
cannot  be  considered  within  any  grant  or  apportionment  of  power 
which  the  people  in  general  terms  have  made  to  those  departments. 
The  Parliament  of  Great  Britain,  indeed,  as  possessing  the 
sovereignty  *  of  the  country,  has  the  power  to  disregard  [*  176] 
fundamental  principles,  and  pass  arbitrary  and  unjust  en- 
actments ;  but  it  cannot  do  this  rightfully,  and  it  has  the  power  to 
do  so  simply  because  there  is  no  written  constitution  from  which 
its  authority  springs  or  on  which  it  depends,  and  by  which  the 
courts  can  test  the  validity  of  its  declared  will.  The  rules  which 
confine  the  discretion  of  Parliament  within  the  ancient  landmarks 
are  rules  for  the  construction  of  the  powers  of  the  American  legis- 
latures ;  and  however  proper  and  prudent  it  may  be  expressly  to 
prohibit  those  things  which  are  not  understood  to  be  within  the 
proper  attributes  of  legislative  power,  such  prohibition  can  never 
be  regarded  as  essential,  when  the  extent  of  the  power  apportioned 
to  the  legislative  department  is  found  upon  examination  not  to  be 
broad  enough  to  cover  the  obnoxious  authority.  The  absence  of 
such  prohibition  cannot,  by  implication,  confer  power. 

Nor,  where  fundamental  rights  are  declared  by  the  constitution, 
is  it  necessary  at  the  same  time  to  prohibit  the  legislature,  in  ex- 
press terms,  from  taking  them  away.  The  declaration  is  itself  a 
prohibition,  and  is  inserted  in  the  constitution  for  the  express 
purpose  of  operating  as  a  restriction  upon  legislative  power.1 
Many  things,  indeed,  which  are  contained  in  the  bills  of  rights  to 
be  found  in  the  American  constitutions,  are  not,  and  from  the  very 
nature  of  the  case  cannot  be,  so  certain  and  definite  in  character  as 
to  form  rules  for  judicial  decisions  ;  and  they  are  declared  rather 
as  guides  to  the  legislative  judgment  than  as  marking  an  absolute 
limitation  of  power.  The  nature  of  the  declaration  will  generally 
enable  us  to  determine  without  difficulty  whether  it  is  the  one  thing 
or  the  other.  If  it  is  declared  that  all  men  are  free,  and  no  man 
can  be  slave  to  another,  a  definite  and  certain  rule  of  action  is 
laid  down,  which  the  courts  can  administer ;  but  if  it  be  said  that 

1  Beebe  v.  State,  6  Ind.  518.  This  principle  is  very  often  acted  upon  when 
not  expressly  declared. 

13  [  193  ] 


*  176  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

"  the  blessings  of  a  free  government  can  only  be  maintained  by  a 
firm  adherence  to  justice,  moderation,  temperance,  frugality,  and 
virtue,"  we  should  not  be  likely  to  commit  the  mistake  of  sup- 
posing that  this  declaration  would  authorize  the  courts  to  substitute 
their  own  view  of  justice  for  that  which  may  have  impelled  the 
legislature  to  pass  a  particular  law,  or  to  inquire  into  the  modera- 
tion, temperance,  frugality,  and  virtue  of  its  members,  with  a  view 
to  set  aside  their  action,  if  it  should  appear  to  have  been 
[*  177]  influenced  by  the  opposite  qualities.  It  is  plain  that  *  what 
in  the  one  case  is  a  rule,  in  the  other  is  an  admonition 
addressed  to  the  judgment  and  the  conscience  of  all  persons  in 
authority,  as  well  as  of  the  people  themselves. 

So  the  forms  prescribed  for  legislative  action  are  in  the  nature 
of  limitations  upon  its  authority.  The  constitutional  provisions 
which  establish  them  are  equivalent  to  a  declaration  that  the 
legislative  power  shall  be  exercised  under  these  forms,  and  shall 
not  be  exercised  under  any  other.  A  statute  which  does  not 
observe  them  will  plainly  be  ineffectual.1 

Statutes  unconstitutional  in  Part. 

It  will  sometimes  be  found  that  an  act  of  the  legislature  is 
opposed  in  some  of  its  provisions  to  the  constitution,  while  others, 
standing  by  themselves,  would  be  unobjectionable.  So  the  forms 
observed  in  passing  it  may  be  sufficient  for  some  of  the  purposes 
sought  to  be  accomplished  by  it,  but  insufficient  for  others.  In  any 
such  case  the  portion  which  conflicts  with  the  constitution,  or  in 
regard  to  which  the  necessary  conditions  have  not  been  observed, 
must  be  treated  as  a  nullity.  Whether  the  other  parts  of  the 
statute  must  also  be  adjudged  void  because  of  the  association  must 
depend  upon  a  consideration  of  the  object  of  the  law,  and  in  what 
manner  and  to  what  extent  the  unconstitutional  portion  affects  the 
remainder.  A  statute,  it  has  been  said,  is  judicially  held  to  be 
unconstitutional,  because  it  is  not  within  the  scope  of  legislative 
authority  ;  it  may  either  propose  to  accomplish  something  pro- 
hibited by  the  constitution,  or  to  accomplish  some  lawful,  and  even 
laudable  object,  by  means  repugnant  to  the  Constitution  of  the 
United  States  or  of  the  State.2     A  statute  may  contain  some  such 

1  See  ante,  p.  130  ei  seq. 

2  Commonwealth  v.  Clapp.  5  Gray,  100.     "A  law  that  is  unconstitutional  is 

[194] 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  *  177 

provisions,  and  yet  the  same  act,  having  received  the  sanction  of 
all  branches  of  the  legislature,  and  being  in  the  form  of  law,  may 
contain  other  useful  and  salutary  provisions,  not  obnoxious  to  any 
just  constitutional  exception.  It  would  be  inconsistent  with  all 
just  principles  of  constitutional  law  to  adjudge  these  enactments 
void,  because  they  are  associated  in  the  same  act,  but  not  connected 
with  or  dependent  on  others  which  are  unconstitutional.1 
Where,  therefore,  a  part  of  a  *  statute  is  unconstitutional,  [*  178] 
that  fact  does  not  authorize  the  courts  to  declare  the  re- 
mainder void  also,  unless  all  the  provisions  are  connected  in 
subject-matter,  depending  on  each  other,  operating  together  for 
the  same  purpose,  or  otherwise  so  connected  together  in  meaning, 
that  it  cannot  be  presumed  the  legislature  would  have  passed  the 
one  without  the  other.2  The  constitutional  and  unconstitutional 
provisions  may  even  be  contained  in  the  same  section,  and  yet  be 
perfectly  distinct  and  separable,  so  that  the  first  may  stand  though 
the  last  fall.  The  point  is  not  whether  they  are  contained  in  the 
same  section  ;  for  the  distribution  into  sections  is  purely  artificial ; 
but  whether  they  are  essentially  and  inseparably  connected  in  sub- 
so  because  it  is  either  an  assumption  of  power  not  legislative  in  its  nature,  or 
because  it  is  inconsistent  with  some  provision  of  the  federal  or  State  Constitu- 
tion."    Woodworth,  J.,  in  Commonwealth  v.  Maxwell,  27  Penn.  St,  456. 

1  Commonwealth  v.  Clapp,  5  Gray,  100.  See,  to  the  same  effect,  Fisher  v. 
McGirr,  1  Gray,  1;  Warren  v.  Mayor,  &c,  of  Charlestown,  2  Gray,  84;  Wel- 
lington, Petitioner,  16  Pick.  95;  Commonwealth  v.  Hitchings,  5  Gray,  482; 
Commonwealth  v.  Pomeroy,  5  Gray,  486 ;  State  v.  Copeland,  3  R.  I.  33 ;  State 
v.  Snow,  3  R.  I.  64  ;  Armstrong  v.  Jackson,  1  Blackf.  374 ;  Clark  v.  Ellis,  2  Blackf. 
248;  McCulloch  v.  State,  11  Ind.  432;  People  v.  Hill,  7  Cal.  97;  Lathrop  v. 
Mills,  19  Cal.  513;  Thomson  v.  Grand  Gulf  Railroad  Co.,  3  How.  Miss.  240; 
Campbell  v.  Union  Bank,  6  How.  Miss.  625 ;  Mobile  and  Ohio  Railroad  Co.  v. 
State,  29  Ala.  573  ;  Santo  v.  State,  2  Iowa,  165 ;  State  v.  Cox,  3  Eng.  436 ; 
Mayor,  &c,  of  Savannah  v.  State,  4  Geo.  26  ;  Exchange  Bank  v.  Hines,  3  Ohio, 
N.  s.  1 ;  Robinson  v.  Bank  of  Darien,  18  Geo.  65 ;  State  v.  Wheeler,  25  Conn. 
290;  People  v.  Lawrence,  36  Barb.  190;  Williams  v.  Payson,  14  La.  An.  7; 
Ely  v.  Thompson,  3  A.  K.  Marsh.  70 ;  Davis  v.  State,  7  Md.  151 ;  State  v.  Com- 
missioners of  Baltimore,  29  Md.  521 ;  Bank  of  Hamilton  v.  Dudley's  Lessee,  2 
Pet.  526.  "  To  the  extent  of  the  collision  and  repugnancy,  the  law  of  the  State 
must  yield  ;  and  to  that  extent,  and  no  further,  it  is  rendered  by  such  repugnancy 
inoperative  and  void."  Commonwealth  v.  Kimball,  24  Pick.  361,  per  Shaw, 
Ch.  J.  ;  Norris  v.  Boston,  4  Met.  288. 

2  Commonwealth  v.  Hitchings,  5  Gray,  485.  See  People  v.  Briggs,  50  N.Y. 
566. 

[195] 


*  178  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

stance.1  If,  when  the  unconstitutional  portion  is  stricken  out, 
that  which  remains  is  complete  in  itself,  and  capable  of  being  ex- 
ecuted in  accordance  with  the  apparent  legislative  intent,  wholly 
independent  of  that  which  was  rejected,  it  must  be  sustained.  The 
difficulty  is  in  determining  whether  the  good  and  bad  parts  of  the 
statute  are  capable  of  being  separated  within  the  meaning  of  this 
rule.  If  a  statute  attempts  to  accomplish  two  or  more  objects,  and 
is  void  as  to  one,  it  may  still  be  in  every  respect  complete  and  valid 
as  to  the  other.  But  if  its  purpose  is  to  accomplish  a  single  object 
only,  and  some  of  its  provisions  are  void,  the  whole  must  fail 
unless  sufficient  remains  to  effect  the  object  without  the  aid  of  the 
invalid  portion.2  And  if  they  are  so  mutually  connected 
[*  179]  with  and  *  dependent  on  each  other,  as  conditions,  con- 
siderations, or  compensations  for  each  other,  as  to  warrant 

1  Commonwealth  v.  Hitchings,  5  Gray,  485;  Willard  v.  People,  4  Scam.  470; 
Eells  v.  People,  4  Scam.  512  ;  Robinson  v.  Bidwell,  22  Cal.  379  ;  State  v.  Easter- 
brook,  3  Nev.  173 ;  Hagerstown  v.  Dechert,  32  Md.  369. 

2  Santo  v.  State,  2  Iowa,  165.  But  perhaps  the  doctrine  of  sustaining  one 
part  of  a  statute  when  the  other  is  void  was  carried  to  an  extreme  in  this  case. 
A  prohibitory  liquor  law  had  been  passed  which  was  not  objectionable  on  consti- 
tutional grounds,  except  that  the  last  section  provided  that  "  the  question  of  pro- 
hibiting the  sale  and  manufacture  of  intoxicating  liquor  "  should  be  submitted  to 
the  electors  of  the  State,  and  if  it  should  appear  "  that  a  majority  of  the  votes 
cast  as  aforesaid,  upon  said  question  of  prohibition,  shall  be  for  the  prohibitory 
liquor  law,  then  this  act  shall  take  effect  on  the  first  day  of  July,  1855."  The 
court  held  this  to  be  an  attempt  by  the  legislature  to  shift  the  exercise  of  legis- 
lative power  from  themselves  to  the  people,  and  therefore  void ;  but  they  also 
held  that  the  remainder  of  the  act  was  complete  without  this  section,  and  must 
therefore  be  sustained  on  the  rule  above  given.  The  reasoning  of  the  court  by 
which  they  are  brought  to  this  conclusion  is  ingenious ;  but  one  cannot  avoid 
feeling,  especially  after  reading  the  dissenting  opinion  of  Chief  Justice  Wright, 
that  by  the  decision  the  court  gave  effect  to  an  act  which  the  legislature  did  not 
design  should  take  effect  unless  the  result  of  the  unconstitutional  submission  to 
the  people  was  in  its  favor.  For  a  similar  ruling,  see  Maize  v.  State,  4  Ind.  342 ; 
overruled  in  Meshmeier  v.  State,  11  Ind.  482.  And  see  State  v.  Dombaugh, 
20  Ohio,  N.  s.  173,  where  it  was  held  competent  to  construe  a  part  of  an  act  held 
to  be  valid  by  another  part  adjudged  unconstitutional,  though  the  court  con- 
sidered it  "  quite  probable  "  that  if  the  legislature  had  supposed  they  were  without 
power  to  adopt  the  void  part  of  the  act,  they  would  have  made  an  essen- 
tially different  provision  by  the  other.  See  also  People  v.  Bull,  46  N.  Y.  68, 
where  part  of  an  act  was  sustained  which  probably  would  not  have  been  adopted 
by  the  legislature  separately.  It  must  be  obvious  in  any  case  where  part  of  an 
act  is  set  aside  as  unconstitutional,  that  it  is  unsafe  to  indulge  in  the  same  extreme 

[196] 


CH.  VII.]  DECLARING    STATUTES    UNCONSTITUTIONAL.  *  179 

the  belief  that  the  legislature  intended  them  as  a  whole,  and  if  all 
could  not  be  carried  into  effect,  the  legislature  would  not  pass  the 
residue  independently,  then  if  some  parts  are  unconstitutional,  all 
the  provisions  which  are  thus  dependent,  conditional,  or  connected 
must  fall  with  them.1 

It  has  accordingly  been  held  where  a  statute  submitted  to  the 
voters  of  a  county  the  question  of  the  removal  of  their  county  seat, 
and  one  section  imposed  the  forfeiture  of  certain  vested  rights  in 
case  the  vote  was  against  the  removal,  that  this  portion  of  the  act 
being  void,  the  whole  must  fall,  inasmuch  as  the  whole  was  sub- 
mitted to  the  electors  collectively,  and  the  threatened  forfeiture 
would  naturally  affect  the  result  of  the  vote.2 

And  where  a  statute  annexed  to  the  city  of  Racine  certain  lands 
previously  in  the  township  of  Racine,  but  contained  an  express 
provision  that  the  lands  so  annexed  should  be  taxed  at  a  different 
and  less  rate  than  other  lands  in  the  city  ;  the  latter  provision 
being  held  unconstitutional,  it  was  also  held  that  the  whole  statute 

presumptions  in  support  of  the  remainder  that  are  allowable  in  support  of  a  com- 
plete act  when  some  cause  of  invalidity  is  suggested  to  the  whole  of  it.  In  the 
latter  case,  we  know  the  legislature  designed  the  whole  act  to  have  effect,  and  we 
should  sustain  it  if  possible ;  in  the  former,  we  do  not  know  that  the  legislature 
would  have  been  willing  that  a  part  of  the  act  should  be  sustained  if  the  remainder 
were  held  void,  and  there  is  generally  a  presumption  more  or  less  strong  to  the 
contrary.  While,  therefore,  in  the  one  case  the  act  should  be  sustained  unless 
the  invalidity  is  clear,  in  the  other  the  whole  should  fall  unless  it  is  manifest  the 
portion  not  opposed  to  the  constitution  can  stand  by  itself,  and  that  in  the  leg- 
islative intent  it  was  not  to  be  controlled  or  modified  in  its  construction  and 
effect  by  the  part  which  was  void. 

The  Supreme  Court  of  the  Territory  of  Utah  a  few  years  since,  in  considering 
a  statute  which  authorized  the  probate  courts  to  grant  divorces  for  specified 
causes,  held  it  void  so  far  as  it  undertook  to  confer  jurisdiction  on  the  probate 
courts,  but  good  so  far  as  it  authorized  divorces  ;  and  as  the  jurisdiction  to  grant 
them  could,  under  their  conclusions,  vest  nowhere  else,  they  held  it  might  be 
administered  by  themselves  as  district  judges.  This  was  not  exactly  sustaining 
the  half  of  a  law  by  itself,  but  it  was  sustaining  it  by  means  of  something  sub- 
stituted in  the  place  of  the  other  half. 

1  Warren  v.  Mayor,  &c.,  of  Charlestown,  2  Gray,  99  ;  State  v.  Commissioners 
of  Perry  County,  5  Ohio,  N.  s.  507  ;  Slauson  v.  Racine,  13  Wis.  398 ;  Allen 
County  Commissioners  v.  Silvers,  22  Ind.  491 ;  Garrard  Co.  Court  v.  Navigation 
Co.,  10  Am.  Law  Reg.  N.  s.  100. 

2  State  v.  Commissioners  of  Perry  County,  5  Ohio,  N.  s.  507.  And  see 
Jones  v.  Robbins,  8  Gray,  338. 

[197] 


*  179  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

must  fail,  inasmuch  as  such  provision  was  clearly  intended  as  a 
compensation  for  the  annexation.1 

And  where  a  statute,  in  order  to  obtain  a  jury  of  six 
[*  180]  persons,  *  provided  for  the  summoning  of  twelve  jurors, 
from  whom  six  were  to  be  chosen  and  sworn,  and  under 
the  constitution  the  jury  must  consist  of  twelve,  it  was  held  that 
the  provision  for  reducing  the  number  to  six  could  not  be  rejected 
and  the  statute  sustained,  inasmuch  as  this  would  be  giving  to  it  a 
construction  and  effect  different  from  that  the  legislature  designed  ; 
and  would  deprive  the  parties  of  the  means  of  obtaining  impartial 
jurors  which  the  statute  had  intended  to  give.2 

On  the  other  hand,  —  to  illustrate  how  intimately  the  valid  and 
invalid  portions  of  a  statute  may  be  associated, —  a  section  of  the 
criminal  code  of  Illinois  provided  that  "  if  any  person  shall  harbor 
or  secrete  any  negro,  mulatto,  or  person  of  color,  the  same  being 
a  slave  or  servant,  owing  service  or  labor  to  any  other  persons, 
whether  they  reside  in  this  State  or  in  any  other  State,  or  Territory, 
or  district,  within  the  limits  and  under  the  jurisdiction  of  the 
United  States,  or  shall  in  any  wise  hinder  or  prevent  the  lawful 
owner  or  owners  of  such  slaves  or  servants  from  retaking  them  in 
a  lawful  manner,  every  person  so  offending  shall  be  deemed  guilty 
of  a  misdemeanor,"  tfcc,  and  it  was  held  that,  although  the  latter 
portion  of  the  section  was  void  within  the  decision  in  Prigg  v. 
Pennsylvania,3  yet  that  the  first  portion,  being  a  police  regulation 
for  the  preservation  of  order  in  the  State,  and  important  to  its  well- 
being,  and  capable  of  being  enforced  without  reference  to  the  rest, 
was  not  affected  by  the  invalidity  of  the  rest.4 

A  legislative  act  may  be  entirely  valid  as  to  some  classes  of 
cases,  and  clearly  void  as  to  others.  A  general  law  for  the  punish- 
ment of  offences,  which  should  endeavor  to  reach,  by  its  retroactive 
operation,  acts  before  committed,  as  well  as  to  prescribe. a  rule  of 
conduct  for  the  citizen  in  the  future,  would  be  void  so  far  as  it  was 
retrospective,  but  such  invalidity  would  not  affect  the  operation  of 
the  law  in  regard  to  the  cases  which  were  within  the  legislative 
control.     A  law  might  be  void  as  violating  the  obligation  of  exist- 

1  Slauson  v.  Racine,  13  Wis.  398,  followed  in  State  v  Dousman,  28  Wis.  547. 

2  Campau  v.  Detroit,  14  Mich.  272. 

3  16  Pet.  539. 

4  Willard  v.  People,  4  Scam.  470;  Eells  v.  People,  ib.  512.  See  Hagerstown 
v.  Dechert,  32  Md.  369. 

[198] 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  *  180 

ing  contracts,  but  valid  as  to  all  contracts  which  should  be  entered 
into  subsequent  to  its  passage,  and  which  therefore  would  have  no 
legal  force  except  such  as  the  law  itself  would  allow.1  In  any  such 
case  the  unconstitutional  law  must  operate  as  far  as  it  can,2 
and  it  will  not  be  held  invalid  on  the  objection  *  of  a  party  [*  181] 
whose  interests  are  not  affected  by  it  in  a  manner  which 
the  constitution  forbids.  If  there  are  any  exceptions  to  this  rule, 
they  must  be  of  cases  only  where  it  is  evident,  from  a  contempla- 
tion of  the  statute  and  of  the  purpose  to  be  accomplished  by  it,  that 
it  would  not  have  been  passed  at  all,  except  as  an  entirety,  and 
that  the  general  purpose  of  the  legislature  will  be  defeated  if  it 
shall  be  held  valid  as  to  some  cases  and  void  as  to  others. 


Waiving  a   Constitutional  Objection. 

There  are  cases  where  a  law  in  its  application  to  a  particular 
case  must  be  sustained,  because  the  party  who  makes  objection 
has,  by  prior  action,  precluded  himself  from  being  heard  against 
it.  Where  a  constitutional  provision  is  designed  for  the  protection 
solely  of  the  property  rights  of  the  citizen,  it  is  competent  for  him 
to  waive  the  protection,  and  to  consent  to  such  action  as  would  be 
invalid  if  taken  against  his  will.  On  this  ground  it  has  been  held 
that  an  act  appropriating  the  private  property  of  one  person  for  the 
private  purposes  of  another,  on  compensation  made,  was  valid  if  he 
whose  property  was  taken  assented  thereto ;  and  that  he  did  assent 
and  waive  the  constitutional  privilege,  if  he  received  the  compensa- 
tion awarded,  or'  brought  an  action  to  recover  it.3  So  if  an  act 
providing  for  the  appropriation  of  property  for  a  public  use  shall 
authorize  more  to  be  taken  than  the  use  requires,  although  such  act 
would  be  void  without  the  owner's  assent,  yet  with  it  all  objection 

1  Mundy  v.  Monroe,  1  Mich.  68 ;  Cargill  v.  Power,  1  Mich.  369.  In  People 
v.  Rochester,  50  N.  Y.  525,  certain  commissioners  were  appointed  to  take  for  a 
city  hall  either  lands  belonging  to  the  city  or  lands  of  individuals.  The  act  made 
no  provision  for  compensation.  The  commissioners  elected  to  take  lands  belong- 
ing to  the  city.  Held,  that  the  act  was  not  wholly  void  for  the  omission  to  pro- 
vide compensation  in  case  the  lands  of  individuals  had  been  selected. 

2  Baker  v.  Braman,  6  Hill,  47.  The  case  of  Sadler  v.  Langham,  34  Ala.  333, 
appears  to  be  opposed  to  this  principle,  but  it  also  appears  to  us  to  be  based 
upon  cases  which  are  not  applicable. 

J  Baker  v.  Braman,  6  Hill,  47. 

[199] 


*  181  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

on  the  ground  of  unconstitutionality  is  removed.1  And  where 
parties  were  authorized  by  statute  to  erect  a  darn  across  a  river, 
provided  they  should  first  execute  a  bond  to  the  people  conditioned 
to  pay  such  damages  as  each  and  every  person  might  sustain  in 
consequence  of  the  erection  of  the  dam,  the  damages  to  be  assessed 
by  a  justice  of  the  peace,  and  the  dam  was  erected  and  damages  as- 
sessed as  provided  by  the  statute,  it  was  held,  in  an  action  on  the 
bond  to  recover  those  damages,  that  the  party  erecting  the  dam  and 
who  had  received  the  benefit  of  the  statute,  was  precluded  by  his 
action  from  contesting  its  validity,  and  could  not  insist  upon  his 

right  to  a  common-law  trial  by  jury.2  In  these  and  the  like 
[*  182]  -cases  the  statute  must  be  read  with  *  an  implied  proviso  that 

the  party  to  be  affected  shall  assent  thereto  ;  and  such  con- 
sent removes  all  obstacle,  and  lets  the  statute  in  to  operate  the  same 
as  if  it  had  in  terms  contained  the  condition.3  In  criminal  cases, 
however,  the  doctrine  that  a  constitutional  privilege  may  be  waived 
must  be  true  to  a  very  limited  extent  only.  A  party  may  consent 
to  waive  rights  of  property,  but  the  trial  and  punishment  for  public 
offences  are  not  within  the  province  of  individual  consent  or 
agreement. 

Judicial  Doubts  on   Constitutional   Questions. 

It  has  been  said  by  an  eminent  jurist,  that  when  courts  are  called 
upon  to  pronounce  the  invalidity  of  an  act  of  legislation,  passed 
with  all  the  forms  and  ceremonies  requisite  to  give  it  the  force  of 
law,  they  will  approach  the  question  with  great  caution,  examine  it 
in  every  possible  aspect,  and  ponder  upon  it  as  long  as  deliberation 
and  patient  attention  can  throw  any  new  light  upon  the  subject, 
and  never  declare  a  statute  void,  unless  the  nullity  and  invalidity 
of  the  act  are  placed,  in  their  judgment,  beyond  reasonable  doubt.4 

1  Embury  v.  Conner,  3  N.  Y.  511.  And  see  Heyward  v.  Mayor,  &c,  of 
New  York,  8  Barb.  489 ;  Mobile  and  Ohio  Railroad  Co.  v.  State,  29  Ala.  586 ; 
Detmold  v.  Drake,  46  N.  Y.  318. 

2  People  v.  Murray,  5  Hill,  468.     See  Lee  v.  Tillotson,  24  Wend.  339. 

3  Embury  v.  Conner,  3  N.  Y.  518.  And  see  Matter  of  Albany  St. ,  11  Wend. 
149;  Chamberlain  v.  Lyell,  3  Mich.  448;  Beecher  v.  Baldy,  7  Mich.  488; 
Mobile  and  Ohio  Railroad  Co.  v.  State,  29  Ala.  586 ;  Detmold  v.  Drake,  46 
N.  Y.  318. 

4  Wellington,  Petitioner,  16  Pick.  95,  per  Shaw,  Ch.  J.  See  Brown  v. 
Buzan,  24  Lid.  194.     If  an  act  may  be  valid  or  not  according  to  the  circum- 

[200] 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  *  182 

A  reasonable  doubt  must  be  solved  in  favor  of  tbe  legislative  action, 
and  tbe  act  be  sustained.1 

"  Tbe  question  wbetber  a  law  be  void  for  its  repugnancy  to  tbe 
constitution  is  at  all  times  a  question  of  much  delicacy,  wbich 
ougbt  seldom,  if  ever,  to  be  decided  in  tbe  affirmative  in  a  doubt- 
ful case.     The  court   wben  impelled  by  duty  to   render   such  a 
judgment  would  be  unworthy  of  its  station   could  it  be 
unmindful  *  of  the  solemn  obligation  wbich  that  station  [*  183] 
imposes ;   but  it  is  not  on  slight  implication  and  vague 
conjecture  that  tbe  legislature  is  to  be  pronounced  to  have  tran- 
scended its  powers,  and  its  acts  to  be  considered  as  void.  The  oppo- 
sition between  the  constitution  and  the  law  should  be  such  that 
the  judge  feels  a  clear  and  strong  conviction  of  their  incompati- 
bility with  each  other."  2     Mr.  Justice  Washington  gives  a  reason 
for  this  rule,  which  has  been  repeatedly  recognized  in  other  cases 
which  we  have  cited.    After  expressing  the  opinion  that  the  partic- 
ular question  there  presented,  and  which  regarded  the  constitution- 
ality of  a  State  law,  was  involved  in  difficulty  and  doubt,  he  says : 
"  But  if  I  could  rest  my  opinion  in  favor  of  the  constitutionality  of 
the  law  on  which  the  question  arises,  on  no  other  ground  than  this 
doubt  so  felt  and  acknowledged,  that  alone  would,  in  my  estima- 
tion, be  a  satisfactory  vindication  of  it.     It  is  but  a  decent  respect 

stances,  a  court  would  be  bound  to  presume  that  such  circumstances  existed  as 
would  render  it  valid.     Talbot  v.  Hudson,  16  Gray,  417. 

1  Cooper  v.  Telfair,  4  Dall.  18;  Dow  v.  Norris,  4  N.  H.  16;  Flint  River 
Steamboat  Co.  v.  Foster,  5  Geo.  194;  Carey  v.  Giles,  9  Geo.  253;  Macon  and 
Western  Railroad  Co.  v.  Davis,  13  Geo.  68;  Franklin  Bridge  Co.  p.  Wood,  14 
Geo.  80;  Kendall  v.  Kingston,  5  Mass.  524;  Foster  v.  Essex  Bank,  16  Mass. 
245 ;  Norwich  v.  County  Commissioners  of  Hampshire,  13  Pick.  61  ;  Hartford 
Bridge  Co.  v.  Union  Ferry  Co.,  29  Conn.  227 ;  Rich  v.  Flanders,  39  N.  H.  312  ; 
Eason  v.  State,  6  Eng.  481 ;  Hedley  v.  Commissioners  of  Franklin  Co.,  4  Blackf. 
116  ;  Stocking  v.  State,  7  Ind.  327  ;  La  Fayette  v.  Jenners,  10  Ind.  79  ;  Ex  parte 
McCollum,  1  Cow.  564;  Coutant  v.  People,  11  Wend.  511;  Clark  v.  People, 
26  Wend.  606;  Morris  v.  People,  3  Denio,  381;  Baltimore  v.  State,  15  Md. 
376;  Cotton  v.  Commissioners  of  Leon  Co.,  6  Fla.  610;  Lane  v.  Dorman,  3 
Scam.  238 ;  Newland  v.  Marsh,  19  111.  381 ;  Farmers  and  Mechanics  Bank  v. 
Smith,  3  S.  &  R.  63;  Weister  v.  Hade,  52  Penn.  St.  477;  Sears  v.  Cottrell,  5 
Mich.  251;  People  v.  Tyler,  8  Mich.  320;  Allen  County  Commissioners  v.  Sil- 
vers, 22  Ind.  491 ;  State  v.  Robinson,  1  Kansas,  17  ;  Eyre  v.  Jacob,  14  Grat. 
426  ;  Gormley  v.  Taylor,  44  Geo.  76  ;  State  v.  Cape  Girardeau,  &c,  R.R.  Co.,  48 
Mo.  468. 

2  Fletcher  v.  Peck,  6  Cranch,  128,  per  Marshall,  Ch.  J. 

[201  ] 


*  183  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

due  to  the  wisdom,  the  integrity,  and  the  patriotism  of  the  legisla- 
tive body  by  which  any  law  is  passed,  to  presume  in  favor  of  its 
validity,  until  its  violation  of  the  constitution  is  proved  beyond  all 
reasonable  doubt."  x 

The  constitutionality  of  a  law,  then,  is  to  be  presumed,  because 
the  legislature,  which  was  first  required  to  pass  upon  the  question, 
acting,  as  they  must  be  deemed  to  have  acted,  with  integrity,  and 
with  a  just  desire  to  keep  within  the  restrictions  laid  by  the  con- 
stitution upon  their  action,  have  adjudged  that  it  is  so.  They  are 
a  co-ordinate  department  of  the  government  with  the  judiciary, 
invested  with  very  high  and  responsible  duties,  as  to  some  of 
which  their  acts  are  not  subject  to  judicial  scrutiny,  and  they 
legislate  under  the  solemnity  of  an  official  oath,  which  it  is  not  to 
be  supposed  they  will  disregard.  It  must,  therefore,  be  supposed 
that  their  own  doubts  of  the  constitutionality  of  their  action  have 
been  deliberately  solved  in  its  favor,  so  that  the  courts  may  with 
some  confidence  repose  upon  their  conclusion  as  one  based  upon 
their  best  judgment.  For  although  it  is  plain,  upon  the  au- 
thorities, that  the  courts  should  sustain  legislative  action  when 
not  clearly  satisfied  of  its  invalidity,  it  is  equally  plain  in  reason 
that  the  legislature  should  abstain  from  adopting  such  action  if 
not  fully  assured  of  their  authority  to  do  so.     Respect  for  the 

instrument  under  which  they  exercise  their  power  should 
[*  184]  impel  the  *  legislature  in  every  case  to  solve  their  doubts 

in  its  favor,  and  it  is  only  because  we  are  to  presume 
they  do  so,  that  courts  are  warranted  in  giving  weight  in  any  case 
to  their  decision.  If  it  were  understood  that  legislators  refrained 
from  exercising  their  judgment,  or  that,  in  cases  of  doubt,  they 
allowed  themselves  to  lean  in  favor  of  the  action  they  desired  to 
accomplish,  the  foundation  for  the  cases  we  have  cited  would  be 
altogether  taken  away. 

As  to  what  the  doubt  shall  be  upon  which  the  court  is  to  act, 
we  conceive  that  it  can  make  no  difference  whether  it  springs  from 
an  endeavor  to  arrive  at  the  true  interpretation  of  the  constitution, 
or  from  a  consideration  of  the  law  after  the  meaning  of  the  con- 
stitution has  been  judicially  determined.  It  has  sometimes  been 
supposed  that  it  was  the  duty  of  the  court,  first,  to  interpret  the 
constitution,  placing  upon  it  a  construction  that  .must  remain  un- 

1  Ogden  v.  Saunders,  12  Wheat.  270. 
[202] 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  *  184 

varying,  and  then  test  the  law  in  question  by  it ;  and  that  any 
other  rule  would  lead  to  differing  judicial  decisions,  if  the  legis- 
lature should  put  one  interpretation  upon  the  constitution  at  one 
time  and  a  different  one  at  another.  But  the  decided  cases  do  not 
sanction  this  rule,1  and  the  difficulty  suggested  is  rather  imaginary 
than  real,  since  it  is  but  reasonable  to  expect  that,  where  a  con- 
struction has  once  been  placed  upon  a  constitutional  provision,  it 
will  be  followed  afterwards,  even  though  its  original  adoption  may 
have  sprung  from  deference  to  legislative  action  rather  than  from 
settled  convictions  in  the  judicial  mind.2 

The  duty  of  the  court  to  uphold  a  statute  when  the  conflict 
between  it  and  the  constitution  is  not  clear,  and  the  implication 
which  must  always  exist  that  no  violation  has  been  intended  by 
the  legislature,  may  require  it  in  some  cases,  where  the  meaning 
of  the  constitution  is  not  in  doubt,  to  lean  in  favor  of  such  a  con- 
struction of  the  statute  as  might  not  at  first  view  seem  most 
obvious  and  natural.  For  as  a  conflict  between  the  statute  and 
the  constitution  is  not  to  be  implied,  it  would  seem  to  follow,  where 
the  meaning  of  the  constitution  is  clear,  that  the  court,  if  possible, 
must  give  the  statute  such  a  construction  as  ivill  enable  it  to  have 
effect.  This  is  only  saying,  in  another  form  of  words,  that  the 
court  must  construe  the  statute  in  accordance  with  the 
legislative*  intent;  since  it  is  always  to  be  presumed  [*  185] 
the  legislature  designed  the  statute  to  take  effect,  and 
not  to  be  a  nullity. 

The  rule  upon  this  subject  is  thus  stated  by  the  Supreme  Court 
of  Illinois :  "  Whenever  an  act  of  the  legislature  can  be  so  con- 
strued and  applied  as  to  avoid  conflict  with  the  constitution  and 
give  it  the  force  of  law,  such  construction  will  be  adopted  by  the 
courts.  Therefore,  acts  of  the  legislature,  in  terms  retrospective, 
and  which,  literally  interpreted,  would  invalidate  and  destroy 
vested  rights,  are  upheld  by  giving  them  prospective  operation 
only ;  for,  applied  to,  and  operating  upon,  future  acts  and  trans- 
actions only,  they  are  rules  of  property  under  and  subject  to  which 
the  citizen  acquires  property  rights,  and  are  obnoxious  to  no  con- 
stitutional limitation ;  but  as  retroactive  laws,  they  reach  to  and 
destroy  existing  rights,  through  force  of  the  legislative  will,  witli- 

1  Sun  Mutual  Insurance  Co.  v.  New  York,  5  Sandf.  14 ;  Clark  v.  People,  26 
Wend.  606  ;  Baltimore  v.  State,  15  Md.  457. 

2  People  v.  Blodgett,  13  Mich.  162. 

1  *  [203] 


*  185  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

out  a  hearing  or  judgment  of  law.  So  will  acts  of  the  legislature, 
having  elements  of  limitation,  and  capable  of  being  so  applied  and 
administered,  although  the  words  are  broad  enough  to,  and  do, 
literally  read,  strike  at  the  right  itself,  be  construed  to  limit  and 
control  the  remedy ;  for  as  such  they  are  valid,  but  as  weapons 
destructive  of  vested  rights  they  are  void  ;  and  such  force  only 
will  be  given  the  acts  as  the  legislature  could  impart  to  them."  1 

The  Supreme  Court  of  New  Hampshire,  where  a  similar  ques- 
tion is  involved,  recognizing  their  obligation  "  so  to  construe  every 
act  of  the  legislature  as  to  make  it  consistent,  if  it  be  possible, 
with  the  provisions  of  the  constitution,"  proceed  to  the  examina- 
tion of  a  statute  by  the  same  rule,  "  without  stopping  to  inquire 
what  construction  might  be  warranted  by  the  natural  import  of  the 
language  used."2 

And  Harris,  J.,  delivering  the  opinion  of  the  majority  of  the 
Court  of  Appeals  of  New  York,  says :  "  A  legislative  act  is  not 
to  be  declared  void  upon  a  mere  conflict  of  interpretation  between 
the  legislative  and  the  judicial  power.  Before  proceeding  to  annul, 
by  judicial  sentence,  what  has  been  enacted  by  the  law-making 
power,  it  should  clearly  appear  that  the  act  cannot  be  supported 
by  any  reasonable  intendment  or  allowable  presumption."  3  And 
the  Supreme  Court  of  New  York  consider  this  but 
[*  186]  *  the  application  of  the  familiar  rule,  that  in  the  expo- 
sition of  a  statute  it  is  the  duty  of  the  court  to  seek  to 
ascertain  and  carry  out  the  intention  of  the  legislature  in  its  en- 
actment, and  to  give  full  effect  to  such  intention,  and  they  are 
bound  so  to  construe  the  statute,  if  practicable,  as  to  give  it  force 
and  validity,  rather  than  to  avoid  it,  or  render  it  nugatory.4 

The  rule  is  not  different  when  the  question  is  whether  any  por- 
tion of  a  statute  is  void,  than  when  the  whole  is  assailed.  The 
excess  of  power,  if  there  is  any,  is  the  same  in  either  case,  and  is 
not  to  be  applied  in  any  instance. 

And  on  this  ground  it  has  been  held  that  where  the  repealing 
clause  in  an  unconstitutional  statute  repeals  all  inconsistent  acts, 
the  repealing  clause  is  to  stand  and  have  effect,  notwithstanding 

1  Newland  v.  Marsh,  19  111.  384.  See,  also,  Bigelow  v.  West  Wisconsin  R.R. 
Co.,  27  Wis.  478. 

2  Dow  v.  Norris,  4  N.  H.  17. 

3  People  v.  Supervisors  of  Orange,  17  N.  Y.  241. 

4  Clarke  v.  Rochester,  24  Barb.  471.     See  Marshall  v.  Grimes,  41  Miss.  27. 

[  204  ] 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL. 


186 


the  invalidity  of  the  rest.1  But  other  cases  hold  that  such  repeal- 
ing clause  is  to  be  understood  as  designed  to  repeal  all  conflicting 
provisions,' in  order  that  those  of  the  new  statute  can  have  effect; 
and  that  if  the  statute  is  invalid,  nothing  can  conflict  with  it,  and 
therefore  nothing  is  repealed.2  Great  caution  is  necessary  in 
some  cases,  or  the  rule  which  was  designed  to  ascertain  and 
effectuate  the  legislative  intent  will  be  pressed  to  the  extreme  of 
giving  effect  to  part  of  a  statute  exclusively,  when  the  legislative 
intent  was  that  it  should  not  stand  except  as  a  component  part  of 
the  whole. 

Inquiry  into  Legislative   3Iotives. 

From  what  examination  has  been  given  to  this  subject,  it  ap- 
pears that  whether  a  statute  is  constitutional  or  not  is  always  a 
question  of  power ;  that  is,  whether  the  legislature  in  the  partic- 
ular 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  observed  the  constitu- 
tional conditions.  In  any  case  in  which  this  question  is  answered 
in  the  affirmative,  the  courts  are  not  at  liberty  to  inquire  into  the 
proper  exercise  of  the  power.  They  must  assume  that 
legislative  discretion  has  been  properly  exercised.3  *  If  [*  187] 
evidence  was  required,  it  must  be  supposed  that  it  was 
before  the  legislature  when  the  act  was  passed  ;4  and  if  any  special 
finding  was  required  to  warrant  the  passage  of  the  particular  act, 
it  would  seem  that  the  passage  of  the  act  itself  might  be  held 
equivalent  to  such  finding.5     And  although  it  has  sometimes  been 

1  Meshmeier  v.  State,  11  Ind.  489 ;  Ely  v.  Thompson,  3  A.  K.  Marsh.  70. 

2  Shepardson  v.  Milwaukee  and  Beloit  Railroad  Co.,  6  Wis.  605 ;  State  v. 
Judge  of  County  Court,  11  Wis.  50;  Tims  v.  State,  26  Ala.  165;  Sullivan  v. 
Adams,  3  Gray,  -176;  Devoy  v.  Mayor,  &c,  of  New  York,  35  Barb.  261;  Cam- 
pau  v.  Detroit,  11  Mich.  276 ;  Cbilds  v.  Shower,  18  Iowa,  261 ;  Harbeck  v.  New 
York,  10  Bosw.  366. 

3  People  v.  Lawrence,  36  Barb.  193 ;  People  v.  New  York  Central  Railroad 
Co.,  31  Barb.  137  ;  Baltimore  v.  State,  15  Md.  376 ;  Goddin  v.  Crump,  8  Leigh. 
154. 

.  *  De  Camp  v.  Eveland,  19  Barb.  81  ;  Lusher  v.  Scites,  4  W.  Va.  11. 
5  Johnson  v.  Joliet  and  Chicago  Railroad  Co.,  23  111.  207.   The  constitution 
of  Illinois  provided  that  "corporations  not  possessing  banking  powers  or  priv- 
ileges may  be  formed  under  general  laws,  but  shall  not  be  created  by  special 

[205  ] 


*  187  CONSTITUTIONAL  LIMITATIONS.  [CH.  VII. 

urged  at  the  bar  that  the  courts  ought  to  inquire  into  the  motives 
of  the  legislature  where  fraud  and  corruption  were  alleged,  and 
annul  their  action  if  the  allegation  were  established,  the  argu- 
ment has  in  no  case  been  acceded  to  by  the  judiciary,  and  they 
have  never  allowed  the  inquiry  to  be  entered  upon.1  The  reasons 
are  the  same  here  as  those  which  preclude  an  inquiry  into  the 
motives  of  the  governor  in  the  exercise  of  a  discretion  vested  in 

acts,  except  for  municipal  purposes,  and  in  cases  where,  in  the  judgment  of  the 
General  Assembly,  the  objects  of  the  corporation  cannot  be  attained  under 
general  laws."  A  special  charter  being  passed  without  any  legislative  declara- 
tion that  its  object  could  not  be  attained  under  a  general  law,  the  Supreme  Court 
sustained  it,  but  placed  their  decision  mainly  on  the  ground  that  the  clause  had 
been  wholly  disregarded,  "  and  it  would  now  produce  far-spread  ruin  to  declare 
such  acts  unconstitutional  and  void."  It  is  very  clearly  intimated  in  the  opinion, 
that  the  legislative  practice,  and  this  decision  sustaining  it,  did  violence  to  the 
intent  of  the  constitution.  A  provision  in  the  constitution  of  Indiana  that  "no 
act  shall  take  effect  until  the  same  shall  have  been  published  and  circulated  in 
the  several  counties  of  this  State,  by  authority,  except  in  case  of  emergency," 
adds  the  words,  "  which  emergency  shall  be  declared  in  the  preamble,  or  in  the 
body  of  the  law;"  thus  clearly  making  the  legislative  declaration  necessary. 
Carpenter  v.  Montgomery,  7  Blackf.  -415 ;  Mark  v.  State,  15  Ind.  98 ;  Hendrick- 
son  v.  Hendrickson,  7  Ind.  13. 

1  Sunbury  and  Erie  Railroad  Co.  v.  Cooper,  33  Penn.  St.  278  ;  Ex  -parte  New- 
man, 9  Cal.  502 ;  Baltimore  v.  State,  15  Md.  376 ;  Johnson  v.  Higgins,  3  Met. 
(Ky.)  566.  "  The  courts  cannot  impute  to  the  legislature  any  other  but  public 
motives  for  their  acts."  People  v.  Draper,  15  N.  Y.  545,  per  Denio,  Ch.  J. 
"  We  are  not  made  judges  of  the  motives  of  the  legislature,  and  the  court  will 
not  usurp  the  inquisitorial  office  of  inquiry  into  the  bona  fides  of  that  body  in 
discharging  its  duties."  Shankland,  J.,  in  the  same  case,  p.  555.  "  The  powers 
of  the  three  departments  are  not  merely  equal ;  they  are  exclusive  in  respect  to 
the  duties  assigned  to  each.  They  are  absolutely  independent  of  each  other.  It 
is  now  proposed  that  one  of  the  three  powers  shall  institute  an  inquiry  into  the 
conduct  of  another  department,  and  form  an  issue  to  try  by  what  motives  the 
legislature  were  governed  in  the  enactment  of  a  law.  If  this  may  be  done,  we 
may  also  inquire  by  what  motives  the  executive  is  induced  to  approve  a  bill  or 
withhold  his  approval,  and  in  case  of  withholding  it  corruptly,  by  our  mandate 
compel  its  approval.  To  institute  the  proposed  inquiry  would  be  a  direct  attack 
upon  the  independence  of  the  legislature,  and  a  usurpation  of  power  subversive 
of  the  constitution."  Wright  v.  Defrees,  8  Ind.  302,  per  Gookins,  J.  "  We  are 
not  at  liberty  to  inquire  into  the  motives  of  the  legislature.  We  can  only  ex- 
amine into  its  power  under  the  constitution."  Per  Chase,  Ch.  J.,  in  Ex  parte 
McCardle,  7  Wall.  514.  And  see  McCulloch  v.  State,  11  Ind.  431 ;  Bradshaw 
v.  Omaha,  1  Neb.  16  ;  Humboldt  County  v.  Churchill  County  Comtn'rs,  6  Nev.  30 ; 
Flint,  &c,  Plank  Road  Co.  v.  Woodhull,  2b  Mich.  103 ;  State  v.  Fagan,  22  La. 
An.  545 ;  State  v.  Hays,  49  Mo.  607. 

[206] 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  *  187 

him  exclusively.     He  is  responsible  for  his  acts  in  such  a  case 
not  to  the  courts,  but  to  the  people.1 

*  Consequences  if  a  Statute  is  Void.  [*  188] 

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  their  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  deci- 
sion was  made.2  And  what  is  true  of  an  act  void  in  toto  is  true 
also  as  to  any  part  of  an  act  which  is  found  to  be  unconstitutional, 
and  which,  consequently,  is  to  be  regarded  as  having  never,  at  any 
time,  been  possessed  of  any  legal  force. 

1  Attorney-General  v.  Brown,  1  Wis.  522 ;  Wright  v.  Defrees,  8  Incl.  302. 

2  Strong  v.  Daniel,  5  Ind.  348 ;  Astrom  v.  Hammond,  3  McLean,  107 ; 
Meagher  v.  Storey  Co.,  5  Nev.  244.  But  one  acting  as  an  officer  under  an  un- 
constitutional law  was  held  in  Commonwealth  v.  McCombs,  56  Peun.  St.  436,  to 
be  an  officer  de  facto.  This  could  hardly  be  so,  however,  if  the  law  creating 
the  office  was  unconstitutional.  There  can  be  no  officer  de  facto  when  there  is 
no  office.  See  Carleton  v.  People,  10  Mich.  250.  In  People  v.  Salomon,  54  111. 
46,  a  ministerial  officer  was  severely  censured  for  presuming  to  disregard  a  law 
as  unconstitutional.  The  court  found  it  to  be  valid,  but  if  they  had  held  the  con- 
trary, the  officer  certainly  could  not  have  been  punished  for  anticipating  their  de- 
cision in  his  own  action.  In  Texas  it  is  reported  to  have  been  recently  held,  in 
an  opinion  which  we  have  not  seen,  that  an  act  held  unconstitutional  must  be 
deemed  to  have  the  force  of  law  for  the  protection  of  officers  acting  under  it  up 
to  the  time  of  the  decision  declaring  it  void.  Sessurus  v.  Botts,  34  Tex.  335. 
And  in  some  States  a  disposition  has  been  manifested  to  hold  that  contracts  made 
by  municipal  bodies  under  an  unconstitutional  law  may  be  enforced  where  they 
have  found  their  way  into  the  hands  of  bona  fde  purchasers  before  the  invalidity 
was  judicially  declared.  Steines  v.  Franklin  County,  48  Mo.  167  ;  State  v.  Saline 
County  Court,  lb.  390 ;  Columbia  County  v.  King,  13  Fla.  45  ;  Same  v.  Davidson, 
ib.  482. 

[207  ] 


189  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 


[*189]  *CHAPTER    VIII. 

THE   SEVERAL   GRADES   OP   MUNICIPAL   GOVERNMENT. 

In  the  examination  of  American  constitutional  law,  we  shall 
not  fail  to  notice  the  care  taken  and  the  means  adopted  to  bring 
the  agencies  by  which  power  is  to  be  exercised  as  near  as  possible 
to  the  subjects  upon  which  the  power  is  to  operate. 

In  contradistinction  to  those  governments  where  power  is  con- 
centrated in  one  man,  or  one  or  more  bodies  of  men,  whose 
supervision  and  active  control  extend  to  all  the  objects  of  gov- 
ernment within  the  territorial  limits  of  the  State,  the  American 
system  is  one  of  complete  decentralization,  the  primary  and  vital 
idea  of  which  is,  that  local  affairs  shall  be  managed  by  local 
authorities,  and  general  affairs  only  by  the  central  authority.  It 
was  under  the  control  of  this  idea  that  a  national  Constitution 
was  formed,  under  which  the  States,  while  yielding  to  the  national 
government  complete  and  exclusive  jurisdiction  over  external 
affairs,  conferred  upon  it  such  powers  only,  in  regard  to  matters 
of  internal  regulation,  as  seemed  to  be  essential  to  national  union, 
strength,  and  harmony,  and  without  which  the  purpose  in  organ- 
izing the  national  authority  might  have  been  defeated.  It  is  this, 
also,  that  impels  the  several  States,  as  if  by  common  arrangement, 
to  subdivide  their  territory  into  counties,  towns,  road,  and  school 
districts,  and  to  confer  upon  each  the  powers  of  local  legislation, 
and  also  to  incorporate  cities,  boroughs,  and  villages  wherever  a 
dense  population  renders  different  rules  important  from  those 
which  are  needful  for  the  rural  districts. 

The  system  is  one  which  almost  seems  a  part  of  the  very  nature 
of  the  race  to  which  we  belong.  A  similar  subdivision  of  the  realm 
for  the  purposes  of  municipal  government  has  existed  in  England 
from  the  earliest  ages  ; 1  and  in  America,  the  first  settlers,  as  if 

1  Crabbe's  History  of  English  Law,  c.  2 ;  1  Bl.  Com.  114;  HallanVs  Middle 
Ages,  c.  8,  pt.  1 ;  2  Kent,  278 ;  Vaughan's  Revolutions  in  English  History,  b.  2, 
c.  8. 

[208] 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  *  189 

instinctively,  adopted  it  in  their  frame  of  government,  and 
*  no  other  has  ever  supplanted  it,  or  even  found  advocates.  [*  190] 
In  most  of  the  colonies  the  central  power  created  and  pro- 
vided for  the  organization  of  the  towns  ; 1  in  one  at  least  the  towns 
preceded  and  created  the  central  authority  ; 2  but  in  all,  the  final 
result  was  substantially  the  same,  that  towns,  villages,  boroughs, 
cities,  and  counties  exercised  the  powers  of  local  government,  and 
the  Colony  or  State  the  powers  of  a  more  general  nature.3 

1  For  an  interesting  history  of  the  legislation  in  Connecticut  on  this  subject, 
see  "Webster  v.  Harwinton,  32  Conn.  131.  In  New  Hampshire,  see  Bow  v. 
Allenstown,  34  N.  H.  351.  The  learned  note  to  Commonwealth  v.  Roxbury,  9 
Gray,  503,  will  give  similar  information  concerning  the  organization  and  authority 
of  towns  in  the  Massachusetts  provinces.  And  see  People  v.  Hurlbut,  24 
Mich.  98.  Mr.  Elliott  well  says:  "  The  prime  strength  of  New  England  and 
of  the  whole  republic  was  and  is  in  the  municipal  governments  and  in  the  homes." 
And  he  adds,  that  among  the  earliest  things  decided  in  Massachusetts  was,  "  that 
trivial  things  should  be  ended  in  towns."  (1635.)  Elliott's  New  England,  Vol. 
I.  p.  182. 

2  Rhode  Island ;  see  Arnold's  History,  c.  7.  It  is  remarked  by  this  author 
that,  when  the  charter  of  Rhode  Island  was  suspended  to  bring  the  Colony  under 
the  dominion  of  Andros,  "  the  American  system  of  toicn  governments,  which 
necessity  had  compelled  Rhode  Island  to  initiate  fifty  years  before,  became  the 
means  of  preserving  the  individual  liberty  of  the  citizen  when  that  of  the  State  or 
Colony  was  crushed."     lb.  Vol.  I.  p.  487. 

3  "The  townships,"  says  De  Tocqueville,  "  are  only  subordinate  to  the  State 
in  those  interests  which  I  shall  term  social,  as  they  are  common  to  all  of  the 
citizens.  They  are  independent  in  all  that  concerns  themselves,  and  among  the 
inhabitants  of  New  England  I  believe  that  not  a  man  is  to  be  found  who  would 
acknowledge  that  the  State  has  any  right  to  interfere  in  their  local  interests.  The 
towns  of  New  England  buy  and  sell,  prosecute  or  are  indicted ;  augment  or 
diminish  their  rates,  without  the  slightest  opposition  on  the  part  of  the  adminis- 
trative authority  of  the  State.  They  are  bound,  however,  to  comply  with  the 
demands  of  the  community.  If  a  State  is  in  need  of  money,  a  town  can  neither 
give  nor  withhold  the  supplies.  If  a  State  jjrojects  a  road,  the  township  cannot 
refuse  to  let  it  cross  its  territory  ;  if  a  police  regulation  is  made  by  the  State  it 
must  be  enforced  by  the  town.  An  uniform  system  of  instruction  is  organized 
all  over  the  country,  and  every  town  is  bound  to  establish  the  schools  which  the 
law  ordains.  .  .  .  Strict  as  this  obligation  is,  the  government  of  the  State  im- 
poses it  in  principle  only,  and  in  its  performance  the  township  assumes  all  its 
independent  rights.  Thus  taxes  are  voted  by  the  State,  but  they  are  assessed 
and  collected  by  the  township  ;  the  existence  of  a  school  is  obligatory,  but  the 
township  builds,  pays,  and  superintends  it.  In  France,  the  State  collector  re- 
ceives the  local  imposts ;  in  America,  the  town  collector  receives  the  taxes  of  the 
State.  Thus  the  French  government  lends  its  agents  to  the  commune ;  in  Amer- 
ica, the  township  is  the  agent  of  the  government.     The  fact  alone  shows  the 

14  [  209  ] 


*  190  CONSTITUTIONAL    LIMITATIONS.  [CH.  VIII. 

The  several  State  constitutions  have  been  framed  with  this 
system  in  view,  and  the  delegations  of  power  which  they  make, 
and  the  express  and  implied  restraints  which  they  impose  there- 
upon, can  only  be  correctly  understood  and  construed  by  keeping 
in  view  its  present  existence  and  anticipated  continuance.  There 
are  few  of  the  general  rules  of  constitutional  law  that  are  not 
more  or  less  affected  by  the  fact  that  the  powers  of  government 
are  not  concentrated  in  any  one  body  of  men,  but  are  carefully 
distributed,  with  a  view  to  being  exercised  with  intelli- 
[*  191]  gence,*  economy,  and  facility,  and  as  far  as  possible  by 
the  persons  most  directly  and  immediately  interested. 

It  has  already  been  seen  that  the  legislature  cannot  delegate  its 
power  to  make  laws ;  but  fundamental  as  this  maxim  is,  it  is  so 
qualified  by  the  customs  of  our  race,  and  by  other  maxims  which 
regard  local  government,  that  the  right  of  the  legislature,  in  the 
entire  absence  of  authorization  or  prohibition,  to  create  towns  and 
other  inferior  municipal  organizations,  and  to  confer  upon  them 
the  powers  of  local  government,  and  especially  of  local  taxation 
and  police  regulation  usual  with  such  corporations,  would  always 
pass  unchallenged.  The  legislature  in  these  cases  is  not  regarded 
as  delegating  its  authority,  because  the  regulation  of  such  local 
affairs  as  are  commonly  left  to  local  boards  and  officers  is  not  un- 
derstood to  belong  properly  to  the  State ;  and  when  it  interferes, 
as  sometimes  it  must,  to  restrain  and  control  the  local  action, 
there  should  be  reasons  of  State  policy  or  dangers  of  local  abuse 
to  warrant  the  interposition.1 

extent  of  the  differences  which  exist  between  the  two  nations."     Democracy  in 
America,  c.  5. 

1  "  It  seems  to  be  generally  conceded  that  powers  of  local  legislation  may  be 
granted  to  cities,  towns,  and  other  municipal  corporations.  And  it  would  require 
strong  reasons  to  satisfy  us  that  it  could  have  been  the  design  of  the  framers  of 
our  constitution  to  take  from  the  legislature  a  power  which  has  been  exercised  in 
Europe  by  governments  of  all  classes  from  the  earliest  history,  and  the  exercise 
of  which  has  probably  done  more  to  promote  civilization  than  all  other  causes 
combined ;  which  has  been  constantly  exercised  in  every  part  of  our  country 
from  its  earliest  settlement,  and  which  has  raised  up  among  us  many  of  our  most 
valuable  institutions."  State  v.  Noyes,  10  Fost.  292,  per  Bell,  J.  See  also 
Tanner  v.  Trustees  of  Albion,  5  Hill,  121 ;  Dalby  v.  Wolf,  14  Iowa,  228;  State 
v.  Simonds,  3  Mo.  414;  McKee  v.  McKee,  8  B.  Monr.  433;  Smith  v.  Levinus, 
8  N.  Y.  472  ;  People  v.  Draper,  15  N.  Y.  532  ;  Burgess  v.  Pue,  2  Gill,  11 ;  New 
Orleans  u.Turpin,  13  La.  An.  56;  Gilkeson  v.  The  Frederick  Justices,  13  Grat. 
577 ;  Mayor,  &c,  of  New  York  v.  Ryan,   2  E.  D.  Smith,  368 ;  St.  Louis  v. 

[210] 


CH.  VIII.]  THE   GEADES   OF    MUNICIPAL    GOVERNMENT.  *  191 

The  people  of  the  municipalities,  however,  do  not  define  for 
themselves  their  own  rights,  privileges,  and  powers,  nor  is  there 
any  common  law  which  draws  any  definite  line  of  distinction  be- 
tween the  powers  which  may  be  exercised  by  the  State  and  those 
which  must  be  left  to  the  local  governments.1  The  municipalities 
must  look  to  the  State  for  such  charters  of  government  as  the 
legislature  shall  see  fit  to  provide  ;  and  they  cannot  prescribe  for 
themselves  the  details,  though  they  have  a  right  to  expect  that 
those  charters  will  be  granted  with  a  recognition  of  the 
general  *  principles  with  which  we  are  familiar.  The  [*  192] 
charter,  or  the  general  law  under  which  they  exercise 
their  powers,  is  their  constitution,  in  which  they  must  be  able  to 
show  authority  for  the  acts  they  assume  to  perform.  They  have 
no  inherent  jurisdiction  to  make  laws  or  adopt  regulations  of  gov- 
ernment; they  are  governments  of  enumerated  powers,  acting  by 
a  delegated  authority  ;  so  that  while  the  State  legislature  may 
exercise  such  powers  of  government  coming  within  a  proper  desig- 
nation of  legislative  power  as  are  not  expressly  or  impliedly  pro- 
hibited, the  local  authorities  can  exercise  those  only  which  are 
expressly  or  impliedly  conferred,  and  subject  to  such  regulations 
or  restrictions  as  are  annexed  to  the  grant.2 

The  creation  of  municipal  corporations,  and  the  conferring 
upon  them  of  certain  powers  and  subjecting  them  to  correspond- 
ing duties,  does  not  deprave  the  legislature  of  the  State  of  that 
general  control  over  their  citizens  which  was  before  possessed. 
It  still  lias  authority  to  amend  their  charters,  enlarge  or  diminish 
their  powers,  extend  or  limit  their  boundaries,  consolidate  two  or 
more  into  one,  overrule   their  legislative  action  whenever  it  is 

Russell,  9  Mo.  503;  Bliss  v.  Kraus,  16  Ohio,  n.  8.  55;  Trigally  v.  Memphis, 
6  Cold.  382 ;  Durach's  Appeal,  63  Penn.  St.  491 ;  State  v.  Wilcox,  45  Mo.  458  ; 
Jones  v.  Richmond,  18  Grat.  517  ;  State  v.  Neill,  24  Wis.  149 ;  Bradley  v. 
M'Atee,  7  Bush,  667  ;  s.  c.  3  Am.  Rep.  309 ;  Burckholter  v.  M'Connellsville, 
20  Ohio,  308 ;  People  v.  Hurlbut,  24  Mich.  108 ;  Mills  v.  Charleton,  29  Wis. 
415. 

1  As  to  the  common  law  affecting  these  corporate  existences,  and  the  effect 
of  usage,  see  2  Kent,  278,  279. 

2  Stetson  v.  Kempton,  13  Mass.  272 ;  Willard  v.  Killingworth,  8  Conn.  254 ; 
Abendrpth  v.  Greenwich,  29  Conn.  363 ;  Baldwin  v.  North  Branford,  32  Conn. 
47;  Webster  v.  Harwinton,  ib.  131;  Douglass  v.  Placerville,  18  Cal.  643;  Lack- 
land v.  Northern  Missouri  Railroad  Co.,  31  Mo.  180 ;  Mays  v.  Cincinnati,  1  Ohio, 
N.  s.  268 ;  Frost  v.  Belmont,  6  Allen,  152 ;  Hess  v.  Pegg,  7  Nev.  23. 

[211] 


*  192  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

deemed  unwise,  impolitic,  or  unjust,  and  even  abolish  them  alto- 
gether in  the  legislative  discretion.1     The  rights  and  franchises  of 

such  a  corporation,  being  granted  for  the  purposes  of  the 
[*  193]  government,  can   never  *  become  such  vested  rights    as 

against  the  State  that  they  cannot  be  taken  away  ;  nor 
does  the  charter  constitute  a  contract  in  the  sense  of  the  constitu- 
tional provision  which  prohibits  the  obligation  of  contracts  being 
violated.2     Restraints  on  the  legislative  power  of  control  must  be 

1  St.  Louis  v.  Allen,  13  Mo.  400;  Coles  v.  Madison  Co.,  Breese,  115;  Rich- 
land County  v.  Lawrence  County,  12  111.  1 ;  Trustees  of  Schools  v.  Tatman,  13 
111.  27  ;  Robertson  v.  Rockford,  21  111.  1 ;  People  v.  Power,  25  III  187  ;  St.  Louis 
v,  Russell,  9  Mo.  503 ;  State  v.  Cowan,  29  Mo.  330 ;  McKim  v.  Odorn,  3  Bland, 
407  ;  Granby  v.  Thurston,  23  Conn.  41G  ;  Harrison  Justices  v.  Holland,  3  Grat. 
247 ;  Brighton  v.  Wilkinson,  2  Allen,  27 ;  Sloan  v.  State,  8  Blackf.  361 ;  Mills 
v.  Williams,  11  Ired.  558;  Langworthy  v.  Dubuque,  16  Iowa,  271;  Weeks  v. 
Milwaukee,  10  Wis.  242  ;  State  v.  Branin,  3  Zab.  484;  Patterson  v.  Society,  &c, 
4  Zab.  385;  Atchison  v.  Bartholow,  4  Kansas,  124;  City  of  St.  Louis  v.  Caffe- 
rata,  24  Mo.  94 ;  People  v.  Draper,  15  N.  Y.  532 ;  Aspinwall  v.  Commissioners, 
&c,  22  How.  364;  Howard  v.  McDiamid,  26  Ark.  100;  Philadelphia  v.  Fox, 
64  Penn.  St.  169 ;  Bradshaw  v.  Omaha,  1  Neb.  16 ;  Kuhn  v.  Board  of  Educa- 
tion, 4  W.  Va.  499;  Sinton  v.  Ashbury,  41  Cal.  530;  Hess  v.  Pegg,  7  Nev.  23. 
The  legislature  may  in  its  discretion  recall  to  itself  and  exercise  so  much  of 
such  powers  as  it  has  conferred  upon  municipal  corporations  as  is  not  secured  to 
them  by  the  constitution.  People  v.  Pinkney,  32  N.  Y.  377.  The  creditors  of  a 
county  cannot  prevent  the  legislature  reducing  its  limits,  notwithstanding  their 
security  may  be  diminished  thereby.  Wade  v.  Richmond,  18  Grat.  583.  This 
power  is  not  defeated  or  effected  by  the  circumstance  that  the  municipal  corpo- 
ration was  by  its  charter  made  the  trustee  of  a  charity ;  and  in  such  case,  if  the 
corporation  is  abolished,  the  Court  of  Chancery  may  be  empowered  and  directed 
by  the  repealing  act  to  appoint  a  new  trustee  to  take  charge  of  the  property  and 
execute  the  trust.  Montpelier  v.  East  Montpelier,  29  Vt.  12.  And  see  Harri- 
son v.  Bridgeton,  16  Mass.  16 ;  Montpelier  Academy  v.  George,  14  La.  An. 
406 ;  Reynolds  v.  Baldwin,  1  La.  An.  162 ;  Police  Jury  v.  Shreveport,  5  La.  An. 
665.  But  neither  the  identity  of  a  corporation,  nor  its  right  to  take  property  by 
devise,  is  destroyed  by  a  change  in  its  name,  or  enlargement  of  its  area,  or  an 
increase  in  the  number  of  its  corporators.  Girard  v.  Philadelphia,  7  Wall.  1. 
Changing  a  borough  into  a  city  does  not  of  itself  abolish  or  affect  the  existing 
borough  ordinances.  Trustees  of  Erie  Academy  v.  City  of  Erie,  31  Penn.  St.  515. 
Nor  will  it  affect  the  indebtedness  of  the  corporation,  which  will  continue  to  be 
its  indebtedness  under  its  new  organization.  Olney  v.  Harvey,  50  111.  453.  A 
general  statute,  containing  a  clause  repealing  all  statutes  contrary  to  its  provi- 
sions, does  not  repeal  a  clause  in  a  municipal  charter  on  the  same  subject.  State 
v.  Branin,  3  Zab.  484. 

2  This  principle  was  recognized  by  the  several  judges  in  Dartmouth  College 
».  Woodward,  4  Wheat.  518.     And  see  People  v.  Morris,  13  Wend.  331 ;  St. 

[212] 


CH.  VIII.]  THE  GRADES   OP   MUNICIPAL   GOVERNMENT.  *  193 

found  in  the  constitution  of  the  State,  or  they  must  rest  alone  in 
the  legislative  discretion.1  If  the  legislative  action  in  these  cases 
operates  injuriously  to  the  municipalities  or  to  individuals,  the 
remedy  is  not  with  the  courts.  The  courts  have  no  power  to  inter- 
fere, and  the  people  must  be  looked  to,  to  right  through  the  ballot- 
Louis  v.  Russell,  9  Mo.  507  ;  Montpelier  v.  East  Montpelier,  29  Vt.  12 ;  Trustees 
of  Schools  v.  Tatman,  13  111.  30;  Brighton  v.  Wilkinson,  2  Allen,  27;  Reynolds 
v.  Baldwin,  1  La.  An.  162;  Police  Jury  v.  Shreveport,  5  La.  An.  665;  Mt.  Car- 
mel  v.  Wabash  County,  50  111.  69  ;  Dillon,  Mun.  Corp.  §§  24,  30,  37. 

1  "  Where  a  corporation  is  the  mere  creature  of  legislative  will,  established 
for  the  general  good  and  endowed  by  the  State  alone,  the  legislative  may,  at 
pleasure,  modify  the  law  by  which  it  was  created.  For  in  that  case  there  would 
be  but  one  party  affected,  —  the  government  itself,  —  and  therefore  not  a  con- 
tract within  the  meaning  of  the  constitution.  The  trustees  of  such  a  corporation 
would  be  the  mere  mandatories  of  the  State,  having  no  personal  interest  involved, 
and  could  not  complain  of  any  law  that  might  abridge  or  destroy  their  agency." 
Montpelier  Academy  v.  George,  14  La.  An.  406.  In  Trustees  of  Schools  v. 
Tatman,  13  111.  30,  the  court  say:  "Public  corporations  are  but  parts  of  the 
machinery  employed  in  carrying  on  the  affairs  of  the  State  ;  and  they  are  subject 
to  be  changed,  modified,  or  destroyed,  as  the  exigencies  of  the  public  may 
demand.  The  State  may  exercise  a  general  superintendence  and  control  over 
them  and  their  rights  and  effects,  so  that  their  properly  is  not  diverted  from  the 
uses  and  objects  for  which  it  was  given  or  purchased."  It  is  a  lawful  exercise 
of  legislative  authority  upon  the  division  of  counties,  towns,  &c,  to  confer  a 
part  of  the  corporate  property  of  the  old  corporation  upon  the  new,  and  to 
direct  the  old  body  to  pay  it  over  to  the  new.  Harrison  v.  Bridgeton,  16  Mass. 
16 ;  Bristol  v.  New  Chester,  3  N.  H.  524  ;  Milwaukee  Town  v.  Milwaukee  City, 
12  Wis.  93 ;  Marshall  Co.  Court  v.  Calloway  Co.  Court,  3  Bush,  93.  But  it 
seems  that  this  apportionment  of  property  can  only  be  made  at  the  time  of  the 
division.  Windham  v.  Portland,  4  Mass.  390 ;  Hampshire  v.  Franklin,  16  Mass. 
76.  See  Richland  v.  Lawrence,  12  111.  8;  Bowdoinham  v.  Richmond,  6  Greenl. 
112.  In  the  latter  case,  it  was  held  that  the  apportionment  of  debts  between  an 
old  town  and  one  created  from  it  was  in  the  nature  of  a  contract ;  and  it  was  not 
in  the  power  of  the  legislature  afterwards  to  release  the  new  township  from  pay- 
ment of  its  share  as  thus  determined.  But  the  case  of  Layton  v.  New  Orleans, 
12  La.  An.  515,  is  contra.  See  also  Borough  of  Dunmore's  Appeal,  52  Penn.  St. 
374,  which  in  principle  seems  to  accord  with  the  Louisiana  case.  In  Burns  v- 
Clarion  County,  62  Penn.  St.  422,  it  was  held  the  legislature  had  the  power  to 
open  a  settlement  made  by  county  creditors  with  the  county  treasurer,  and  to 
compel  them  to  settle  with  him  on  principles  of  equity.  See  further  Cambridge 
V.  Lexington,  17  Pick.  222 ;  Attorney-General  v.  Cambridge,  16  Gray,  247  ; 
Clark  v.  Cambridge,  &c,  Bridge  Proprietors,  104  Mass.  236.  The  legislature 
has  power  to  lay  out  a  road  through  several  towns,  and  apportion  the  expense 
between  them.  Waterville  v.  Kennebeck  County,  59  Me.  80;  Commonwealth 
v.  Newburyport,  103  Mass.  129. 

[  213  ] 


*  193  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

box  all  these  wrongs.1     This  is  the  general  rule  ;  and  the  excep- 
tions to  it  are  not  numerous,  and  will  be  indicated  hereafter. 

[*194]  *  Powers  of  Public  Corporations. 

The  powers  of  these  corporations  are  either  express  or  implied. 
The  former  are  those  which  the  legislative  act  under  which  they 
exist  confers  in  express  terms ;  the  latter  are  such  as  are  neces- 
sary in  order  to  carry  into  effect  those  expressly  granted,  and 
which  must,  therefore,  be  presumed  to  have  been  within  the  inten- 
tion of  the  legislative  grant.2  Certain  powers  are  also  incidental 
to  corporations,  and  will  be  possessed  unless  expressly  or  by 
implication  prohibited.  Of  these  an  English  writer  has  said : 
"  A  municipal  corporation  lias  at  common  law  few  powers  beyond 
those  of  electing,  governing,  and  removing  its  members,  and  reg- 
ulating its  franchises  and  property.     The  power  of  its  governing 

1  "  The  correction  of  these  abuses  is  as  readily  attained  at  the  ballot-box 
as  it  would  be  by  subjecting  it  to  judicial  revision.  A  citizen  or  a  number  of 
citizens  may  be  subtracted  from  a  county  free  from  debt,  having  no  taxation  for 
county  purposes,  and  added  to  an  adjacent  one,  whose  debts  are  heavy,  and 
whose  taxing  powers  are  exercised  to  the  utmost  extent  allowed  by  law,  and  this, 
too,  without  consulting  their  wishes.  It  is  done  every  day.  Perhaps  a  majority 
of  the  people,  thus  annexed  to  an  adjacent  or  thrown  into  a  new  county  by  the 
division  of  an  old  one,  may  have  petitioned  the  legislature  for  this  change ;  but 
this  is  no  relief  to  the  outvoted  minority,  or  the  individual  who  deems  himself 
oppressed  and  vexed  by  the  change.  Must  we,  then,  to  prevent  such  occasional 
hardships,  deny  the  power  entirely  ? 

"  It  must  be  borne  in  mind  that  these  corporations,  whether  established  over 
cilies,  counties,  or  townships  (where  such  incorporated  subdivisions  exist),  are 
never  intrusted  and  can  never  be  intrusted  with  any  legislative  power  inconsist- 
ent or  conflicting  with  the  general  laws  of  the  land,  or  derogatory  to  those  rights 
either  of  person  or  property  which  the  constitution  and  the  general  laws  guarantee. 
They  are  strictly  subordinate  to  the  general  laws,  and  merely  created  to  carry 
out  the  purposes  of  those  laws  with  more  certainty  and  efficiency.  They  may 
be  and  sometimes  are  intrusted  with  powers  which  properly  appertain  to  private 
corporations,  and  in  such  matters  their  power  as  mere  municipal  corporations 
ceases."     City  of  St.  Louis  v.  Allen,  13  Mo.  414. 

2  2  Kent,  278,  note;  Halstead  v.  Mayor,  &c,  of  New  York,  3  N.  Y.  433; 
Hodges  v.  Buffalo,  2  Denio,  112  ;  New  London  v.  Brainerd,  22  Conn.  552 ;  State 
v.  Ferguson,  33  N.  H.  424;  McMillan  v.  Lee  County,  3  Iowa,  311;  La  Fayette 
v.  Cox,  5  Ind.  38;  Clark  v.  Des  Moines,  19  Iowa,  212;  State  v.  Morristown, 
33  N.  J.  63 ;  Beaty  v.  Knowler,  4  Pet.  162 ;  Mills  v.  Gleason,  11  Wis.  470.  In 
this  last  case,  it  was  held  that  these  corporations  had  implied  power  to  borrow 
money  for  corporate  purposes.     And  see  also  Ketcham  v.  Buffalo,  14  N.  Y.  356. 

[214] 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  *  194 

officers  can  only  extend  to  the  administration  of  the  by-laws  and 
other  ordinances  by  which  the  body  is  regulated."  *  But  without 
being  expressly  empowered  so  to  do,  they  may  sue  and  be  sued ; 
may  have  a  common  seal ;  may  purchase  and  hold  lands 
and  other  *  property  for  corporate  purposes,  and  convey  [*  195] 
the  same ;  may  make  by-laws  whenever  necessary  to 
accomplish  the  design  of  the  incorporation,  and  enforce  the  same 
by  penalties ;  and  may  enter  into  contracts  to  effectuate  the  cor- 
porate purposes.2  Except  as  to  these  incidental  powers,  and  which 
need  not  be,  though  they  usually  are,  mentioned  in  the  charter,  the 
charter  itself,  or  the  general  law  under  which  they  exist,  is  the 
measure  of  the  authority  to  be  exercised. 

And  the  general  disposition  of  the  courts  in  this  country  has 
been  to  confine  municipalities  within  the  limits  that  a  strict  con- 
struction of  the  grants  of  powers  in  their  charters  will  assign  to 
them;  thus  applying  substantially  the  same  rule  that  is  applied  to 
charters  of  private  incorporation.3    The  reasonable  presumption  is 

1  Willcock  on  Municipal  Corporations,  tit.  769. 

2  Angell  and  Ames  on  Corp.  §§  111,  239;  2  Kyd  on  Corp.  102;  State  v. 
Ferguson,  33  N.  H.  430.  See  Dillon,  Mun.  Corp.  for  an  examination  in  the 
light  of  the  authorities  of  the  several  powers  here  mentioned. 

3  Under  a  city  charter  which  authorized  the  common  council  to  appoint  asses- 
sors for  the  purpose  of  awarding  damages  to  those  through  whose  property  a 
street  might  be  opened,  and  to  assess  such  damages  on  the  property  benefited, 
it  was  decided  that  the  council  were  not  empowered  to  levy  a  tax  to  pay  for  the 
other  expenses  of  opening  the  street.  Reed  v.  Toledo,  18  Ohio,  161.  So  a 
power  to  enact  by-laws  and  ordinances  to  abate  and  remove  nuisances  will  not 
authorize  the  passing  of  an  ordinance  to  prevent  nuisances,  or  to  impose  penalties 
for  the  creation  thereof.  Rochester  v.  Collins,  12  Barb.  559.  A  power  to  impose 
penalties  for  obstructions  to  streets  would  not  authorize  the  like  penalties  for 
encroachments  upon  streets,  where,  under  the  general  laws  of  the  State,  the 
offences  are  recognized  as  different  and  distinct.  Grand  Rapids  v.  Hughes,  15 
Mich.  54.  Authority  to  levy  a  tax  on  real  and  personal  estate  would  not  warrant 
an  income  tax,  especially  when  such  a  tax  is  unusual  in  the  State.  Mayor  of 
Savannah  v.  Hartridge,  8  Geo.  23.  It  will  appear,  therefore,  that  powers  near 
akin  to  those  expressly  conferred  are  not,  for  that  reason,  to  be  taken  by  impli- 
cation. And  see  Commonwealth  v.  Erie  and  X.  E.  Railroad  Co.,  27  Penn.  St. 
339.  This  rule  has  often  been  applied  where  authority  has  been  asserted  on 
behalf  of  a  municipal  corporation  to  loan  its  credit  to  corporations  formed  to 
construct  works  of  internal  improvement.  See  La  Fayette  v.  Cox,  5  Ind.  38. 
A  power  to  pass  ordinances  to  prohibit  the  sale  or  giving  away  of  intoxicating 
liquors  in  certain  special  cases  is  an  implied  exclusion  of  the  power  to  prohibit 
the  sale  or  giving  away  in  other  cases.  State  v.  Ferguson,  33  N.  H.  424.  In 
Dunham  v.  Rochester,  5  Cow.  465,  it  is  said:  "For  all  the  purposes  of  juris- 

[215] 


*  195  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

that  the  State  has  granted  in  clear  and  unmistakable  terms  all  it 

has  designed  to  grant  at  all. 
[*  196]  *  It  must  follow  that,  if  in  any  case  a  party  assumes  to 
deal  with  a  corporation  on  the  supposition  that  it  possesses 
powers  which  it  does  not,  or  to  contract  in  any  other  manner  than 
is  permitted  by  the  charter,  he  will  not  be  allowed,  notwithstand- 
ing he  may  have  complied  with  the  undertaking  on  his  part,  to 
maintain  a  suit  against  the  corporation  based  upon  its  unauthorized 
action.  Even  where  a  party  is  induced  to  enter  upon  work  for  a 
corporation  by  the  false  representations  of  corporate  officers,  in 
regard  to  the  existence  of  facts  on  which  by  law  the  power  of  the 
corporation  to  enter  upon  the  work  depends,  these  false  representa- 
tions cannot  have  the  effect  to  give  a  power  which  in  the  particular 
case  was  wanting,  or  to  validate  a  contract  otherwise  void,  and 
therefore  can  afford  no  ground  of  action  against  the  corporation ; 
but  every  party  contracting  with  it  must  take  notice  of  any  want 
of  authority  which  the  public  records  would  show.1     This  is  the 

i 

diction  corporations  are  like  the  inferior  courts,  and  must  show  the  power  given 
them  in  every  case.  If  this  be  wanting,  their  proceedings  must  be  holden  void 
whenever  they  come  in  question,  even  collaterally ;  for  they  are  not  judicial  and 
subject  to  direct  review  on  certiorari.  2  Kyd  on  Corp.  104-107."  See  also 
Milhau  v.  Sharp,  17  Barb.  435,  28  Barb.  228,  and  27  N.  Y.  611;  Douglass  v. 
Placerville,  18  Cal.  643 ;  Mount  Pleasant  v.  Breeze,  11  Iowa,  399 ;  Hooper  v. 
Emery,  14  Me.  375;  Mayor,  &c,  of  Macon  v.  Macon  and  Western  R.R.  Co., 
7  Geo.  224;  Hopple  v.  Brown,  13  Ohio,  n.  s.  311 ;  Lackland  v.  Northern  Mis- 
souri Railroad  Co.,  31  Mo.  180 ;  Smith  v.  Morse,  2  Cal.  524 ;  Bennett  v.  Borough 
of  Birmingham,  31  Penn.  St.  15;  Tucker  v.  Virginia  City,  4  Nev.  20;  Leaven- 
worth v.  Norton,  1  Kansas,  432 ;  Kyle  v.  Malin,  8  Ind.  34;  Johnson  v.  Philadel- 
phia, 60  Penn.  St.  451 ;  Kniper  v.  Louisville,  7  Bush,  599 ;  English  v.  Chicot 
County,  26  Ark.  454;  Pullen  v.  Raleigh,  68  N.  C.  451. 

1  The  common  council  of  Williamsburg  had  power  to  open,  regulate,  grade, 
and  pave  streets,  but  only  upon  petition  signed  by  one  third  of  the  persons  own- 
ing lands  within  the  assessment  limits.  A  party  entered  into  a  contract  with  the 
corporation  for  improving  a  street  upon  the  false  representations  of  the  council 
that  such  a  petition  had  been  presented.  Held,  that  the  provision  of  the  law 
being  public,  and  all  the  proceedings  leading  to  a  determination  by  the  council 
to  make  a  particular  improvement  being  matters  of  record,  all  persons  were 
chargeable  with  notice  of  the  law  and  such  proceedings  ;  and  that,  notwithstand- 
ing the  false  representations,  no  action  would  lie  against  the  city  for  work  done 
under  the  contract.  Swift  v.  Williamsburg,  24  Barb.  427.  "  If  the  plaintiff  can 
recover  on  the  state  of  facts  he  has  stated  in  his  complaint,  the  restrictions  and 
limitations  which  the  legislature  sought  to  impose  upon  the  powers  of  the  com- 
mon council  will  go  for  nothing.      And  yet  these  provisions  are  matters  of 

[216] 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  *  196 

general  rule,  and  the  cases  of  unauthorized  action  which  may  bind 
the  corporation  are  exceptional,  and  will  be  referred  to  further  on. 

substance,  and  were  designed  to  be  of  some  service  to  the  constituents  of  the 
common  council.  They  were  intended  to  protect  the  owners  of  lands  and  the 
tax-payers  of  the  city,  as  well  against  the  frauds  and  impositions  of  the  con- 
tractors who  might  be  employed  to  make  local  improvements,  as  against  the 
illegal  acts  of  the  common  council  themselves  in  employing  the  contractors. 
But  if  the  plaintiff  can  recover  in  this  action,  of  what  value  or  effect  are  all  these 
safeguards  ?  If  the  common  council  desire  to  make  a  local  improvement,  which 
the  persons  to  be  benefited  thereby,  and  to  be  assessed  therefor,  are  unwilling 
to  have  made,  the  consent  of  the  owners  may  be  wholly  dispensed  with,  accord- 
ing to  the  plaintiff's  theory.  The  common  council  have  only  to  represent  that 
the  proper  petition  has  been  presented  and  the  proper  proceedings  have  been 
taken,  to  warrant  the  improvement.  They  then  enter  into  the  contract.  The 
improvement  is  made.  Those  other  safeguards  for  an  assessment  of  the  ex- 
penses and  for  reviewing  the  proceedings  may  or  may  not  be  taken.  But  when 
the  work  is  completed  and  is  to  be  paid  for,  it  is  found  that  the  common  council 
have  no  authority  to  lay  any  assessment  or  collect  a  dollar  from  the  property 
benefited  by  the  improvement.  The  contractor  then  brings  his  action,  and 
recovers  from  the  city  the  damages  he  has  sustained  by  the  failure  of  the  city  to 
pay  him  the  contract  price.  The  ground  of  his  action  is  the  falsity  of  the  repre- 
sentations made  to  him.  But  the  truth  or  falsity  of  such  representations  might 
have  been  ascertained  by  the  party  with  the  use  of  the  most  ordinary  care  and 
diligence.  The  existence  of  the  proper  petition,  and  the  taking  of  the  necessary 
initiatory  steps  to  warrant  the  improvement,  were  doubtless  referred  to  and 
recited  in  the  contract  made  with  the  plaintiff.  And  he  thus  became  again  directly 
chargeable  with  notice  of  the  contents  of  all  these  papers.  It  is  obvious  that  the 
restrictions  and  limitations  imposed  by  the  law  cannot  be  thus  evaded.  The 
consent  of  the  parties  interested  in  such  improvements  cannot  be  dispensed  with  ; 
the  responsibility,  which  the  conditions  precedent  created  by  the  statute  impose, 
cannot  be  thrown  off  in  this  manner.  For  the  effect  of  doing  so  is  to  shift  entirely 
the  burden  of  making  these  local  improvements,  to  relieve]  those  on  whom  the 
law  sought  to  impose  the  expense,  and  to  throw  it  on  others  who  are  not  liable 
either  in  law  or  morals." 

So  where  the  charter  of  Detroit  provided  that  no  public  work  should  be  con- 
tracted for  or  commenced  until  an  assessment  had  been  levied  to  defray  the 
expense,  and  that  no  such  work  should  be  paid  or  contracted  to  be  paid  for, 
except  out  of  the  proceeds  of  the  tax  thus  levied,  it  was  held,  that  the  city  cor- 
poration had  no  power  to  make  itself  responsible  for  the  price  of  any  public 
work,  and  that  such  work  could  only  be  paid  for  by  funds  actually  in  the  hands 
of  the  city  treasurer,  provided  for  the  specific  purpose.  Goodrich  v.  Detroit,  12 
Mich.  279.  But  if  the  city  receives  the  fund  and  misappropriates  it,  it  will  be 
liable.     Lansing  v.  Van  Gorder,  24  Mich.  456. 

Parties  dealing  with  the  agents  or  officers  of  municipal  corporations  must,  at 
their  own  peril,  take  notice  of  the  limits  of  the  powers  both  of  the  municipal 
corporation,  and  of  those  assuming  to  act  on  its  behalf.     State  v.  Kirkley,  29 

[217] 


197  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 


[*  197]     *  Corporations  by  Prescription  and  Implication. 

The  origin  of  many  of  the  corporate  privileges  asserted  and 
enjoyed  in  England  is  veiled  in  obscurity,  and  it  is  more  than 
probable  that  in  some  instances  they  had  no  better  foundation  than 
an  uninterrupted  user  for  a  considerable  period.  In  other  cases 
the  regal  or  baronial  grant  became  lost  in  the  lapse  of  time,  and 
the  evidence  that  it  had  ever  existed  might  rest  exclusively  upon 
reputation,  or  upon  the  inference  to  be  drawn  from  the  exercise  of 
corporate  functions.  In  all  these  cases  it  seems  to  be  the  law  that 
the  corporate  existence  may  be  maintained  on  the  ground  of  pre- 
scription ;  that  is  to  say,  the  exercise  of  corporate  rights  for  a 
time  whereof  the  memory  of  man  runneth  not  to  the  contrary  is 
sufficient  evidence  that  such  rights  were  once  granted  by  com- 
petent authority,  and  are  therefore  now  exercised  by  right  and  not 
by  usurpation.1  And  this  presumption  concludes  the  crown,  not- 
withstanding the  maxim  that  the  crown  shall  lose  no  rights  by 
lapse  of  time.  If  the  right  asserted  is  one  of  which  a  grant  might 
be  predicated,  a  jury  is  bound  to  presume  a  grant  from  that  pre- 
scription.2 In  this  particular  the  claim  to  a  corporate  franchise 
stands  on  the  same  ground  as  any  claim  of  private  right  which 
requires  a  grant  for  its  support,  and  is  to  be  sustained  under 
the  same  circumstances  of  continuous  assertion  and  enjoyment.3 
And  even  the  grant  of  a  charter  by  the  crown  will  not  preclude 
the  claim  to  corporate  rights  by  prescription ;  for  a  new  charter 
does  not  extinguish  old  privileges.4 

A  corporation  may  also  be  established  upon  presumptive  evidence 
that  a  charter  has  been  granted  within  the  time  of  memory.  Such 
evidence  is  addressed  to  a  jury,  and  though  not  conclusive  upon 

Md.  85;  Gould  v.  Sterling,  23  N.  Y.  464;  Clark  v.  Des  Moines,  19  Iowa,  209; 
Veeder  v.  Lima,  19  Wis.  280;  Dillon,  Mun.  Corp.  §  381. 

1  Introduction  to  Willcock  on  Municipal  Corporations  ;  The  King  v.  Mayor, 
&c,  of  Stratford  upon  Avon,  14  East,  360 ;  Robie  v.  Sedgwick,  35  Barb.  326. 
See  Londonderry  v.  Andover,  28  Vt.  416. 

2  Mayor  of  Hull  v.  Horner,  Cowp.  108,  per  Lord  Mansfield.  Compare 
People  v.  Maynard,  15  Mich.  470 ;  State  v.  Bunker,  59  Me.  366. 

3  2  Kent,  277  ;  Angell  and  Ames  on  Corp.  §  70  ;  1  Kyd  on  Corp.  14. 

4  Hadduck's  Case,  T.  Raym.  439  ;  The  King  v.  Mayor,  &c,  of  Stratford  upon 
Avon,  14  East,  360  ;  Bow  v.  Allenstown,  34  N.  H.  366.  See  Jameson  v.  People, 
16  111.  259. 

[218] 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  *  197 

them,  yet  if  it  reasonably  satisfies  their  minds,  it  will  justify  them 
in  a  verdict  finding  the  corporate  existence.     "  There  is  a  great 
difference,"  says  Lord  Mansfield,  "  between  length  of  time  which 
operates  as  a  bar  to  a  claim,  and  that  which  is  »only  used  by  way 
of  evidence.    A  jury  is  concluded  by  length  of  time  which  operates 
as  a  bar ;  as  where  the  statute  of  limitations  is  pleaded  to  a  debt ; 
though  the  jury  is  satisfied  that  the  debt  is  still  due  and  unpaid,  it 
is  still  a  bar.    So  in  the  case  of  presumption.     If  it  be  time  out  of 
mind,  a  jury  is  bound  to  preclude  the  right  from  that  prescription, 
if  there  could  be  a  legal  commencement  of  the  right.     But  any 
written  evidence,  showing  that  there  was  a  time  when  the  prescrip- 
tion did  not  exist,  is  an  answer  to  a  claim  founded  on  prescription. 
But  length  of  time  used  merely  by  way  of  evidence  may  be  left  to 
the  consideration  of  the  jury,  to  be  credited  or  not,  and  to  draw 
their  inference  one  way  or  the  other  according  to  circumstances."  1 
The  same  ruling  has  been  had  in  several  cases  in  the  courts  of 
this  country,  where  corporate  powers  had  been  exercised,  but  no 
charter  could  be  produced.    In  one  of  these  cases  common  reputa- 
tion that  a  charter  had  once  existed  was  allowed  to  be  given  to  the 
jury ;  the  court  remarking  upon  the  notorious  fact  that  two  great 
fires  in  the  capital  of  the  colony  had  destroyed  many  of  the  public 
records.2     In  other  cases  there  was  evidence  of  various  acts  which 
could  only  lawfully  and  properly  be  done  by  a  corporation,  cover- 
ing a  period  of  thirty,  forty,  or  fifty  years,  and  done  with  the 
knowledge  of  the  State  and  without  question.3     The  inference  of 
corporate  powers,  however,  is  not  one  of  law  ;  but  is  to  be  drawn 
as  a  fact  by  the  jury.4 

Wherever  a  corporation  is  found  to  exist  by  prescription,  the 
same  rule  as  to  construction  of  powers,  we  apprehend, 
would  apply  as  in  other  cases.     *  The  presumption  as  to  [*  198] 
the  powers  granted  would  be  limited  by  the  proof  of  the 

1  Mayor  of  Hull  v.  Horner,  Cowp.  108,  109  ;  citing,  among  other  cases,  Bedle 
v.  Beard,  12  Co.  5. 

2  Dillingham  v.  Snow,  5  Mass.  552.  And  see  Bow  v.  Allenstown,  34  N.  H. 
351. 

3  Stockbridge  v.  West  Stockbridge,  12  Mass.  400;  New  Boston  v.  Dumbarton, 
13  N.  H.  409,  and  15  N.  H.  201;  Bow  v.  Allenstown,  34  N.  H.  351;  Trott  v. 
Warren,  2  Fairf.  227. 

4  New  Boston  v.  Dunbarton,  15  N.  H.  201 ;  Bow  v.  Allenstown,  34  N.  H.  351 ; 
Mayor  of  Hull  v.  Horner,  14  East,  102. 

[219] 


*  198  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

usage,  and  nothing  could  be  taken  by  intendment  which  the  usage 
did  not  warrant. 

Corporations  are  also  said  sometimes  to  exist  by  implication. 
When  that  power  in  the  State  which  can  create  corporations  grants 
to  individuals  such  property,  rights,  or  franchises,  or  imposes  upon 
them  such  burdens,  as  can  only  be  properly  held,  enjoyed,  con- 
tinued, or  borne,  according  to  the  terms  of  the  grant,  by  a  corporate 
entity,  the  intention  to  create  such  corporate  entity  is  to  be  pre- 
sumed, and  corporate  capacity  is  held  to  be  conferred  so  far  as  is 
necessary  to  effectuate  the  purpose  of  the  grant  or  burden.  On 
this  subject  it  will  be  sufficient  for  our  purpose  to  refer  to  authori- 
ties named  in  the  note.1  In  these  cases  the  rule  of  strict  con- 
struction of  corporate  powers  applies  with  unusual  force. 

Municipal  By-Laws. 

The  power  of  municipal  corporations  to  make  by-laws  is  limited 
in  various  ways. 

1.  It  is  controlled  by  the  Constitution  of  the  United  States  and 
of  the  State.  The  restrictions  imposed  by  those  instruments,  and 
which  directly  limit  the  legislative  power  of  the  State,  rest  equally 
upon  all  the  instruments  of  government  created  by  the  State.  If 
a  State  cannot  pass  an  ex  post  facto  law,  or  law  impairing  the  obli- 
gation of  contracts,  neither  can  any  agency  do  so  which  acts  under 
the  State  with  delegated  authority.2  By-laws,  therefore,  which 
in  their  operation  would  be  ex  post  facto,  or  violate  contracts,  are 

1  Dyer,  400,  cited  by  Lord  Kenyon,  in  Russell  v.  Men  of  Devon,  2  T.  R.  672, 
and  in  2  Kent,  276;  Viner's  Abr.  tit.  "Corporation";  Conservators  of  River 
Tone  v.  Ash,  10  B.  &  C.  349 ;  s.  c.  ib.  383,  citing  case  of  Sutton  Hospital, 
10  Co.  28 ;  per  Kent,  Chancellor,  in  Denton  v.  Jackson,  2  Johns.  Ch.  325 ; 
Coburn  v.  Ellenwood,  4  N.  H.  101;  Atkinson  v.  Bemis,  11  N.  H.  46;  North 
Hempstead  v.  Hempstead,  2  Wend.  109 ;  Thomas  v.  Dakin,  22  Wend.  9 ;  per 
Shaiv,  Ch.  J.,  in  Stebbins  v.  Jennings,  10  Pick.  188;  Mahony  v.  Bank  of  the 
State,  4  Ark.  620. 

2  Angell  and  Ames  on  Corporations,  §332;  Stuyvesant «.  Mayor,  &c,  of  New 
York,  7  Cow.  588;  Brooklyn  Central  Railroad  Co.  v.  Brooklyn  City  Railroad 
Co.,  32  Barb.  358;  Illinois  Conference  Female  College  v.  Cooper,  25  111.  148. 
The  last  was  a  case  where  a  by-law  of  an  educational  corporation  was  held  void, 
as  violating  the  obligation  of  a  contract  previously  entered  into  by  the  corpora- 
tion in  a  certificate  of  scholarship  which  it  had  issued.  See  also  Davenport,  &c, 
Co.  v.  Davenport,  13  Iowa,  229 ;  Saving  Society  v.  Philadelphia,  31  Penn.  St. 
175  ;  Haywood  v.  Savannah,  12  Geo.  404. 

[220] 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  *  198 

not  within  the  power  of  municipal  corporations  ;  and  whatever  the 
people  by  the  State  constitution  have  prohibited  the  State  govern- 
ment from  doing,  it  cannot  do  indirectly  through  the  local  govern- 
ments. 

2.  Municipal  by-laws  must  also  be  in  harmony  with  the  general 
laws  of  the  State,  and  with  the  provisions  of  the  municipal  charter. 
Whenever  they  come  in  conflict  with  either,  the  by-law  must  give 
way.1  The  charter,  however,  may  expressly  or  by  necessary  impli- 
cation exclude  the  general  laws  of  the  State  on  any  particular 
subject,  and  allow  the  corporation  to  pass  local  laws  at  discretion, 
which  may  differ  from  the  rule  in  force  elsewhere.2  But  in  these 
cases  the  control  of  the  State  is  not  excluded  if  the  legislature 
afterward  see  fit  to  exercise  it ;  nor  will  conferring  a  power 
upon  a  *  corporation  to  pass  by-laws  and  impose  penalties  [*  199] 
for  the  regulation  of  any  specified  subject  necessarily  super- 
sede the  State  law  on  the  same  subject,  but  the  State  law  and  the 
by-law  may  both  stand  together  if  not  inconsistent.3  Indeed, 
the  same  act  may  constitute  an  offence  against  both  the  State  and 
the  municipal  corporation,  and  may  be  punished  under  both  with- 
out violation  of  any  constitutional  principle.4 

1  Wood  v.  Brooklyn,  14  Barb.  428 ;  Mayor,  &c,  of  New  York  v.  Nichols,  4 
Hill,  209 ;  Petersburg  v.  Metzker,  21  111.  205 ;  Southport  v.  Ogden,  23  Conn. 
128;  Andrews  v.  Insurance  Co.,  37  Me.  256;  Canton  v.  Nist,  9  Ohio,  N.  s.  439; 
Carr  v.  St.  Louis,  9  Mo.  191 ;  Commonwealth  v.  Erie  and  Northeast  Railroad 
Co.,  27  Penn.  St.  339;  Burlington  v.  Kellar,  18  Iowa,  59;  Conwell  v.  O'Brien, 
11  Ind.  419  ;  March  v.  Commonwealth,  12  B.  Monr.  25.  See  Baldwin  v.  Green, 
10  Mo.  410 ;  Cowen  v.  West  Troy,  43  Barb.  48 ;  State  v.  Georgia  Medical 
Society,  38  Geo.  629 ;  Pesterfield  v.  Vickers,  3  Cold.  205 ;  Mays  v.  Cincinnati, 
1  Ohio,  N.  s.  268 ;  Wirth  v.  Wilmington,  68  N.  C.  24. 

2  State  v.  Clarke,  1  Dutch.  54.  Peculiar  and  exceptional  regulations  may 
even  be  made  applicable  to  particular  portions  of  a  city  only,  and  yet  not  be 
invalid.  Goddard,  Petitioner,  16  Pick.  504  ;  Commonwealth  v.  Patch,  97  Mass. 
222,  per  Hoar,  J. ;  St.  Louis  v.  Weber,  44  Mo.  547. 

3  City  of  St.  Louis  v.  Bentz,  11  Mo.  61 ;  City  of  St.  Louis  v.  Cafferata,  24 
Mo.  97 ;  Rogers  v.  Jones,  1  Wend.  261 ;  Levy  v.  State,  6  Ind.  281 ;  Mayor,  &c, 
of  Mobile  v.  Allaire,  14  Ala.  400. 

4  Such  is  the  clear  weight  of  authority,  though  the  decisions  are  not  uniform. 
In  Rogers  v.  Jones,  1  Wend.  261,  it  is  said:  "  But  it  is  said  that  the  by-law  of 
a  town  or  corporation  is  void,  if  the  legislature  have  regulated  the  subject  by  law. 
If  the  legislature  have  passed  a  law  regulating  as  to  certain  things  in  a  city,  I 
apprehend  the  corporation  are  not  thereby  restricted  from  making  further  reg- 
ulations. Cases  of  this  kind  have  occurred  and  never  been  questioned  on  that 
ground ;  it  is  only  to  notice  a  case  or  two  out  of  many.    The  legislature  have 

[221] 


*  200  CONSTITUTIONAL    LIMITATIONS.  [CH.  VIII. 

[*  200]       *  3.  Municipal  by-laws  must  also  be  reasonable.    When- 
ever they  appear  not  to  be  so,  the  court  must,  as  a  matter 

imposed  a  penalty  of  one  dollar  for  servile  labor  on  Sunday ;  the  corporation  of 
New  York  have  passed  a  by-law  imposing  the  penalty  of  five  dollars  for  the  same 
offence.  As  to  storing  gunpowder  in  New  York,  the  legislature  and  corporation 
have  each  imposed  the  same  penalty.  Suits  to  recover  the  penalty  have  been 
sustained  under  the  corporation  law.  It  is  believed  that  the  ground  has  never 
been  taken  that  there  was  a  conflict  with  the  State  law.  One  of  these  cases  is 
reported  in  12  Johns.  122.  The  question  was  open  for  discussion,  but  not  noticed." 
In  Mayor,  &c,  of  Mobile  v.  Allaire,  14  Ala.  400,  the  validity  of  a  municipal  by- 
law imposing  a  fine  of  fifty  dollars,  for  an  assault  and  battery  committed  within 
the  city,  was  brought  in  question.  Collier,  Ch.  J.,  says,  p.  403  :  "  The  object  of 
the  power  conferred  by  the  charter,  and  the  purpose  of  the  ordinance  itself  was 
not  to  punish  for  an  offence  against  the  criminal  justice  of  the  country,  but  to 
provide  a  mere  police  regulation,  for  the  enforcement  of  good  order  and  quiet 
within  the  limits  of  the  corporation.  So  far  as  an  offence  has  been  committed 
against  the  public  peace  and  morals,  the  corporate  authorities  have  no  power  to 
inflict  punishment,  and  we  are  not  informed  that  they  have  attempted  to  arrogate 
it.  It  is  altogether  immaterial  whether  the  State  tribunal  has  interfered  and 
exercised  its  powers  in  bringing  the  defendant  before  it  to  answer  for  the  assault 
and  battery ;  for  whether  he  has  there  been  punished  or  acquitted  is  alike  unim- 
portant. The  offence  against  the  corporation  and  the  State  we  have  seen  are 
distinguishable  and  wholly  disconnected,  and  the  prosecution  at  the  suit  of  each 
proceeds  upon  a  different  hypothesis  ;  the  one  contemplates  the  observance  of  the 
peace  and  good  order  of  the  city  ;  the  other  has  a  more  enlarged  object  in  view, 
the  maintenance  of  the  peace  and  dignity  of  the  State."  See  also  Mayor,  &c, 
of  Mobile  v.  Rouse,  8  Ala.  515  ;  Intendant,  &c,  of  Greensboro  v.  Mullins,  13  Ala. 
341 ;  Mayor,  &c,  of  New  York  v.  Hyatt,  3  E.  I).  Smith,  156  ;  People  v.  Stevens, 
13  Wend.  311 ;  Blatchley  v.  Moser,  15  Wend.  215  ;  Levy  v.  State,  6  Ind.  281 ; 
Ambrose  v.  State,  ib.  351;  Lawrenceburg  v.  Wuest,  16  Ind.  337;  Amboy  v. 
Sleeper,  31  111.  499  ;  St.  Louis  v.  Bentz,  11  Mo.  61 ;  St.  Louis  v.  Cafferata,  24 
Mo.  94;  Shafer  d.  Mumma,  17  Md.  331.  On  the  other  hand  it  was  held  in 
State  v .  Cowan,  29  Mo.  330,  that  where  a  municipal  corporation  was  authorized 
to  take  cognizance  of  and  punish  an  act  as  an  offence  against  its  ordinances 
which  was  also  an  offence  against  the  general  laws  of  the  State,  and  this  power 
was  exercised  and  the  party  punished,  he  could  not  afterwards  be  proceeded 
against  under  the  State  law.  "The  constitution,"  say  the  court,  "forbids  that 
a  person  shall  be  twice  punished  for  the  same  offence.  To  hold  that  a  party  can 
be  prosecuted  for  an  act  under  the  State  laws,  after  he  has  been  punished  for  the 
same  act  by  the  municipal  corporation  within  whose  limits  the  act  was  done, 
would  be  to  overthrow  the  power  of  the  General  Assembly  to  create  corporations 
to  aid  in  the  management  of  the  affairs  of  the  State.  For  a  power  in  the  State  to 
punish,  after  a  punishment  had  been  inflicted  by  the  corporate  authorities,  could 
only  find  a  support  in  the  assumption  that  all  the  proceedings  on  the  part  of  the 
corporation  were  null  and  void.  The  circumstance  that  the  municipal  authorities 
have  not  exclusive  jurisdiction  over  the  acts  which  constitute  offences  within  their 
[  222  ] 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL    GOVERNMENT.  *  200 

of  law,  declare  them  void.1  To  render  them  reasonable,  they 
should  tend  in  some  degree  to  the  accomplishment  of  the 
objects  for  which  the  corporation  *  was  created  and  its  [*  201] 
powers  conferred.  A  by-law,  that  persons  chosen  annually 
as  stewards  of  the  Society  of  Scriveners  should  furnish  a  dinner 
on  election  day  to  the  freemen  of  the  society,  —  the  freemen  not 
being  the  electors  nor  required  to  attend,  and  the  office  of  steward 
being  for  no  other  purpose  but  that  of  giving  the  dinner, —  was 

limits  does  not  affect  the  question.  It  is  enough  that  their  jurisdiction  is  not 
excluded.  If  it  exists,  — although  it  may  be  concurrent,  —  if  it  is  exercised,  it 
is  valid  and  binding  so  long  as  it  is  a  constitutional  principle  that  no  man  may  be 
punished  twice  for  the  same  offence."  This  case  seems  to  be  supported  by  State 
v.  Welch,  36  Conn.  216,  and  the  case  of  Slaughter  v.  People,  cited  below,  goes 
still  further.  Those  which  hold  that  the  party  may  be  punished  under  both  the 
State  and  the  municipal  law  are  within  the  principle  of  Fox  v.  State,  5  How.  410  ; 
Moore  v.  People,  14  How.  13.  And  see  Phillips  v.  People,  55  111.  429.  In 
Jefferson  City  v.  Courtmire,  9  Mo.  692,  it  was  held  that  authority  to  a  municipal 
corporation  to  "  regulate  the  police  of  the  city  "  gave  it  no  power  to  pass  an 
ordinance  for  the  punishment  of  indictable  offences.  And  in  Slaughter  v.  People, 
2  Doug.  (Mich.)  334,  it  was  held  not  competent  to  punish,  under  city  by-laws, 
an  indictable  offence. 

Where  an  act  is  expressly  or  by  implication  permitted  by  the  State  law,  it  can- 
not be  forbidden  by  the  corporation.  Thus,  the  statutes  of  New  York  established 
certain  regulations  for  the  putting  up  and  marking  of  pressed  hay.  and  provided 
that  such  hay  might  be  sold  without  deduction  for  tare,  and  by  the  weight  as 
marked,  or  any  other  standard  weight  that  should  be  agreed  upon.  It  was  held 
that  the  city  of  New  York  had  no  power  to  prohibit  under  a  penalty  the  sale  of 
such  hay  without  inspection  ;  this  being  obviously  inconsistent  with  the  statute 
which  gave  a  right  to  sell  if  its  regulations  were  complied  with.  Mayor,  &c,  of 
New  York  v.  Nichols,  4  Hill,  209. 

1  2  Kyd  on  Corporations,  107  ;  Davies  v.  Morgan,  1  Cromp.  &  J.  587  ;  Cham- 
berlain of  London  v.  Compton,  7  D.  &  R.  597  ;  Clark  v.  Le  Cren,  9  B.  &  C.  52; 
Gosling  v.  Veley,  12  Q.  B.  347 ;  Dunham  v.  Rochester,  5  Cow.  462  ;  Mayor,  &c, 
of  Memphis  v.  Winfield,  8  Humph.  707  ;  Hayden  v.  Noyes,  5  Conn.  391 ;  Waters 
v.  Leech,  3  Ark.  110  ;  White  v.  Mayor,  2  Swan,  364  ;  Ex  parte  Burnett,  30  Ala. 
461  ;  Craig  v.  Burnett,  32  Ala.  728;  Austin  v.  Murray,  16  Pick.  121;  Godard, 
Petitioner,  ib.  504 ;  Commonwealth  v.  Worcester,  3  Pick.  462 ;  Commissioners 
v.  Gas  Co.,  12  Penn.  St.  318;  State  v.  Jersey  City,  5  Dutch.  170;  Gallatin  v. 
Bradford,  1  Bibb,  209  ;  Carew  v.  Western  Union  Telegraph  Co.,  15  Mich.  525 ; 
State  v.  Freeman,  38  N.  H.  426  ;  Pedrick  v.  Bailey,  12  Gray,  161 ;  St.  Louis  v. 
Weber,  44  Mo.  550.  But  where  the  question  of  the  reasonableness  of  a  by-law 
depends  upon  evidence,  and  it  relates  to  a  subject  within  the  jurisdiction  of  the 
corporation,  the  court  will  presume  it  to  be  reasonable  until  the  contrary  is 
shown.     Commonwealth  v.  Patch,  97  Mass.  221.     And  see  St.  Louis  v.  Weber, 

[  223] 


*  201  CONSTITUTIONAL    LIMITATIONS.  [CH.  VIII. 

held  not  connected  with  the  business  of  the  corporation,  and  not 
tending  to  promote  its  objects,  and  therefore  unreasonable  and 
void.1  And  where  a  statute  permitted  a  municipal  corporation 
to  license  the  sale  of  intoxicating  drinks  and  to  charge  a  license 
fee  therefor,  a  by-law  requiring  the  payment  of  a  license  fee  of 
one  thousand  dollars  was  held  void  as  not  advancing  the  purpose 
of  the  law,  but  as  being  in  its  nature  prohibitory.2  And  if  a  cor- 
poration has  power  to  prohibit  the  carrying  on  of  dangerous  occu- 
pations within  its  limits,  a  by-law  which  should  permit  one  person 
to  carry  on  such  an  occupation  and  prohibit  another,  who  had  an 
equal  right,  from  pursuing  the  same  business  ;  or  which  should 
allow  the  business  to  be  carried  on  in  existing  buildings,  but  pro- 
hibit the  erection  of  others  for  it,  would  be  unreasonable.3  And 
a  right  to  license  an  employment  does  not  imply  a  right  to  charge 
a  license  fee  therefor  with  a  view  to  revenue,  unless  such  seems 
to  be  the  manifest  purpose  of  the  power  ;  but  the  authority  of  the 
corporation  will  be  limited  to  such  a  charge  for  the  license  as  will 
cover  the  necessary  expenses  of  issuing  it,  and  the  additional 
labor  of  officers  and  other  expenses  thereby  imposed.  A  license 
is  issued  under  the  police  power ;  but  the  exaction  of  a  license 
fee  with  a  view  to  revenue  would  be  an  exercise  of  the  power  of 
taxation ;  and  the  charter  must  plainly  show  an  intent  to  confer 
that  power,  or  the  municipal  corporation  cannot  assume  it.4 

1  Society  of  Scriveners  v.  Brooking,  3  Q.  B.  95.  See,  on  this  general  subject, 
Dillon,  Mun.  Corp.  §  251  to  264. 

2  Ex  parte  Burnett,  30  Ala.  461 ;  Craig  v.  Burnett,  32  Ala.  728. 

3  Mayor,  &c,  of  Hudson  v.  Thorne,  7  Paige,  261.  A  power  to  prevent  and 
regulate  the  carrying  on  of  manufactures  dangerous  in  causing  or  promoting  fires 
does  not  authorize  an  ordinance  prohibiting  the  erection  of  wooden  buildings 
within  the  city,  or  to  limit  the  size  of  buildings  which  individuals  shall  be  per- 
mitted to  erect  on  their  own  premises.  Ibid.  An  ordinance  for  the  destruction 
of  property  as  a  nuisance  without  a  judicial  hearing  is  void.  Darst  v.  People, 
51  111.  286.  An  ordinance  for  the  arrest  and  imprisonment  without  warrant  of 
a  person  refusing  to  assist  in  extinguishing  a  fire  is  void.  Judson  v.  Reardon, 
16  Minn.  431. 

4  State  v.  Roberts,  11  Gill  &  J.  506;  Mays  v.  Cincinnati,  1  Ohio,  n.  s.  268; 
Cincinnati  v.  Bryson,  15  Ohio,  Q2o ;  Freeholders  v.  Barber,  2  Halst.  64 ;  Kip  v. 
Paterson,  2  Dutch.  298;  Bennett  v.  Borough  of  Birmingham,  31  Penn.  St.  15; 
Commonwealth  v.  Stodder,  2  Cush.  562  ;  Chilvers  v.  People,  11  Mich.  43;  Mayor, 
&c,  of  Mobile  v.  Yuille,  3  Ala.  144;  Johnson  v.  Philadelphia,  60  Penn.  St.  451 ; 
State  w.Herod,  29  Iowa,  123;  Mayor,  &c,  of  New  York  v.  Second  Avenue 
R.R.  Co.,  32  N.  Y.  261.     Nevertheless,  the  courts  will  not  inquire  very  closely 

[  224] 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  *  202 

*A  by-law  to  be  reasonable  should  be  certain.  If  it  [*  202] 
affixes  a  penalty  for  its  violation,  it  would  seem  that  such 
penalty  should  be  a  fixed  and  certain  sum,  and  not  left  to  the  dis- 
cretion of  the  officer  or  court  which  is  to  impose  it  on  conviction  ; 
though  a  by-law  imposing  a  penalty  not  exceeding  a  certain  sum 
has  been  held  not  to  be  void  for  uncertainty.1 

So  a  by-law  to  be  reasonable  should  be  in  harmony  with  the 
general  principles  of  the  common  law.  If  it  is  in  general  re- 
straint of  trade,  —  like  the  by-law  that  no  person  shall  exercise 
the  art  of  painter  in  the  city  of  London,  not  being  free  of  the  com- 
pany of  painters,  —  it  will  be  void  on  this  ground.2  To  take  an 
illustration  from  a  private  corporation  :  it  has  been  held  that  a 
by-law  of  a  bank,  that  all  payments  made  or  received  by  the  bank 
must  be  examined  at  the  time,  and  mistakes  corrected  before  the 
dealer  leaves,  was  unreasonable  and  invalid,  and  that  a  recovery 
might  be  had  against  the  bank  for  an  over-payment  discovered 
afterwards,  notwithstanding  the  by-law.3     So  a  by-law  of  a  town, 

into  the  expense  of  a  license  with  a  view  to  adjudge  it  a  tax,  where  it  does  not 
appear  to  be  unreasonable  in  amount  in  view  of  its  purpose  as  a  regulation.  Ash 
v.  People,  11  Mich.  317  ;  Johnson  v.  Philadelphia,  60  Penn.  St.  451  ;  Burlington 
v.  Putnam  Ins.  Co.,  31  Iowa,  102.  And  in  some  cases  it  has  been  held  that 
license  fees  might  be  imposed  under  the  police  power  with  a  view  to  operate  as 
a  restriction  upon  the  business  or  thing  licensed.  Carter  v.  Dow,  16  Wis.  299; 
Tenney  v.  Lenz,  ib.  567.  But  in  such  cases,  where  the  right  to  impose  such 
license  fees  can  be  fairly  deduced  from  the  charter,  it  would  perhaps  be  safer  and 
less  liable  to  lead  to  confusion  and  difficulty  to  refer  the  corporate  authority  to 
the  taxing  power,  rather  than  exclusively  to  the  power  of  regulation.  See  Dun- 
ham v.  Trustees  of  Rochester,  5  Cow.  462,  upon  the  extent  of  the  police  power. 
Fees  which  are  imposed  under  the  inspection  laws  of  the  State  are  akin  to  license 
fees,  and  if  exacted  not  for  revenue,  but  to  meet  the  expenses  of  regulation,  are 
to  be  referred  to  the  police  power.  Cincinnati  Gas  Light  Co.  v.  State,  18  Ohio, 
N.  s.  243.     On  this  subject  in  general,  see  Dillon,  Mun.  Corp.  §  291  to  308. 

1  Mayor,  &c,  of  Huntsville  v.  Phelps,  27  Ala.  55,  overruling  Mayor,  &c,  of 
Mobile  v.  Yuille,  3  Ala.  144.     And  see  Piper  v.  Chappell,  14  M.  &  W.  624. 

2  Clark  v.  Le  Cren,  9  B.  &  C.  52 ;  Chamberlain  of  London  v.  Compton,  7  D; 
&  R.  597.  Compare  Hayden  v.  Noyes,  5  Conn.  391 ;  Willard  v.  Killingworth, 
8  Conn.  247.  But  a  by-law  is  not  void,  as  in  restraint  of  trade,  which  requires 
loaves  of  bread  baked  for  sale  to  be  of  specified  weight  and  properly  stamped, 
or  which  requires  bakers  to  be  licensed.  Mayor,  &c,  of  Mobile  v.  Yuille,  3 
Ala.  137. 

3  Mechanics  and  Farmers  Bank  v.  Smith,  19  Johns.  115;  Gallatin  v.  Brad- 
ord,  1  Bibb,  209.     Although  these  are  cases  of  private  corporations,  they  are 

cited  here  because  the  rules  governing  the  authority  to  make  by-laws  are  the 
same  with  both  classes  of  corporations. 

15  [  225  ] 


*  202  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

which,  under  pretence  of  regulating  the  fishery  of  clams  and 
oysters  within  its  limits,  prohibits  all  persons  except  the  inhabi- 
tants of  the  town  from  taking  shell-fish  in  a  navigable 
[*  .203]  river,  is  void  as  in  contravention  of  common  right.1  *And 
for  like  reasons  a  by-law  is  void  which  abridges  the  rights 
and  privileges  conferred  by  the  general  laws  of  the  State,  unless 
express  authority  therefor  can  be  pointed  out  in  the  corporate 
charter.2  And  a  by-law  which  assumes  to  be  a  police  regulation, 
but  deprives  a  party  of  the  use  of  his  property  without  regard  to 
the  public  good,  under  the  pretence  of  the  preservation  of  health, 
when  it  is  manifest  that  such  is  not  the  object  and  purpose  of  the 
regulation,  will  be  set  aside  as  a  clear  and  direct  infringement  of 
the  right  of  property  without  any  compensating  advantages.3 

1  Hayden  v.  Noyes,  5  Conn.  391.  As  it  had  been  previously  held  that  every 
person  has  a  common-law  right  to  fish  in  a  navigable  river  or  arm  of  the  sea, 
until  by  some  legal  mode  of  appropriation  this  common  right  was  extinguished, 
—  Peck  v.  Lockwood,  5  Day,  22, —  the  by-law  in  effect  deprived  every  citizen, 
except  residents  of  the  township,  of  rights  which  were  vested,  so  far  as  from  the 
nature  of  the  case  a  right  could  be  vested.  See  also  Marietta  v.  Fearing,  4 
Ohio,  427.  That  a  right  to  regulate  does  not  include  a  right  to  prohibit,  see 
also  Ex  ■parte  Burnett,  30  Ala.  461  ;  Austin  v.  Murray,  16  Pick.  121.  And  see 
Milhau  v.  Sharp,  17  Barb.  435,  28  Barb.  228,  and  27  N.  Y .  611. 

2  Dunham  v.  Trustees  of  Rochester,  5  Cow.  462;  Mayor,  &c,  of  New  York 
v.  Nichols,  4  Hill,  209.     See  Strauss  v.  Pontiac,  40  111.  301. 

3  By  a  by-law  of  the  town  of  Charlestown  all  persons  were  prohibited,  with- 
out license  from  the  selectmen,  from  burying  any  dead  body  brought  into  town 
on  any  part  of  their  own  premises  or  elsewhere  within  the  town.  By  the  court, 
Wilde,  J.  :  "  A  by-law  to  be  valid  must  be  reasonable;  it  must  be  legi,  Jidei, 
rationi  consona.  Now  if  this  regulation  or  prohibition  bad  been  limited  to  the 
populous  part  of  the  town,  and  were  made  in  good  faith  for  the  purpose  of  pre- 
serving the  health  of  the  inhabitants,  which  may  be  in  some  degree  exposed  to 
danger  by  the  allowance  of  interments  in  the  midst  of  a  dense  population,  it 
would  have  been  a  very  reasonable  regulation.  But  it  cannot  be  pretended  that 
this  by-law  was  made  for  the  preservation  of  the  health  of  the  inhabitants.  Its 
restraints  extend  many  miles  into  the  country,  to  the  utmost  limits  of  the  town. 
Now  such  an  unnecessary-restraint  upon  the  right  of  interring  the  dead  we  think 
essentially  unreasonable.  If  Charlestown  may  lawfully  make  such  a  by-law  as 
this,  all  the  towns  adjoining  Boston  may  impose  similar  restraints,  and  conse- 
quently all  those  who  die  in  Boston  must  of  necessity  be  interred  within  the 
precincts  of  the  city.  That  this  would  be  prejudicial  to  the  health  of  the  inhab- 
itants, especially  in  the  hot  seasons  of  the  year,  and  when  epidemic  diseases 
prevail,  seems  to  be  a  well-established  opinion.  Interments,  therefore,  in  cities 
and  large  populous  towns,  ought  to  be  discountenanced,  and  no  obstacles  should 
be  permitted  to  the  establishment  of  cemeteries  at  suitable  places  in  the  vicinity. 

[226] 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  *  204 


*  Delegation  of  Municipal  Powers.  [*  204] 

Another  and  very  important  limitation  which  rests  upon   mu- 
nicipal powers  is  that  they  shall  be  executed  by  the  municipality 

The  by-law  in  question  is  therefore  an  unreasonable  restraint  upon  many  of  the 
citizens  of  Boston,  who  are  desirous  of  burying  their  dead  without  the  city,  and 
for  that  reason  void.  And  this  by-law  would  seem  to  be  void  for  another  reason. 
A  by-law  for  the  total  restraint  of  one's  right  is  void ;  as  if  a  man  be  barred  of 
the  use  of  his  land.  Com.  Dig.  By-Law,  c.  4.  The  land  where  the  bodies  were 
interred  was  the  land  of  the  Catholic  Bishop  of  Boston,  purchased  by  him  in 
1830,  and  then  consecrated  as  a  Catholic  burying-ground,  and  has  ever  since 
been  used  as  such,  for  the  interment  of  Catholics  dying  in  Charlestown  and 
Boston.  It  is  true  the  by-law  does  not  operate  to  the  total  restraint  or  depriva- 
tion of  the  bishop's  right,  but  it  is  a  total  restraint  of  the  right  of  the  burying 
the  dead  in  Boston,  for  which  a  part  of  the  burying-ground  was  appropriated. 
The  illegality  of  the  by-law  is  the  same,  whether  it  may  deprive  one  of  the  use 
of  a  part  or  the  whole  of  his  property  ;  no  one  can  be  so  deprived,  unless  the 
public  good  requires  it.  And  the  law  will  not  allow  the  right  of  private  property 
to  be  invaded  under  the  guise  of  a  police  regulation  for  the  preservation  of 
health,  when  it  is  manifest  that  such  is  not  the  object  and  purpose  of  the  regula- 
tion. Xow  we  think  this  is  manifest  from  the  case  stated  in  regard  to  the  by-law 
in  question.  It  is  a  clear  and  direct  infringement  of  the  right  of  property, 
without  any  compensating  advantages,  and  not  a  police  regulation  made  in  good 
faith  for  the  preservation  of  health.  It  interdicts,  or  in  its  operation  necessarily 
intercepts,  the  sacred  use  to  which  the  Catholic  burying-ground  was  appropriated 
and  consecrated,  according  to  the  forms  of  the  Catholic  religion  ;  and  such  an 
interference,  we  are  constrained  to  say,  is  wholly  unauthorized  and  most  unreason- 
able." Austin  v.  Murray,  16  Pick.  125.  So  in  Wreford  v.  People,  14  Mich.  41, 
the  common  council  of  Detroit,  under  a  power  granted  by  statute  to  compel  the 
owners  and  occupants  of  slaughter-houses  to  cleanse  and  abate  them  whenever 
necessary  for  the  health  of  the  inhabitants,  assumed  to  pass  an  ordinance  alto- 
gether prohibiting  the  slaughtering  of  animals  within  certain  limits  in  the  city ; 
and  it  was  held  void.  See  further  State  v.  Jersey  City,  5  Dutch.  170.  Upon 
the  whole  subject  of  municipal  by-laws,  see  Angell  and  Ames  on  Corp.  c.  10; 
Grant  on  Corp.  76  et  seq.  See  also  Redfield  on  Railways  (3d  ed.),  Vol.  I.  p.  88  ; 
Dillon,  Mun.  Corp.  c.  12.  The  subject  of  the  reasonableness  of  by-laws  was 
considered  at  some  length  in  People  v.  Medical  Society  of  Erie,  24  Barb.  570, 
and  Same  v.  Same,  32  N.  Y.  187.  In  the  first  case  it  was  held  that  a  regulation 
subjecting  a  member  of  the  County  Medical  Society  to  expulsion,  for  charging 
less  than  the  established  fees,  was  unreasonable  and  void.  In  the  second,  it  was 
decided  that  where  a  party  had  the  prescribed  qualifications  for  admission  to  the 
societyr,  he  could  not  be  refused  admission,  on  the  ground  of  his  having  previous 
to  that  time  failed  to  observe  the  code  of  medical  ethics  prescribed  by  the  society 
for  its  members.  Municipal  by-laws  may  impose  penalties  on  parties  guilty  of  a 
violation  thereof,  but  they  cannot  impose  forfeiture  of  property  or  rights,  with- 

[227] 


*  205  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

itself,  or  by  such  agencies  or  officers  as  the  statute  has  pointed 
out.  So  far  as  its  functions  are  legislative,  they  rest  in  the  dis- 
cretion and  judgment  of  the  municipal  body  intrusted  with  them, 
and  that  body  cannot  refer  the  exercise  of  the  power  to  the  dis- 
cretion and  judgment  of  its  subordinates  or  of  any  other  author- 
ity. So  strictly  is  this  rule  applied,  that  when  a  city  charter 
authorized  the  common  council  of  the  city  to  make  by-laws  and 
ordinances  ordering  and  directing  any  of  the  streets  to  be  pitched, 

levelled,  paved,  flagged,  &c,  or  for  the  altering  or  repair- 
[*  205]  ing  the  *  same,  "  within  such  time  and  in  such  manner  as 

they  may  prescribe  under  the  superintendence  and  direc- 
tion of  the  city  superintendent,"  and  the  common  council  passed 
an  ordinance  directing  a  certain  street  to  be  pitched,  levelled,  and 
flagged,  "  in  such  manner  as  the  city  superintendent,  under  the 
direction  of  the  committee  on  roads  of  the  common  council,  shall 
direct  and  require,"  the  ordinance  was  held  void,  because  it  left 
to  the  city  superintendent  and  the  committee  of  the  common  coun- 
cil the  decision  which,  under  the  law,  must  be  made  by  the  council 
itself.  The  trust  was  an  important  and  delicate  one,  as  the  ex- 
penses of  the  improvement  were,  by  the  statute,  to  be  paid  by  the 
owners  of  the  property  in  front  of  which  it  was  made.  It  was  in 
effect  a  power  of  taxation  ;  and  taxation  is  the  exercise  of  sover- 
eign authority  ;  and  nothing  short  of  the  most  positive  and  explicit 
language  could  justify  the  court  in  holding  that  the  legislature 
intended  to  confer  such  a  power,  or  permit  it  to  be  conferred,  on  a 
city  officer  or  committee.  The  statute  in  question  not  only  con- 
tained no  such  language,  but,  on  the  contrary,  clearly  expressed 
the  intention  of  confining  the  exercise  of  this  power  to  the  com- 
mon council,  the  members  of  which  were  elected  by  and  respon- 
sible to  those  whose  property  they  were  thus  allowed  to  tax.1 

This  restriction,  it  will  be  perceived,  is  the  same  which  rests 
upon  the  legislative  power  of  the  State,  and  it  springs  from  the 

out  express  legislative  authority.  State  v.  Ferguson,  33  N.  H.  430 ;  Phillips  v. 
Allen,  41  Penn.  St.  481.  See  also  Kirk  v.  Nowell,  1  T.  R.  124 ;  White  v.  Tall- 
man,  2  Dutch.  67;  Hart  v.  Albany,  9  Wend.  588;  Peoria  v.  Calhoun,  29  111. 
317  ;  St.  Paul  v.  Coulter,  12  Minn.  41. 

1  Thompson  v.  Schermerhorn,  6  N.  Y.  92.  See  also  Smith  v.  Morse,  2  Cal. 
524 ;  Oakland  v.  Carpentier,  13  Cal.  540 ;  Whyte  v.  Nashville,  2  Swan,  3(34 ; 
East  St.  Louis  v.  Wehrung,  50  111.  28 ;  Rogers  v.  Collier,  43  Mo.  359 ;  State  v. 
Jersey  City,  1  Dutch.  309 ;  Hydes  v.  Joyes,  4  Bush,  464 ;  Lyon  v.  Jerome, 
26  Wend.  485 ;  State  v.  Patterson,  34  N.  J.  168;  Dillon,  Mun.  Corp.  §  60. 

[228] 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL    GOVERNMENT.  *  205 

same  reasons.  The  people  in  the  one  case  in  creating  the  legis- 
lative department,  and  the  legislature  in  the  other  in  conferring 
the  corporate  powers,  have  selected  the  depository  of  the  power 
which  they  have  designed  should  be  exercised,  and  in  confiding  it 
to  such  depository  have  impliedly  prohibited  its  being  exercised 
by  any  other  agency.  A  trust  created  for  any  public  purpose  can- 
not be  assignable  at  the  will  of  the  trustee.1 

*  Equally  incumbent  upon  the  State  legislature  and  these  [*  206] 
municipal  bodies  is  the  restriction  that  they  shall  adopt  no 
irrepealable  legislation.  No  legislative  body  can  so  part  with  its 
powers  by  any  proceeding  as  not  to  be  able  to  continue  the  exer- 
cise of  them.  It  can  and  should  exercise  them  again  and  again, 
as  often  as  the  public  interests  require.2  Such  a  body  has  no 
power,  even  by  contract,  to  control  and  embarrass  its  legislative 
powers  and  duties.     On  this  ground  it  has  been  held,  that  a  grant 

1  The  charter  of  Washington  gave  the  corporation  authority  "  to  authorize 
the  drawing  of  lotteries,  for  effecting  any  important  improvement  in  the  city, 
which  the  ordinary  funds  or  revenue  thereof  will  not  accomplish ;  provided  that 
the  amount  raised  in  each  year  shall  not  exceed  ten  thousand  dollars.  And 
provided  also  that  the  object  for  which  the  money  is  intended  to  be  raised  shall 
be  first  submitted  to  the  President  of  the  United  States,  and  shall  be  approved 
by  him."  Per  Marshall,  Ch.  J.,  speaking  of  this  authority:  "There  is  great 
weight  in  the  argument  that  it  is  a  trust,  and  an  important  trust,  confided  to 
the  corporation  itself,  for  the  purpose  of  effecting  important  improvements  in  the 
city,  and  ought,  therefore,  to  be  executed  under  the  immediate  authority  and 
inspection  of  the  corporation.  It  is  reasonable  to  suppose  that  Congress,  when 
granting  a  power  to  authorize  gaming,  would  feel  some  solicitude  respecting  the 
fairness  with  which  the  power  should  be  used,  and  would  take  as  many  precau- 
tions against  its  abuse  as  was  compatible  with  its  beneficial  exercise.  Accordingly, 
we  find  a  limitation  upon  the  amount  to  be  raised,  and  on  the  object  for  which 
the  lottery  may  be  authorized.  It  is  to  be  for  any  important  improvement  in  the 
city,  which  the  ordinary  funds  or  revenue  thereof  wilt  not  accomplish  ;  and  it  is 
subjected  to  the  judgment  of  the  President  of  the  United  States.  The  power 
thus  cautiously  granted  is  deposited  with  the  corporation  itself,  without  an  indi- 
cation that  it  is  assignable.  It  is  to  be  exercised  like  other  corporate  powers, 
by  the  agents  of  the  corporation  under  its  control.  While  it  remains  where 
Congress  has  placed  it,  the  character  of  the  corporation  affords  some  security 
against  its  abuse,  —  some  security  that  no  other  mischief  will  result  from  it 
than  is  inseparable  from  the  thing  itself.  But  if  the  management,  control,  and 
responsibility  may  be  transferred  to  any  adventurer  who  will  purchase,  all  the 
security  for  fairness  which  is  furnished  by  character  and  responsibility  is  lost." 
Clark  v.  Washington,  12  Wheat.  54. 

2  East  Hartford  v.  Hartford  Bridge  Co.,  10  How.  535;  Dillon,  Mun.  Corp. 
§  61. 

[229] 


*  206  CONSTITUTIONAL    LIMITATIONS.  [CH.  VIII. 

of  land  by  a  municipal  corporation,  for  the  purposes  of  a  cemetery, 
with  a  covenant  for  quiet  enjoyment  by  the  grantee,  could  not 
preclude  the  corporation,  in  the  exercise  of  its  police  powers,  from 
prohibiting  any  further  use  of  the  land  for  cemetery  purposes, 
when  the  advance  of  population  threatened  to  make  such  use  a 
public  nuisance.1  So  when  "  a  lot  is  granted  as  a  place  of  deposit 
for  gunpowder,  or  other  purpose  innocent  in  itself  at  the  time  ; 
it  is  devoted  to  that  purpose  till,  in  the  progress  of  population, 
it  becomes  dangerous  to  the  property,  the  safety,  or  the  lives  of 
hundreds ;  it  cannot  be  that  the  mere  form  of  the  grant,  because 
the  parties  choose  to  make  it  particular  instead  of  general  and 
absolute,  should  prevent  the  use  to  which  it  is  limited  being  re- 
garded and  treated  as  a  nuisance,  when  it  becomes  so  in  fact. 
In  this  way  the  legislative  powers  essential  to  the  comfort  and 

preservation  of  populous  communities  might  be  frittered 
~*207]  away  into*  perfect  insignificance.     To  allow  rights  thus 

to  be  parcelled  out  and  secured  beyond  control  would  fix 
a  principle  by  which  our  cities  and  villages  might  be  broken  up. 
Nuisances  might  and  undoubtedly  would  be  multiplied  to  an  in- 
tolerable extent."2 

And  on  the  same  ground  it  is  held,  that  a  municipal  corporation, 
having  power  to  establish,  make,  grade,  and  improve  streets,  does 
not,  by  once  establishing  the  grade,  preclude  itself  from  changing 
it  as  the  public  needs  or  interest  may  seem  to  require,  notwith- 
standing the  incidental  injury  which  must  result  to  those  individ- 
uals who  have  erected  buildings  with  reference  to  the  first  grade.3 

1  Brick  Presbyterian  Church  v.  City  of  New  York,  5  Cow.  540 ;  New  York 
v.  Second  Avenue  R.R.  Co.,  32  N.  Y.  261.  Compare  KincaicTs  Appeal,  66  Penn. 
St.  411 ;  s.  C.  5  Am.  Rep.  377. 

2  Coats  v.  Mayor,  &c,  of  New  York,  7  Cow.  605.  See  also  Davis  v.  Mayor, 
&c,  of  New  York,  14  N.  Y.  506;  Attorney-General  v.  Mayor,  &c,  of  New 
York,  3  Duer,  119;  State  v.  Graves,  19  M<3.  51;  Gozzle  v.  Georgetown,  6 
Wheat.  597  ;  Louisville  City  R.R.  Co.  v.  Louisville,  8  Bush,  415. 

3  Calendar  v.  Marsh,  1  Pick.  417;  Griggs  v.  Foote,  4  Allen,  195;  RadclifiVs 
Executors  v.  Brooklyn,  4  N.  Y.  195 ;  Graves  v.  Otis,  2  Hill,  466 ;  O'Connor  v. 
Pittsburg,  18  Penn.  St.  187;  Reading  v.  Keppleman,  61  Penn.  St.  233;  Shinner 
v.  Hartford  Bridge  Co.,  29  Conn.  523;  Snyder  v.  Rockport,  6  Ind.  237;  La 
Fayette  v.  Bush,  19  Ind.  326;  La  Fayette  v.  Fowler,  34  Ind.  140;  Keal  v. 
Keokuk,  4  Green  (Iowa),  47 ;  Cole  v.  Muscatine,  14  Iowa,  296 ;  Russell  v.  Bur- 
lington, 30  Iowa,  262 ;  Roberts  v.  Chicago,  26  111.  249 ;  Murphy  v.  Chicago,  29 
111.  279 ;  Rounds  v.  Mumford,  2  R.  I.  154;  Rome  ».  Omberg,  28  Geo.  46  ;  Roll 
v.  Augusta,  34  Geo.  326;  Reynolds  v.  Shreveport,  13  La.  An.  426;  White  v. 

[230] 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  *  207 

So  a  corporation  having  power  under  the  charter  to  establish  and 
regulate  streets  cannot  under  this  authority,  without  explicit  legis- 
lative consent,  permit  individuals  to  lay  down  a  railway  in  one  of 
its  streets,  and  confer  privileges  exclusive  in  their  character  and 
designed  to  be  perpetual  in  duration.  In  a  case  where  this  was 
attempted,  it  has  been  said  by  the  court :  "  The  corporation  has 
the  exclusive  right  to  control  and  regulate  the  use  of  the  streets 
of  the  city.  In  this  respect,  it  is  endowed  with  legislative  sover- 
eignty. The  exercise  of  that  sovereignty  has  no  limit,  so  long  as 
it  is  within  the  objects  and  trusts  for  which  the  power  is  conferred. 
An  ordinance  regulating  a  street  is  a  legislative  act,  entirely  be- 
yond the  control  of  the  judicial  power  of  the  State.  But  the 
resolution  in  question  is  not  such  an  act.  Though  it  relates  to  a 
street,  and  very  materially  affects  the  mode  in  which  that  street  is 
to  be  used,  yet  in  its  essential  features  it  is  a  contract.  Privileges 
exclusive  in  their  nature  and  designed  to  be  perpetual  in  their 
duration  are  conferred.  Instead  of  regulating  the  use  of  the 
street,  the  use  itself  to  the  extent  specified  in  the  resolution  is 
granted  to  the  associates.  For  what  has  been  deemed  an  adequate 
consideration,  the  corporation  has  assumed  to  surrender  a  portion 
of  their  municipal  authority,  and  has  in  legal  effect  agreed  with 
the  defendants  that,  so  far  as  they  may  have  occasion  to  use  the 
street  for  the  purpose  of  constructing  and  operating  their 
railroad,  the  right  to  regulate  *  and  control  the  use  of  that  [*  208] 
street  shall  not  be  exercised.  ...  It  cannot  be  that  powers 
vested  in  the  corporation  as  an  important  public  trust  can  thus  be 
frittered  away,  or  parcelled  out  to  individuals  or  joint-stock  asso- 
ciations, and  secured  to  them  beyond  control."  1 

Yazoo  City,  27  Miss.  857;  Humes  v.  Mayor,  &c,  1  Humph.  403;  St.  Louis  v. 
Gumo,  12  Mo.  414 ;  Taylor  v.  St.  Louis,  14  Mo.  20 ;  Keasy  v.  Louisville,  4 
Dana,  154;  Smith  v.  Washington,  20  How.  135.  Compare  Louisville  v.  Rolling 
Mill  Co.,  3  Bush,  416.  The  law  would  seem  to  be  otherwise  declared  in  Ohio. 
See  Rhodes  v.  Cincinnati,  10  Ohio,  159 ;  McCombs  v.  Akron,  15  Ohio,  474 ; 
s.  c.  18  Ohio,  229 ;  Crawford  v.  Delaware,  7  Ohio,  N.  s.  459.  Compare  Alex- 
ander v.  Milwaukee,  16  Wis.  256. 

1  Milhau  v.  Sharp,  17  Barb.  435;  s.  c.  28  Barb.  228,  and  27  KY.  611. 
See  also  Davis  v.  Mayor,  &c,  of  New  York,  14  N.  Y.  506  ;  State  v.  Mayor,  &c.r 
3  Duer,  119  ;  State  v.  Graves,  19  Md.  351.  The  consent  of  the  legislature  in 
any  such  case  would  relieve  it  of  all  difficulty,  except  so  far  as  questions  might 
arise  concerning  the  right  of  individuals  to  compensation,  as  to  which  see  post, 
c.  15.  In  Milhau  v.  Sharp,  stqjra,  it  was  also  held  that  a  corporation,  with  author- 
ity "  from  time  to  time  to  regulate  the  rates  of  fare  to   be  charged  for  the 

[231] 


*  208  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

So  it  has  been  held,  that  the  city  of  Philadelphia  exercised  a 
portion  of  the  public  right  of  eminent  domain  in  respect  to  the 
streets  within  its  limits,  subject  only  to  the  higher  control  of  the 
State  and  the  use  of  the  people  ;  and  therefore  a  written  license 
granted  by  the  city,  though  upon  a  valuable  consideration,  author- 
izing the  holder  to  connect  his  property  with  the  city  railway  by 
a  turnout  and  track,  was  not  such  a  contract  as  would  prevent 
the  city  from  abandoning  or  removing  the  railway  wherever,  in 
the  opinion  of  the  city  authorities,  such  action  would  tend  to  the 
benefit  of  its  police.1 

Thus  hedged  in  by  the  limitations  which  control  the  legislative 
power  of  the  State,  these  corporations  are  also  entitled  to  the  same 
protection  which  surrounds  the  exercise  of  State  legislative  power. 
One  of  these  is,  that  no  right  of  action  shall  arise  in  favor  of  an 
individual  for  incidental  injury  suffered  by  him  in  consequence  of 
their  adopting  or  failing  to  adopt  legislative  action.2  Another  is, 
that  the  same  presumption  that  they  have  proceeded  upon  sufficient 
information  and  with  correct  motives  shall  support  their  legisla- 
tive action  which  supports  the  statutes  of  the  State,  and  precludes 

judicial  inquiry  on  these  points.3  These  rules,  however, 
[*  209]  must  be  confined  to  those  cases  where  the  corporation  *  is 

exercising  a  discretionary  power,  and  where  the  reasons 
which  are  to  determine  whether  it  shall  act  or  not,  and  if  it  does, 
what   the  action  shall  be,  are  addressed  to  the  municipal  body 

carriage  of  persons,"  could  not  by  resolution  divest  itself  thereof  as  to  the 
carriages  employed  on  a  street-railway. 

1  Bryson  v.  Philadelphia,  47  Penn.  St.  329.  Compare  Louisville  City  R.R. 
Co.  v.  Louisville,  8  Bush,  415. 

2  Radcliffe's  Ex'rs  v.  Mayor,  &c,  of  Brookyn,  4  N.  Y.  195;  Duke  v.  Mayor, 
&c,  of  Rome,  20  Geo.  635;  Larkin  v.  Saginaw  County,  11  Mich.  88;  St.  Louis 
v.  Gurno,  12  Mo.  414 ;  Griffin  v.  Mayor,  &c,  of  New  York,  9  N.  Y.  456 ;  Ben- 
nett v.  New  Orleans,  14  La.  An.  120;  Weightman  v.  Washington,  1  Black,  39; 
Western  College  v.  Cleveland,  12  Ohio,  n.  s.  375;  Barton  v.  Syracuse,  37  Barb. 
292  ;  Wheeler  v.  Cincinnati,  19  Ohio,  N.  s.  19 ;  s.  c.  2  Am.  Rep.  368  ;  Hewson 
v.  New  Haven,  37  Conn.  475;  Murtagh  v.  St.  Louis,  44  Mo.  480;  Commission- 
ers v.  Duckett,  20  Md.  468;  Carr  v.  Northern  Liberties,  35  Penn.  St.  324; 
Grant  v.  Erie,  69  Penn.  St.  420;  s.  c.  8  Am.  Rep.  272;  Sparhawk  v.  Salem,  1 
Allen,  30;  Randall  v.  Eastern  R.  Corp.,  106  Mass.  276;  s.  c.  8  Am.  Rep.  326; 
Hughes  v.  Baltimore,  Taney,  243. 

3  Milhau  v.  Sharp,  15  Barb.  193 ;  New  York  and  Harlaem  Railroad  Co.  v. 
Mayor,  &c,  of  New  York,  1  Hilton,  562;  Buell  v.  Ball,  20  Iowa,  282;  Freeport 
v.  Marks,  59  Penn.  St.  253.  Compare  State  v.  Cincinnati  Gas  Co.,  18  Ohio, 
N.  s.  262. 

[  232  ] 


CH.  VIII.]  THE   GRADES    OP   MUNICIPAL   GOVERNMENT.  *  209 

exclusively.  If  the  corporation  is  in  the  position  of  trustee  of 
property  for  other  persons,  it  is  subject  to  the  same  supervision 
and  control  with  other  trustees,  and  where  a  specific  act  is  required 
by  law  to  be  done,  exact  performance  may  be  compelled  as  in 
other  cases. 

Among  the  implied  powers  of  such  an  organization  appears  to 
be  the  power  to  defend  and  indemnify  its  officers  where  they  have 
incurred  liability  in  the  bona  fide  discharge  of  their  duty.  It  has 
been  decided  in  a  case  where  irregularities  had  occurred  in  the 
assessment  of  a  tax,  in  consequence  of  which  the  tax  was  void, 
and  the  assessors  had  refunded  to  the  persons  taxed  the  moneys 
which  had  been  collected  and  paid  into  the  town,  county,  and 
State  treasuries,  that  the  town  had  authority  to  vote  to  raise  a  sum 
of  money  in  order  to  refund  to  the  assessors  what  had  been  so 
paid  by  them,  and  that  such  vote  was  a  legal  promise  to  pay,  on 
which  the  assessors  might  maintain  action  against  the  town.  "  The 
general  purpose  of  this  vote,"  it  was  said,  "  was  just  and  wise. 
The  inhabitants,  finding  that  three  of  their  townsmen,  who  had 
been  elected  by  themselves  to  an  office,  which  they  could  not,  with- 
out incurring  a  penalty,  refuse  to  accept,  had  innocently  and  inad- 
vertently committed  an  error  which,  in  strictness  of  law,  annulled 
their  proceedings,  and  exposed  them  to  a  loss  perhaps  to  the  whole 
extent  of  their  property,  if  all  the  inhabitants  individually  should 
avail  themselves  of  their  strict  legal  rights, —  finding  also  that  the 
treasury  of  the  town  had  been  supplied  by  the  very  money  which 
these  unfortunate  individuals  were  obliged  to  refund  from  their 
own  estates,  and  that,  so  far  as  the  town  tax  went,  the  very  per- 
sons who  had  rigorously  exacted  it  from  the  assessors,  or  who  were 
about  to  do  it,  had  themselves  shared  in  due  proportion  the  benefits 
and  use  of  the  money  which  had  been  paid  into  the  treasury,  in 
the  shape  of  schools,  highways,  and  various  other  objects  which 
the  necessities  of  a  municipal  institution  call  for,  —  concluded  to 
reassess  the  tax,  and  to  provide  for  its  assessment  in  a  manner 
which  would  have  produced  perfect  justice  to  every  individual  of 
the  corporation,  and  would  have  protected  the  assessors  from  the 
effects  of  their  inadvertence  in  the  assessment  which  was  found  to 
be  invalid.  The  inhabitants  of  the  town  had  a  perfect  right  to 
make  this  reassessment,  if  they  had  a  right  to  raise  the  money 
originally.  The  necessary  supplies  to  the  treasury  of  a  town  can- 
not be  intercepted,  because  of  an  inequality  in  the  mode  of  appor- 

[233] 


*  209  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

tioning  the  sum  upon  the  individuals.  Debts  must  be 
[*  210]  incurred,  duties  must  be  performed,  by  every  town  ;  *  the 

safety  of  each  individual  depends  upon  the  execution  of 
the  corporate  duties  and  trusts.  There  is  and  must  be  an  inherent 
power  in  every  town  to  bring  the  money  necessary  for  the  purposes 
of  its  creation  into  the  treasury  ;  and  if  its  course  is  obstructed 
by  the  ignorance  or  mistakes  of  its  agents,  they  may  proceed  to 
enforce  the  end  and  object  by  correcting  the  means  ;  and  whether 
this  be  done  by  resorting  to  their  original  power  of  voting  to  raise 
money  a  second  time  for  the  same  purposes,  or  by  directing  to  re- 
assess the  sum  before  raised  by  vote,  is  immaterial  ;  perhaps  the 
latter  mode  is  best,  at  least  it  is  equally  good."  : 

It  has  also  been  held  competent  for  a  town  to  appropriate  money 
to  indemnify  the  school  committee  for  expenses  incurred  in  defend- 
ing an  action  for  an  alleged  libel  contained  in  a  report  made  by 
them  in  good  faith,  and  in  which  action  judgment  had  been  ren- 
dered in  their  favor.2  And  although  it  should  appear  that  the 
officer  had  exceeded  his  legal  right  and  authority,  yet  if  he  has 
acted  in  good  faith  in  an  attempt  to  perform  his  duty,  the  town  has 

the  right  to  adopt  his  act  and  to  bind  itself  to  indemnify 
[*  211]  him.3    *And  perhaps  the  legislature  may  even  have  power 

to  compel  the  town,  in  such  a  case,  to  reimburse  its  officers 

1  Per  Parker,  Ch.  J.,  in  Nelson  v.  Milford,  7  Pick.  23.  See  also  Baker  v. 
Windham,  13  Me.  74;  Fuller  v.  Groton,  11  Gray,  340. 

A  municipal  corporation,  it  is  said,  may  offer  rewards  for  tbe  detection  of 
offenders  within  its  limits,  but  its  promise  to  reward  an  officer  for  that  which, 
without  such  reward,  it  was  his  duty  to  do,  is  void.  Dillon,  Mun.  Corp.  §  91,  and 
cases  cited.     And  see  note,  p.  212,  supra. 

8  Fuller  v.  Inhabitants  of  Groton,  11  Gray,  340.  See  also  Hadsell  v.  Inhab- 
itants of  Hancock,  3  Gray,  526 ;  Pike  v.  Middleton,  12  N.  H.  278. 

3  A  surveyor  of  highways  cut  a  drain  for  the  purpose  of  raising  a  legal  ques- 
tion as  to  the  bounds  of  the  highway,  and  the  town  appointed  a  committee  to 
defend  an  action  brought  against  the  surveyor  therefor,  and  voted  to  defray  the 
expenses  incurred  by  the  committee.  By  the  court:  "  It  is  the  duty  of  a  town 
to  repair  all  highways  within  its  bounds,  at  the  expense  of  the  inhabitants,  so  that 
the  same  may  be  safe  and  convenient  for  travellers ;  and  we  think  it  has  the 
power,  as  incident  to  this  duty,  to  indemnify  the  surveyor  or  other  agent  against 
any  charge  or  liability  he  may  incur  in  the  bona  Jide  discharge  of  this  duty, 
although  it  may  turn  out  on  investigation  that  he  mistook  his  legal  rights  and 
authority.  The  act  by  which  the  surveyor  incurred  a  liability  was  the  digging  a 
ditch,  as  a  drain  for  the  security  of  the  highway  ;  and  if  it  was  done  for  the  pur- 
pose of  raising  a  legal  question  as  to  the  bounds  of  the  highway,  as  the  defend- 
ants offered  to  prove  at  the  trial,  the  town  had,  nevertheless,  a  right  to  adopt 

[234] 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  *  211 

the  expenses  incurred  by  them  in  the  honest  but  mistaken  dis- 
charge of  what  they  believed  to  be  their  duty,  notwithstanding  the 
town,  by  vote,  has  refused  to  do  so.1 


Construction  of  Municipal  Poivers. 

The  powers  conferred  upon  municipalities  must  be  construed 
with  reference  to  the  object  of  their  creation,  namely,  as  agencies 
of  the  State  in  local  government.2     The  State  can  create  them  for 

the  act,  for  they  were  interested  in  the  subject,  being  bound  to  keep  the  highway 
in  repair.  They  had,  therefore,  a  right  to  determine  whether  they  would  defend 
the  surveyor  or  not ;  and  having  determined  the  question,  and  appointed  the 
plaintiffs  a  committee  to  carry  on  the  defence,  they  cannot  now  be  allowed  to 
deny  their  liability,  after  the  committee  have  paid  the  charges  incurred  under 
the  authority  of  the  town.  The  town  had  a  right  to  act  on  the  subject-matter 
which  was  within  their  jurisdiction ;  and  their  votes  are  binding  and  create  a 
legal  obligation,  although  they  were  under  no  previous  obligation  to  indemnify  the 
surveyor.  That  towns  have  an  authority  to  defend  and  indemnify  their  agents 
who  may  incur  a  liability  by  an  inadvertent  error,  or  in  the  performance  of  their 
duties  imposed  on  them  by  law,  is  fully  maintained  by  the  case  of  Nelson  v. 
Milford,  7  Pick.  18."  Bancroft  v.  Lynnfield,  18  Pick.  568.  And  see  Briggs  v. 
Whipple,  6  Vt.  95. 

1  Guilford  v.  Supervisors  of  Chenango,  13  N.  Y.  143.  See  this  case  com- 
mented upon  by  Lyon,  J.,  in  State  v.  Tappen,  29  Wis.  674,  680.  On  the  page 
last  mentioned  it  is  said,  "  We  have  seen  no  case  except  in  the  courts  of  New 
York,  which  holds  that  such  moral  obligation  gives  the  legislature  power  to  com- 
pel payment."  Where  officers  make  themselves  liable  to  penalties  for  refusal 
to  perform  duty,  the  corporation  has  no  authority  to  indemnify  them.  Halstead 
v.  Mayor,  &c,  of  New  York,  3  N.  Y.  430;  Merrill  v.  Plainfield,  45  N.  H.  126. 
See  Frost  v.  Belmont,  6  Allen,  152 ;  People  v.  Lawrence,  6  Hill,  244 ;  Vincent 
v.  Nantucket,  12  Cush.  105. 

2  A  somewhat  peculiar  question  was  involved  in  the  case  of  Jones  v.  Rich- 
mond, 18  Grat.  517.  In  anticipation  of  the  evacuation  of  the  city  of  Richmond 
by  the  Confederate  authorities,  and  under  the  apprehension  that  scenes  of  disorder 
might  follow,  which  would  be  aggravated  by  the  opportunity  to  obtain  intoxicating 
liquors,  the  common  council  ordered  the  seizure  and  destruction  of  all  such  liquors 
within  the  city,  and  pledged  the  faith  of  the  city  to  the  payment  of  the  value. 
The  Court  of  Appeals  of  Virginia  afterwards  decided  that  the  city  might  be  held 
liable  on  the  pledge  in  an  action  of  assumpsit.  Hives,  J.,  says:  "By  its  char- 
ter the  council  is  specially  empowered  to  '  pass  all  by-laws,  rules,  and  regula- 
tions which  they  shall  deem  necessary  for  the  peace,  comfort,  convenience,  good 
order,  good  morals,  health,  or  safety  of  said  city,  or  of  the  people  or  property 
therein.'  It  is  hard  to  conceive  of  larger  terms  for  the  grant  of  sovereign  leg- 
islative powers  to  the  specified  end  than  those  thus  employed  in  the  charter ;  and 
they  must  be  taken  by  necessary  and  unavoidable  intendment  to  comprise  the 

[235] 


*  211  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

no  other  purpose,  and  it  can  confer  powers  of  government  to  no 
other  end,  without  at  once  coming  in  conflict  with  the  constitu- 
tional maxim,  that  legislative  power  cannot  be  delegated,  or  with 
other  maxims  designed  to  confine  all  the  agencies  of  government  to 
the  exercise  of  their  proper  functions.  And  wherever  the  munici- 
pality shall  attempt  to  exercise  powers  not  within  the  proper  province 
of  local  self-government,  whether  the  right  to  do  so  be  claimed  under 
express  legislative  grant,  or  by  implication  from  the  charter,  the  act 
must  be  considered  as  altogether  ultra  vires,  and  therefore  void. 

A  reference  to  a  few  of  the  adjudged  cases  will  perhaps  best 
illustrate  this  principle.  The  common  council  of  the  city  of 
Buffalo  undertook  to  provide  an  entertainment  and  ball  for  its 
citizens  and  certain  expected  guests  on  the  4th  of  July,  and  for 
that  purpose  entered  into  contract  with  a  hotel  keeper  to  provide 
the  entertainment  at  his  house,  at  the  expense  of  the  city.  The 
entertainment  was  furnished  and  in  part  paid  for,  and  suit  was 
brought  to  recover  the  balance  due.  The  city  had  authority,  under 
its  charter,  to  raise  and  expend  moneys  for  various  specified  pur- 
poses, and  also  "  to  defray  the  contingent  and  other  expenses  of 
the  city."     But  providing  an  entertainment  for  its  citizens  is  no 

part  of  municipal  self-government,  and  it  has  never  been 
[*  212]   considered,  *  where  the  common  law  has  prevailed,  that 

the  power  to  do  so  pertained  to  the  government  in  any  of 
its  departments.  The  contract  was  therefore  held  void,  as  not 
within  the  province  of  the  city  government.1 

powers  of  eminent  domain  within  these  limits  of  prescribed  jurisdiction.  There 
were  two  modes  open  to  the  council :  first,  to  direct  the  destruction  of  these 
stores,  leaving  the  question  of  the  city's  liability  therefor  to  be  afterwards  liti- 
gated and  determined  ;  or,  secondly,  assuming  their  liability,  to  contract  for  the 
values  destroyed  under  their  orders.  Had  they  pursued  the  first  mode,  the  cor- 
poration would  have  been  liable  in  an  action  of  trespass  for  the  damages  ;  but  they 
thought  proper  to  adopt  the  latter  mode,  make  it  a  matter  of  contract,  and 
approach  their  citizens,  not  as  trespassers,  but  with  the  amicable  proffer  of  a 
formal  receipt  and  the  plighted  faith  of  the  city  for  the  payment.  In  this  they 
seem  to  me  to  be  well  justified.'"  Judge  Dillon  doubts  the  soundness  of  this 
decision.  Dillon,  Mun.  Corp.  §  371,  note.  The  case  seems  to  us  analogous 
in  principle  to  that  of  the  destruction  of  buildings  to  stop  the  progress  of  a  fire. 
In  each  case  private  property  is  destroyed  to  anticipate  and  prevent  an  impend- 
ing public  calamity. 

1  Hodges  v.  Buffalo,  2  Denio,  110.  See  also  the  case  of  New  London  v. 
Brainard,  22  Conn.  552,  which  follows  and  approves  this  case.  The  cases  differ 
in  this  onlv,  that  in  the  first  suit  was  brought  to  enforce  the  illegal  contract, 

[236] 


CH.  Till.]  THE   GRADES   OP   MUNICIPAL   GOVERNMENT. 


212 


The  supervisors  of  the  city  of  New  York  refused  to  perform  a 
duty  imposed  upon  them  by  law,  and  were  prosecuted  severally 
for  the  penalty  which  the  law  imposed  for  such  refusal,  and  judg- 
ment recovered.  The  board  of  supervisors  then  assumed,  on 
behalf  of  the  city  and  county,  the  payment  of  these  judgments, 
together  with  the  costs  of  defending  the  suits,  and  caused  drafts 
to  be  drawn  upon  the  treasurer  of  the  city  for  these  amounts. 
It  was  held,  that  these  drafts  upon  the  public  treasury  to  indem- 
nify officers  for  disregard  of  duty  were  altogether  unwarranted 
and  void,  and  that  it  made  no  difference  that  the  officers  had 
acted  conscientiously  in  refusing  to  perform  their  duty,  and  in 
the  honest  belief  that  the  law  imposing  the  duty  was  unconstitu- 
tional. The  city  had  no  interest  in  the  suits  against  the  super- 
visors, and  appropriating  the  public  funds  to  satisfy  the  judgments 
and  costs  was  not  within  either  the  express  or  implied  powers 
conferred  upon  the  board.1  It  was  in  fact  appropriating  the  pub- 
lic money  for  private  purposes,  and  a  tax  levied  therefor  must 
consequently  be  invalid,  on  general  principles  controlling  the  right 
of  taxation,  which  will  be  considered  in  another  place.  In  a  recent 
case  in  Iowa  it  is  said :  "  No  instance  occurs  to  us  in  which  it 
would  be  competent  for  [a  municipal  corporation]  to  loan  its 
credit  or  make  its  accommodation  paper  for  the  benefit  of  citizens 
to  enable   them  to  execute  private  enterprises;"2  and  where  it 

.  - 

.jfhile  in  the  second  the  city  was  enjoined  from  paying  over  moneys  which  it  had 
appropriated  for  the  purposes  of  the  celebration.  The  cases  of  Tash  v.  Adams, 
^lO  Cush.  252,  and  Hood  v.  Lynn,  1  Allen,  103,  are  to  the  same  effect.  A  town, 
it  has  been  held,  cannot  lawfully  be  assessed  to  pay  a  reward  offered  by  a  vote 
of  the  town  for  the  apprehension  and  conviction  of  a  person  supposed  to  have 
committed  murder  therein.  Gale  v.  South  Berwick,  51  Me.  174.  Nor  under  its 
general  authority  to  raise  money  for  "  necessary  town  charges,"  is  a  town  author- 
ized to  raise  and  expend  moneys  to  send  lobbyists  to  the  legislature.  Frankfort 
v.  Winterport,  54  Me.  250.  Or,  under  like  authority,  to  furnish  a  uniform  for  a 
volunteer  military  company.  Clanin  v.  Hopkinton,  4  Gray,  502.  Where  a 
municipal  corporation  enters  into  a  contract  ultra  vires,  no  implied  contract 
arises  to  compensate  the  contractor  for  any  thing  he  may  have  done  under  it, 
notwithstanding  the  corporation  may  have  reaped  a  benefit  therefrom.  McSpedon 
v.  New  York,  7  Bosw.  601 ;  Zottman  v.  San  Francisco,  20  Cal.  96. 

1  Halstead  v.  Mayor,  &c,  of  New  York,  3  N.  Y.  430.  See  a  similar  case  in 
People  v.  Lawrence,  6  Hill,  244.  Se§  also  Carroll  v.  St.  Louis,  12  Mo.  444 ; 
Vincent  v.  Nantucket,  12  Cush.  103;  Parsons  v.  Goshen,  11  Pick.  396;  Merrill 
v.  Plainfield,  45  N.  H.  126. 

2  Clark  v.  Des  Moines,  19  Iowa,  224.     See  Tyson  v.  School  Directors,  51 

[237] 


*  212  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

cannot  loan  its  credit  to  private  undertakings,  it  is  equally 
[*  213]  without  *  power  to  appropriate  the  moneys  in  its  treasury, 
or  by  the  conduct  of  its  officers  to  subject  itself  to  implied 
obligations.1 

The  powers  'conferred  upon  the  municipal  governments  must 
also  be  construed  as  confined  in  their  exercise  to  the  territorial 
limits  embraced  within  the  municipality ;  and  the  fact  that  these 
powers  are  conferred  in  general  terms  will  not  warrant  their  exer- 
cise except  within  those  limits.  A  general  power  "  to  purchase, 
hold,  and  convey  estate,  real  and  personal,  for  the  public  use  "  of 
the  corporation,  will  not  authorize  a  purchase  outside  the  corpo- 
rate limits  for  that  purpose.2  Without  some  special  provision  they 
cannot,  as  of  course,  possess  any  control  or  rights  over  lands  lying 
outside ; 3  and  the  taxes  they  levy  of  their  own  authority,  and  the 
moneys  they  expend,  must  be  for  local  purposes  only.4 

But  the  question  is  a  very  different  one  how  far  the  legislature 
of  the  State  may  authorize  the  corporation  to  extend  its  action  to 

Penn.  St.  9;  Freeland  v.  Hastings,  10  Allen,  570;  Thompson  v.  Pittston,  59 
Me.  545;  Kelly  v.  Marshall,  69  Penn.  St.  319;  Allen  v.  Jay,  Supreme  Court  of 
Maine,  Law  Reg.,  Aug.  1873,  with  note  by  Judge  Redfield. 

1  "  In  determining  whether  the  subject-matter  is  within  the  legitimate  authority 
of  the  town,  one  of  the  tests  is  to  ascertain  whether  the  expenses  were  incurred 
in  relation  to  a  subject  specially  placed  by  law  in  other  hands.  ...  It  is  a 
decisive  test  against  the  validity  of  all  grants  of  money  by  towns  for  objects 
liable  to  that  objection,  but  it  does  not  settle  questions  arising  upon  expenditures 
for  objects  not  specially  provided  for.  In  such  cases  the  question  will  still  recur, 
whether  the  expenditure  was  within  the  jurisdiction  of  the  town.  It  may  be 
safely  assumed  that,  if  the  subject  of  the  expenditure  be  in  furtherance  of  some 
duty  enjoined  by  statute,  or  in  exoneration  of  the  citizens  of  the  town  from  a 
liability  to  a  common  burden,  a  contract  made  in  reference  to  it  will  be  valid  and 
binding  upon  the  town."  Allen  v.  Taunton,  19  Pick.  487.  See  Tucker  v.  Vir- 
ginia City,  4  Nev.  20.  It  is  no  objection  to  the  validity  of  an  act  which  author- 
izes an  expenditure  for  a  town-hall,  that  rooms  to  be  rented  for  stores  are 
contained  in  it.     White  v.  Stamford,  37  Conn.  578. 

2  Riley  v.  Rochester,  9  N.  Y.  64. 

3  Per  Kent,  Chancellor,  Denton  v.  Jackson,  2  Johns.  Ch.  336.  And  see 
Bullock  v.  Curry,  2  Met.  (Ky.)  171;  Weaver  v.  Cherry,  8  Ohio,  N.  s.  564; 
North  Hempstead  v.  Hempstead,  Hopk.  294;  Concord  v.  Boscawen,  17  N.  H. 
465. 

4  In  Parsons  v.  Goshen,  11  Pick.  896,  the  action  of  a  town  appropriating 
money  in  aid  of  the  construction  of  a  county  road,  was  held  void  and  no  protec- 
tion to  the  officers  who  had  expended  it.  See  also  Concord  v.  Boscawen,  17 
N.  H.  465. 

[  238] 


CH.  VIII.]  THE   GEADES   OF   MUNICIPAL   GOVERNMENT.  *  21  j 

objects  outside  the  city  limits,  and  to  engage  in  enterprises  of  a 
public  nature  which  may  be  expected  to  benefit  the  citizens  of  the 
municipality  in  common  with  the  people  of  the  State  at  large,  and 
also  in  some  special  and  peculiar  manner,  but  which  nevertheless 
'are  not  under  the  control  of  the  corporation,  and  are  so  far  aside 
from  the  ordinary  purposes  of  local  governments  that  assistance  by 
the  municipality  in  such  enterprises  would  not  be  warranted  under 
any  general  grant  of  power  for  municipal  government.     For  a  few 
years  past  the  sessions  of  the  legislative  bodies  of  the 
several  States  have  been  prolific  in  *  legislation  which  has  [*  214] 
resulted  in  flooding  the  country  with  municipal  securities 
issued  in  aid  of  works  of  public  improvement,  to  be  owned,  con- 
trolled, and  operated  by  private  parties,  or  by  corporations  created 
for  the  purpose  ;  the  works  themselves  being  designed  for  the  con- 
venience of  the  people  of  the  State  at  large,  but  being  nevertheless 
supposed  to  be  specially  beneficial  to  certain  localities  because 
running  near  or  through  them,  and  therefore  justifying,  it  is  sup- 
posed, the  imposition  of  a  special  burden  by  taxation  upon  such 
localities  to  aid  in  their  construction.1  We  have  elsewhere2  referred 
to  cases  in  which  it  has  been  held  that  the  legislature  may  consti- 
tutionally authorize  cities,  townships,  and  counties  to  subscribe  to 
the  stock  of  railroad  companies,  or  to  loan  them  their  credit,  and 
to  tax  their  citizens  to  pay  these  subscriptions,  or  the  bonds  or  other 
securities  issued  as  loans,  where  a  peculiar  benefit  to  the  munici- 
pality was  anticipated   from  the  improvement.     The  rulings   in 
these  cases,  if  sound,  must  rest  upon  the  same  right  which  allows 
such- municipalities  to  impose  burdens  upon  their  citizens  to  con- 
struct local  streets  or  roads,  and  they  can  only  be  defended  on  the 
ground  that  "  the  object  to  be  accomplished  is  so  obviously  con- 
nected with  the  [municipality]  and  its  interests  as  to  conduce 
obviously  and  in  a  special  manner  to  their  prosperity  and  advance- 
ment." 3     But  there  are  authorities  which  dispute  their  soundness, 

1  In  Merrick  v.  Inhabitants  of  Amherst,  12  Allen,  500,  it  was  held  competent 
for  the  legislature  to  authorize  a  town  to  raise  money  by  taxation  for  a  State 
agricultural  college,  to  be  located  therein.  The  case,  however,  we  think,  stands 
on  different  reasons  from  those  where  aid  has  been  voted  by  municipalities  to 
public  improvements.  See  it  explained  in  Jenkins  v.  Andover,  103  Mass.  94. 
And  see  Marks  v.  Trustees  of  Pardue  University,  37  Ind.  155. 

4  Ante,  p.  119. 

3  Talbot  U.  Dent,  9  B.  Monr.  526.     See  Hasbrouck  v.  Milwaukee,  13  Wis.  44. 

[239] 


*  214  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

and  it  cannot  be  denied  that  this  species  of  legislation  has  been 
exceedingly  mischievous  in  its  results,  that  it  has  created  a  great 

It  seems  not  inappropriate  to  remark  in  this  place  that  the  three  authors  who 
have  treated  so  ably  of  municipal  constitutional  law  (Mr.  Sedgwick,  Stat.  & 
Const.  Law,  464),  of  railway  law  (Judge  Redfield),  and  of  municipal  corpora- 
tions (Judge  Dillon)  have  all  united  in  condemning  this  legislation  as  unsound 
and  unwarranted  by  the  principles  of  constitutional  law.  See  the  views  of  the 
two  writers  last  named  in  note  to  the  case  of  People  v.  Township  Board  of  Salem, 
9  Am.  Law  Reg.  487.  And  Judge  Dillon  well  remai-ks  in  his  Treatise  on  Mu- 
nicipal Corporations  (§  104)  that,  "  regarded  in  the  light  of  its  effects,  there 
is  little  hesitation  in  affirming  that  this  invention  to  aid  private  enterprises  has 
proved  itself  baneful   in  the  last  degree." 

If  we  trace  the  beginning  of  this  legislation,  we  shall  find  it  originating  at  a 
time  when  there  had  been  little  occasion  to  consider  with  care  the  limitations  to 
the  functions  of  municipal  government,  because  as  yet  those  functions  had  been 
employed  with  general  caution  and  prudence,  and  no  disposition  had  been  mani- 
fested to  stretch  their  powers  to  make  them  embrace  matters  not  usually  recog- 
nized as  properly  and  legitimately  falling  within  them,  or  to  make  use  of  the 
municipal  machinery  to  further  private  ends.  Nor  did  the  earliest  decisions 
attract  much  attention,  for  they  referred  to  matters  somewhat  local,  and  the  spirit 
of  speculation  was  not  as  yet  rife.  When  the  construction  of  railways  and  canals 
was  first  entered  upon  by  an  expenditure  of  public  funds  to  any  considerable 
extent,  the  States  themselves  took  them  in  charge,  and  for  a  time  appropriated 
large  sums  and  incurred  immense  debts  in  enterprises,  some  of  which  were  of 
high  importance  and  others  of  little  value,  the  cost  and  management  of  which 
threatened  them  at  length  with  financial  disaster,  bankruptcy,  and  possible  repu- 
diation. No  long  experience  was  required  to  demonstrate  that  railways  and 
canals  could  not  be  profitably,  prudently,  or  safely  managed  by  the  shifting 
administrations  of  State  government ;  and  many  of  the  States  not  only  made  pro- 
vision for  disposing  of  their  interest  in  works  of  public  improvement,  but,  in  view 
of  a  bitter  experience  of  the  evils  already  developed  in  undertaking  to  construct 
and  control  them,  they  amended  their  constitutions  so  as  to  prohibit  the  State, 
when  again  the  fever  of  speculation  should  prevail,  from  engaging  anew  in  such 
undertakings. 

All  experience  shows,  however,  that  men  are  abundant  who  do  not  scruple  to 
evade  a  constitutional  provision  which  they  find  opposed  to  their  desires,  if  they  can 
possibly  assign  a  plausible  reason  for  doing  so  ;  and  in  the  case  of  the  provisions 
before  referred  to,  it  was  not  long  before  persons  began  to  question  their  phra- 
seology very  closely,  not  that  they  might  arrive  at  the  actual  purpose,  —  which 
indeed  was  obvious  enough,  —  but  to  discover  whether  that  purpose  might  not  be 
defeated  without  a  violation  of  the  express  terms.  The  purpose  clearly  was  to 
remand  all  such  undertakings  to  private  enterprise,  and  to  protect  the  citizens  of 
the  State  from  being  taxed  to  aid  them  ;  but  while  the  State  was  forbidden  to 
engage  in  such  works,  it  was  unfortunately  not  expressly  declared  that  the  sev- 
eral members  of  the  State,  in  their  corporate  capacity,  were  also  forbidden  to  do 
so.     The  conclusion  sought  and  reached  was  that  the  agencies  of  the   State  were 

[240] 


CH.  VIII.]         THE   GRADES   OP  MUNICIPAL   GOVERNMENT.  *  214 

burden  of  public  debt  for  which  in  a  large  number  of  cases  the 
anticipated  benefit  was  never  received,  and  that,  as  is  likely  to  be 

at  liberty  to  do  what  was  forbidden  to  the  State  itself,  and  the  burden  of  debt 
which  the  State  might  not  directly  impose  upon  its  citizens,  it  might  indirectly 
place  upon  their  shoulders  by  the  aid  of  municipal  action. 

The  legislation  adopted  under  this  construction  some  of  the  courts  felt  com- 
pelled to  sustain,  upon  the  accepted  principle  of  constitutional  law  that  no  legis- 
lative authority  is  forbidden  to  the  legislature  unless  forbidden  in  terms  ;  and  the 
voting  of  municipal  aid  to  railroads  became  almost  a  matter  of  course  wherever  a 
plausible  scheme  could  be  presented  by  interested  parties  to  invite  it.  In  some 
localities,  it  is  true,  vigorous  protest  was  made ;  but  as  the  handling  of  a  laro-e 
amount  of  public  money  was  usually  expected  to  make  the  fortune  of  the  projectors, 
whether  the  enterprise  proved  successful  or  not,  means  either  fair  or  unfair  were 
generally  found  to  overcome  all  opposition.  Towns  sometimes  voted  large  sums 
to  railroads  on  the  ground  of  local  benefit  where  the  actual  and  inevitable  result 
was  local  injury,  and  the  projectors  of  one  scheme  succeeded  in  obtaining  and 
negotiating  the  bonds  of  one  municipality  to  the  amount  of  a  quarter  of  a  million 
dollars,  which  are  now  being  enforced,  though  the  work  they  were  to  aid  was  never 
seriously  begun.  A  very  large  percentage  of  all  the  aid  voted  was  sacrificed  in 
discounts  to  purchasers  of  bonds,  expended  in  worthless  undertakings,  or  otherwise 
lost  to  the  tax  payers  ;  and  the  cases  might  almost  be  said  to  be  exceptional  in  which 
municipalities,  when  afterwards  they  were  called  upon  to  meet  their  obligations, 
could  do  so  with  a  feeling  of  having  received  the  expected  consideration.  Some 
State  and  territorial  governors  did  noble  work  in  endeavoring  to  stay  this  reckless 
legislative  and  municipal  action,  and  some  of  the  States  at  length  rendered  such 
action  impossible  by  constitutional  provisions  so  plain  and  positive  that  the  most 
ingenious  mind  was  unable  to  misunderstand  or  pervert  them. 

When  the  United  States  entered  upon  a  scheme  of  internal  improvement,  the 
Cumberland  road  was  the  first  important  project  for  which  its  revenues  were 
demanded.  The  promises  of  this  enterprise  were  of  continental  magnificence 
and  importance,  but  they  ended  after  heavy  national  expenditures  in  a  road  no 
more  national  than  a  thousand  others  which  the  road-masters  in  the  several 
States  have  constructed  with  the  local  taxes;  and  it  was* finally  abandoned  to  the 
States  as  a  common  highway.  When  next  a  great  national  scheme  was  broached, 
the  aid  of  the  general  government  was  demanded  by  way  of  subsidies  to  private 
corporations,  who  presented  schemes  of  works  of  great  public  convenience  and 
utility,  which  were  to  open  up  the  new  territories  to  improvement  and  settlement 
sooner  than  the  business  of  the  country  would  be  likely  to  induce  unaided  private 
capital  to  do  it,  and  which  consequently  appealed  to  the  imagination  rather  than 
to  facts  to  demonstrate  their  importance,  and  afforded  abundant  opportunity  for 
scheming  operators  to  call  to  their  assistance  the  national  sentiment,  then 
peculiarly  strong  and  active  by  reason  of  the  attempt  recently  made  to  overthrow 
the  government,  in  favor  of  projects  whose  national,  importance  in  many  cases 
the  imagination  alone  could  discover.  The  general  result  was  the  giving  away  of 
immense  bodies  of  land,  and  in  some  cases  the  granting  of  pecuniary  aid,  with 
a  recklessness'and  often  with  an  appearance  of  corruption  that  at  length  startled 

16  [  241  ] 


*  214  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

the  case  where  municipal  governments  take  part  in  projects  foreign 
to  the  purposes  of  their  creation,  it  has  furnished  unusual  facil- 

the  peeple,  and  aroused  a  public  spirit  before  which  the  active  spirits  in  Congress 
who  had  promoted  these  grants,  and  sometimes  even  demanded  them  in  the  name 
of  the  poor  settler  in  the  wilderness  who  was  unable  to  get  his  crops  to  market, 
were  compelled  to  give  way.  The  scandalous  frauds  connected  with  the  Pacific 
Railway,  which  disgraced  the  nation  in  the  face  of  the  world,  and  the  great  and 
disastrous  financial  panic  of  1873,  were  legitimate  results  of  such  subsidies  ;  but 
the  pioneer  in  the  wilderness  had  long  before  discovered  that  land  grants  were 
not  always  sought  or  taken  with  a  view  to  an  immediate  appropriation  to  the 
roads  for  the  construction  of  which  tbey  were  nominally  made,  but  that  the  result 
in  many  cases  was,  that  large  tracts  were  thereby  kept  out  of  market  and  from 
taxation  which  otherwise  would  have  been  purchased  and  occupied  by  settlers  who 
would  have  lessened  his  taxes  by  contributing  their  share  to  the  public  burdens. 
The  grants,  therefore,  in  such  cases,  instead  of  being  at  once  devoted  to  improve- 
ments for  the  benefit  of  settlers,  were  in  fact  kept  in  a  state  of  nature  by  the 
speculators  who  had  secured  them,  until  the  improvements  of  settlers  in  their 
vicinity  could  make  the  grantees  wealthy  by  the  increase  in  value  such  improve- 
ments gave  to  the  land  near  them.  In  saying  this  the  admission  is  freely  made 
that  in  many  cases  the  grants  were  promptly  and  honestly  appropriated  in  accord- 
ance with  their  nominal  purpose  ;  but  the  general  verdict  now  is  that  the  system 
was  necessarily  corruptive  and  tended  to  invite  fraud,  and  that  some  persons  of 
influence  managed  to  accumulate  great  wealth  by  grants  indirectly  secured  to 
themselves  under  the  unfounded  pretence  of  a  desire  to  aid  and  encourage  the 
pioneers  in  the  wilderness. 

Some  States  also  have  recently  in  their  corporate  capacity  again  engaged  in 
issuing  bonds  to  subsidize  private  corporations,  with  the  natural  result  of  serious 
State  scandals,  State  insolvency,  public  discontent,  and  in  some  cases  it  would 
seem  almost  inevitable  repudiation.  Their  governments,  amid  the  disorders  of 
the  times,  have  fallen  into  the  hands  of  strangers  and  novices,  and  the  hobby  of 
public  improvement  has  been  ridden  furiously  to  gratify  the  greed  of  individuals. 
It  has  often  been  well  remarked  that  the  abuse  of  a  power  furnishes  no  argu- 
ment against  its  existence  ;  but  a  system  so  open  to  abuses  may  well  challenge 
attention  to  its  foundations.  And  when  those  foundations  are  examined,  it  is 
denied  that  they  have  any  sound  support  in  the  municipal  constitutional  law  of 
this  country.  The  same  reasons  which  justify  subsidies  to  the  business  of  com- 
mon carriers  by  railway  will  support  taxation  in  aid  of  any  private  business 
whatsoever. 

It  is  sometimes  loosely  said  that  railway  companies  are  public  corporations, 
but  the  law  does  not  so  regard  them.  It  is  the  settled  doctrine  of  the  law  that, 
like  banks,  mining  companies,  and  manufacturing  companies,  they  are  mere  pri- 
vate corporations,  supposed  to  be  organized  for  the  benefit  of  the  individual 
corporators,  and  subject  to  no  other  public  supervision  or  control  than  any  other 
private  association  for  business  purposes  to  which  corporate  powers  have  been 
granted.  Dartmouth  College  v.  Woodward,  4  Wheat.  668;  Buonaparte  v. 
Camden  and  Amboy  R.R.  Co.,  Baldw.  205;  Eustis  v.  Parker,  1  N.  H.  237; 

[242] 


CH.  VIII.]         THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  *  214 

ities  for  fraud  and  public  plunder,  and  led  almost  inevitably,  at 
last,  to  discontent ;  sometimes  even  to  disorder  and  violence. 

Ohio,  &c,  R.R.  Co.  v.  Ridge,  5  Blackf.  78;  Roanoke,  &c,  R.R.  Co.  ».  Davis, 
2  Dev.  &  Bat.  451;  Dearborn  v.  Boston  &  M.  R.R.  Co.,  4  Fost,  179;  Trus- 
tees, &c,  v.  Auborn,  &c,  R.R.  Co.,  3  Hill,  570;  Tinsman  v.  Belvidere,  &c., 
R.R.  Co.,  2  Dutch.  148;  Thorpe  v.  Rutland,  &c.,  R.R.  Co.,  27  Vt.  155;  Ala- 
bama R.R.  Co.  v.  Kidd,  29  Ala.  221 ;  Turnpike  Co.  v.  Wallace,  8  Watts,  316 ; 
Seymour  v.  Turnpike  Co.,  10  Ohio,  476  ;  Ten  Eyck  v.  D.  &  R.  Canal,  3  Harr. 
200;  A.  &  A.  on  Corp.,  §  30-36;  Redf.  on  Railw.  c.  3,  §  1 ;  Pierce  on  Rail- 
roads, 19,  20.  Taxation  to  subsidize  them  cannot  therefore  be  justified  on  the 
ground  of  any  public  character  they  possess,  any  more  than  to  subsidize  banks  or 
mining  companies.  It  is  truly  said  that  it  has  long  been  the  settled  doctrine  that 
the  right  of  eminent  domain  may  be  employed  in  their  behalf,  and  it  has  some- 
times been  insisted  with  much  earnestness  that  wherever  the  State  may  aid  an 
enterpi'ise  under  the  right  of  eminent  domain,  it  may  assist  it  by  taxation  also. 
But  the  right  of  taxation  and  the  right  of  eminent  domain  are  by  no  means  coex- 
tensive, and  do  not  rest  wholly  upon  like  reasons.  The  former  compels  the  citizen 
to  contribute  his  proportion  of  the  public  burden ;  the  latter  compels  him  to  part 
with  nothing  for  which  he  is  not  to  receive  pecuniary  compensation.  The  tax  in 
the  one  case  is  an  exaction,  the  appropriation  in  the  other  is  only  a  forced  sale. 
To  take  money  for  private  purposes  under  pretence  of  taxation  is,  as  has  been 
often  said,  but  robbery  and  plunder ;  to  appropriate  under  the  right  of  eminent 
domain  for  a  private  corporation  robs  no  one,  because  the  corporation  pays  for 
what  is  taken,  and  in  some  cases,  important  to  the  welfare  and  prosperity  of  the 
community,  and  where  a  public  convenience  is  to  be  provided,  —  as  in  the  case  of 
a  grist  mill,  —  it  has  long  been' held  competent  to  exercise  the  one  power,  while 
the  other  was  conceded  to  be  inadmissible.  Few  persons  would  attempt  to  justify 
a  tax  in  aid  of  a  mill-owner,  on  the  ground  that  laws  appropriating  lands  for  his 
benefit,  but  at  his  expense,  have  been  supported. 

The  truth  is,  the  right  to  tax  in  favor  of  private  corporations  of  any  descrip- 
tion must  rest  upon  the  broad  ground  that  the  power  of  the  legislature,  subject 
only  to  the  express  restrictions  of  the  constitution,  is  supreme,  and  that,  in  the 
language  of  some  of  the  cases,  "  if  there  be  the  least  possibility  that  makinc 
the  gift  will  be  promotive  in  any  degree  of  the  public  welfare,  it  becomes  a 
question  of  policy,  and  not  of  natural  justice,  and  the  determination  of  the 
legislature  is  conclusive."  (Post,  p.  489.)  But  nothing  is  better  settled  on 
authority  than  that  this  strong  language,  though  entirely  true  when  it  refers  to 
the  making  provision  for  those  things  which  it  falls  within  the  province  of  govern- 
ment to  provide  for  its  citizens,  or  to  the  payment  of  services  performed  for  the 
State,  or  the  satisfaction  of  legal,  equitable,  or  moral  obligations  resting  upon 
it,  is  wholly  inadmissible  when  the  purpose  is  to  impose  a  burden  upon  one  man 
for  the  benefit  of  another.  Many  such  cases  might  be  suggested  in  which  there 
would  not  only  be  a  "possibility,"  but  even  a  strong  probability,  that  a  small 
burden  imposed  upon  the  public  to  set  an  individual  up  in  business,  or  to  build 
him  a  house,  or  otherwise  make  him  comfortable,  would  be  promotive  of  the 
public  welfare ;  but  in  law  the  purpose  of  any  such  burden  is  deemed  private 

[243] 


*  215  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

[*  215]       *  Assuming  that  any  such  subscriptions   or  securities 
may  be  authorized,  the  first  requisite  to  their  validity 

and  the  incidental  benefit  to  the  public  is  not  recognized  as  an  admissible  basis 
of  taxation. 

In  Allen  v.  Inhabitants  of  Jay,  60  Me.,  it  became  necessary  to  reaffirm  a  doc- 
trine, often  declared  by  the  courts,  that  however  great  was  the  power  to  tax,  it  was 
exceeded,  and  the  legislature  was  attempting  the  exercise  of  a  power  not  legislative 
in  its  character,  when  it  undertook  to  impose  a  burden  on  the  public  for  a  private 
purpose.  And  it  was  also  held  that  the  raising  of  money  by  tax  in  order  to  loan 
the  same  to  private  parties  to  enable  them  to  erect  mills  and  manufactories  in 
such  town,  was  raising  it  for  a  private  purpose,  and  therefore  illegal.  Appleton, 
Ch.  J.,  most  truly  remarks  in  that  case,  that  "all  security  of  private  rights, 
all  protection  of  private  property,  is  at  an  end,  when  one  is  compelled  to  raise 
money  to  loan  at  the  will  of  others  for  their  own  use  and  benefit,  when  the  power 
is  given  to  a  majority  to  lend  or  give  away  the  property  of  an  unwilling  minority." 
And  yet  how  plain  it  is  that  the  benefit  of  the  local  public  might  possibly  have 
been  promoted  by  the  proposed  erections  !  This  case  was  decided  near  the  same 
time  with  one  in  the  United  States  Circuit  Court  of  Kansas,  in  which  Dillon, 
Circuit  J.,  held  a  law  authorizing  the  town  of  Iola  to  issue  its  bonds  in  aid  of  a 
manufactory  proposed  to  be  established  in  its  midst  was  void,  as  an  attempt  to 
exercise  the  taxing  power  for  private  purposes. 

These  cases  are  not  singular :  they  are  representative  cases ;  and  they  are 
cited  only  because  they  are  among  the  most  recent  expressions  of  judicial  opin- 
ion on  the  subject.  With  them  may  be  placed  Lowell  v.  Boston,  also  a  very 
recent  case  not  yet  reported,  in  which  the  Supreme  Court  of  Massachusetts, 
after  the  great  fire  of  1872  in  Boston,  denied  the  power  of  the  Commonwealth 
to  permit  taxation  in  order  to  loan  the  moneys  out  to  the  persons  who  had  suf- 
fered by  the  fire.  These  three  decisions  of  eminent  tribunals  indicate  a  limit  to 
legislative  power  in  the  matter  of  taxation,  and  hold,  what  has  been  decided  very 
many  times  before,  that  it  is  not  necessary  the  constitution  should  forbid  expressly 
the  taxing  for  private  purposes,  since  it  is  implied  in  the  very  idea  of  taxation 
that  the  purpose  must  be  public,  and  a  taking  for  any  other  purpose  is  unlawful 
confiscation. 

One  difference  there  undoubtedly  is  between  the  case  of  a  railroad  corpora- 
tion and  a  manufacturing  corporation ;  that  there  are  precedents  in  favor  of  tax- 
ing for  the  one  and  not  for  the  other.  But  what  we  insist  is,  that  the  precedents 
are  a  departure  from  sound  principle,  and  that,  as  in  every  other  case  where 
principle  is  departed  from,  evils  have  resulted.  A  catalogue  of  these  would 
include  the  squandering  of  the  public  domain ;  the  enrichment  of  schemers 
whose  policy  it  has  been,  first  to  obtain  all  they  can  by  fair  promises,  and  then 
avoid  as  far  and  as  long  as  possible  the  fulfilment  of  the  promises ;  the  cor- 
ruption of  legislation ;  the  loss  of  State  credit ;  great  public  debts  recklessly 
contracted  for  moneys  often  recklessly  expended  ;  public  discontent  because  the 
enterprises  fostered  from  the  public  treasury  and  on  the  pretence  of  public  ben- 
efit are  not  believed  to  be  managed  in  the  public  interest ;  and,  finally,  great 
financial  panic,  collapse,  and  disaster.     At  such  a  cost  has  the  strong  expression 

[244] 


CH.  VIII.]  THE   GRADES   OP   MUNICIPAL   GOVERNMENT.  *  215 

would  seem,  then,  to  be  a  special  legislative  authority  to  make  or 
issue  them  ;  an  authority  which  does  not  reside  in  the  general 
words  in  which  the  powers  of  local  self-government  are  usually 
conferred,1  and  one  also  which  must  be  carefully  followed  by  the 

of  dissent  which  all  the  while  has  accompanied  these  precedents  been  disregarded 
and  set  aside. 

Some  most  remarkable  illustrations  may  be  found  in  our  legislative  history  of 
the  devices  and  shifts  that  will  be  resorted  to  for  the  plunder  of  the  public  when 
the  doctrine  is  once  submitted  to,  that  private  corporations  may  be  subsidized 
from  the  public  treasury.  In  this  place  we  content  ourselves  with  mentioning 
one.  The  people  of  Illinois  by  constitutional  provision  have  expressly  forbidden 
such  subsidies.  Unfortunately  for  the  State,  a  number  of  towns  and  counties  had 
previously  voted  considerable  sums  to  railroad  companies,  which  still  remain 
unpaid.  Some  of  these  constituted  such  burdens  upon  the  municipalities  voting 
them  that  the  local  authorities  did  not  venture  to  impose  the  necessary  taxes  to 
pay  the  interest,  much  less  to  provide  for  the  principal.  What  should  be  done 
under  such  circumstances  ?  The  holders  of  the  debts  wanted  their  pay  :  the  munic- 
ipalities wanted  to  get  rid  of  their  obligations.  It  would  seem  that  nothing  was 
to  be  done  but  for  the  one  party  to  pay  or  the  other  to  resort  to  the  proper 
legal  remedy.  With  millions  at  stake,  however,  ingenious  men  were  not  want- 
ing who  could  suggest  some  other  plan,  and  the  one  suggested  was,  that  these 
local  obligations  should  be  saddled  upon  the  State.  It  seems  incredible,  but  it 
is  nevertheless  true,  that  such  influences  were  brought  to  bear  as  secured  legisla- 
tion which,  covertly  and  by  indirection,  imposed  upon  the  State  the  burden.  So 
gross  and  palpable  a  disregard  of  the  constitutional  principle  which  requires  tax- 
ation to  be  gathered  from  those  upon  whom  the  burden  justly  rests  (post,  p.  493—1) 
is  not  often  known. 

As  denying  the  right  to  tax  in  aid  of  railroad  corporations,  reference  is  made 
to  Stokes  v.  Scott  County,  10  Iowa,  166  ;  State  v.  Wapello  County,  13  Iowa, 
388;  Myers  v.  Johnson  County,  14  Iowa,  47  ;  Smith  v.  Henry  County,  15  Iowa, 
386  ;  Ten  Eyck  v.  Keokuk,  ib.  486  ;  Clark  v.  Des  Moines,  19  Iowa,  212 ;  McClure 
v.  Owen,  26  Iowa,  243  ;  Hanson  v.  Vernon,  27  Iowa,  28 ;  People  v.  Township 
Board  of  Salem,  21  Mich.  11;  Bay  City  v.  State  Treasurer,  23  Mich.  499; 
Whiting  v.  Sheboygan  R.R.  Co.,  25  Wis.  167 ;  Phillips  v.  Albany,  28  Wis.  357  ; 
and  to  dissenting  opinions  in  many  of  the  cases  where  a  majority  of  the  Court 
sustained  the  right,  Compare  also  what  is  said  by  Church,  Ch.  J.,  in  People  v. 
Flagg,  46  N.  Y.  401. 

1  Bullock  v.  Curry,  2  Met.  (Ky.)  171.  A  general  power  to  borrow  money 
or  incur  indebtedness  to  aid  in  the  construction  of"  any  road  or  bridge"  must 
be  understood  to  have  reference  only  to  the  roads  or  bridges  within  the  munici- 
pality. Stokes  v.  Scott  County,  10  Iowa,  173 ;  State  v.  Wapello  County,  13 
Iowa,  388  ;  La  Fayette  v.  Cox,  5  Ind.  38.  There  are  decisions  in  the  Supreme 
Court  of  the  United  States  which  appear  to  be  to  the  contrary.  The  city  charter 
of  Muscatine  conferred  in  detail  the  usual  powers,  and  then  authorized  the  city 
"  to  borrow  money  for  any  object  in  its  discretion,"  after  a  vote  of  the  city  in 
favor  of  the  loan.     In  Meyer  v.  Muscatine,  1  Wall.  384,  the  court  seem  to  have 

[  245] 


*  215  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

municipality  in  all  essential  particulars,  or  the  subscription  or 
security  will  be  void.  And  while  mere  irregularities  of  action,  not 
going  to  the  essentials  of  the  power,  would  not  prevent  parties  who 
had  acted  in  reliance  upon  the  securities  enforcing  them,  yet  as 
the  doings  of  these  corporations  are  matters  of  public  record,  and 
they  have  no  general  power  to  issue  negotiable  securities,  any  one 
who  becomes  holder  of  such  securities,  even  though  they  be  nego- 
tiable in  form,  will  take  them  with  constructive  notice  of  any  want 
of  power  in  the  corporation  to  issue  them,  and  cannot  enforce  them 
when  their  issue  was  unauthorized.1 

construed  this  clause  as  authorizing  a  loan  for  any  object  whatever ;  though  such 
phrases  are  understood  usually  to  be  confined  in  their  scope  to  the  specific  objects 
before  enumerated ;  or  at  least  to  those  embraced  within  the  ordinary  functions 
of  municipal  governments.  See  -Lafayette  v.  Cox,  5  Ind.  38.  The  case  in  1 
Wallace  was  followed  in  Rogers  v.  Burlington,  3  Wall.  654,  four  justices  dis- 
senting. See  also  Mitchell  v.  Burlington,  4  Wall.  270.  A  municipal  corpora- 
tion having  power  to  borrow  money,  it  is  held,  may  make  its  obligations 
payable  wherever  it  shall  agree.  Meyer  v.  Muscatine,  1  Wall.  384.  But  some 
cases  hold  that  such  obligations  can  only  be  made  payable  at  the  corporation 
treasury,  unless  there  is  express  legislative  authority  to  make  them  payable 
elsewhere.  People  v.  Tazewell  County,  22  111.  147  ;  Pekin  v.  Reynolds,  31  111. 
529.  Such  corporations  cannot  give  their  obligations  all  the  qualities  of  nego- 
tiable paper,  without  express  legislative  permission.  Dively  v.  Cedar  Falls,  21 
Iowa,  565.  See  Thomas  v.  Richmond,  12  Wall.  349  ;  Dillon,  Mun.  Corp.  §§ 
406.  407. 

1  There  is  considerable  confusion  in  the  cases  on  this  subject.  If  the  corpo- 
ration has  no  authority  to  issue  negotiable  paper,  or  if  the  officers  who  assume 
to  do  so  have  no  power  under  the  charter  for  that  purpose,  there  can  be  no  doubt 
that  the  defence  of  want  of  power  may  be  made  by  the  corporation  in  any  suit 
brought  on  the  securities.  Smith  v.  Cheshire,  13  Gray,  318 ;  Gould  v.  Sterling, 
23  N.  Y.  458 ;  Andover  v.  Grafton,  7  N.1I.  298  ;  Clark  v.  Des  Moines,  19  Iowa, 
209.  And  in  any  case,  if  the  holder  has  received  the  securities  with  notice  of 
any  valid  defence,  he  takes  them  subject  thereto.  But  where  the  corporation  has 
power  to  issue  negotiable  paper  in  some  cases,  and  its  officers  have  assumed  to 
do  so  in  cases  not  within  the  charter,  whether  a  bona  fide  holder  would  be  charge- 
able with  notice  of  the  want  of  authority  in  the  particular  case,  or,  on  the  other 
hand,  would  be  entitled  to  rely  on  the  securities  themselves  as  sufficient  evidence 
that  they  were  properly  issued  when  nothing  appeared  on  their  face  to  apprise 
him  of  the  contrary,  is  a  question  still  open  to  some  dispute. 

In  Stoney  v.  American  Life  Insurance  Co.,  11  Paige,  635,  it  was  held  that  a 
negotiable  security  of  a  corporation  which  upon  its  face  appears  to  have  been 
duly  issued  by  such  corporation,  and  in  conformity  with  the  provisions  of  its 
charter,  is  valid  in  the  hands  of  a  bona,  fide  holder  thereof  without  notice, 
although  such  security  was  in  fact  issued  for  a  purpose,  and  at  a  place  not  author- 
ized by  the  charter  of  the  company,  and  in  violation  of  the  laws  of  the  State 
where  it  was  actually  issued.     In  Gelpecke  v.  Dubuque,  1  Wall.  203,  the  law  is 

[246] 


CH.  VIII.]         THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  *  216 

*  In  some  of  the  cases  involving  the  validity  of  the  sub-  [*  216] 
script-ions  made  or  bonds  issued  by  municipal  corporations 

stated  as  follows  :  "  Where  a  corporation  has  power,  under  any  circumstances, 
to  issue  negotiable  securities,  the  bona  fide  holder  has  a  right  to  presume  they 
were  issued  under  the  circumstances  which  give  the  requisite  authority,  and  they 
are  no  more   liable  to  be   impeached  for  any   infirmity   in   the  hands  of  such 
holder  than  any  other  commercial  paper."      See  also  Commissioners  of  Knox 
Co.  v.  Aspinwall,  21  How.  539;  Russell  v.  Jeffersonville,  24  How.  287;  Thorn 
v.  Commissioners  of  Miami   Co.,  2  Black,  722;  De  Voss  v.  Richmond,  18  Grat. 
338 :  San   Antonio  v.  Lane,  32  Tex.  405.     In  Farmers  and  Mechanics  Bank  v. 
The  Butchers  and  Drovers  Bank,  16  N.  Y.  125,  it  is  said:  "A  citizen  who  deals 
directly  with  a  corporation,  or  who  takes  its  negotiable  paper,  is  presumed  to 
know  the  extent  of  its  corporate  powers.     But  when  the  paper  is,  upon  its  face, 
in  all  respects  such  as  the  corporation  has  authority  to  issue,  and  its  only  defect 
consists  in  some  extrinsic  fact,  —  such  as  the  purpose  or  object  for  which  it  was 
issued,  — to  hold  that  the  person  taking  the  paper  must  inquire  as  to  such  extra- 
neous fact,  of  the  existence  of  which  he  is  in  no  way  apprised,  would  obviously 
conflict  with  the  whole  policy  of  the  law  in  regard  to  negotiable  paper."     In 
Madison  and  Indianapolis  Railroad  Co.  v.  The  Norwich  Savings  Society,  24  Ind. 
461,  this   doctrine  is  approved,   and  a  distinction  made,  in  the  earlier  case  of 
Smead  ».  Indianapolis,  &c,  Railroad  Co.,  11  Ind.  104,  between  paper  executed 
ultra  vires  and  that  executed  within  the  power  of  the  corporation,  but,  by  an 
abuse  of  the  power  in  that  particular  instance,  was  repudiated.     In  Halstead 
v.  Mayor,  &c,  of  New  York,  5  Barb.  218,   action  was  brought  upon  warrants 
drawn  by  the  corporation  of  New  York  upon  its  treasurer,  not  in  the  course  of 
its  proper  and  legitimate  business.      It  was  held  that  the  corporation  under  its 
charter  had  no  general  power  to  issue  negotiable  paper,  though,  not  being  pro- 
hibited by  law,  it  might  do  so  for  any  debt  contracted  in  the  course  of  its  proper 
legitimate  business.     We  quote  from  the  opinion  of  Edwards,  J. :   "  It  was  con- 
tended on  the  argument,  that  the  rule  of  the  law-merchant  which  protects  the 
bona  fide  holder  of  negotiable  paper,  without  notice,  was  of  universal  applica- 
tion ;  and  that,  if  the  defendants  had  a  right  to  issue  negotiable  paper,  it  must 
ex  necessitate  be  subject  to  the  same  rules  as  the  negotiable  paper  of  an  individ- 
ual.    This  view  seems  plausible,  but  will  it  bear  the  test  of  examination  ?     In 
the  first  place,  the  defendants  have  no  general  power,  either  express  or  implied, 
to  issue  negotiable  paper.     They  have  only  a  special  or  conditional  implied  power 
for  that  purpose  ;  that  it  is  necessary  as  a  condition  precedent  to  the  validity  of 
such  paper  that  the  debt  which  forms  the  consideration  should  be  contracted  in 
the  proper  legitimate   business  of  the  defendant.      The  act  under  which  they 
were  incorporated  is  declared  to  be  a  public  act.     Every  person  who  takes  their 
negotiable  paper  is  bound  to  know  the  extent  of  their  powers,  and  is  presumed 
to  receive  it  with  a  full  knowledge  that  they  have  only  a  limited  and  conditional 
power  to  issue  it.     He  is  thus  put  on  his  inquiry,  and  takes  it  at  his  peril.     The 
circumstances  under  which  a  bona  fide  holder,  without  notice,  receives  the  nego- 
tiable paper  of  a  natural  person,  or  of  a  corporation  having  the  general  express 
power  to  issue  negotiable  paper,  are  very  different.     In  both  those  instances,  the 

[247] 


*  216  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

[*  217]  in  aid  of  internal  *  improvements,  there  has  been  occasion 
to  consider  clauses  in  the  State  constitutions  designed  to 


power  to  issue  such  paper  is  general  and  unconditional ;  and  hence  the  rules  which 
have  been  established  by  commercial  policy,  for  the  purpose  of  giving  currency 
to  mercantile  paper,  are  applicable.  It  results  from  the  views  which  have  been 
expressed,  that  the  drafts  in  question,  not  having  been  issued  by  the  defendants 
in  their  proper  and  legitimate  business,  are  void  in  the  hands  of  the  plaintiff, 
although  received  by  him  without  actual  notice  of  their  consideration."  This 
decision  was  affirmed  in  3  N.  Y.  430.  In  Gould  v.  Town  of  Stirling,  23  N.  Y. 
464,  it  was  held  that  where  a  town  had  issued  negotiable  bonds,  which  could  only 
be  issued  when  the  written  assent  of  two-thirds  of  the  resident  persons  taxed 
in  the  town  had  been  obtained  and  filed  in  the  county  clerk's  office,  the  bonds 
issued  without  such  assent  were  invalid,  and  that  the  purchaser  of  them  could 
not  rely  upon  the  recital  in  the  bonds  that  such  assent  had  been  obtained,  but 
must  ascertain  for  himself  at  his  peril.  Say  the  court :  "  One  who  takes  a  nego- 
tiable promissory  note  or  bill  of  exchange,  purporting  to  be  made  by  an  agent, 
is  bound  to  inquire  as  to  the  power  of  the  agent.  Where  the  agent  is  appointed 
and  the  power  conferred,  but  the  right  to  exercise  the  power  has  been  made  to 
depend  upon  the  existence  of  facts  of  which  the  agent  may  be  supposed  to  be  in 
an  especial  manner  cognizant,  the  bona  fide  holder  is  protected  ;  because  he  is 
presumed  to  have  taken  the  paper  upon  the  faith  of  the  representation  as  to  those 
facts.  The  mere  fact  of  executing  the  note  or  bill  amounts  in  itself,  in  such  a 
case,  to  a  representation  by  the  agent  to  every  person  who  may  take  the  paper 
that  the  requisite  facts  exist.  But  the  holder  has  no  such  protection  in  regard 
to  the  existence  of  the  power  itself.  In  that  respect  the  subsequent  bona  fide 
holder  is  in  no  better  situation  than  the  payee,  except  in  so  far  as  the  latter 
would  appear  of  necessity  to  have  had  cognizance  of  facts  which  the  other  can- 
not [must?]  be  presumed  to  have  known,"  And  the  case  is  distinguished  from 
that  of  the  Farmers  and  Mechanics  Bank  v.  Butchers  and  Drovers  Bank,  16 
N.  Y.  125,  where  the  extrinsic  fact  affecting  the  authority  related  to  the  state  of 
accounts  between  the  bank  and  one  of  its  customers,  which  could  only  be  known 
to  the  teller  and  other  officers  of  the  bank.  See  also  Brady  v.  Mayor,  &c,  of 
New  York,  2  Bosw.  173 ;  Hopple  v.  Brown  Township,  13  Ohio,  N.  s.  311 ;  Veeder 
v.  Lima,  19  Wis.  280.  The  subject  is  reviewed  in  Clark  v.  City  of  Des  Moines, 
19  Iowa,  209.  The  action  was  brought  upon  city  warrants,  negotiable  in  form, 
and  of  which  the  plaintiff  claimed  to  be  bona  fide  assignee,  without  notice  of  any 
defects.  The  city  offered  to  show  that  the  warrants  were  issued  without  any 
authority  from  the  city  council,  and  without  any  vote  of  the  council  authorizing 
the  same.  It  was  held  that  the  evidence  should  have  been  admitted,  and  that  it 
would  constitute  a  complete  defence.  See  further  Head  v.  Providence,  &c, 
Co.,  2  Crunch,  169;  Royal  British  Bank  v.  Turquand,  6  El.  &  Bl.  327;  Knox 
County  v.  Aspinwall,  21  How.  544 ;  Bissell  v.  Jeffersonville,  24  How.  287  ;  San- 
born v.  Deerfield,  2  N.  H.  254 ;  Alleghany  City  v.  McClurkan,  14  Penn.  St.  83 ; 
Morris  Canal  and  Banking  Co.  v.  Fisher,  1  Stock.  667  ;  Clapp  v.  Cedar  Co., 
5  Iowa,  15;  Commissioners,  &c.  v.  Cox,  6  Ind.  403;  Madison  and  Indianapolis 
R.R.  Co.  v.  Norwalk  Savings  Society,  24  Ind.  457 ;  Bird  v.  Daggett,  97  Mass. 

[248] 


CH.  VIII.]         THE   GRADES   OP   MUNICIPAL   GOVERNMENT.  *  217 

limit  the  power  of  the  *  legislature  to  incur  indebtedness  [*  218] 
oji  behalf  of  the  State,  and  which  clauses,  it  has  been 
urged,  were  equally  imperative  in  restraining  indebtedness  on 
behalf  of  the  several  political  divisions  of  the  State.  The  Consti- 
tution of  Kentucky  prohibited  any  act  of  the  legislature  author- 
izing any  debt  to  be  contracted  on  behalf  of  the  Commonwealth, 
except  for  certain  specified  purposes,  unless  provision  should  be 
made  in  such  act  for  an  annual  tax  sufficient  to  pay  such  debt 
within  thirty  years ;  and  the  act  was  not  to  have  effect  unless 
approved  by  the  people.  It  was  contended  that  this  provision  was 
not  to  apply  to  the  Commonwealth  as  a  mere  ideal  abstraction, 
unconnected  with  her  citizens  and  her  soil,  but  to  the  Common- 
wealth as  composed  of  her  people,  and  their  territorial  organiza- 
tions of  towns,  cities,  and  counties,  which  make  up  the  State,  and 
that  it  embraced  in  principle  every  legislative  act  which  author- 
ized a  debt  to  be  contracted  by  any  of  the  local  organizations  of 
which  the  Commonwealth  was  composed.  The  courts  of  that 
State  held  otherwise.  "  The  clause  in  question,"  they  say,  "  ap- 
plies in  terms  to  a  debt  contracted  on  behalf  of  the  Commonwealth 
as  a  distinct  corporate  body  ;  and  the  distinction  between  a  debt 
on  behalf  of  the  Commonwealth,  and  a  debt  or  debts  on  behalf  of 
one  county,  or  of  any  number  of  counties,  is  too  broad  and  palpa- 

494.  It  is  of  course  impossible  to  reconcile  these  authorities  ;  but  the  doctrine 
in  the  case  of  Gould  v.  Town  of  Stirling  appears  to  us  to  be  sound,  and  that, 
wherever  a  want  of  power  exists,  a  purchaser  of  the  securities  is  chargeable  with 
notice  of  it,  if  the  defect  is  disclosed  by  the  corporate  records,  or,  as  in  that 
case,  by  other  records  where  the  power  is  required  to  be  shown.  See  Fish  v. 
Kenosha,  26  Wis.  24.  That  the  powers  of  the  agents  of  municipal  corporations 
are  matters  of  record,  and  the  corporation  not  liable  for  an  unauthorized  act,  see 
further  Baltimore  v.  Eschbach,  18  Md.  276 ;  Johnson  v.  Common  Council,  16 
Ind.  227.  Those  who  deal  with  a  corporation  must  take  notice  of  the  restrictions 
in  its  charter,  or  in  the  general  law,  regarding  the  making  of  contracts.  Brady 
v.  Mayor,  &c,  of  New  York,  2  Bosw.  173;  s.  c.  20  N.  Y.  312;  Swift  v.  Wil- 
liamsburg, 24  Barb.  427  ;  Zabriskie  v.  Cleveland,  &c,  R.R.  Co.,  23  How.  381 ; 
Hull  v.  Marshall  County,  12  Iowa,  142 ;  Clark  v.  Des  Moines,  19  Iowa,  199 ; 
Marsh  v.  Supervisors  of  Fulton  Co.,  10  Wall.  676.  If  they  are  not,  no  subse- 
quent ratification  by  the  corporation  can  make  them  valid.  Leavenworth  v. 
Rankin,  2  Kansas,  357.  The  courts  of  Missouri  and  Florida  have  held  that 
purchasers  of  securities  issued  under  unconstitutional  laws  will  be  protected, 
and  the  securities  enforced  if  they  were  purchased  before  the  laws  were  declared 
invalid.  Steines  v.  Franklin  County,  48  Mo.  167 ;  Columbia  County  v.  King, 
13  Fla.  451. 

[  249] 


*  218  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

ble  to  admit  of  the  supposition  that  the  latter  class  of 
[*219]  *  debts  was  intended  to  be  embraced  by  terms  specifically 

designating  the  former  only."  1  The  same  view  has  been 
taken  by  the  courts  of  Iowa,  Wisconsin,  Illinois,  and  Kansas,  of 
the  provisions  in  the  constitutions  of  those  States  restricting  the 
power  of  the  legislature  to  contract  debts  on  behalf  of  the  State  in 
aid  of  internal  improvements  ;  2  but  the  decisions  of  the  first- 
named  State  have  since  been  doubted,3  and  those  in  Illinois,  it 
would  seem,  overruled.4  In  Michigan  it  has  been  held  that  they 
were  inapplicable  to  a  constitution  adopted  with  a  clear  purpose  to 
preclude  taxation  for  such  enterprises.5 

1  Slack  v.  Railroad  Co.,  13  B.  Monr.  16. 

2  Dubuque  County  v.  Railroad  Co.,  4  Greene  (Iowa),  1  ;  Clapp  v.  Cedar 
County,  5  Iowa,  15;  Clark  v.  Janesville,  10  Wis.  136;  Bushnell  v.  Beloit,  ib. 
195;  Prettyman  v.  Supervisors,  19  111.  406  ;  Robertson  v.  Rockford,  21  111.  451  ; 
Johnson  v.  Stark  County,  24  111.  75  ;  Perkins  v.  Lewis,  ib.  208 ;  Butler  v.  Dun- 
ham, 27  111.  474  ;  Leavenworth  Co.  v.  Miller,  7  Kansas,  479. 

3  State  v.  Wapello  County,  13  Iowa,  388.  And  see  People  v.  Supervisor,  &c., 
16  Mich.  251. 

4  In  People  v.  Mayor,  &c.,  of  Chicago,  51  111.  34,  it  is  held  expressly  that 
the  provision  of  the  State  constitution  prohibiting  the  State  from  creating  a 
debt  exceeding  fifty  thousand  dollars  without  the  consent  of  the  people  manifested 
at  a  general  election,  would  preclude  the  State  from  creating  a  like  debt  against 
a  municipal  corporation,  except  upon  the  like  conditions.  And  it  was  pertinently 
said  :  "  The  protection  of  the  whole  implies  necessarily  the  protection  of  all  its 
organized  parts,  and  the  whole  cannot  be  secure  while  all  or  any  of  its  parts  are 
exposed  to  danger.  What  is  the  real  value  of  this  provision  of  the  constitution 
if  the  legislature,  inhibited  from  incurring  a  debt  beyond  fifty  thousand  dollars 
on  behalf  of  the  State,  may  force  a  debt  tenfold  or  one  hundred-fold  greater  — 
for  there  is  no  limit  to  the  power  —  upon  all  the  cities  of  the  State?  We  can 
perceive  none."  We  do  not  see  how  this  can  be  reconciled  with  the  earlier 
Illinois  cases,  and  it  is  so  manifestly  right,  it  is  hoped  the  learned  court  will  never 
make  the  attempt. 

5  The  following  extract  from  the  opinion  in  Bay  City  v.  State  Treaurer,  23 
Mich.  504,  is  upon  this  point:  "Our  State  had  had  a  bitter  experience  of  the 
evils  of  the  government  connecting  itself  with  works  of  public  improvement.  In 
a  time  of  inflation  and  imagined  prosperity,  the  State  had  contracted  a  large  debt 
for  the  construction  of  a  system  of  railroads,  and  the  people  were  oppressed  with 
heavy  taxation  in  consequence.  Moreover,  for  a  portion  of  this  debt  they  had 
not  received  what  they  bargained  for,  and  they  did  not  recognize  their  legal  or 
moral  obligation  to  pay  for  it.  The  good  name  and  fame  of  the  State  suffered  in 
consequence.  The  result  of  it  all  was  that  a  settled  conviction  fastened  itself 
upon  the  minds  of  our  people,  that  works  of  internal  improvement  should  be 
private  enterprises ;  that  it  was  not  in  the  proper  province  of  government  to 
connect  itself  with  their  construction  or  management,  and  .that  an  imperative 

[250] 


CH.  VIII.]         THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  *  219 

Another  class  of  legislation,  which  has  recently  demanded  the 
attention  of  the  courts,  has  been  little  less  troublesome,  from  the 

State  policy  demanded  that  no  burdens  should  be  imposed  upon  the  people  by 
State  authority,  for  any  such  purpose.  Under  this  conviction  they  incorporated 
in  the  constitution  of  1850,  under  the  significant  title  of  '  Finance  and  Tax- 
ation,' several  provisions  expressly  prohibiting  the  State  from  being  a  party  to, 
or  interested  in,  any  work  of  internal  impi'ovement,  or  engaged  in  carrying  on 
any  such  work,  except  in  the  expenditure  of  grants  made  to  it ;  and  also  from 
subscribing  to,  or  being  interested  in,  the  stock  of  any  company,  association,  or 
corporation,  or  loaning  its  credit  in  aid  of  any  person,  association,  or  corpora- 
tion.    Art.  XIV.  §  9,  8,  and  7. 

"All  these  provisions  were  incorporated  by  the  people  on  the  constitution,  as 
precautions  against  injudicious  action  by  themselves,  if  in  another  time  of  infla- 
tion and  excitement  they  should  be  tempted  to  incur  the  like  burdensome  tax- 
ation in  order  to  accomplish  public  improvements  in  cases  where  they  were  not 
content  to  wait  the  result  of  private  enterprise.  The  people  meant  to  erect  such 
effectual  barriers  that  if  the  temptation  should  return,  the  means  of  inflicting  the 
like  injury  upon  the  credit,  reputation,  and  prosperity  of  the  State,  should  not 
be  within  the  reach  of  the  authorities.  They  believed  these  clauses  of  the  con- 
stitution accomplished  this  purpose  perfectly,  and  none  of  its  provisions  had 
more  influence  in  recommending  that  instrument  to  the  hearty  good-will  of  the 
people. 

"  In  process  of  time,  however,  a  majority  in  the  legislature  were  found  willing, 
against  the  solemn  warning  of  the  executive,  to  resort  again  to  the  power  of 
taxation  in  aid  of  internal  improvement.  It  was  discovered  that  though  "  the 
State  "  was  expressly  inhibited  from  giving  such  aid  in  any  form,  except  in  the 
disposition  of  grants  made  to  it,  the  subdivisions  of  which  the  State  was  com- 
posed were  not  under  the  like  ban.  Decisions  in  other  States  were  found  which 
were  supposed  to  sanction  the  doctrine  that,  under  such  circumstances,  the  State 
might  do  indirectly  through  its  subdivisions  what  directly  it  was  forbidden  to  do. 
Thus  a  way  was  opened  by  which  the  whole  purpose  of  the  constitutional  pro- 
visions quoted  might  be  defeated.  The  State  could  not  aid  a  private  corporation 
with  its  credit,  but  it  might  require  each  of  its  townships,  cities,  and  villages  to 
do  so.  The  State  could  not  load  down  its  people  with  taxes  for  the  construction 
of  a  public  improvement,  but  it  might  compel  the  municipal  authorities,  which 
were  its  mere  creatures,  and  which  held  their  whole  authority  and  their  life  at  its 
will,  to  enforce  such  taxes,  one  by  one,  until  the  whole  people  were  bent  to  the 
burden. 

"Now,  whatever  might  be  the  just  and  proper  construction  of  similar  pro- 
visions in  the  constitutions  of  States  whose  history  has  not  been  the  same  with 
our  own,  the  majority  of  this  court  thought  when  the  previous  case  was  before 
us,  and  they  still  think,  that  these  provisions  in  our  constitution  do  preclude  the 
State  from  loaning  the  public  credit  to  private  corporations,  and  from  imposing 
taxation  upon  its  citizens  or  any  portion  thereof  in  aid  of  the  construction  of 
railroads.  So  the  people  supposed  when  the  constitution  was  adopted.  Consti- 
tutions do  not  change  with  the  varying  tides  of  public  opinion  and  desire  ;  the 
will  of  the  people  therein  recorded  is  the  same  inflexible  law  until  changed  by  their 

[251] 


*  219  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

new,  varied,  and  peculiar  questions  involved,  than  that  in  relation 
to  municipal  subscriptions  in  aid  of  internal  improvements.  As 
the  power  to  declare  war  and  to  conduct  warlike  operations  rests 
in  the  national  government,  and  that  government  is  vested  with 
unlimited  control  of  all  the  resources  of  the  country  for  those 
purposes,  the  duty  of  national  defence,  and,  consequently,  the  duty 
to  defend  all  the  citizens  as  well  as  all  the  property  of  all  the 
municipal  organizations  in  the  several  States,  rests  upon  the  na- 
tional authorities.  This  much  is  conceded,  though  in  a  qualified 
degree,  also,  and,  subordinate  to  the  national  government,  a  like 
duty  rests  doubtless  upon  the  State  governments,  which  may 
employ  the  means  and  services  of  their  citizens  for  the  purpose. 
But  it  is  no  part  of  the  duty  of  a  township,  city,  or  county,  as 
such,  to  raise  men  or  money  for  warlike  operations,  nor  have  they 
any  authority,  without  express  legislative  sanction,  to  impose  upon 
their  people  any  burden  by  way  of  taxation  for  any  such  purpose.1 
Nevertheless,  when  a  war  arises  which  taxes  all  the  energies  of  the 
nation,  which  makes  it  necessary  to  put  into  the  field  a  large  pro- 
portion of  all  the  able-bodied  men  of  the  country,  and  which  rend- 
ers imperative  a  resort  to  all  available  means  for  filling  the  ranks 

of  the  army,  recruiting  the  navy,  and  replenishing  the 
[*  220]   national  treasury,  the  question  *  becomes  a  momentous 

one,  whether  the  local  organizations  —  those  which  are 
managed  most  immediately  by  the  people  themselves  —  may  not 
be  made  important  auxiliaries  to  the  national  and  State  govern- 
ments in  accomplishing  the  great  object  in  which  all  alike  are 
interested  so  vitally ;  and  if  they  are  capable  of  rendering  impor- 

own  deliberative  action  ;  and  it  cannot  be  permissible  to  the  courts  that  in  order 
to  aid  evasions  and  circumventions,  they  shall  subject  these  instruments,  which  in 
the  main  only  undertake  to  lay  down  broad  general  principles,  to  a  literal  and 
technical  construction,  as  if  they  were  great  public  enemies  standing  in  the  way 
of  progress,  and  the  duty  of  every  good  citizen  was  to  get  around  their  pro- 
visions whenever  practicable,  and  give  them  a  damaging  thrust  whenever  con- 
venient. They  must  construe  them,  as  the  people  did  in  their  adoption,  if  the 
means  of  arriving  at  that  construction  are  within  their  power.  In  these  cases  we 
thought  we  could  arrive  at  it  from  the  public  history  of  the  times  " 

1  Stetson  v.  Kempton,  13  Mass.  272  ;  Gove  v.  Epping,  41  N.  H.  545  ;  Crowell 
v.  Hopkinton,  45  N.  H.  9  ;  Baldwin  v.  North  Branford,  32  Conn.  47  ;  Webster  v. 
Harwinton,  ib.  131.  See  also  Claflin  v.  Hopkinton,  4  Gray,  502  ;  Cover  v.  Bay- 
town,  12  Minn.  124 ;  Fiske  v.  Hazzard,  7  R.  I.  438  ;  Alley  v.  Edgecomb,  53  Me. 
446  ;  People  v.  Supervisors  of  Columbia,  43  N.  Y.  130  ;  Walschlager  v.  Liberty, 
23  Wis.  362. 

[252] 


CH.  VIII.]         THE   GRADES   OP   MUNICIPAL   GOVERNMENT.  *  220 

tant  assistance,  whether  there  is  any  constitutional  principle  which 
would  be  violated  by  making  use  of  these  organizations  in  a  case 
where  failure  on  the  part  of  the  central  authority  would  precipi- 
tate general  dismay  and  ruin.  Indeed,  as  the  general  government, 
with  a  view  to  convenience,  economy,  and  promptness  of  action, 
will  be  very  likely  to  adopt,  for  any  purposes  of  conscription,  the 
existing  municipal  divisions  of  the  States,  and  its  demand  for 
men  to  recruit  its  armies  will  assume  a  form  seeming  to  impose 
on  the  people  whose  municipal  organization  embraces  the  territory 
covered  by  the  demand,  the  duty  of  meeting  it,  the  question  we 
have  stated  may  appear  to  be  one  rather  of  form  than  of  substance, 
inasmuch  as  it  would  be  difficult  to  assign  reasons  why  a  duty 
resting  upon  the  citizens  of  a  municipality  may  not  be  considered 
as  resting  upon  the  corporation  itself  of  which  they  are  the  con- 
stituents, and  if  so,  why  it  may  not  be  assumed  by  the  munici- 
pality itself,  and  then  be  discharged  in  like  manner  as  any  other 
municipal  burden,  if  the  legislature  shall  grant  permission  for  that 
purpose. 

One  difficulty  that  suggests  itself  in  adopting  any  such  doctrine 
is,  that,  by  the  existing  law  of  the  land,  able-bodied  men  between 
certain  specified  ages  are  alone  liable  to  be  summoned  to  the  per- 
formance of  military  duty  ;  and  if  the  obligation  is  assumed  by 
the  municipal  organizations  of  the  State,  and  discharged  by  the 
payment  of  money  or  the  procurement  of  substitutes,  the  taxation 
required  for  this  purpose  can  be  claimed,  with  some  show  of  rea- 
son, to  be  taxation  of  the  whole  community  for  the  particular  benefit 
of  that  class  upon  whom  by  the  statutes  the  obligation  rests.  When 
the  public  funds  are  used  for  the  purpose,  it  will  be  insisted  that 
they  are  appropriated  to  discharge  the  liabilities  of  private  indi- 
viduals. Those  who  are  already  past  the  legal  age  of  service,  and 
who  have  stood  their  chance  of  being  called  into  the  field,  or  per- 
haps have  actually  rendered  the  required  service,  will  be  able  to 
urge  with  considerable  force  that  the  State  can  no  longer  honorably 
and  justly  require  them  to  contribute  to  the  public  defence,  but 
ought  to  insist  that  those  within  the  legal  ages  should  perform 
their  legal  duty ;  and  if  any  upon  whom  that  duty  rests  shall 
actually  have  enrolled  themselves  in  the  army  with  a  view  to  dis- 
charge it,  such  persons  may  claim,  with  even  greater  rea- 
son, that  every  consideration  of  *  equality  and  justice  [*  221] 
demands  that  the  property  they  leave  behind  them  shall 
not  be  taxed  to  relieve  others  from  a  duty  equally  imperative. 

[253] 


*  221  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

Much  may  be  said  on  both  sides  of  this  subject,  but  the  judicial 
decisions  are  clear,  that  the  people  of  any  municipal  corporation 
or  political  division  of  a  State  have  such  a  general  interest  in 
relieving  that  portion  of  their  fellow-citizens  who  are  liable  to  the 
performance  of  military  duty,  as  will  support  taxation  or  render 
valid  indebtedness  contracted  for  the  purpose  of  supplying  their 
places,  or  of  filling  any  call  of  the  national  authorities  for  men, 
with  volunteers  who  shall  be  willing  to  enter  the  ranks  for  such 
pecuniary  inducements  as  may  be  offered  them.  The  duty  of 
national  defence,  it  is  held,  rests  upon  every  person  under  the  pro- 
tection of  the  government  who  is  able  to  contribute  to  it,  and  not 
solely  upon  those  who  are  within  the  legal  ages.  The  statute 
which  has  prescribed  those  ages  has  for  its  basis  the  presumption 
that  those  between  the  limits  fixed  are  best  able  to  discharge  the 
burden  of  military  service  to.  the  public  benefit,  but  others  are 
not  absolved  from  being  summoned  to  the  duty,  if  at  any  time 
the  public  exigency  should  seem  to  demand  it.  Exemption  from 
military  duty  is  a  privilege  rather  than  a  right,  and,  like  other 
statutory  privileges,  may  be  recalled  at  any  time  when  reasons  of 
public  policy  or  necessity  seem  to  demand  the  recall.1  Moreover, 
there  is  no  valid  reason,  in  the  nature  of  things,  why  those  who 
are  incapable  of  performing  military  service,  by  reason  of  age, 
physical  infirmity,  or  other  cause,  should  not  contribute,  in  pro- 
portion to  their  ability,  to  the  public  defence  by  such  means  as  are 
within  their  power;  and  it  may  well  happen  that  taxation,  for  the 
purpose  of  recruiting  the  armies  of  the  nation,  will  distribute  the 
burden  more  equally  and  justly  among  all  the  citizens  than  any 
other  mode  which  could  be  devised.  Whether  it  will  be  just  and 
proper  to  allow  it  in  any  instance  must  rest  with  the  legislature 
to  determine  ;  but  it  is  unquestionably  competent,  with  legislative 
permission,  for  towns,  cities,  and  counties  to  raise  money  by  loans 
or  by  taxation  to  pay  bounty  moneys  to  those  who  shall  volunteer 
to  fill  any  call  made  upon  such  towns,  cities,  or  counties  to  supply 
men  for  the  national  armies.2 

1  See  post,  p.  383,  and  cases  cited  in  note. 

2  "  The  power  to  create  a  public  debt,  and  liquidate  it  by  taxation,  is  too  clear 
for  dispute.  The  question  is,  therefore,  narrowed  to  a  single  point :  Is  the  purpose 
in  this  instance  a  public  one  ?  Does  it  concern  the  common  welfare  and  interest 
of  the  municipality?  Let  us  see.  Civil  war  was  raging,  and  Congress  provided 
in  the  second  section  of  the  act  of  24th  February,  1864,  that  the  quota  of  the 
troops  of  each  ward  of  a  city,  town,  township,  precinct,  &c,  should  be  as  nearly 

[254] 


CH.  VIII.]         THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  *  222 

*  Relief  of  the  community  from  an  impending  or  pos-  [*  222] 
sible  draft  is  not,  however,  the  sole  consideration  which 
will  support  taxation  by  the  municipal  corporations  of  the  State  to 
raise  money  for  the  purpose  of  paying  bounties  to  soldiers.  Grat- 
itude to  those  who  have  entered  the  military  service,  whether  as 
volunteers  or  drafted  men,  or  as  substitutes  for  others 
who  were  drafted  or  were  *  liable  to  be,  is  a  consideration  [*  223] 
which  the  State  may  well  recognize,  and  it  may  compen- 

as  possible  in  proportion  to  the  number  of  men  resident  therein  liable  to  render 
military  service.  Section  three  provided  that  all  volunteers  who  may  enlist  after 
a  draft  shall  be  ordered  shall  be  deducted  from  the  number  ordered  to  be  drafted 
in  such  ward,  town,  &c.  Volunteers  are  therefore  by  law  to  be  accepted  in 
relief  of  the  municipality  from  a  compulsory  service  to  be  determined  by  lot  or 
chance.  Does  the  relief  involve  the  public  welfare  or  interest?  The  answer 
rises  spontaneously  in  the  breast  of  every  one  in  the  community  liable  to  the  mil- 
itary burden.  It  is  given,  not  by  the  voice  of  him  alone  who  owes  the  service, 
but  swells  into  a  chorus  from  his  whole  family,  relatives,  and  friends.  Military 
service  is  the  highest  duty  and  burden  the  citizen  is  called  to  obey  or  to  bear.  It 
involves  life,  limb,  and  health,  and  is  therefore  a  greater  '  burden '  than  the  tax- 
ation of  property.  The  loss  or  the  injury  is  not  confined  to  the  individual  him- 
self, but  extends  to  all  the  relations  he  sustains.  It  embraces  those  bound  to  him 
in  the  ties  of  consanguinity,  friendship,  and  interest ;  to  the  community  which 
must  furnish  support  to  his  family,  if  he  cannot,  and  which  loses  in  him  a  member 
whose  labor,  industry,  and  property  contribute  to  its  wealth  and  its  resources ; 
who  assists  to  bear  its  burdens,  and  whose  knowledge,  skill,  and  public  spirit  con- 
tribute to  the  general  good.  Clearly  the  loss  of  that  part  of  the  population  upon 
whom  the  greatest  number  depend,  and  who  contribute  most  to  the  public  wel- 
fare, by  their  industry,  skill,  and  property,  and  good  conduct,  is  a  common  loss, 
and  therefore  a  general  injury.  These  are  alike  subject  to  the  draft.  The  blind 
and  relentless  lot  respects  no  age,  condition,  or  rank  in  life.  It  is,  therefore, 
clearly  the  interest  of  the  community  that  those  should  serve  who  are  willing, 
whose  loss  wilt  sever  the  fewest  ties,  and  produce  the  least  injury. 

"  The  bounty  is  not  a  private  transaction  in  which  the  individual  alone  is  ben- 
efited. It  benefits  the  public  by  inducing  and  enabling  those  to  go  who  feel  they 
can  best  be  spared.  It  is  not  voluntary  in  those  who  pay  it.  The  community  is 
subject  to  the  draft,  and  it  is  paid  to  relieve  it  from  a  burden  of  war.  It  is  not 
a  mere  gift  or  reward,  but  a  consideration  for  services.  It  is  therefore  not  a 
confiscation  of  one  man's  property  for  another's  use,  but  it  is  a  contribution  from 
the  public  treasury  for  a  general  good.  In  short,  it  is  simply  taxation  to  relieve 
the  municipality  from  the  stern  demands  of  war,  and  avert  a  public  injury  in  the 
loss  of  those  who  contribute  most  to  the  public  welfare."  Speer  v.  School  Direc- 
tors of  Blairsville,  50  Penn.  St.  159.  See  also  Waldo  v.  Portland,  33  Conn. 
363;  Bartholomew  v.  Harwinton,  ib.  408;  Fowler  v.  Danvers,  8  Allen,  80; 
Lowell  v.  Oliver,  ib.  247  ;  Washington  County  v.  Berwick,  56  Penn.  St.  466  ; 
Trustees  of  Cass  v.  Dillon,  16  Ohio,  N.  s.  38  ;  State  v.  Wilkesbarre,  20  Ohio,  N.  s. 
292.  Also  Opinions  of  Justices,  52  Me.  595,  in  which  the  view  is  expressed 
that  towns  cannot,  under  the  power  to  raise  money  for  "  necessary  town  charges," 

[  255  ] 


*  223  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

sate  the  service  either  by  the  payment  of  bounty  moneys  directly 
to  such  persons,  or  by  provision  for  the  support  of  those  dependent 
upon  them  while  they  shall  be  absent  from  their  homes.  Whether 
we  regard  such  persons  as  public  benefactors,  who,  having  taken 
upon  themselves  the  most  severe  and  dangerous  duty  a  citizen  is 
ever  called  upon  to  perform,  have  thereby  entitled  themselves  to 
public  reward  as  an  incentive  to  fidelity  and  courage,  or  as  persons 
who,  having  engaged  in  the  public  service  for  a  compensation  inad- 
equate to  the  toil,  privation,  and  danger  incurred,  are  deserving  of 
the  bounty  as  a  further  recognition  on  the  part  of  the  community 
of  the  worth  of  their  services,  there  seems  in  either  case  to  be  no 
sufficient  reason  to  question  the  right  of  the  legislature  to  authorize 
the  municipal  divisions  of  the  State  to  raise  moneys  in  any  of  the 

usual  modes,  for  the  purpose  of  paying  bounties  to  them 
[*  224]   or  their  families  in  recognition  of  such  services.1  *  And  if 

a  municipal  corporation  shall  have  voted  moneys  for  such 

purpose  without  legislative  authority,  it  is  competent  for 
[*  225]  the  *  legislature  afterwards  to  legalize  their  action  if  it 

shall  so  choose.2 

raise  and  pay  commutation  moneys  to  relieve  persons  drafted  into  the  military 
service  of  the  United  States. 

1  The  act  under  which  the  Pennsylvania  case,  cited  in  the  preceding  note,  was 
decided,  authorized  the  borough  to  contract  a  debt  for  the  payment  of  three 
hundred  dollars  to  each  non-commissioned  officer  and  private  who  might  there- 
after volunteer  and  enter  the  service  of  the  United  States,  and  be  credited  upon 
the  quota  of  the  borough  under  an  impending  draft.  The  whole  purpose,  there- 
fore, was  to  relieve  the  community  from  the  threatened  conscription.  But  in  the 
case  of  Brodhead  v.  Milwaukee,  19  "Wis.  652,  it  was  held  constitutional,  not  only 
to  provide  for  the  future  by  such  municipal  taxation,  but  also  to  raise  moneys  to 
pay  bounties  to  volunteers  previously  enlisted,  and  even  to  those  who  should 
thereafter  procure  substitutes  for  themselves,  and  have  them  credited  on  the 
municipal  quota. 

2  Booth  v.  Town  of  Woodbury,  32  Conn.  118;  Bartholomew  v.  Harwinton, 
33  Conn.  408;  Crowell  v.  Hopkinton,  45  N.  H.  9;  Shackford  v.  Newington,  46 
N.  H.  415;  Lowell  v.  Oliver,  8  Allen,  247;  Ahl  r.  Gleim,  52  Penn.  St.  432; 
Weister  v.  Hade,  ib.  474 ;  Coffman  v.  Keightley,  24  Ind.  509 ;  Board  of  Com- 
missioners v.  Brearss,  25  Ind.  110;  Connor  v.  Fulsom,  13  Minn.  219;  State  v. 
Demorest,  32  N.  J.  528  ;  Taylor  v.  Thompson,  42  111.  9  ;  Barbour  v.  Camden,  51 
Me.  608 ;  Hart  v.  Holden,  55  Me.  572  ;  Burnham  v.  Chelsea,  43  Vt.  69  ;  Butler 
v.  Pultney,  ib.  481.  In  State  v.  Jackson,  33  N.  J.  450,  a  statute  authorizing  a 
town  to  raise  money  by  tax  to  relieve  its  inhabitants  from  the  burden  of  a  draft 
under  a  law  of  Congress,  was  held  void  as  tending  to  defeat  the  purpose  of  such 
law.  The  decision  was  made  by  a  bare  majority  of  a  bench  of  eleven  judges. 
Compare  OTIara  v.  Carpenter,  23  Mich.  410,  in  which  a  contract  of  insurance 
against  a  military  draft  was  held  void  on  grounds  of  public  policy. 

[  256  ] 


CH.  VIII.]  THE   GRADES    OF   MUNICIPAL   GOVERNMENT.  *  226 

*  The  cases  to  which  we  have  referred  in  the  notes  [*  226] 
assume  that,  if  the  purpose  is  one  for  which  the  State 
might  properly  levy  a  tax  upon  its  citizens  at  large,  the  legislature 
would  also  have  power  to  apportion  and  impose  the  duty,  or  confer 
the  power  of  assuming  it  upon  the  towns  and  other  municipal  or 
political  divisions.  And  the  rule  laid  down  is  one  which  opens  a 
broad  field  to  legislative  discretion,  allowing  as  it  does  the 
raising  and  *  appropriation  of  moneys,  whenever,  in  the  [*  227] 
somewhat  extravagant  words  of  one  of  the  cases,  there  is 
"  the  least  possibility  that  it  will  be  promotive  in  any  degree  of  the 
public  welfare." 1  The  same  rule,  substantially,  has  been  recognized 
by  the  Court  of  Appeals  of  New  York.  "  The  legislature  is  not 
confined  in  its  appropriation  of  the  public  moneys,  or  of  the  sums 
to  be  raised  by  taxation  in  favor  of  individuals,  to  cases  in  which 
a  legal  demand  exists  against  the  State.  It  can  thus  recognize 
claims  founded  in  equity  and  justice  in  the  largest  sense  of  these 
terms,  or  in  gratitude  or  charity.  Independently  of  express  con- 
stitutional restrictions,  it  can  make  appropriations  of  money  when- 
ever the  public  well-being  requires  or  will  be  promoted  by  it,  and 
it  is  the  judge  of  what  is  for  the  public  good.  It  can,  moreover, 
under  the  power  to  levy  taxes,  apportion  the  public  burdens  among 
all  the  tax-paying  citizens  of  the  State,  or  among  those  of  a  partic- 
ular section  or  political  division."  2  And  where  citizens  have  vol- 
untarily advanced  moneys  for  the  purpose  of  paying  bounties  to 
recruits  who  fill  the  quota  of  a  municipal  corporation,  on  an  under- 
standing, based  upon  informal  corporate  action,  that  the  moneys 
should  be  refunded  when  a  law  should  be  passed  permitting  it,  a 
subsequent  act  of  the  legislature  authorizing  taxation  for  this  pur- 
pose is  valid.3 

However  broad  are  the  terms  employed  in  describing  the  legis- 
lative power  over  taxation  in  these  cases,  it  is  believed  that  no  one 
of   them  has  gone  so  far  as  to  sanction  taxation  or  the  appro- 

1  Booth  v.  Woodbury,  32  Conn.  128,  per  Butler,  J.  "  To  make  a  tax  law 
unconstitutional  on  this  ground,  it  must  be  apparent  at  first  blush  that  the  com- 
munity taxed  can  have  no  possible  interest  in  the  purpose  to  -which  their  money 
is  to  be  applied."  Sharpless  v.  Mayor,  &c,  21  Penn.  St.  174,  following  Cheaney 
v.  Hooser,  9  B.  Monr.  345. 

2  Guilford  v.  Supervisors  of  Chenango,  13  N.  Y.  149. 

3  Weister  v.  Hade,  52  Penn.  St.  474.  And  see  People  v.  Sullivan,  43  111. 
413;  Johnson  v.  Campbell,  49  111.  316.  Compare  Susquehanna  Depot  v.  Barry, 
61  Penn.  St.  317. 

17  [  257  ] 


*  227  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

priation  of  the  public  revenue  in  order  to  refund  to  individuals 
moneys  which  they  may  have  paid  to  relieve  themselves  from  an 
impending  draft,  or  may  have  voluntarily  contributed  to  any  public 
purpose,  from  motives  purely  personal  to  themselves,  without  any 
reason  to  rely  upon  the  credit  of  the  State,  or  of  any  municipal 
corporation,  for  reimbursement,  and  where  the  circumstances  are 
not  such  as  fairly  to  challenge  the  public  gratitude.  Taxation  in 
such  a  case,  where  no  obligation,  honorary  or  otherwise,  rests  upon 
the  public,  would  be  nothing  else  than  a  naked  case  of  appropri- 
ating the  property  of  the  tax-payer  for  private  purposes,  and  that 
without  reference  to  anticipated  public  benefits.1 

1  Tyson  v.  School  Directors,  &c,  51  Perm.  St.  9.  A  meeting  of  persons  liable 
to  draft  under  the  law  of  the  United  States  was  called,  and  an  association  formed, 
called  the  Halifax  Bounty  Association,  which  levied  an  assessment  of  thirty  dol- 
lars on  each  person  liable  to  military  duty  in  the  township,  and  solicited  contri- 
butions from  others.  Afterwards,  an  act  was  passed  by  the  legislature,  with 
a  preamble  reciting  that  certain  citizens  of  Halifax  township,  associated  as  the 
Halifax  Bounty  Association,  for  freeing  the  said  township  from  the  late  drafts, 
advanced  moneys,  which  were  expended  in  paying  bounties  to  volunteers  to  fill 
the  quota  of  the  township.  The  act  then  authorized  and  required  the  school 
directors  to  borrow  such  sums  of  money  as  would  fully  reimburse  the  said  Hali- 
fax Bounty  Association  for  moneys  advanced  to  free  said  township  from  the 
draft,  and  then  further  authorized  the  school  directors  to  levy  and  collect  a  tax 
to  repay  the  sums  borrowed.  The  court  say:  "We  are  bound  to  regard  the 
statute  as  an  authority  to  reimburse  what  was  intended  by  the  Association  as 
advances  made  to  the  township  with  the  intent  or  understanding  to  be  reimbursed 
or  returned  to  those  contributing.  This  was  the  light  in  which  the  learned  judge 
below  regarded  the  terms  used  ;  and  unless  this  appears  in  support  of  the  present 
levy  by  the  school  directors,  they  are  acting  without  authority.  But  the  learned 
judge,  if  I  properly  comprehend  his  meaning,  did  not  give  sufficient  importance 
to  these  terms,  and  hence,  I  apprehend,  he  fell  into  error.  He  does  not  seem  to 
have  considered  it  essential  whether  the  Association  paid  its  money  voluntarily 
in  aid  of  its  own  members,  or  expressly  to  aid  the  township  in  saving  its  people 
from  a  draft,  with  the  understanding  that  it  was  advanced  in  the  character  of  a 
loan  if  the  legislature  chose  to  direct  its  repayment,  and  the  school  directors 
chose  to  act  on  the  authority  conferred.  This  we  cannot  agree  to.  Such  an 
enactment  would  not  be  legislation  at  all.  It  would  be  in  the  nature  of  judicial 
action,  it  is  true  ;  but  wanting  the  justice  of  notice  to  the  parties  to  be  affected 
by  the  hearing,  trial,  and  all  that  gives  sanction  and  force  to  regular  judicial 
proceedings,  it  would  much  more  resemble  an  imperial  rescript  than  constitutional 
legislation  :  first,  in  declaring  an  obligation  where  none  was  created  or  previously 
existed ;  and  next,  in  decreeing  payment  by  directing  the  money  or  property  of 
the  people  to  be  sequestered  to  make  the  payment.  The  legislature  can  exercise 
no  such  despotic  functions ;  and  as  it  is  not  apparent  in  the  act  that  they  at- 
tempted to  do  so,  we  are  not  to  presume  that  they  did.     They  evidently  intended 

[258] 


CH.  VIII.]  THE   GRADES   OP   MUNICIPAL   GOVERNMENT.  *  228 

*  But  it  has  been  held  by  the  Supreme  Court  of  Massa-  [*  228] 
chusetts  that  towns  might  be  authorized  by  the  legislature 

to  raise  moneys  by  taxation  for  the  purpose  of  refunding  sums 
contributed  by  individuals  to  a  common  fund,  in  order  to  fill  the 
quota  of  such  towns  under  a  call  of  the  President,  notwithstand- 
ing such  moneys  might  have  been  contributed  without  promise  or 
expectation  of  reimbursement.  The  court  were  of  opinion 
that  such  contributions  *  might  well  be  considered  as  ad-  [*  229] 
vancements  to  a  public  object,  and,  being  such,  the  leg- 
islature might  properly  recognize  the  obligation  and  permit  the 
towns  to  provide  for  its  discharge.1 

*  On  a  preceding  page  we  have  spoken  in  strong  terms  of  [*  230] 
the  complete  control  which  is  possessed  by  the  legislative 
authority  of  the  State  over  the  municipal  corporations.  There  are 
nevertheless  some  limits  to  its  power  in  this  regard,  as  there  are  in 
various  other  directions  limits  to  the  legislative  power  of  the  State. 
Some  of  these  are  expressly  defined  ;  others  spring  from  the  usages, 
customs,  and  maxims  of  our  people ;  they  are  a  part  of  its  history, 
a  part  of  the  system  of  local  self-government  in  view  of  the  con- 
tinuance and  perpetuity  of  which  all  our  constitutions  are  framed, 
and  of  the  right  to  which  the  people  can  never  be  deprived  except 
through  express  renunciation  on  their  part.  One  undoubted  right 
of  the  people  is  to  choose,  directly  or  indirectly,  under  the  forms 
and  restrictions  prescribed  by  the  legislature  for  reasons  of  general 
State  policy,  the  officers  of  local  administration,  and  the  board  that 
is  to  make  the  local  laws.      This  is  a  right  which  of  late  has  some- 

the  advancements  to  be  reimbursed  to  be  only  such  as  were  made  on  the  faith  that 
they  were  to  be  returned."  See  also  Crowell  v.  Hopkinton,  45  N.  H.  9 ;  Miller 
v.  Grandy,  13  Mich.  540;  Pease  v.  Chicago,  21  111.  508;  Ferguson  v.  Landraw, 
5  Bush,  230 ;  Esty  v.  Westminster,  97  Mass.  324 ;  Cole  v.  Bedford,  ib.  326 ; 
Usher  v.  Colchester,  33  Conn.  567 ;  Perkins  v.  Milford,  59  Me.  315;  Thompson 
v.  Pittston,  ib.  545 ;  Kelly  v.  Marshall,  69  Penn.  St.  319.  In  Freeland  v.  Hast- 
ings, 10  Allen,  570,  it  was  held  that  the  legislature  could  not  empower  towns  to 
raise  money  by  taxation  for  the  purpose  of  refunding  what  had  been  paid  by 
individuals  for  substitutes  in  military  service.  In  Cass  v.  Dillon,  16  Ohio,  N.  s. 
38,  it  was  held  that  taxes  to  refund  bounties  previously  and  voluntarily  paid 
might  be  authorized.  See  also  State  v.  Harris,  17  Ohio,  N.  8.  608.  The  Supreme 
Court  of  Wisconsin,  in  the  well-reasoned  case  of  State  v.  Tappan,  29  Wis.  664, 
deny  the  power  of  the  State  to  compel  a  municipal  corporation  to  pay  bounties 
where  it  has  not  voted  to  do  so. 

1  Freeland  v.  Hastings,  10  Allen,  585.     And  see  Hilbish  v.  Leatherman,  64 
Penn.  St.  154,  and  compare  Tyson  v.  School  Directors,  51  Penn.  St.  9. 

[  259] 


*  230  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

times  been  encroached  upon  under  various  plausible  pretences,  but 
almost  always  with  the  result  which  reasonable  men  should  have 
anticipated  from  the  experiment  of  a  body  at  a  distance  attempting 
to  govern  a  local  community  of  whose  affairs  or  needs  they  could 
know  but  little,  except  as  they  should  derive  information  from 
sources  likely  to  have  interested  reasons  for  misleading.1  Another 
is  the  right  of  the  local  community  to  determine  what  pecuniary 
burdens  it  shall  take  upon  its  shoulders.  But  here  from  the  very 
nature  of  the  case  there  must  be  some  limitations.  The  munici- 
palities do  not  exist  wholly  for  the  benefit  of  their  corporators,  but 
as  a  part  of  the  machinery  of  State  government,  and  they  cannot 
be  permitted  to  decline  a  performance  of  their  duties  or  a  discharge 
of  their  obligations  as  such.  They  cannot  abolish  local  govern- 
ment ;  they  cannot  refuse  to  provide  the  conveniences  for  its 
administration ;  they  cannot  decline  to  raise  the  necessary  taxes 
for  the  purpose  ;  they  cannot  repudiate  pecuniary  obligations  that 
justly  rest  upon  them  as  a  local  government.  Over  these  matters 
the  legislature  of  the  State  must  have  control,  or  confusion  would 
inevitably  be  introduced  into  the  whole  system.  But  beyond  this 
it  is  not  often  legitimate  for  the  State  to  go  except  in  moulding  and 
shaping  the  local  powers,  and  perhaps  permitting  the  local  authorities 
to  do  certain  things  for  the  benefit  of  their  citizens  which  under 
the  general  grants  of  power  would  be  inadmissible. 

On  this  general  subject  we  shall  venture  to  lay  down  the  follow- 
ing propositions  as  the  result  of  the  authorities :  — 

1  On  this  subject  reference  is  made  to  what  is  said  by  Campbell,  Ch.  J.,  in 
People  v.  Hurlbut,  24  Mich.  87  et  seq.  See  also  p.  97.  Much  has  been  said 
concerning  the  necessity  of  legislative  interference  in  some  cases  where  bad  men 
were  coming  into  power  through  universal  suffrage  in  cities,  but  the  recent  expe- 
rience of  the  country  shows  tbat  this  has  oftener  been  said  to  pave  the  way  for 
bad  men  to  obtain  office  or  grants  of  unusual  powers  from  the  legislature  than 
with  any  purpose  to  effect  local  reforms.  And  the  great  municipal  scandals  and 
frauds  that  have  prevailed,  like  those  which  were  so  notorious  in  New  York  City, 
have  been  made  possible  and  then  nursed  and  fostered  by  illegitimate  interference 
at  the  seat  of  State  government.  Some,  officers,  usually  of  local  appointment, 
are  undoubtedly  to  be  regarded  as  state  officers  whose  choice  may  be  confided  to 
a  state  authority  without  any  invasion  of  local  right ;  such  as  militia  officers, 
officers  of  police,  and  those  who  have  charge  of  the  execution  of  the  criminal 
laws  ;  but  those  who  are  to  administer  the  corporate  funds  and  have  the  control 
of  the  corporate  property,  those  who  make  the  local  laws  and  those  who  execute 
them,  cannot  rightfully  be  chosen  by  the  central  authority.  Dillon,  Mun.  Corp. 
§  33.  See  People©.  Com.  Council  of  Detroit,  Sup.  Court  of  Mich.  Oct.  Term,  1873. 
[  260] 


Jfl.  VIII.]  THE    GRADES    OF    MUNICIPAL   GOVERNMENT.  *  230 

1.  That  the  legislature  has  undoubted  power  to  compel  the 
municipal  bodies  to  perform  their  functions  as  local  governments 
under  their  charters,  and  to  recognize,  meet,  and  discharge  the 
duties  and  obligations  properly  resting  upon  them  as  such,  whether 
they  be  legal,  or  merely  equitable  or  moral ;  and  for  this  purpose 
it  may  require  them  to  exercise  the  power  of  taxation  whenever 
and  wherever  it  may  be  deemed  necessary  or  expedient.1 

2.  That  in  some  cases,  in  view  of  the  twofold  character  of  such 
bodies,  as  being  on  the  one  hand  agencies  of  State  government, 
and  on  the  other,  corporations  endowed  with  capacities  and  per- 
mitted to  hold  property  and  enjoy  peculiar  privileges  for  the  ben- 
efit of  their  corporators  exclusively,  the  legislature  may  permit  the 
incurring  of  expense,  the  contracting  of  obligations,  and  the  levy  of 
taxes  which  are  unusual,  and  which  would  not  be  admissible  under 
the  powers  usually  conferred.  Instances  of  the  kind  may  be  men- 
tioned in  the  offer  of  military  bounties,  and  the  payment  of  a  dis- 

1  In  support  of  this,  we  refer  to  the  very  strong  case  of  Guilford  v.  Supervisors 
of  Chenango,  18  Barb.  615;  s.  c.  13  N.  Y.  143;  where  a  town  was  compelled 
by  the  legislative  authority  of  the  State  to  reimburse  its  officers  the  expenses 
incurred  by  them  in  the  honest  but  mistaken  endeavor  to  discharge  what  they 
believed  to  be  their  duty ;  also  to  Sinton  v.  Ashbury,  41  Cal.  530,  in  which  it  is 
said  by  Crocket,  J.,  that:  "  It  is  established  by  an  overwhelming  weight  of  au- 
thority, and  I  believe  is  conceded  on  all  sides,  that  the  legislature  has  the  consti- 
tutional power  to  direct  and  control  the  affairs  and  property  of  a  municipal 
corporation  for  municipal  purposes,  provided  it  does  not  impair  the  obligation 
of  a  contract,  and  by  appropriate  legislation  may  so  control  its  affairs  as  ulti- 
mately to  compel  it,  out  of  the  funds  in  its  treasury,  or  by  taxation  to  be  imposed 
for  that  purpose,  to  pay  a  demand  when  properly  established,  which  in  good 
conscience  it  ought  to  pay,  even  though  there  be  no  legal  liability  to  pay  it :' 
(citing  Blanding  v.  Burr,  13  Cal.  343;  Beals  v.  Almador  Co.,  35  Cal.  624; 
People  v.  Supervisors  of  San  Francisco,  11  Cal.  206;  Sharp  v.  Contra  Costa 
Co.,  34  Cal.  284;  People  u.  McCreery,  34  Cal.  432 ;  People  v.  Alameda,  26  Cal. 
641,  and  holding  that  a  city  might  be  compelled  to  pay  the  claim  of  persons  who 
had  acted  as  commissioners  in  the  extension  of  certain  of  its  streets)  ;  also  to 
Borough  of  Dunmore's  Appeal,  52  Penn.  St.  374,  in  which  the  legislature  as- 
sumed the  right  of  apportioning  the  indebtedness  of  a  town  among  the  boroughs 
carved  out  of  it;  supported  by  Layton  v.  New  Orleans,  12  La.  An.  515;  People 
v.  Alameda,  26  Cal.  641 ;  and  Burns  v.  Clarion  County,  62  Penn.  St.  423  ;  also  to 
People  v.  Flagg,  46  N.  Y.  401,  in  which  the  legislative  power  to  direct  the  con- 
struction of  a  public  road,  and  to  compel  the  creation  of  a  town  debt  for  the  pur- 
pose, was  fully  sustained ;  to  People  v.  Power,  25  111.  187  ;  Waterville  v.  County 
Commissioners,  59  Me.  80  ;  and  to  numerous  other  cases  cited  ante,  p.  193,  note, 
and  which  we  will  not  occupy  space  by  repeating  here. 

[261] 


*  230  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

proportionate  share  of  a  State  burden  in  consideration  of  peculiar 

local  benefits  which  are  to  spring  from  it.1 
[*  231]     *  3.  But  it  is  believed  the  legislature  has  no  power,  against 

the  will  of  a  municipal  corporation,  to  compel  it  to  contract 
debts  for  local  purposes  in  which  the  State  has  no  concern  or  to 
assume  obligations  not  within  the  ordinary  functions  of  municipal 
government.  Such  matters  are  to  be  disposed  of  in  view  of  the  in- 
terests of  the  corporators  exclusively,  and  they  have  the  same  right 
to  determine  them  for  themselves  which  the  associates  in  private 
corporations  have  to  determine  for  themselves  the  questions  which 
arise  for  their  corporate  action.  The  State  in  such  cases  may  re- 
move restrictions  and  permit  action,  but  it  cannot  compel  it.2 

1  The  subject  of  military  bounties  has  been  sufficiently  referred  to  already. 
As  to  the  right  to  permit  a  municipal  corporation  to  burden  itself  with  a  local 
tax  for  a  State  object,  we  refer  to  Merrick  v.  Amherst,  12  Allen,  500 ;  Marks  v. 
Trustees  of  Pardue  University,  37  Ind.  155 ;  Hasbrouck  v.  Milwaukee,  13  Wis. 
37.     The  first  was   a  case  in  which,  in  consideration  of  the  local  benefits  ex- 
pected from  the  location  of  the  State  agricultural  college  in  a  certain  town,  the 
town  was  permitted  to  levy  a  large  local  tax  in  addition  to  its  proportion  of  the 
State  burden  for  the  erection   of  the  necessary  buildings.     The  second  case 
was  of  a  similar  nature.     The  third  was  the  case  of  permission  to  levy  a  city  tax 
to  improve  the  city  harbor ;  a  work  usually  done  by  the  general  government. 
There  are  cases  which  go  further  than  these,  and  hold  that  the  legislature  may 
compel  a  municipal  corporation  to  do  what  it  may  thus  permit.     Thus,  in  Kirby 
v.  Shaw,  19  Penn.  St.  258,  it  appeared  that  by  an  act  of  April  3,  1848,  the  com- 
missioners of  Bradford  County  were  required  to  add  $500  annually,  until  1857, 
to  the  usual  county  rates  and  levies  of  the  borough  of  Towanda  in  said  county, 
for  the  purpose  of  defraying  the  expenses  of  the  court  house  and  jail,  then  in 
process   of  erection  in  that  borough.     The  act  was  held  constitutional  on  the 
principle  of  assessment  of  benefits.     In  Gordon  v.  Cornes,  47  N.  Y.  608,  a  law 
was  sustained  which  "  authorized  and  required"  the  village  of  Brockport  to  levy 
a  tax  for  the  erection  of  a  State  normal  school  building  at  that  place.     It  is  to 
be  said  of  this  case,  however,  that  there  was  to  be  in  the  building  a  grammar 
school  free  to  all  the  children  of  proper  acquirements  in  the  village ;  so  that  the 
village  was  to  receive  a  peculiar  and  direct  benefit  from  it,  besides  those  which 
would  be  merely  incidental  to  the  location  of  the  normal  school  in  the  place. 
But  for  this  circumstance  it  would  be  distinctly  in  conflict  with  State  v.  Haben, 
22  Wis.  660,  where  it  was  held  incompetent  for  the  legislature  to  appropriate 
the  school  moneys  of  a  city  to  the  purchase  of  a  site  for  a  State  normal  school ; 
and  also  with  other  cases  cited  in  the  next  note.     It  must  be  conceded,  however, 
that  there  are  other  cases  which  support  it. 

2  There  are  undoubtedly  some  cases  which  go  to  the  extent  of  holding  that 
municipal  corporations  and  organizations  are  so  completely  under  the  legislative 
control,  that  whatever  the  legislature  may  permit  them  to  do,  it  may  compel  them 

[262] 


CH.  VIII.]  THE   GRADES    OP   MUNICIPAL   GOVERNMENT.  *  232 

*  4.  And  there  is  much  good  reason  for  assenting  also  [*  232] 
to  what  several  respectable  authorities  have  held,  that  where 

to  do,  whether  the  corporators  are  willing  or  not.  A  leading  case  is  Thomas  v. 
Leland,  24  Wend.  67.  In  that  case  it  appeared  that  certain  citizens  of  Utica 
had  given  their  bond  to  the  people  of  the  State  of  New  York,  conditioned  for 
the  payment  into  the  canal  fund  of  the  sum  of  $38,615,  the  estimated  difference 
between  the  cost  of  connecting  the  Chenango  Canal  with  the  Erie  at  Utica, 
instead  of  at  Whitesborough,  as  the  canal  commissioners  had  contemplated  ; 
and  it  was  held  within  the  constitutional  powers  of  the  legislature  to  require  this 
sum  to  be  assessed  upon  the  taxable  property  of  the  city  of  Utica,  supposed  to 
be  benefited  by  the  canal  connection.  The  court  treat  the  case  as  "the  ordinary 
one  of  local  taxation  to  make  or  improve  a  public  highway,"  and  dismiss  it  with 
few  words.  If  it  could  be  considered  as  merely  a  case  of  the  apportionment 
between  a  number  of  municipalities  of  the  expense  of  a  public  highway  running 
through  them,  it  would  have  the  support  of  Waterville  v.  County  Commission- 
ers, 59  Me.  80;  Commonwealth  v.  Newburyport,  103  Mass.  129;  and  also  what 
is  said  in  Bay  City  v.  State  Treasurer,  23  Mich.  503,  where  it  is  admitted  that 
over  the  matter  of  the  construction  of  such  a  highway,  as  well  as  the  apportion- 
ment of  expense,  the  State  authority  must  necessarily  be  complete.  •  It  has  been 
considered  in  subsequent  New  York  cases  as  a  case  of  apportionment  merely. 
See  People  v.  Brooklyn,  4  N.  Y.  437 ;  Howell  v.  BmTalo,  37  N.  Y.  271.  The 
cases  of  Kirby  v.  Shaw,  19  Penn.  St.  258,  and  Gordon  v.  Cornes,  47  N.  Y.  608, 
referred  to  in  the  preceding  note,  it  will  be  perceived,  were  also  treated  as  cases 
merely  of  apportionment.  How  that  can  be  called  a  case  of  apportionment, 
however,  which  singles  out  a  particular  town,  and  taxes  it  for  benefits  to  be 
expected  from  a  highway  running  across  the  State,  without  doing  the  same  by 
any  other  town  in  the  State,  it  is  not  easy  to  perceive.  In  Commissioners  of 
Revenue  v.  The  State,  45  Ala.  399,  it  appeared  that  the  legislature  had  created 
a  local  board  consisting  of  the  president  of  the  county  commissioners  of  revenue 
of  Mobile  County,  the  mayor  of  Mobile,  the  president  of  the  Bank  of  Mobile, 
the  president  of  the  Mobile  Chamber  of  Commerce,  and  one  citizen  of  Mobile 
appointed  by  the  governor,  as  a  board  for  the  improvement  of  the  river,  harbor, 
and  bay  of  Mobile,  and  required  the  commissioners  of  revenue  of  Mobile  County 
to  issue  to  them  for  that  purpose  county  bonds  to  the  amount  of  $1,000,000, 
and  to  levy  a  tax  to  pay  them.  Here  was  an  appointment  by  the  State  of  local 
officers  to  make  at  the  expense  of  the  locality  an  improvement  which  it  has  been 
customary  for  the  general  government  to  take  in  charge  as  one  of  national  con- 
cern ;  but  the  Supreme  Court  of  the  State  sustained  the  act,  going  farther,  as 
we  think,  in  doing  so,  than  has  been  gone  in  any  other  case.  In  Hasbrouck  v. 
Milwaukee,  13  Wis.  37,  approved  and  defended  in  an  able  opinion  in  Mills 
v.  Charleton,  29  Wis.  413,  the  power  of  the  legislature  to  compel  the  city  of 
Milwaukee  to  issue  bonds  or  levy  a  tax  for  the  improvement  of  its  harbor  was 
distinctly  denied,  though  it  was  conceded  that  permission  might  be  given,  which 
the  city  could  lawfully  act  upon.  Compare  also  Knapp  v.  Grant,  27  Wis.  147; 
State  v.  Tappan,  29  Wis.  664;  Atkins  v.  Randolph,  31  Vt.  226.  In  People  v. 
Bacheller,  recently  decided  in  the  Supreme  Court  of  Appeals  of  New  York,  that 

[  263] 


*  232  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIIiT. 

a  demand  is  asserted  against  a  municipality,  though  of  a  nature 
that  the  legislature  would  have  a  right  to  require  it  to  incur  and 

court,  through  an  able  and  lucid  opinion  by  Grover,  J.,  denied  the  validity  of  a 
mandatory  statute  compelling  a  town  to  take  stock  in  a  railroad  corporation, 
and  to  issue  its  bonds  in  exchange  therefor.  The  authority  to  permit  the  town 
to  do  this  was  not  discussed,  but,  taking  that  as  admitted,  it  is  declared  that 
municipal  corporations,  in  the  making  or  refusing  to  make  arrangements  of  the 
nature  of  that  attempted  to  be  forced  upon  the  town  in  question,  were  entitled 
to  the  same  freedom  of  action  precisely  which  individual  citizens  might  claim. 
This  opinion  reviews  the  prior  decisions  in  the  same  State,  and  finds  nothing 
conflicting  with  the  views  expressed.  In  People  v.  Mayor,  &c,  of  Chicago,  51 
111.  17;  8.  c.  2  Am.  Rep.  278,  it  was  denied,  in  an  opinion  of  great  force  and 
ability  delivered  by  Chief  Justice  Breese,  that  the  State  could  empower  a  board 
of  park  commissioners  of  State  appointment  to  contract  a  debt  for  the  city  of 
Chicago  for  the  purposes  of  a  public  park  for  that  city,  and  without  the  consent 
of  its  citizens.  The  learned  judge  says  (p.  31)  :  "Whilst  it  is  conceded  that 
municipal  corporations,  which  exist  only  for  public  purposes,  are  subject  at  all 
times  to  the  control  of  the  legislature  creating  them,  and  have  in  their  franchises 
no  vested  rights,  and  whose  powers  and  privileges  the  creating  power  may  alter, 
modify,  or  abolish  at  pleasure,  as  they  are  but  parts  of  the  machinery  employed 
to  carry  on  the  affairs  of  the  State,  over  which  and  their  rights  and  effects  the 
State  may  exercise  a  general  superintendence  and  control,  —  Richland  County  v. 
Lawrence  County,  12  111.  8 ;  Trustees  of  Schools  v.  Talman,  13  ib.  30,  —  we 
are  not  of  the  opinion  that  that  power,  vast  as  it  is,  can  be  so  used  as  to  compel 
any  one  of  our  many  cities  to  issue  its  bonds  against  its  will  to  erect  a  park,  or 
for  any  other  improvement,  to  force  it  to  create  a  debt  of  millions  ;  in  effect, 
to  compel  every  property-owner  in  the  city  to  give  his  bond  to  pay  a  debt  thus 
forced  upon  the  city.  It  will  hardly  be  contended  that  the  legislature  can  com- 
pel a  holder  of  property  in  Chicago  to  execute  his  individual  bond  as  security 
for  the  payment  of  a  debt  so  ordered  to  be  contracted.  A  city  is  made  up  of 
individuals  owning  property  within  its  limits,  the  lots  and  blocks  which  compose 
it,  and  the  structures  which  adorn  them.  What  would  be  the  universal  judg- 
ment, should  the  legislature,  sua  sponte,  project  magnificent  and  costly  structures 
within  one  of  our  cities,  —  triumphal  arches,  splendid  columns,  and  perpetual 
fountains,  —  and  require  in  the  act  creating  them  that  every  owner  of  property 
within  the  city  limits  should  give  his  individual  obligation  for  his  proportion  of 
the  cost,  and  impose  such  cost  as  a  lien  upon  his  property  for  ever.  What 
would  be  the  public  judgment  of  such  an  act,  and  wherein  would  it  differ  from 
the  act  under  consideration  ?  "  And  again  :  "  Here,  then,  is  a  case  where  taxes 
may  be  assessed,  not  by  any  corporate  authority  of  the  city,  but  by  commission- 
ers, to  whom  is  entrusted  the  erection,  embellishment,  and  control  of  this  park, 
and  this  without  consent  of  the  property-owners. 

"  We  do  not  think  it  within  the  constitutional  competency  of  the  legislature  to 
delegate  this  power  to  these  commissioners.  If  the  principle  be  admitted  that 
the  legislature  can,  uninvited,  of  their  mere  will,  impose  such  a  burden  as  this 
upon  the  city  of  Chicago,  then  one  much  heavier  and  more  onerous  can  be 

[264] 


CH.  VIII.]  THE   GRADES    OF   MUNICIPAL   GOVERNMENT.  *  233 

*  discharge,  yet  if  its  legal  and  equitable  obligation  is  dis-    [*  233] 
puted,  the  corporation  has  the  right  to  have  the  dispute 
settled  by  the  courts,  and  cannot  be  bound  by  a  legislative  allow- 
ance of  the  claim.1 

imposed ;  in  short,  no  limit  can  be  assigned  to  legislative  power  in  this  regard. 
If  this  power  is  possessed,  then  it  must  be  conceded  that  the  property  of  every 
citizen  within  it  is  held  at  the  pleasure  and  will  of  the  legislature.  Can  it  be  that 
the  General  Assembly  of  the  State,  just  and  honest  as  its  members  may  be,  is 
the  depository  of  the  rights  of  property  of  the  citizens  ?  Would  there  be  any 
sufficient  security  for  property  if  such  a  power  was  conceded  ?  No  well-regu- 
lated mind  can  entertain  the  idea  that  it  is  within  the  constitutional  competency 
of  the  legislature  to  subject  the  earnings  of  any  portion  of  our  people  to  the 
hazards  of  any  such  legislation." 

This  case  should  be  read  in  connection  with  the  following  in  the  same  State, 
and  all  in  the  same  direction.  People  v.  Common  Council  of  Chicago,  51  111.  58 ; 
Lovingston  v.  Wider,  53  111.  302 ;  People  v.  Canty,  55  111.  33 ;  Wider  v.  East 
St.  Louis,  ib.  133.  Also  People  v.  Common  Council  of  Detroit,  Sup.  Court  of 
Michigan,  Oct.  Term,  1873. 

We  are  constrained  to  think  the  recent  case  of  People  v.  Bacheller  above 
referred  to  is  inconsistent  with  the  previous  case  of  Thomas  v.  Leland  in  the 
same  State,  and  therefore  overrules  it.  And  putting  that  case  aside,  as  well  as  a 
few  other  cases  which  were  decided  on  the  ground  of  an  apportionment  of  local 
benefits,  we  think  the  case  in  Alabama  will  stand  substantially  alone.  Before 
that  decision  the  Supreme  Court  of  Illinois  were  able  to  say,  in  a  case  calling  for 
a  careful  and  thorough  examination  of  the  authorities,  that  counsel  had  "  failed 
'  to  find  a  case  wherein  it  has  been  held  that  the  legislature  can  compel  a  city 
against  its  will  to  incur  a  debt  by  the  issue  of  its  bonds  for  a  local  improvement." 
People  v.  Mayor,  &c,  51  111.  33. 

!  It  was  held  in  People  v.  Hawes,  37  Barb.  44.0,  that  the  legislature  had  no 
right  to  direct  a  municipal  corporation  to  satisfy  a  claim  made  against  it  for  dam- 
ages for  breach  of  contract,  out  of  the  funds  or  property  of  such  corporation. 
In  citing  the  cases  of  Guilford  v.  Supervisors  of  Chenango,  13  N.  Y.  143, 
and  People  v.  Supervisors  of  New  York,  11  Abb.  114,  a  distinction  is  drawn 
by  which  the  cases  are  supposed  to  be  reconciled  with  the  one  then  under 
decision.  "Those  cases  and  many  others,"  say  the  court,  p.  455,  "related  not 
to  the  right  or  power  of  the  legislature  to  compel  an  individual  or  corporation  to 
pay  a  debt  or  claim,  but  to  the  power  of  the  legislature  to  raise  money  by  tax, 
and  apply  such  money,  when  so  raised,  to  the  payment  thereof.  We  could  not, 
under  the  decisions  of  the  courts  on  this  point,  made  in  these  and  other  cases, 
now  hold  that  the  legislature  had  not  authority  to  impose  a  tax  to  pay  any  claim, 
or  to  pay  it  out  of  the  State  treasury ;  and  for  this  purpose  to  impose  a  tax  upon 
the  property  of  the  State,  or  upon  any  portion  of  the  State.  This  was  fully  set- 
tled in  People  v.  Mayor,  &c,  of  Brooklyn,  4  N.  Y.  419  ;  but  neither  that  case  nor 
the  case  in  13  N.  Y.  143,  in  any  manner  gave  a  warrant  for  the  opinion,  that  the 
legislature  had  a  right  to  direct  a  municipal  corporation  to  pay  a  claim  for  dam- 
ages for  breach  of  a  contract,  out  of  the  funds  or  property  of  the  corporation, 

[265] 


*  233  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

Having  concisely  stated  these  general  views,  we  add 
[*  234]   merely,  that  *those  cases  which  hold  that  the  State  may 

raise  bounty  moneys  by  taxation,  to  be  paid  to  persons  in 
the  military  service,  we  think  stand  by  themselves,  and  are  sup- 
ported by  different  principles  from  any  which  can  fairly  be  sum- 
moned to  the  aid  of  some  of  the  other  cases  which  we  have  cited. 
The  burden  of  the  public  defence  unquestionably  rests  upon  the 

whole  community  ;  and  the  legislature  may  properly  pro- 
[*  235]  vide  for  its  apportionment  and  *  discharge  in  such  manner 

as  its  wisdom  may  prescribe.  But  those  cases  which  hold 
it  competent  for  the  legislature  to  give  its  consent  to  a  municipal 
corporation  engaging  in  works  of  public  improvement  outside  its 
territorial  limits,  and  becoming  a  stockholder  in  a  private  corpora- 
tion, must  be  conceded  on  all  hands  to  have  gone  to  the  very  lim- 

without  a  submission  of  such  claim  to  a  judicial  tribunal."  If  by  this  is  meant 
that  the  legislature  has  power  to  compel  a  corporation  to  tax  its  citizens  for  the 
payment  of  a  demand,  but  has  not  the  authority  to  make  it  a  charge  against  the 
corporation  in  any  other  mode,  the  distinction  seems  to  be  one  of  form  rather 
than  of  substance.  It  is  no  protection  to  the  rights  or  property  of  a  municipal 
corporation  to  hold  that  the  legislature  cannot  determine  upon  a  claim  against  it, 
if  at  the  same  time  the  corporation  may  be  compelled  by  statute  to  assume  and 
discharge  the  obligation  through  the  levy  of  a  tax  for  its  satisfaction.  But  if  it  is 
only  meant  to  declare  that  the  legislature  cannot  adjudicate  upon  disputed  claims, 
there  can  be  no  good  reason  to  find  fault  with  the  decision.  It  is  one  thing  to 
determine  that  the  nature  of  a  claim  is  such  as  to  make  it  proper  to  satisfy  it  by 
taxation,  and  another  to  adjudge  how  much  is  justly  due  upon  it.  The  one  is 
the  exercise  of  legislative  power,  the  other  of  judicial.  See  Sanborn  v.  Rice,  9 
Minn.  273 ;  Commonwealth  v.  Pittsburgh,  34  Penn.  St.  496  ;  Plimpton  v.  Som- 
erset, 33  Vt.  283.  But  the  power  to  decide  upon  the  breach  of  a  contract  by  a 
corporation,  and  the  extent  of  the  damages  which  have  resulted,  is  less  objec- 
tionable and  less  likely  to  lead  to  oppression,  than  the  power  to  impose  through 
taxation  a  claim  upon  a  corporation  which  it  never  was  concerned  in  creating, 
against  which  it  protests,  and  which  is  unconnected  with  the  ordinary  functions 
and  purposes  of  municipal  government.  In  Borough  of  Dunmore's  Appeal,  52 
Penn.  St.  374,  a  decision  was  made  which  seems  to  conflict  with  that  in  People 
v.  Hawes,  supra;  and  with  the  subsequent  case  of  Baldwin  v.  Mayor,  &c,  of 
New  York,  42  Barb.  549.  The  Pennsylvania  court  decided  that  the  constitu- 
tional guaranty  of  the  right  to  jury  trial  had  no  application  to  municipal  corpora- 
tions, and  a  commission  might  be  created  by  the  legislature  to  adjust  the  demands 
between  them.  See,  also,  Layton  v.  New  Orleans,  12  La.  An.  515.  In  People 
v.  Power,  25  111.  187,  it  was  held  competent  for  the  legislature  to  apportion  the 
taxes  collected  in  a  county  between  a  city  therein  and  the  remainder  of  the 
county,  and  that  the  county  revenues  "  must  necessarily  be  within  the  control  of 
the  legislature  for  political  purposes." 

[266] 


CH.  VIII.]  THE   GRADES    OP   MUNICIPAL   GOVERNMENT.  *  235 

its  of  constitutional  power  in  this  direction  ;  and  to  hold  that  the 
legislature  may  go  even  further,  and,  under  its  power  to  control 
the  taxation  of  the  political  divisions  and  organizations  of  the 
State,  may  compel  them,  without  the  consent  of  their  citizens,  to 
raise  money  for  such  or  any  other  unusual  purposes,  or  to  contract 
debts  therefor,  seems  to  us  to  be  introducing  new  principles  into 
our  system  of  local  self-government,  and  to  be  sanctioning  a  cen- 
tralization of  power  not  within  the  contemplation  of  the  makers  of 
the  American  constitutions.  We  think  where  any  such  forced  tax- 
ation is  resisted  by  the  municipal  organization,  it  will  be  very  diffi- 
cult to  defend  it  as  a  proper  exercise  of  legislative  authority  in  a 
government  where  power  is  distributed  on  the  principles  which 
prevail  here. 

Legislative  Control  of  Corporate  Property. 

The  legislative  power  of  the  State  controls  and  disposes  of  the 
property  of  the  State.  How  far  it  may  also  control  and  dispose 
of  the  property  of  those  agencies  of  government  which  it  has  cre- 
ated and  endowed  with  corporate  powers  is  a  question  which  hap- 
pily there  has  been  very  little  occasion  to  discuss  in  the  courts. 
Being  created  as  an  agency  of  government,  it  is  evident  that  the 
municipality  cannot  in  itself  have  that  complete  and  absolute  con- 
trol and  power  of  disposition  of  its  property  which  is  possessed  by 
natural  persons  and  private  corporations  in  respect  to  their  several 
possessions.  For  it  can  hold  and  own  property  only  for  corporate 
purposes,  and  its  powers  are  liable  at  any  time  to  be  so  modified 
by  legislation  as  to  render  the  property  no  longer  available.  More- 
over, the  charter  rights  may  he  altogether  taken  away  ;  and  in  that 
case  the  legislature  has  deprived  the  corporation  of  its  property 
by  depriving  it  of  corporate  capacity  to  hold  it.  And  in  many 
ways,  while  the  corporation  holds  and  enjoys  property,  the  legislat- 
ure must  possess  power  to  interfere  with  its  control,  at  least  inci- 
dentally ;  for  the  mere  fact  that  the  corporation  possesses  property 
cannot  deprive  the  State  of  its  complete  authority  to  mould 
and  change  *  the  corporate  organization,  and  enlarge  or  [*  236] 
diminish  its  powers,  which  it  possessed  before.  But  whether 
the  State  can  directly  intervene  and  take  away  the  corporate  prop- 
erty, or  convert  it  to  other  uses  than  those  for  which  it  was  pro- 
cured, or  whether,  on  repealing  a  charter  of  incorporation,  it  can 

[267] 


*  236  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

take  to  itself  the  corporate  property,  and  dispose  of  it  at  its  dis- 
cretion, are  different  questions  from  any  raised  by  the  indirect  and 
incidental  interference  referred  to. 

In  the  leading  case,  in  which  it  was  decided  by  the  Supreme 
Court  of  the  United  States  that  a  private  charter  of  incorpora- 
tion, granted  by  a  State,  was  a  contract  between  the  State  and 
the  corporators,  not  subject  to  modification  or  repeal,  except  in 
pursuance  of  a -right  expressly  reserved,  but  that  the  charter  of  a 
municipal  corporation  was  not  such  a  contract,  it  was  at  the  same 
time  declared,  as  the  opinion  of  the  judges,  that  the  legislature 
could  not  deprive  such  municipal  corporations  of  their  vested 
rights  in  property.  "  It  may  be  admitted,"  says  one  of  the  judges, 
"  that  corporations  for  mere  public  government,  such  as  towns, 
cities,  and  counties,  may  in  many  respects  be  subject  to  legisla- 
tive control.  But  it  will  hardly  be  contended,  that  even  in  respect 
to  such  corporations  the  legislative  power  is  so  transcendent  that 
it  may,  at  its  will,  take  away  the  private  property  of  the  corpo- 
ration, or  change  the  uses  of  its  private  funds  acquired  under  the 
public  faith.  Can  the  legislature  confiscate  to  its  own  use  the  pri- 
vate funds  which  a  municipal  corporation  holds  under  its  charter, 
without  any  default  or  consent  of  the  corporators  ?  If  a  mu- 
nicipal corporation  be  capable  of  holding  devises  and  legacies 
to  charitable  uses,  as  many  municipal  corporations  are,  does  the 
legislature,  under  our  forms  of  limited  government,  possess  the 
authority  to  seize  upon  those  funds  and  appropriate  them  to  other 
uses,  at  its  own  arbitrary  pleasure,  against  the  will  of  the  donors 
and  donees  ?  From  the  very  nature  of  our  government,  the  pub- 
lic faith  is  pledged  the  other  way,  and  that  pledge  constitutes 
a  valid  compact ;  and  that  compact  is  subject  only  to  judicial 
inquiry,  construction,  and  abrogation."  :  "  The  government  has 
no  power  to  revoke  a  grant,  even  of  its  own  funds,  when  given  to 
a  private  person  or  corporation  for  special  uses.     It  cannot  recall 

its  own  endowments,  granted  to  any  hospital  or  college,  or 
[*  237]  city  or  town',  for  the  use  of  such  corporations.    *  The  only 

authority  remaining  to  the  government  is  judicial,  to  ascer- 
tain the  validity  of  the  grant,  to  enforce  its  proper  uses,  to  sup- 
press frauds,  and,  if  the  uses  are  charitable,  to  secure  their  regular 

1  Story,  J.,  in  Dartmouth  College  v.  Woodward,  4  Wheat.  694,  695. 

[  268  ] 


OH.  Till.]  THE   GRADES    OF   MUNICIPAL   GOVERNMENT.  *  237 

administration  through  the  means  of  equitable  tribunals,  in  cases 
where  there  would  otherwise  be  a  failure  of  justice."  x 

"  In  respect  to  public  corporations,"  says  another  judge, 
"  which  exist  only  for  public  purposes,  such  as  towns,  cities,  &c, 
the  legislature  may,  under  proper  limitations,  change,  modify, 
enlarge,  or  restrain  them,  securing,  however,  the  property  for  the 
use  of  those  for  whom  and  at  whose  expense  it  was  purchased."  2 
These  views  had  been  acted  upon  by  the  same  court  in  preceding 
cases.3  They  draw  a  distinction  between  the  political  rights  and 
privileges  conferred  on  corporations,  and  which  are  not  vested 
rights  in  any  sense  implying  constitutional  permanency,  and 
such  rights  in  property  as  the  corporation  acquires,  and  which 
in  the  view  of  these  decisions  are  protected  by  the  same  reasons 
which  shield  similar  rights  in  individuals.4 

When  the  municipal  divisions  of  the  territory  of  the  State  are 
changed  in  their  boundaries,  two  or  more  consolidated  in  one, 
or  one  subdivided,  it  is  conceded  that  the  legislature  possesses 
the  power  to  make  such  disposition  of  the  corporate  property  as 
natural  equity  would  require  in  view  of  the  altered  condition  of 
things.  The  fact  that  a  portion  of  the  citizens,  before  entitled  to 
the  benefits  springing  from  the  use  of  specific  property  for  public 
purposes,  will  now  be  deprived  of  that  benefit,  cannot  affect  the 
validity  of  the  legislative  act,  which  is  supposed  in  some  other 

1  Storij,  J.,  in  Dartmouth  College  v.  Woodward,  4  Wheat.  698. 

2  Washington,  J.,  Dartmouth  College  v.  Woodward,  4  Wheat.  663. 

3  Terrett  v.  Taylor,  9  Cranch,  43 ;  Town  of  Pawlet  v.  Clark,  ib.  292.  See 
also  State  v.  Haben,  22  Wis.  660,  referred  to,  ante,  230-31  note.  In  People  v. 
Common  Council  of  Detroit,  Sup.  Court  of  Michigan,  Oct.  Term,  1873,  this  sub- 
ject was  largely  considered,  and  the  court  denied  the  right  of  the  State  to  compel 
a  municipal  corporation  to  contract  a  debt  for  a  mere  local  object;  for  example, 
a  city  park. 

4  "It  is  an  unsound  and  even  absurd  proposition  that  political  power  conferred 
by  the  legislature  can  become  a  vested  right,  as  against  the  government,  in  any 
individual  or  body  of  men.  It  is  repugnant  to  the  genius  of  our  institutions, 
and  the  spirit  and  meaning  of  the  Constitution  ;  for  by  that  fundamental  law,  all 
political  rights  not  there  denned  and  taken  out  of  the  exercise  of  legislative  dis- 
cretion were  intended  to  be  left  subject  to  its  regulation.  If  corporations  can 
set  up  a  vested  right  as  against  the  government  to  the  exercise  of  this  species  of 
power,  because  it  has  been  conferred  upon  them  by  the  bounty  of  the  legislature, 
so  may  any  and  every  officer  under  the  government  do  the  same."  Nelson,  J.,  in 
People  v.  Morris,  13  Wend.  331.  And  see  Bristol  v.  New  Chester,  3  N.  H.  532 ; 
Benson  v.  Mayor,  &c,  of  New  York,  10  Barb.  244. 

[269] 


*  237  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

way  to  compensate  them  for  the  incidental  loss.1  And  in 
[*  238]  many  *  other  cases  the  legislature  properly  exercises  a 
similar  power  of  control  in  respect  to  the  corporate  prop- 
erty, and  may  direct  its  partition  and  appropriation,  in  order  to 
accommodate  most  justly  and  effectually,  in  view  of  new  circum- 
stances, the  purposes  for  which  it  was  acquired. 

The  rule  upon  the  subject  we  take  to  be  this  :  when  corporate 
powers  are  conferred,  there  is  an  implied  compact  between  the 
State  and  the  corporators  that  the  property  which  they  are 
given  the  capacity  to  acquire  for  corporate  purposes  under  their 
charter  shall  not  be  taken  from  them  and  appropriated  to  other 
uses.2  If  the  State  grants  property  to  the  corporation,  the  grant 
is  an  executed  contract,  which  cannot  be  revoked.  The  rights 
acquired,  either  by  such  grants  or  by  any  other  legitimate  mode 
in  which  such  a  corporation  can  acquire  property,  are  vested 
rights,  and  cannot  be  taken  away.  Nevertheless  if  the  corporate 
powers  should  be  repealed,  the  corporate  ownership  would  neces- 
sarily cease,  and  even  when  not  repealed,  a  modification  of  those 
powers,  or  a  change  in  corporate  bounds,  might  seriously  affect,  if 
not  altogether  divest,  the  rights  of  individual  corporators,  so  far 
as  they  can  be  said  to  have  any  rights  in  public  property.  And 
in  other  ways,  incidentally  as  well  as  by  direct  intervention,  the 
State  may  exercise  authority  and  control  over  the  disposition 
and  use  of  corporate  property,  according  to  the  legislative  view  of 
what  is  proper  for  the  public  interest  and  just  to  the  corporators, 
subject  only  —  as  we  think  —  to  this  restriction,  that  the  purpose 
for  which  the  property  was  originally  acquired  shall  be  kept  in 
view,  so  far  as  the  circumstances  will  admit,  in  any  disposition 
that  may  be  made  of  it.3 

1  Bristol  v.  New  Chester,  3  N.  H.  533.     And  see  ante,  232-234,  notes. 

2  If  land  is  dedicated  as  a  public  square,  and  accepted  as  such,  a  law  devoting 
it  to  other  uses  is  void,  because  violating  the  obligation  of  contracts.  Warren 
v.  Lyons  City,  22  Iowa,  351.  As  there  was  no  attempt  in  that  case  to  appro- 
priate the  land  to  such  other  uses  under  the  right  of  eminent  domain,  the  ques- 
tion of  the  power  to  do  so  was  not  considered. 

3  "  That  the  State  may  make  a  contract  with,  or  a  grant  to,  a  public  municipal 
corporation,  which  it  could  not  subsequently  impair  or  resume,  is  not  denied  ;  but 
in  such  a  case  the  corporation  is  to  be  regarded  as  a  private  company.  A  grant 
may  be  made  to  a  public  corporation  for  purposes  of  private  advantage  ;  and 
although  the  public  may  also  derive  a  common  benefit  therefrom,  yet  the  corpora- 
tion stands  on  the  same  footing,  as  respects  such  grant,  as  would  any  body  of  per- 

[270] 


OIH.  VIII.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  *  239 

*  This  restriction  is  not  the  less  applicable  where  corpo-  [*  239] 
rate  powers  are  abolished  than  it  is  in  other  cases  ;  and 

sons  upon  whom  like  privileges  were  conferred.   Public  or  municipal  corporations, 
however,  which  exist  only  for  public  purposes,  and  possess  no  powers  except  such 
as  are  bestowed  upon  them  for  public  political  purposes,  are  subject  at  all  times  to 
the  control  of  the  legislature,  which  may  alter,  modify,  or  abolish  them  at  pleas- 
ure."    Trumbull,  J.,  in  Richland  County  v.  Lawrence  County,  12  111.  8.     "  Pub- 
lic corporations  are  but  parts  of  the  machinery  employed   in  carrying  on  the 
affairs  of  the  State  ;  and  they  are  subject  to  be  changed,  modified,  or  destroyed, 
as  the  exigencies  of  the  public  may  demand.     The  State  may  exercise  a  general 
superintendence  and  control  over  them  and  their  rights  and  effects,  so  that  their 
property  is  not  diverted  from  the  uses  and  objects  for  which  it  was  given  or  pur- 
chased."    Trustees  of  Schools  v.  Tatman,  13  111.  30,  per  Treat,  Ch.  J.     And  see 
Harrison  v.  Bridgeton,  16  Mass.  16  ;  Montpelier  v.  East  Montpelier,  27  Vt.  704 ; 
Same  t>.  Same,  29  Vt.  19  ;  Benson  v.  Mayor,  &c,  of  New  York,  10  Barb.  223.  See 
also  City  of  Louisville  v.  University,  15  B.  Monr.  642.  In  State  v.  St.  Louis  County 
Court,  31  Mo.  572,  the  following  remarks  are  made  by  the  court,  in  considering 
the  cause  shown  by  the  county  in  answer  to  an  application  to  compel  it  to  meet 
a  requisition  for  the  police  board  of  St.  Louis :   "  As  to  the  second  cause  shown' 
in  the  return,  it  is  understood  to  mean,  not  that  there  is  in  fact  no  money  in  the 
treasury  to  pay  this  requisition,  but  that  as  a  matter  of  law  all  the  money  which 
is  in  the  treasury  was  collected  for  specific  purposes  from  which  it  cannot  be 
diverted.     The  specific  purposes  for  which  the  money  was  collected  were  those 
heretofore  directed  by  the  legislature  ;  and  this  act,  being  a  later  expression  of  the 
will  of  the  legislature,  controls  the  subject,  and  so  far  as  it  conflicts  with  previous 
acts  repeals  them.      The  county  is  not  a  private  corporation,  but  an  agency  of 
the  State  government;  and  though  as  a  public  corporation  it  holds  property,  such 
holding  is  subject  to  a  large  extent  to  the  will  of  the  legislature.     Whilst  the 
legislature  cannot  take  away  from  a  county  its  property,  it  has  full  power  to 
direct  the  mode  in  which  the  property  shall  be  used  for  the  benefit  of  the  county." 
Compare  People  v.  Mahaney,  13  Mich.  433.     In  Darlington  v.  New  York,  31 
N.  Y.  161,  the  complete  control  of  the  legislature  over  the  corporate  property 
of  cities  was  asserted,  and  it  was  held  competent  to  subject  the  city  to  liability  for 
property  destroyed  by  a  riot.     It  will  be  observed  that  the  strong  expression  of 
legislative  power  is  generally  to  be  found  in  cases  where  the  thing  actually  done 
was  clearly  and  unquestionably  competent.     In  Payne  v.  Treadwell,  16  Cal.  233, 
this  language  is  used :  "  The  agents  of  the  corporation  can  sell  or  dispose  of  the 
property  of  the  corporation  only  in  the  way  and  according  to  the  order  of  the 
legislature  ;  and  therefore  the  legislature  may  by  law  operating  immediately  upon 
the  subject  dispose  of  this  property,  or  give  effect  to  any  previous  disposition  or 
attempted  disposition.     The  property  itself  is  a  trust,  and  the  legislature  is  the 
prime  and  controlling  power,  managing  and  directing  the  use,  disposition,  and 
direction  of  it."     Quoted  and  approved  in  San  Francisco  v.  Canavan,  42  Cal. 
558.    These  strong  and  general  expressions  should  be  compared  with  what  is  said 
in  Grogan  v.  San  Francisco,  18  Cal.  590,  in  which  the  right  of  municipal  corpo- 
rations to  constitutional  protection  in  their  property  is  asserted  fully.     The  same 

[  271  ] 


*  239  CONSTITUTIONAL    LIMITATIONS.  [CH.  VIII. 

whatever  might  be  the  nature  of  the  public  property  which  the 
corporation  had  acquired,  and  whatever  the  purpose  of  the  acqui- 
sition, the  legislature,  when  by  taking  away  the  corporate  authority 
it  became  vested  with  the  control  of  the  property,  would  be  under 
obligation  to  dispose  of  it  in  such  manner  as  to  give  the  original 
corporators  the  benefit  thereof,  by  putting  it  to  the  use  designed, 
if  still  practicable,  or  to  some  kindred  or  equally  beneficial  use 
having  reference  to  the  altered  condition  of  things.  The  obliga- 
tion is  one  which,  from  the  very  nature  of  the  case,  must  rest  for 
its  enforcement  in  great  measure  upon  the  legislative  good  faith 
and  sense  of  justice  ;  and  it  could  only  be  in  those  cases  where 
there  had  been  a  clear  disregard  of  the  rights  of  the  original  cor- 
porators, in  the  use  attempted  to  be  made  of  the  property,  that 
relief  could  be  had  through  judicial  action. 

No  such  restriction,  however,  can  rest  upon  the  legislature  in 
regard  to  the  rights  and  privileges  which  the  State  grants  to 
municipal  corporations  in  the  nature  of  franchises,  and  which  are 
granted  only  as  aids  or  conveniences  to  the  municipality  in  effect- 
ing the  purposes  of  its  incorporation.  These,  like  the  corporate 
powers,  must  be  understood  to  be  granted  during  pleasure.1 

right  is  asserted  in  People  v.  Bacheller,  lately  decided  in  tbe  Court  of  Appeals 
of  New  York ;  People  v.  Mayor,  &c.,  of  Chicago,  51  111.  17  ;  People  v.  Tappan, 
29  Wis.  664 ;  People  v.  Hurlbut,  24  Mich.  44,  and  very  many  others.  See 
Dillon,  Mun.  Corp.  §  39  et  seq.,  and  cases  referred  to  in  notes.  And  see  Hewison 
V.  New  Haven,  37  Conn.  483,  as  to  the  distinction  between  the  public  or  govern- 
mental character  of  municipal  corporations,  and  their  private  character  as  re- 
spects the  ownership  and  management  of  their  own  property. 

1  East  Hartford  v.  Hartford  Bridge  Co.,  10  How.  535.  On  this  subject,  see 
c.  9,  post.  The  case  of  Trustees  of  Aberdeen  Academy  v.  Mayor,  &c,  of  Aber- 
deen, 13  S.  &  M.  645,  appears  to  be  contra.  By  the  charter  of  the  town  of 
Aberdeen  in  1837,  the  legislature  granted  to  it  the  sole  power  to  grant  licenses 
to  sell  vinous  and  spirituous  liquors  within  the  corporate  limits  thereof,  and  to 
appropriate  the  money  arising  therefrom  to  city  purposes.  In  1S48  an  act  was 
passed  giving  these  moneys  to  the  Aberdeen  Female.  Academy.  The  act  was 
held  void,  on  the  ground  that  the  original  grant  was  of  a  franchise  which  consti- 
tuted property,  and  it  could  not  be  transferred  to  another,  though  it  might  be 
repealed.  The  case  cites  Bailey  v.  Mayor,  &c,  3  Hill,  541,  and  St.  Louis  v.  Rus- 
sell, 9  Mo.  507,  which  seem  to  have  little  relevancy.  Also,  4  Wheat.  663,  698, 
699  ;  and  2  Kent,  305,  note,  for  the  general  rule  protecting  municipal  corpora- 
tions in  their  vested  rights  to  property.  The  case  of  Benson  v.  Mayor,  &c,  of 
New  York,  10  Barb.  223,  also  holds  the  grant  of  a  ferry  franchise  to  a  municipal 
corporation  to  be  irrevocable,  but  the  authorities  generally  will  not  sustain  this 
view.     See  post,  p.  283,  and  note. 

T  272  ] 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  *  240 


*  Toivns  and  Counties.  [*  240] 

Thus  far  we  have  been  considering  general  rules,  applicable 
to  all  classes  of  municipal  organizations  possessed  of  corporate 
powers,  and  by  which  these  powers  may  be  measured,  or  the 
duties  which  they  impose  defined.  In  regard  to  some  of  these 
organizations,  however,  there  are  other  and  peculiar  rules  which 
require  separate  mention.  Some  of  them  are  so  feebly  endowed 
with  corporate  life,  and  so  much  hampered,  controlled,  and  directed 
in  the  exercise  of  the  functions  which  are  conferred  upon  them, 
that  they  are  sometimes  spoken  of  as  nondescript  in  character,  and 
as  occupying  a  position  somewhere  between  that  of  a  corporation 
and  a  mere  voluntary  association  of  citizens.  Counties,  townships, 
school  districts,  and  road  districts  do  not  usually  possess  corporate 
powers  under  special  charters ;  but  they  exist  under  general  laws 
of  the  State,  which  apportion  the  territory  of  the  State  into  polit- 
ical divisions  for  convenience  of  government,  and  require  of  the 
people  residing  within  those  divisions  the  performance  of  certain 
public  duties  as  a  part  of  the  machinery  of  the  State ;  and,  in 
order  that  they  may  be  able  to  perform  these  duties,  vest  them 
with  certain  corporate  powers.  Whether  they  shall  assume  those 
duties  or  exercise  those  powers,  the  people  of  the  political  divisions 
are  not  allowed  the  privilege  of  choice  ;  the  legislature  assumes  this 
division  of  the  State  to  be  essential  in  republican  government,  and 
the  duties  are  imposed  as  a  part  of  the  proper  and  necessary  burden 
which  the  citizens  must  bear  in  maintaining  and  perpetuating 
constitutional  liberty.1  Usually  their  functions  are  wholly  of  a 
public  nature,  and  there  is  no  room  to  imply  any  contract  between 
them  and  the  State,  in  their  organization  as  corporate  bodies,  ex- 
cept that  which  springs  from  the  ordinary  rules  of  good  faith,  and 
which  requires  that  the  property  they  shall  acquire,  by  local  taxation 
or  otherwise,  for  the  purposes  of  their  organization,  shall 
not  be  seized  by  the  State,  and  appropriated  *  in  other  [*  241] 
ways.  They  are,  therefore,  sometimes  called  quasi  corpo- 
rations,2 to  distinguish  them  from  the  corporations  in  general, 

1  Granger  v.  Pulaski  County,  26  Ark.  37 ;  Scales  v.  Chatahoochee  County, 
41  Geo.  225. 

2  Riddle  v.  Proprietors,  &c.,  7  Mass.  186,  187 ;  School  District  v.  Wood,  13 
Mass.  192 ;  Adams  v.  Wiscasset   Bank,  1  Greenl.  361 ;   Denton  v.  Jackson,  2 

18  [  273  ] 


*  241  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIT',. 

which  possess  more  completely  the  functions  of  an  artificial  entity. 
Chief  Justice  Parker,  of  Massachusetts,  in  speaking  of  school  dis- 
tricts, has  said  :  "  That  they  are  not  bodies  politic  and  corporate, 
with  the  general  powers  of  corporations,  must  be  admitted ;  and 
the  reasoning  advanced  to  show  their  defect  of  power  is  conclusive. 
The  same  may  be  said  of  towns  and  other  municipal  societies  ; 
which  although  recognized  by  various  statutes,  and  by  immemo- 
rial usage,  as  persons  or  aggregate  corporations,  with  precise  duties 
which  may  be  enforced,  and  privileges  which  may  be  maintained 
by  suits  at  law,  yet  are  deficient  in  many  of  the  powers  incident  to 
the  general  character  of  corporations.  They  may  be  considered, 
under  our  institutions,  as  quasi  corporations,  with  limited  powers, 
co-extensive  with  the  duties  imposed  upon  them  by  statute  or  usage, 
but  restrained  from  the  general  use  of  authority  which  belongs  to 
these  metaphysical  persons  by  the  common  law.  The  same  may 
be  said  of  all  the  numerous  corporations  which  have  been  from  time 
to  time  created  by  various  acts  of  the  legislature ;  all  of  them 
enjoying  the  power  which  is  expressly  bestowed  upon  them,  and 
perhaps,  in  all  instances  where  the  act  is  silent,  possessing,  by 
necessary  implication,  the  authority  which  is  requisite  to  execute 
the  purposes  of  their  creation."  "  It  will  not  do  to  apply  the  strict 
principles  of  law  respecting  corporations  in  all  cases  to  these 
aggregate  bodies  which  are  created  by  statute  in  this  Common- 
wealth. By  the  several  statutes  which  have  been  passed  respecting 
school  districts,  it  is  manifest  that  the  legislature  has  supposed 
that  a  division  of  towns,  for  the  purpose  of  maintaining  schools,  will 
promote  the  important  object  of  general  education ;  and  this  valua- 
ble object  of  legislative  care  seems  to  require,  in  construing  their 
acts,  that  a  liberal  view  should  be  had  to  the  end  to  be  effected."  1 
Following  out  this  view,  the  courts  of  the  New  England  States  have 
held,  that  when  judgments  are  recovered  against  towns,  parishes, 

and  school  districts,  any  of  the  property  of  private  owners 
[*  242]   within  *  the  municipal  division  is  liable  to  be  taken  for 

their  discharge.  The  reasons  for  this  doctrine,  and  the 
custom  upon  which  it  is  founded,  are  thus  stated  by  the  Supreme 
Court  of  Connecticut :  — 

Johns.  Ch.  325;   Beardsley  v.  Smith,  16  Conn.  367;   Eastman  o.  Meredith,  36 
N.  H.  296;  Hopple  v.  Brown,  13  Ohio,  N.  s.  311;  Commissioners  of  Hamilton 
Co.  v.  Mighels,  7  Ohio,  n.  s.  109 ;  Ray  County  v.  Bentley,  49  Mo.  236. 
1  School  District  v.  Wood,  13  Mass.  192. 

[274] 


CH.  VIII.]  THE   GRADES    OF   MUNICIPAL    GOVERNMENT.  *  242 

"  We  know  that  the  relation  in  which  the  members  of  munic- 
ipal corporations  in  this  State  have  been  supposed  to  stand,  in 
respect  to  the  corporation  itself,  as  well  as  to  its  creditors,  has 
elsewhere  been  considered  in  some  respects  peculiar.  We  have 
treated  them,  for  some  purposes,  as  parties  to  corporate  proceed- 
ings, and  their  individuality  has  not  been  considered  as  merged  in 
their  corporate  connection.  Though  corporators,  they  have  been 
holden  to  be  parties  to  suits  by  or  against  the  corporation,  and 
individually  liable  for  its  debts.  Heretofore  this  has  not  been 
doubted  as  to  the  inhabitants  of  towns,  located  ecclesiastical 
societies,  and  school  districts. 

"  Prom  a  recurrence  to  a  history  of  the  law  on  this  subject,  we 
are  persuaded  that  the  principle  and  usage  here  recognized  and 
followed,  in  regard  to  the  liability  of  the  inhabitants  of  towns  and 
communities,  were  very  early  adopted  by  our  ancestors.  And 
whether  they  were  considered  as  a  part  of  the  common  law  of 
England,  or  originated  here,  as  necessary  to  our  state  of  society, 
it  is  not  very  material  to  inquire.  We  think,  however,  that  the 
principle  is  not  of  domestic  origin,  but  to  some  extent  was 
operative  and  applied  in  the  mother  country,  especially  in  cases 
where  a  statute  fixed  a  liability  upon  a  municipality  which  had 
no  corporate  funds.  The  same  reason  and  necessity  for  the  appli- 
cation of  such  a  principle  and  practice  existed  in  both  countries. 
Such  corporations  are  of  a  public  and  political  character  ;  they 
exercise  a  portion  of  the  governing  power  of  the  State.  Statutes 
impose  upon  them  important  public  duties.  In  the  performance 
of  these,  they  must  contract  debts  and  liabilities,  which  can  only 
be  discharged  by  a  resort  to  individuals,  either  by  taxation  or 
execution.  Taxation,  in  most  cases,  can  only  be  the  result  of  the 
voluntary  action  of  the  corporation,  dependent  upon  the  contingent 
will  of  the  majority  of  the  corporators,  and  upon  their  tardy  and 
uncertain  action.  It  affords  no  security  to  creditors,  because  they 
have  no  power  over  it.  Such  reasons  as  these  probably  operated 
with  our  ancestors  in  adopting  the  more  efficient  and  certain  rem- 
edy by  execution,  which  has  been  resorted  to  in  the  present  case, 
and  which  they  had  seen  to  some  extent  in  operation  in  the  country 
whose  laws  were  their  inheritance. 

* "  The  plaintiff  would  apply   to  these   municipal   or  [*  248] 
quasi  corporations  the  close  principles  applicable  to  private 
corporations.     But   inasmuch  as  they  are  not,  strictly  speaking, 

[275] 


*  243  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

corporations,  but  only  municipal  bodies,  without  pecuniary  funds, 
it  will  not  do  to  apply  to  them  literally,  and  in  all  cases,  the  law  of 
corporations.1 

"  The  individual  liability  of  the  members  of  quasi  corporations, 
though  not  expressly  adjudged,  was  very  distinctly  recognized  in 
the  case  of  Russell  v.  The  Men  of  Devon.2  It  was  alluded  to  as  a 
known  principle  in  the  case  of  the  Attorney-General  v.  The  City  of 
Exeter,3  applicable  as  well  to  cities  as  to  hundreds  and  parishes. 
That  the  rated  inhabitants  of  an  English  parish  are  considered  as 
the  real  parties  to  suits  against  the  parish  is  now  supposed  to  be 
well  settled  ;  and  so  it  was  decided  in  the  case  of  The  King  v.  The 
Inhabitants  of  Woburn,4  and  The  King  v.  The  Inhabitants  of  Hard- 
wick.5  And,  in  support  of  this  principle,  reference  was  made  to 
the  form  of  the  proceedings  ;  as  that  they  are  entitled  '  against  the 
inhabitants,'  <fec. 

"  In  the  State  of  Massachusetts,  from  whose  early  institutions 
we  have  borrowed  many  valuable  specimens,  the  individual  re- 
sponsibility of  the  inhabitants  of  towns  for  town  debts  has  long 
been  established.  Distinguished  counsel  in  the  case  of  the  Mer- 
chants Bank  v.  Cook,0  referring  to  municipal  bodies,  say  :  '  For  a 
century  past  the  practical  construction  of  the  bar  has  been  that,  in 
an  action  by  or  against  a  corporation,  a  member  of  the  corpo- 
ration is  a  party  in  the  suit.'  In  several  other  cases  in  that  State 
the  same  principle  is  repeated.  In  the  case  of  Riddle  v.  The  Pro- 
prietors of  the .  Locks  and  Canals  on  Merrimack  River,7  Parsons, 
Ch.  J.,  in  an  allusion  to  this  private  responsibility  of  corporators, 
remarks :  '  And  the  sound  reason  is,  that  having  no  corporate 
fund,  and  no  legal  means  of  obtaining  one,  each  corporator  is 
liable  to  satisfy  any  judgment  obtained  against  the  corporation.' 
So  in  Brewer  v.  Inhabitants  of  New  Gloucester,8  the  court  say : 
'  As  the  law  provides  that,  when  judgment  is  recovered  against  the 
inhabitants  of  a  town,  execution  may  be  levied  upon  the  property 
of  any  inhabitant,  each  inhabitant  must  be  considered  as  a  party.' 
In  the  case  before  referred  to  of  the  Merchants  Bank  v. 
[*  24  i]  Cook,  * Parker,  Ch.  J.,  expresses  the  opinion  of  the  court 
upon  this  point  thus  :    '  Towns,  parishes,  precincts,  &c, 

1  School  District  v.  Wood,  13  Mass.  192.  2  2  Term  Rep.  660. 

3  2  Russ.  45.  4  10  East,  395.  6  11  East,  577. 

6  4  Pick.  405.     •  7  7  Mass.  187.  s  14  Mass.  216. 

[276] 


CH.  VIII.]  THE   GRADES    OF   MUNICIPAL   GOVERNBIENT.  *  244 

are  but  a  collection  of  individuals,  with  certain  corporate  powers 
for  political  and  civil  purposes,  without  any  corporate  fund,  from 
which  a  judgment  can  be  satisfied  ;  but  each  member  of  the  com- 
munity is  liable,  in  his  person  and  estate,  to  the  execution  which 
may  issue  against  the  body  ;  each  individual,  therefore,  may  be 
well  thought  to  be  a  'party  to  a  suit  brought  against  them  by  their 
collective  name.  In  regard  to  banks,  turnpikes,  and  other  corpo- 
rations, the  case  is  different.'  The  counsel  concerned  in  the  case 
of  Mower  v.  Leicester,1  without  contradiction,  speak  of  this  prac- 
tice of  subjecting  individuals  as  one  of  daily  occurrence.  The  law 
on  this  subject  was  very  much  considered  in  the  case  of  Chase  v. 
The  Merrimack  Bank,2  and  was  applied  and  enforced  against  the 
members  of  a  territorial  parish.  '  The  question  is,'  say  the  court, 
'  whether,  on  an  execution  against  a  town  or  parish,  the  body  or 
estate  of  any  inhabitant  may  be  lawfully  taken  to  satisfy  it.  This 
question  seems  to  have  been  settled  in  the  affirmative  by  a  series 
of  decisions,  and  ought  no  longer  to  be  considered  as  an  open 
question.'  The  State  of  Maine,  when  separated  from  Massachu- 
setts, retained  most  of  its  laws  and  usages,  as  they  had  been 
recognized  in  the  parent  State  ;  and,  among  others,  the  one  in 
question.  In  Adams  v.  Wiscasset  Bank,3  Mellen,  Gh.  J.,  says: 
'  It  is  well  known  that  all  judgments  against  quasi  corporations 
may  be  satisfied  out  of  the  property  of  any  individual  inhabitant.' 

"  The  courts  of  this  State,  from  a  time  beyond  the  memory  of 
any  living  lawyer,  have  sanctioned  and  carried  out  this  usage,  as 
one  of  common-law  obligation  ;  and  it  has  been  applied,  not  to 
towns  only,  but  also,  by  legal  analogy,  to  territorial  ecclesiastical 
societies  and  school  districts.  The  forms  of  our  process  against 
these  communities  have  always  corresponded  with  this  view  of  the 
law.  The  writs  have  issued  against  the  inhabitants  of  towns, 
societies,  and  districts  as  parties.  As  early  in  the  history  of  our 
jurisprudence  as  1805,  a  statute  was  enacted  authorizing  com- 
munities, such  as  towns,  societies,  Ac,  to  prosecute  and  defend 
suits,  and  for  this  purpose  to  appear,  either  by  themselves,  agents, 
or  attorneys.  If  the  inhabitants  were  not  then  considered  as 
parties  individually,  and  liable  to  the  consequences  of  judgments 
against  such  communities  as  parties,  there  would  have 
been  a  glaring  *  impropriety  in  permitting  them  to  appear  [*  245J 

1  9  Mass.  247.  2  19  Pick.  564.'  3  1  Greenl.  361. 

[277] 


*  245  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

and  defend  by  themselves  ;  but,  if  parties,  such  a  right  was  neces- 
sary and  indispensable.  Of  course  this  privilege  has  been  and 
may  be  exercised.1 

"  Our  statute  providing  for  the  collection  of  taxes  enacts  that 
the  treasurer  of  the  State  shall  direct  his  warrant  to  the  collectors 
of  the  State  tax  in  the  several  towns.  If  neither  this  nor  the  fur- 
ther proceedings  against  the  collectors  and  the  selectmen  authorized 
by  the  statute  shall  enforce  the  collection  of  the  tax,  the  law  directs 
that  then  the  treasurer  shall  issue  .his  execution  against  the  inhab- 
itants of  such  town.  Such  an  execution  may  be  levied  upon  the 
estate  of  the  inhabitants ;  and  this  provision  of  the  law  was  not 
considered  as  introducing  a  new  principle,  or  enforcing  a  novel 
remedy,  but  as  being  only  in  conformity  with  the  well-known  usage 
in  other  cases.  The  levy  of  an  execution  under  this  statute  pro- 
duced the  case  of  Beers  v.  Botsford.2  There  the  execution,  which 
had  been  issued  against  the  town  of  Newtown  by  the  treasurer  of 
the  State,  had  been  levied  upon  the  property  of  the  plaintiff,  an 
inhabitant  of  that  town,  and  he  had  thus  been  compelled  to  pay  the 
balance  of  a  State  tax  due  from  the  town.  He  sued  the  town  of 
Newtown  for  the  recovery  of  the  money  so  paid  by  him.  The  most 
distinguished  professional  gentlemen  in  the  State  were  engaged  as 
counsel  in  that  case  ;  and  it  did  not  occur,  either  to  them  or  to  the 
court,  that  the  plaintiff's  property  had  been  taken  without  right: 
on  the  contrary,  the  case  proceeded  throughout  on  the  conceded 
principle  of  our  common  law,  that  the  levy  was  properly  made 
upon  the  estate  of  the  plaintiff.  And  without  this  the  plaintiff 
could  not  have  recovered  of  the  town,  but  must  have  resorted  to 
his  action  against  the  officer  for  his  illegal  and  void  levy.  In  Ful- 
ler v.  Hampton,3  Peters,  J.,  remarked  that,  if  costs  are  recovered 
against  a  town,  the  writ  of  execution  to  collect  them  must  have 
been  issued  against  the  property  of  the  inhabitants  of  the  town  ;  and 
this  is  the  invariable  practice.  The  case  of  Atwater?;.  Woodbridge4 
also  grew  out  of  this  ancient  usage.  The  ecclesiastical  society  of 
Bethany  had  been  taxed  by  the  town  of  Woodbridge  for  its  mon- 
eys at  interest,  and  the  warrant  for  the  collection  of  the  tax  had 
been  levied  upon  the  property  of  the  plaintiff,  and  the  tax  had 
thus  been  collected  of  him,  who  was  an  inhabitant  of  the  located 


1  Swift's  System,  227.  2  3  Day,  159. 

5  Conn.  417.  4  6  Conn.  223. 


[278] 


CH.  VIII.]  THE   GEADES   OF   MUNICIPAL   GOVERNMENT.  *  245 

society  of  Bethany.  Brainerd,  J.,  who  drew  up  the  *  opin-  [*  246] 
ion  of  the  court,  referring  to  this  proceeding,  said  :  '  This 
practice,  with  regard  to  towns,  has  prevailed  in  New  England,  so 
far  as  I  have  been  able  to  investigate  the  subject,  from  an  early 
period,  —  from  its  first  settlement, —  a  practice  brought  by  our 
forefathers  from  England,  which  had  there  obtained  in  corporations 
similar  to  the  towns  incorporated  in  New  England.'  It  will  here 
be  seen  that  the  principle  is  considered  as  applicable  to  territorial 
societies  as  to  towns,  because  the  object  to  be  obtained  was  the 
same  in  both,  — '  that  the  town  or  society  should  be  brought  to  a 
sense  of  duty,  and  make  provision  for  payment  and  indemnity ; ' 
a  very  good  reason,  and  very  applicable  to  the  case  we  are  consid- 
ering. 

"  The  law  on  this  subject  was  more  distinctly  brought  out  and 
considered  by  this  court  in  the  late  case  of  McCloud  v.  Selby,1  in 
which  this  well-known  practice,  as  it  had  been  applied  to  towns 
and  ecclesiastical  societies,  was  extended  and  sanctioned  as  to 
school  districts  ;  '  else  it  would  be  breaking  in  upon  the  analogies 
of  the  law.'  '  They  are  communities  for  different  purposes,  but 
essentially  of  the  same  character.'  And  no  doubt  can  remain, 
since  the  decision  of  this  case,  but  that  the  real  principle,  in  all  of 
the  cases  on  this  subject,  has  been,  and  is,  that  the  inhabitants  of 
quasi  corporations  are  parties  individually,  as  well  as  in  their  cor- 
porate capacities,  to  all  the  actions  in  which  the  corporation  is  a 
party.  And  to  the  same  effect  is  the  language  of  the  elementary 
writers."  2 

So  far  as  this  rule  rests  upon  the  reason  that  these  organizations 
have  no  common  fund,  and  that  no  other  mode  exists  l>y  which 
demands  against  them  can  be  enforced,  it  cannot  be  considered 
applicable  in  those  States  where  express  provision  is  made  by  law 
for  compulsory  taxation  to  satisfy  any  judgment  recovered  against 
the  corporate  body,  —  the  duty  of  levying  the  tax  being  imposed 
upon  some  officer,  who  may  be  compelled  by  mandamus  to  perform 

1  10  Conn.  390-395. 

2  Beardsley  v.  Smith,  16  Conn.  375,  citing  2  Kent,  221  ;  Angell  and  Ames  on 
Corp.  374 ;  1  Swift's  Dig.  72,  794 ;  5  Dane's  Abr.  158.  And  see  Dillon,  Mun. 
Corp.  c.  1.  It  was  held  competent  in  the  above  case  to  extend  the  same  principle 
to  incorporated  cities  ;  and  an  act  of  the  legislature  permitting  the  enforcement  of 
city  debts  in  the  same  mode  was  sustained.  For  a  more  recent  case  in  Massa- 
chusetts than  these  cited,  see  Gaskill  v.  Dudley,  6  Met.  551. 

[279] 


*  246  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

it.  Nor  has  any  usage,  so  far  as  we  are  aware,  grown  up  in  any 
of  the  newer  States,  like  that  which  had  so  early  an  origin 
[*  247]  in  New  England.  *  More  just,  convenient,  and  inexpen- 
sive modes  of  enforcing  such  demands  have  been  estab- 
lished by  statute,  and  the  rules  concerning  them  are  conformed 
more  closely  to  those  which  are  established  for  other  corporations. 
On  the  other  hand,  it  is  settled  that  these  corporations  are  not 
liable  to  a  private  action,  at  the  suit  of  a  party  injured  by  a  neglect 
of  its  officers  to  perform  a  corporate  duty,  unless  such  action  is 
given  by  statute.  This  doctrine  has  been  frequently  applied  where 
suits  have  been  brought  against  towns,  or  the  highway  officers  of 
towns,  to  recover  for  damages  sustained  in  consequence  of  defects 
in  the  public  ways.  The  common  law  gives  no  such  action,  and  it 
is  therefore  not  sustainable  at  all,  unless  given  by  statute.  A  dis- 
tinction is  made  between  those  corporations  which  are  created  as 
exceptions,  and  receive  special  grants  of  power  for  the  peculiar 
convenience  and  benefit  of  the  corporators,  on  the  one  hand,  and 
the  incorporated  inhabitants  of  a  district,  who  are  by  statute 
invested  with  particular  powers,  without  their  consent,  on  the  other. 
In  the  latter  case,  the  State  may  impose  corporate  duties,  and  com- 
pel their  performance,  under  penalties  ;  but  the  corporators,  who 
are  made  such  whether  they  will  or  no,  cannot  be  considered  in 
the  light  of  persons  who  have  voluntarily,  and  for  a  consideration, 
assumed  obligations,  so  as  to  owe  a  duty  to  every  person  interested 
in  the  performance.1 

1  Mower  v.  Leicester,  9  Mass.  250;  Bartlett  v.  Crozier,  17  Johns.  439; 
Farnmn  v.  Concord,  2  N.  H.  392;  Adams  v.  Wiscasset  Bank,  1  Greenl.  361; 
Baxter  v.  Winooski  Turnpike,  22  Vt.  123;  Beardsley  v.  Smith,  16  Conn.  375; 
Chidsey  v.  Canton,  17  Conn.  475;  Young  v.  Commissioners,  &c,  2N.  &  McC. 
537;  Commissioners  of  Highways  v.  Martin,  4  Mich.  557;  Morey  v.  Newfane, 
8  Barb.  645;  Lorillard  v.  Monroe,  11  N.  Y.  392;  Galen  v.  Clyde  and  Rose 
Plank  Road  Co.,  27  Barb.  543;  Reardon  v.  St.  Louis,  36  Mo.  555;  Sherburne 
v.  Yuba  Co.,  21  Cal.  113  ;  State  v.  County  of  Hudson,  1  Vroom,  137;  Hedges 
v.  Madison  Co.,  1  Gilm.  567  ;  Granger  v.  Pulaski  Co.,  26  Ark.  37  ;  Weightman  v. 
Washington,  1  Black,  39 ;  Ball  v.  Winchester,  32  N.  H.  443 ;  Eastman  v.  Mere- 
dith, 36  N.  H.  284 ;  Waltham  v.  Kemper,  55  Rl.  346  ;  Sutton  v.  Board,  41  Miss. 
236  ;  Cooley  v.  Freeholders,  3  Dutch.  415.  These  cases  follow  the  leading  Eng- 
lish case  of  Russell  v.  Men  of  Devon,  2  T.  R.  667.  In  the  very  carefully  con- 
sidered case  of  Eastman  v.  Meredith,  36  N.  H.  284,  it  was  decided,  on  the 
principle  above  stated,  that  if  a  building  erected  by  a  town  for  a  town-house  is 
so  imperfectly  constructed  that  the  flooring  gives  way  at  the  annual  town-meeting, 
and  an  inhabitant  and  legal  voter,  in  attendance  on  the  meeting,  receives  thereby 

[280] 


CH.  VIII.]  THE   GRADES    OP   MUNICIPAL   GOVERNMENT.  *  247 

The  reason  which  exempts  these  public  bodies  from  liability  to 
private  actions,  based  upon  neglect  to  perform  public  obligations, 
does  not  apply  to  villages,  boroughs,  and  cities,  which 
accept  special  *  charters  from  the  State.  The  grant  of  the  [*  248] 
corporate  franchise,  in  these  cases,  is  usually  made  only  at 
the  request  of  the  citizens  to  be  incorporated,  and  it  is  justly 
assumed  that  it  confers  what  to  them  is  a  valuable  privilege.  This 
privilege  is  a  consideration  for  the  duties  which  the  charter  imposes. 
Larger  powers  of  self-government  are  given  than  are  confided  to 
towns  or  counties  ;  larger  privileges  in  the  acquisition  and  control 
of  corporate  property  ;  and  special  authority  is  conferred  to  make 
use  of  the  public  highways  for  the  special  and  peculiar  convenience 
of  the  citizens  of  the  municipality  in  various  modes  not  permissible 
elsewhere.  The  grant  by  the  State  to  the  municipality  of  a  portion 
of  its  sovereign  powers,  and  their  acceptance  for  these  beneficial 
purposes,  is  regarded  as  raising  an  implied  promise,  on  the  part  of 
the  corporation,  to  perform  the  corporate  duties  ;  and  this  implied 
contract,  made  with  the  sovereign  power,  enures  to  the  benefit  of 
every  individual  interested  in  its  performance.1     In  this  respect 

a  bodily  injury,  he  cannot  maintain  an  action  against  the  town  to  recover  dam- 
ages for  this  injury.  The  case  is  carefully  distinguished  from  those  where  cor- 
porations have  been  held  liable  for  the  negligent  use  of  their  own  property  by 
means  of  which  others  are  injured.  The  familiar  maxim  that  one  shall  so  use 
his  own  as  not  to  injure  that  which  belongs  to  another  is  of  general  application. 

1  Selde.a,  J.,  in  Weet  v.  Brockport,  16  N.  Y.  161,  note.  See  also  Mayor  of 
Lyme  t>.  Turner,  Cowp.  86  ;  Henley  v.  Lyme  Regis,  5  Bing.  91  ;  Same  case  in 
error,  3  B.  &  Adol.  77,  and  1  Bing.  N.  C.  222;  Mayor,  &c,  of  New  York  v. 
Furze,  3  Hill,  612  ;  Rochester  White  Lead  Co.  v.  Rochester,  3  N.  Y.  464 ;  Hut- 
son  v.  Mayor,  &c,  of  New  York,  9  N.  Y.  163;  Conrad  v.  Ithaca,  16  N.  Y.  158; 
Mills  v.  Brooklyn,  32  N.  Y.  489  ;  Barton  v.  Syracuse,  36  N.  Y.  54 ;  Lee  v.  Sandy 
Hill,  40  N.  Y.  442;  Clark  v,  Washington,  12  Wheat.  40;  Riddle  v.  Proprietors 
of  Locks,  &c,  7  Mass.  183  ;  Bigelow  v.  Inhabitants  of  Randolph,  14  Gray,  541 ; 
Mears  v.  Commissioners  of  Wilmington,  9  Ired.  73  ;  Browning  v.  Springfield,  17 
111.  143  ;  Bloomington  v.  Bay,  42  111.  503  ;  Springfield  v.  LeClaire,  49  111.  476 ; 
Peru  v.  French,  55  111.  318 ;  Pittsburg  v.  Grier,  22  Penn.  St.  54 ;  Jones  v.  New 
Haven,  34  Conn.  1 ;  Stackhouse  v .  Lafayette,  26  Ind.  17  ;  Brinkmeyer  v.  Evans- 
ville,  29  Ind.  187 ;  Sawyer  v.  Corse,  17  Grat.  241 ;  Richmond  v.  Long,  ib.  375 ; 
Blake  v.  St.  Louis,  40  Mo.  569;  Scott  v.  Mayor,  &c,  of  Manchester,  37  Eng. 
L.  &  Eq.  495;  Smoot  v.  Wetumpka,  24  Ala.  112;  Detroit  v.  Corey,  9  Mich. 
165 ;  Rusch  v.  Davenport,  6  Iowa,  443 ;  Commissioners  v.  Duckett,  20  Md. 
468;  Covington  v.  Bryant,  7  Bush,  248;  Weightman  v.  Washington,  1  Black, 
41 ;  Chicago  v.  Robbins,  2  Black,  418  ;  Nebraska  v.  Campbell,  ib.  590.  In  the 
recent  case  of  Detroit  v.  Blackeby,  21  Mich.  84,  this  whole  subject  is  considered 

[281] 


*  248  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

these  corporations  are  looked  upon  as  occupying  the  same  position 
as  private  corporations,  which,  having  accepted  a  valuable  franchise, 
on  condition  of  the  performance  of  certain  public  duties,  are  held 
to  contract  by  the  acceptance  for  the  performance  of  these  duties. 
In  the  case  of  public  corpprations,  however,  the  liability  is  contin- 
gent on  the  law  affording  the  means  of  performing  the  duty,  which, 
in  some  cases,  by  reason  of  restrictions  upon  the  power  of  taxation, 
they  might  not  possess.  But  assuming  the  corporation  to  be  clothed 
with  sufficient  power  by  the  charter  to  that  end,  the  liability  of  a 
city  or  village,  vested  with  control  of  its  streets,  for  any  neglect  to 
keep  them  in  repair,  or  for  any  improper  construction,  has  been 
determined  in  many  cases.1  And  a  similar  liability  would  exist  in 
other  cases  where  the  same  reasons  would  be  applicable. 

at  length ;  and  the  court  (one  judge  dissenting)  deny  the  soundness  of  the  prin- 
ciple stated  in  the  text,  and  hold  that  municipal  corporations  existing  under  spe- 
cial charters  are  not  liable  to  individuals  for  injuries  caused  by  neglect  to  perform 
corporate  duties,  unless  expressly  made  so  by  statute.  This  case  is  referred  to 
and  dissented  from  in  Waltham  v.  Kemper,  55  111.  347.  In  Murtaugh  v.  St. 
Louis,  44  Mo.  480,  Currier,  J.,  says:  "The  general  result  of  the  adjudications 
seems  to  be  this  :  When  the  officer  or  servant  of  a  municipal  corporation  is  in 
the  exercise  of  a  power  conferred  upon  the  corporation  for  its  private  benefit, 
and  injury  ensues  from  the  negligence  or  misfeasance  of  such  officer  or  servant, 
the  corporation  is  liable,  as  in  the  case  of  private  corporations  or  parties  ;  but 
when  the  acts  or  omissions  complained  of  were  done  or  omitted  in  the  exercise 
of  a  corporate  franchise  conferred  upon  the  corporation  for  the  public  good,  and 
not  for  the  private  corporate  advantage,  then  the  corporation  is  not  liable  for 
the  consequences  of  such  acts  or  omissions."  Citing  Bailey  v.  New  York, 
3  Hill,  531;  Martin  v.  Brooklyn,  1  Hill,  550;  Richmond  v.  Long's  Adm'r,  17 
Grat.  375;  Sherburne  v.  Yuba  Co.,  21  Cal.  113;  Dargan  v.  Mobile,  31  Ala. 
469;  Stewart  v.  New  Orleans,  9  La.  An.  461;  Prother  v.  Lexington,  13  B. 
Monr.  559.  And  as  to  exemption  from  liability  in  the  exercise  or  failure  to 
exercise  legislative  authority,  see  mite,  p.  208,  and  note. 

1  Weet  v.  Brockport.  16  N.  Y.  161,  note;  Hickok  v.  Plattsburg,  ib.  158; 
Morey  v.  Newfane,  8  Barb.  645  ;  Browning  v.  Springfield,  17  111.  143 ;  Hyatt  v. 
Roudout,  44  Barb.  385;  Lloyd  v.  Mayor,  &c,  of  New  York,  5  N.  Y.  369; 
Rusch  v.  Davenport,  6  Iowa,  443.  And  see  Dillon,  Mun.  Corp.  c.  18,  and  the 
cases  cited  in  the  preceding  note.     The  cases  of  Weet  v.  Brockport,  and  Hickok 

Plattsburg,  were  criticised  by  Mr.  Justice  Marvin,  in  the  case  of  Peck  v. 
Batavia,  32  Barb.  634,  where,  as  well  as  in  Cole  v.  Medina,  27  Barb.  218,  he 
held  that  a  village  merely  authorized  to  make  and  repair  sidewalks,  but  not  in 
terms  absolutely  and  imperatively  required  to  do  so,  had  a  discretion  conferred 
upon  it  in  respect  to  such  walks,  and  was  not  responsible  for  a  refusal  to  enact 
ordinances  or  by-laws  in  relation  thereto ;  nor,  if  it  enacted  such  ordinances  or 
by-laws,  was  it  liable  for  damages  arising  from  a  neglect  to  enforce  them.     The 

[282  ] 


CH.  VIII.]  THE   GRADES   OP  MUNICIPAL   GOVERNMENT.  *  249 

*  But  if  the  ground  of  the  action  is  the  omission  by  the  [*  249] 
corporation  to  repair  a  defect,  it  would  seem  that  notice  of 
the  defect  should  be  brought  home  to  the  corporation,  or  to  officers 
charged  with  some  duty  respecting  the  streets,  or  that  facts  should 
appear  sufficient  to  show  that,  by  proper  vigilance,  it  must  have 
been  known.1 

In  regard  to  all  those  powers  which  are  conferred  upon  the 
corporation,  not  for  the  benefit  of  the  general  public,  but  of  the 
corporators,  —  as  to  construct  works  to  supply  a  city  with  water,  or 
gas-works,  or  sewers,  and  the  like, —  the  corporation  is  held  to  a 
still  more  strict  liability,  and  is  made  to  respond  in  damages  to  the 
parties  injured  by  the  negligent  manner  in  which  the  work  is  con- 
structed, or  guarded,  even  though,  under  its  charter,  the  agents  for 
the  construction  are  not  chosen  or  controlled  by  the  corporation, 
and  even  where  the  work  is  required  by  law  be  let  to  the  lowest 
responsible  bidder. 

In  Bailey  v.  Mayor,  &c,  of  New  York,2  an  action  was  brought 
against  the  city  by  one  who  had  been  injured  in  his  property  by  the 
careless  construction  of  the  Croton  dam  for  the  purpose  of  supply- 
ing the  city  with  water.  The  work  was  constructed  under  the 
control  of  water  commissioners,  in  whose  appointment  the  city  had 
no  voice ;  and  upon  this  ground,  among  others,  and  also  on  the 
ground  that  the  city  officers  were  acting  in  a  public  capacity,  and, 
like  other  public  agents,  not  responsible  for  the  misconduct 
of  *  those  necessarily  appointed  by  them,  it  was  insisted  [*  250] 
the  city  could  not  be  held  liable.  Nelson,  Ch.  J.,  examin- 
ing the  position  that,  "  admitting  the  water  commissioners  to  be 
the  appointed  agents  of  the  defendants,  still  the  latter  are  not 
liable,   inasmuch   as  they   were    acting   solely   for   the   State   in 

doctrine  that  a  power  thus  conferred  is  discretionary  does  not  seem  consistent 
with  the  ruling  in  some  of  the  other  cases  cited,  and  is  criticised  in  Hyatt  v. 
Rondout,  44  Barb,  392.  Calling  public  meetings  for  political  or  philanthropic 
purposes  is  no  part  of  the  business  of  a  municipal  corporation,  and  it  is  not  liable 
to  one  who,  in  lawfully  passing  by  where  the  meeting  is  held,  is  injured  by  the 
discharge  of  a  cannon  fired  by  persons  concerned  in  the  meeting.  Borland  v. 
Mayor,  &c,  of  New  York,  1  Sandf.  27. 

1  Hart  v.  Brooklyn,  36  Barb.  226  ;  Dewey  v.  City  of  Detroit,  15  Mich.  309  • 
Garrison  v.  New  York,  5  Bosw.  497 ;  MeGinity  v.  Mayor,  &c,  of  New  York  5 
Duer,  674 ;  Decatur  v.  Fisher,  53  111.  407 ;  Requa  v.  Rochester,  45  N.  Y.  129  • 
Hume  v.  New  York,  47  N.  Y.  639. 

2  3  Hill,  531 ;  2  Denio,  433. 

[283  ] 


*  250  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

prosecuting  the  work  in  question,  and  therefore  are  not  responsible 
for  the  conduct  of  those  necessarily  employed  by  them  for  that 
purpose,"  says  :  "  We  admit,  if  the  defendants  are  to  be  regarded 
as  occupying  this  relation,  and  are  not  chargeable  with  any  want 
of  diligence  in  the  selection  of  agents,  the  conclusion  contended 
for  would  seem  to  follow.  They  would  then  be  entitled  to  all  the 
immunities  of  public  officers  charged  with  a  duty  which,  from  its 
nature,  could  not  be  executed,  without  availing  themselves  of  the 
services  of  others  ;  and  the  doctrine  of  respondeat  superior  does  not 
apply  to  such  cases.  If  a  public  officer  authorize  the  doing  of  an 
act  not  within  the  scope  of  his  authority,  or  if  he  be  guilty  of 
negligence  in  the  discharge  of  duties  to  be  performed  by  himself, 
he  will  be  held  responsible  ;  but  not  for  the  misconduct  or 
malfeasance  of  such  persons  as  he  is  obliged  to  employ.  But  this 
view  cannot  be  maintained  on  the  facts  before  us.  The  powers 
conferred  by  the  several  acts  of  the  legislature,  authorizing  the 
execution  of  this  great  work,  are  not,  strictly  and  legally  speaking, 
conferred  for  the  benefit  of  the  public ;  the  grant  is  a  special, 
private  franchise,  made  as  well  for  the  private  emolument  and  ad- 
vantage of  the  city  as  for  public  good.  The  State,  in  its  sovereign 
character,  has  no  interest  in  it.  It  owns  no  part  of  the  work.  The 
whole  investment,  under  the  law,  and  the  revenue  and  profits  to  be 
derived  therefrom,  are  a  part  of  the  private  property  of  the  city,  as 
much  so  as  the  lands  and  houses  belonging  to  it  situate  within  its 
corporate  limits. 

"  The  argument  of  the  defendants'  counsel  confounds  the  powers 
in  question  with  those  belonging  to  the  defendants  in  their  charac- 
ter as  a  municipal  or  public  body,  —  such  as  are  granted  exclusively 
for  public  purposes  to  counties,  cities,  towns,  and  villages,  where 
the  corporations  have,  if  I  may  so  speak,  no  private  estate  or  in- 
terest in  the  grant. 

"  As  the  powers  in  question  have  been  conferred  upon  one  of 
these  public  corporations,  thus  blending,  in  a  measure,  those  con- 
ferred for  private  advantage  and  emolument  with  those  already 
possessed  for  public  purposes,  there  is  some  difficulty,  I 
[*  251]  *  admit,  in  separating  them  in  the  mind,  and  properly  dis- 
tinguishing the  one  class  from  the  other,  so  as  to  distribute 
the  responsibility  attaching  to  the  exercise  of  each. 

"  But  the  distinction  is  quite  clear  and  well  settled,  and  the  pro- 
cess of  separation  practicable.     To  this  end,  regard  should  be  had, 
[  284] 


CH.  VIII.]  THE   GRADES  OF   MUNICIPAL   GOVERNMENT.  *  251 

not  so  much  to  the  nature  and  character  of  the  various  powers  con- 
ferred, as  to  the  object  and  purpose  of  the  legislature  in  conferring 
them.  If  granted  for  public  purposes  exclusively,  they  belong 
to  the  corporate  body  in  its  public,  political,  or  municipal  character. 
But,  if  the  grant  was  for  purposes  of  private  advantage  and  emolu- 
ment, though  the  public  may  derive  a  common  benefit  therefrom,  the 
corporation  quo  ad  hoc  is  to  be  regarded  as  a  private  company.  It 
stands  on  the  same  footing  as  would  any  individual  or  body  of 
persons  upon  whom  the  like  special  franchises  had  been  con- 
ferred.1 

"  Suppose  the  legislature,  instead  of  the  franchise  in  question, 
had  conferred  upon  the  defendants'  banking  powers,  or  a  charter 
for  a  railroad  leading  into  the  city,  in  the  usual  manner  in  which 
such  powers  are  conferred  upon  private  companies,  could  it  be 
doubted  that  they  would  hold  them  in  the  same  character,  and  be 
subject  to  the  same  duties  and  liabilities  ?  It  cannot  be  doubted  but 
they  would.  These  powers,  in  the  eye  of  the  law,  would  be  entirely 
distinct  and  separate  from  those  appertaining  to  the  defendants  as 
a  municipal  body.  So  far  as  related  to  the  charter  thus  conferred, 
they  would  be  regarded  as  a  private  company,  and  be  subject  to 
the  responsibilities  attaching  to  that  class  of  institutions.  The 
distinction  is  well  stated  by  the  Master  of  the  Rolls,  in  Moodalay 
v.  East  India  Co.,2  in  answer  to  an  objection  made  by  counsel. 
There  the  plaintiff  had  taken  a  lease  from  the  company,  granting 
him  permission  to  supply  the  inhabitants  of  Madras  with  tobacco 
for  ten  years.  Before  the  expiration  of  that  period,  the  company 
dispossessed  him,  and  granted  the  privilege  to  another.  The  plain- 
tiff, preparatory  to  bringing  an  action  against  the  company, 
filed  a  bill  of  discovery.  One  of  the  objections  *  taken  by  [*  252] 
the  defendant  was,  that  the  removal  of  the  plaintiff  was  . 
incident  to  their  character  as  a  sovereign  power,  the  exercise  of 
which  could  not  be  questioned  in  a  bill  or  suit  at  law.  The  Master 
of  the  Rolls  admitted  that  no  suit  would  lie  against  a  sovereign 
power  for  any  thing  done  in  that  capacity  ;  but  he  denied  that  the 

1  Dartmouth  College  v.  Woodward,  4  Wheat.  668,  672 ;  Phillips  v.  Bury,  1 
Ld.  Raym.  8 ;  2  T.  R.  352,  s.  c. ;  Allen  v.  McKeen,  1  Surnn.  297 ;  People  v. 
Morris,"  13  Wend.  331-338 ;  2  Kent's  Coin.  275  (4th  ed.)  ;  United  States  Bank 
v.  Planters  Bank,  9  Wheat.  907 ;  Clark  v.  Corp.  of  Washington,  12  ib.  40 ; 
Moodalay  v.  East  India  Co.,  1  Brown's  Ch.  R.  469. 

2  1  Brown's  Ch.  R.  469. 

[285] 


*  252  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

defendants  came  within  the  rule.  '  They  have  rights,'  he  observed, 
'as  a  sovereign  power;  they  have  also  duties  as  individuals;  if 
they  enter  into  bonds  in  India,  the  sums  secured  may  be  recovered 
here.  So  in  this  case,  as  a  private  company,  they  have  entered  into 
a  private  contract,  to  which  they  must  be  liable.'  It  is  upon  the 
like  distinction  that  municipal  corporations,  in  their  private  char- 
acter as  owners  and  occupiers  of  lands  and  houses,  are  regarded 
in  the  same  light  as  individual  owners  and  occupiers,  and  dealt 
with  accordingly.  As  such,  they  are  bound  to  repair  bridges,  high- 
ways, and  churches ;  are  liable  to  poor  rates ;  and,  in  a  word,  to 
the  discharge  of  any  other  duty  or  obligation  to  which  an  individ- 
ual owner  would  be  subject."  1 

In  Stoors  v.  City  of  Utica,2  it  was  held  that  a  city,  owing  to  the 
public  the  duty  of  keeping  its  streets  in  a  safe  condition  for  travel, 
was  liable  to  persons  receiving  injury  from  the  neglect  to  keep 
proper  lights  and  guards  at  night  around  an  excavation  which  had 
been  made  for  the  construction  of  a  sewer,  notwithstanding  it  had 
contracted  for  all  proper  precautions  with  the  persons  executing 
the  work.  And  in  the  City  of  Detroit  v.  Corey  3  the  corporation 
was  held  liable  in  a  similar  case,  notwithstanding  the  work  was 
required  by  the  charter  to  be  let  to  the  lowest  bidder.  Manning, 
J.,  in  speaking  to  the  point  whether  the  contractors  were  to  be  con- 
sidered as  the  agents  of  the  city,  so  that  the  maxim  respondeat 
superior  should  apply,  says  :  "  It  is  to  be  observed  that 
[*  253]  the  *  power  under  which  they  acted,  and  which  made  that 
lawful  which  would  otherwise  have  been  unlawful,  was  not 

1  2  Inst.  703  ;  Thursfield  v.  Jones,  Sir  T.  Jones,  187  ;  Rex  v.  Gardner,  Cowp. 
79 ;  Mayor  of  Lyme  v.  Turner,  ib.  87 ;  Henley  v.  Mayor  of  Lyme,  5  Bing.  91 ; 
1  Bing.  N.  C.  222,  s.  c.  in  House  of  Lords.  See,  also,  Lloyd  v.  Mayor,  &c.,  of 
New  York,  5  N.  Y.  369 ;  Commissioners  v.  Duckett,  20  Md.  468.  "  The  cor- 
poration of  the  city  of  New  York  possesses  two  kinds  of  powers,  — one  govern- 
mental and  public,  and,  to  the  extent  they  are  held  and  exercised,  is  clothed  with 
sovereignty ;  the  other  private,  and,  to  the  extent  they  are  held  and  exercised, 
is  a  legal  individual.  The  former  are  given  and  used  for  public  purposes,  the 
latter  for  private  purposes.  While  in  the  exercise  of  the  former,  the  corporation 
is  a  municipal  government,  and  while  in  the  exercise  of  the  latter  is  a  corj>orate, 
legal  individual."  Ibid,  per  Foot,  J.  See  upon  this  point  also,  Western  Fund 
Savings  Society  v.  Philadelphia,  31  Penn.  St.  175 ;  Louisville  v.  Commonwealth, 
1  Duvall,  295 ;  People  v.  Common  Council  of  Detroit,  27  Mich,  ante  230  and  note. 

2  17  N.  Y.  104. 

3  9  Mich.  165.     Compare  Mills  v.  Brooklyn,  32  N.  Y.  489 ;  Jones  v.  New 
Haven,  34  Conn.  1. 

[286] 


CH.  VIII.]  THE   GRADES   OP   MUNICIPAL   GOVERNMENT.  *  253 

a  power  given  to  the  city  for  governmental  purposes,  or  a  public 
municipal  duty  imposed  on  the  city,  as  to  keep  its  streets  in  repair, 
or  the  like,  but  a  special  legislative  grant  to  the  city  for  private 
purposes.  The  sewers  of  the  city,  like  its  works  for  supplying  the 
city  with  water,  are  the  private  property  of  the  city  ;  they  belong 
to  the  city.  The  corporation  and  its  corporators,  the  citizens,  are 
alone  interested  in  them ;  the  outside  public  or  people  of  the  State 
at  large  have  no  interest  in  them,  as  they  have  in  the  streets  of  the 
city,  which  are  public  highways. 

"  The  donee  of  such  a  power,  whether  the  donee  be  an  individ- 
ual or  a  corporation,  takes  it  with  the  understanding — for  such 
are  the  requirements  of  the  law  in  the  execution  of  the  power  — 
that  it  shall  be  so  executed  as  not  unnecessarily  to  interfere  with 
the  rights  of  the  public,  and  that  all  needful  and  proper  measures 
will  be  taken,  in  the  execution  of  it,  to  guard  against  accidents  to 
persons  lawfully  using  the  highway  at  the  time.  He  is  individ- 
ually bound  for  the  performance  of  these  obligations  ;  he  cannot 
accept  the  power  divested  of  them,  or  rid  himself  of  their  perform- 
ance by  executing  them  through  a  third  person  as  his  agent.  He 
may  stipulate  with  the  contractor  for  their  performance,  as  was 
done  by  the  city  in  the  present  case,  but  he  cannot  thereby  relieve 
himself  of  his  personal  liability,  or  compel  an  injured  party  to  look 
to  his  agent,  instead  of  himself,  for  damages."  And  in  answer 
to  the  objection  that  the  contract  was  let  to  the  lowest  bidder,  as 
the  law  required,  it  is  shown  that  the  provision  of  law  to  that 
effect  was  introduced  for  the  benefit  of  the  city,  to  protect  it 
against  frauds,  and  that  it  should  not,  therefore,  relieve  it  from 
any  liability.1 

1  See,  also,  Rochester  White  Lead  Co.  v.  City  of  Rochester,  3  N.  Y.  463 ; 
Grants.  City  of  Brooklyn,  41  Barb.  381 ;  City  of  Buffalo  v.  Holloway,  14  Barb. 
101,  and  7  N.  Y.  493 ;  Lloyd  v.  Mayor,  &c,  of  New  York,  5  N.  Y.  369 ;  Del- 
nionioo  v.  Mayor,  &c,  of  New  York,  1  Sandf.  222;  Barton  v.  Syracuse,  37 
Barb.  292;  Storrs  v.  Utica,  17  N.  Y.  104;  Springfield  v.  LeClaire,  49  111.  476; 
Blake  v.  St.  Louis,  40  Mo.  569 ;  Baltimore  v.  Pendleton,  15  Md.  12  ;  St.  Paul 
v.  Leitz,  3  Minn.  297.  For  further  illustration  of  the  rules  of  liability  to  which 
municipal  corporations  are  subject  for  the  negligent  discharge  of  corporate  duties, 
or  the  improper  construction  of  corporate  works,  see  Wallace  v.  Muscatine, 
4  Greene  (Iowa),  373;  Creal  v.  Keokuk,  ib.  47;  Cotes  v.  Davenport,  9  Iowa, 
227  ;  Mayor  v.  Sheffield,  4  Wal.  189 ;  Child  v.  Boston,  4  Allen,  41 ;  Walcott  v. 
Swainpscott,  1  Allen,  101 ;  Buttrick  v.  Lowell,  ib.  172 ;  Munn  v.  Pittsburgh,  40 
Penn.   St.  364;    Pekin  v.  Newell,  26  111.  320;    Weightman  v.  Washington,  1 

[287] 


*  254  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

[*  254]  *  We  have  not  deemed  it  important,  in  considering  the 
subject  embraced  within  this  chapter,  to  discuss  the  various 
questions  which  might  be  suggested  in  regard  to  the  validity  of  the 
proceedings  by  which  it  is  assumed  in  any  case  that  a  municipal 
corporation  has  become  constituted.  These  questions  are  gener- 
ally questions  between  the  corporators  and  the  State,  with  which 
private  individuals  are  regarded  as  having  no  concern.  In  pro- 
ceedings where  the  question  whether  a  corporation  exists  or  not 
arises  collaterally,  the  courts  will  not  permit  its  corporate  charac- 
ter to  be  questioned,  if  it  appear  to  be  acting  under  color  of  law, 
and  recognized  by  the  State  as  such.  Such  a  question  should  be 
raised  by  the  State  itself,  by  quo  warranto  or  other  direct  proceeding.1 
And  the  rule,  we  apprehend,  would  be  no  different,  if  the  constitu- 
tion itself  prescribed  the  manner  of  incorporation.  Even  in  such 
a  case,  proof  that  the  corporation  was  acting  as  such,  under  legis- 
lative action,  would  be  sufficient  evidence  of  right,  except  as  against 
the  State  ;  and  private  parties  could  not  enter  upon  any  question 
of  regularity.  And  the  State  itself  may  justly  be  precluded,  on  the 
principle  of  estoppel,  from  raising  such  an  objection,  where  there 
has  been  long  acquiescence  and  recognition.2 

Black,  39 ;  Kavanaugh  v.  Brooklyn,  38  Barb.  232 ;  Wendell  v.  Troy,  39  Barb. 
329 ;  Mills  v.  Brooklyn,  32  N.  Y.  489 ;  Stein  v.  Burden,  21  Ala.  130 ;  City  of 
Providence  v.  Clapp,  17  How.  161 ;  Champaign  v.  Patterson,  50  111.  62;  Ross  v. 
Madison,  1  Ind.  281;  Mayor,  &c,  of  New  York  v.  Bailey,  2  Denio,  433;  Roch- 
ester White  Lead  Co.  v.  Rochester,  3  N.  Y.  463 ;  Wheeler  v.  City  of  Worcester, 
10  Allen,  591 ;  Burnham  v.  Boston,  ib.  290 ;  Boon  v.  City  of  Utica,  2  Barb.  104 ; 
Martin  v.  Mayor,  &c,  of  Brooklyn,  1  Hill,  545 ;  Howell  v.  Buffalo,  15  N.  Y. 
512;  Lacour  v.  Mayor,  &c,  of  New  York,  3  Duer,  406;  Pittsburgh  v.  Grier, 
22  Penn.  St.  54;  Erie  City  v.  Schwingle,  ib.  384;  and  the  numerous  cases  col- 
lected and  classified  in  Dillon  on  Municipal  Corporations.  A  municipal  corpo- 
poration  is  not  liable  for  neglect  to  devise  and  construct  a  proper  system  of 
drainage.  Carr  v.  Northern  Liberties,  35  Penn.  St.  324.  See  ante,  208,  and 
note.  Cities  are  not  liable  for  the  careless  conduct  of  officials  in  the  discharge  of 
duty.     Dillon,  §§  774  to  778,  and  cases  cited. 

1  State  v.  Carr,  5  N.  H.  367;  President,  &c,  of  Mendota  v.  Thompson,  20 
111.  200;  Hamilton  v.  President,  &c,  of  Carthage,  24  111.  22.  These  were 
prosecutions  by  municipal  corporations  for  recovery  of  penalties  imposed  by 
by-laws,  and  where  the  plea  of  mil  tiel  corporation  was  interposed  and  over- 
ruled. See,  also,  Kayser  v.  Bremen,  16  Mo.  88  ;  Kettering  v.  Jacksonville,  50 
111.  39. 

2  In  People  v.  Maynard,  15  Mich.  470,  where  the  invalidity  of  an  act  organ- 
izing a  county,  passed  several  years  before,  was  suggested  on  constitutional 
grounds,  Campbell,  J.,  says :  "  If  this  question  had  been  raised  immediately,  we 

[288] 


CH.  VIII.]  THE   GRADES   OP   MUNICIPAL   GOVERNMENT.  *  255 

are  not  prepared  to  say  that  it  would  have  been  altogether  free  from  difficulty. 
But  inasmuch  as  the  arrangement  there  indicated  had  been  acted  upon  for  ten 
years  before  the  recent  legislation,  and  had  been  recognized  as  valid  by  all 
parties  interested,  it  cannot  now  be  disturbed.  Even  in  private  associations  the 
acts  of  parties  interested  may  often  estop  them  from  relying  on  legal  objec- 
tions, which  might  have  availed  them  if  not  waived.  But  in  public  affairs,  where 
the  people  have  organized  themselves  under  color  of  law  into  the  ordinary 
municipal  bodies,  and  have  gone  on  year  after  year  raising  taxes,  making  im- 
provements, and  exercising  their  usual  franchises,  their  rights  are  properly 
regarded  as  depending  quite  as  much  on  the  acquiescence  as  on  the  regularity 
of  their  origin,  and  no  ex  post  facto  inquiry  can  be  permitted  to  undo  their 
corporate  existence.  Whatever  may  be  the  rights  of  individuals  before  such 
general  acquiescence,  the  corporate  standing  of  the  community  can  no  longer  be 
open  to  question.  See  Rumsey  v.  People,  19  N.  Y.  41 ;  and  Lanning  v.  Car- 
penter, 20  N.  Y.  474,  where  the  effect  of  the  invalidity  of  an  original  county 
organization  is  very  well  considered  in  its  public  and  private  bearings.  There 
have  been  direct  legislative  recognitions  of  the  new  division  on  several  occasions. 
The  exercise  of  jurisdiction  being  notorious  and  open  in  all  such  cases,  the  State 
as  well  as  county  and  town  taxes  being  all  levied  under  it,  there  is  no  principle 
which  could  justify  any  court,  at  this  late  day,  in  going  back  to  inquire  into  the 
regularity  of  the  law  of  1857."  A  similar  doctrine  has  been  applied  in  support 
of  the  official  character  of  persons  who,  without  authority  of  law,  have  bee"n 
named  for  municipal  offices  by  State  authority,  and  whose  action  in  such  offices 
has  been  acquiesced  in  by  the  citizens  or  authorities  of  the  municipality.  See 
People  v.  Salomon,  54  111.  51 ;  People  v.  Lothrop,  24  Mich.  235.  Compare  Kim- 
ball v.  Alcorn,  45  Miss.  151.  But  such  acquiescence  could  not  make  them  local 
officers  and  representatives  of  the  people  for  new  and  enlarged  powers  subse- 
quently attempted  to  be  given  by  the  legislature.  People  v.  Common  Council  of 
Detroit,  27  Mich.  Nor  in  respect  to  powers  not  purely  local.  People  v.  Spring- 
wells,  25  Mich.  153. 

19  [  289  ] 


256  CONSTITUTIONAL  LIMITATIONS.  [CH.  IX. 


[*256]  *  CHAPTER   IX. 

PROTECTION   TO    PERSON   AND   PROPERTY    UNDER   THE    CONSTITUTION    OF 
THE   UNITED    STATES. 

As  the  government  of  the  United  States  was  one  of  enumerated 
powers,  it  was  not  deemed  important  by  the  framers  of  its  Consti- 
tution that  a  bill  of  rights  should  be  incorporated  among  its  pro- 
visions. If,  among  the  powers  conferred,  there  was  none  which 
would  authorize  or  empower  the  government  to  deprive  the  citizen 
of  any  of  those  fundamental  rights  which  it  is  the  object  and  the 
duty  of  government  to  protect  and  defend,  and  to  insure  which  is 
the  sole  purpose  of  bills  of  rights,  it  was  thought  to  be  at  least 
unimportant  to  insert  negative  clauses  in  that  instrument,  inhibit- 
ing the  government  from  assuming  any  such  powers,  since  the 
mere  failure  to  confer  them  would  leave  all  such  powers  beyond 
the  sphere  of  its  constitutional  authority.  And,  as  Mr.  Hamilton 
argued,  it  might  seem  even  dangerous  to  do  so.  "  For  why  declare 
that  things  shall  not  be  done  which  there  is  no  power  to  do  ?  Why, 
for  instance,  should  it  be  said  that  the  liberty  of  the  press  shall 
not  be  restrained,  when  no  power  is  given  by  which  restrictions 
may  be  imposed  ?  I  will  not  contend  that  such  a  provision  would 
confer  a  regulating  power  ;  but  it  is  evident  that  it  would  furnish, 
to  men  disposed  to  usurp,  a  plausible  pretence  for  claiming  that 
power.  They  might  urge,  with  a  semblance  of  reason,  that  the 
Constitution  ought  not  to  be  charged  with  the  absurdity  of  pro- 
viding against  the  abuse  of  an  authority  which  was  not  given,  and 
that  the  provision  against  restraining  the  liberty  of  the  press 
afforded  a  clear  implication  that  a  right  to  prescribe  proper  reg- 
ulations concerning  it  was  intended  to  be  vested  in  the  national 
government.  This  may  serve  as  a  specimen  of  the  numerous 
handles  which  would  be  given  to  the  doctrine  of  constructive 
powers,  by  the  indulgence  of  an  injudicious  zeal  for  bills  of 
rights."  1 

1  Federalist,  No.  84. 

[290] 


CH.  IX.]   FEDERAL  PROTECTION  TO  PERSON  AND  PROPERTY.    *  256 

It  was  also  thought  that  bills  of  rights,  however  impor- 
tant *  under  a  monarchical  government,  were  of  no  [*  257] 
moment  in  a  constitution  of  government  framed  by  the 
people  for  themselves,  and  under  which  public  affairs  were  to  be 
managed  by  means  of  agencies  selected  by  the  popular  choice,  and 
subject  to  frequent  change  by  popular  action.  "  It  has  been  sev- 
eral times  truly  remarked,  that  bills  of  rights  are,  in  their  origin, 
stipulations  between  kings  and  their  subjects,  abridgments  of  pre- 
rogative in  favor  of  privilege,  reservations  of  rights  not  surrendered 
to  the  prince.  Such  was  Magna  Charta,  obtained  by  the  barons, 
sword  in  hand,  from  King  John.  Such  were  the  subsequent  con- 
firmations of  that  charter  by  succeeding  princes.  Such  was  the 
Petition  of  Right,  assented  to  by  Charles  the  First,  in  the  beginning 
of  his  reign.  Such  also  was  the  Declaration  of  Right  presented  by 
the  Lords  and  Commons  to  the  Prince  of  Orange  in  1688,  and 
afterwards  thrown  into  the  form  of  an  act  of  Parliament,  called 
the  Bill  of  Rights.  It  is  evident,  therefore,  that,  according  to 
their  primitive  signification,  they  have  no  application  to  constitu- 
tions professedly  founded  upon  the  power  of  the  people,  and  exe- 
cuted by  their  immediate  representatives  and  servants.  Here,  in 
strictness,  the  people  surrender  nothing  ;  and,  as  they  retain  every 
thing,  they  have  no  need  of  particular  reservations.  '  We,  the 
people  of  the  United  States,  to  secure  the  blessings  of  liberty  to 
ourselves  and  our  posterity,  do  ordain  and  establish  this  Constitu- 
tion for  the  United  States  of  America.'  This  is  a  better  recog- 
nition of  popular  rights  than  volumes  of  those  aphorisms  which 
make  the  principal  figure  in  several  of  our  State  bills  of  rights, 
and  which  would  sound  much  better  in  a  treatise  of  ethics  than 
in  a  constitution  of  government."  1 

Reasoning  like  this  was  specious,  but  it  was  not  satisfactory  to 
many  of  the  leading  statesmen' of  that  day,  who  believed  that  "  the 
purposes  of  society  do  not  require  a  surrender  of  all  our  rights 
to  our  ordinary  governors ;  that  there  are  certain  portions  of  right 
not  necessary  to  enable  them  to  carry  on  an  effective  government, 
and  which  experience  has  nevertheless  proved  they  will  be  con- 
stantly encroaching  on,  if  submitted  to  them;  that  there  are  also 
certain  fences  which  experience  has  proved  peculiarly  efficacious 
against   wrong,  and  rarely  obstructive   of  right,   which  yet    the 

1  Federalist,  No.  84,  bv  Hamilton. 

[291] 


*  257  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

governing  powers  have  ever  shown  a  disposition  to  weaken  and 
remove."  1  And  these  governing  powers  will  be  no  less 
[*  258]  disposed  *  to  be  aggressive  when  chosen  by  majorities  than 
when  selected  by  the  accident  of  birth,  or  at  the  will  of 
privileged  classes.  Indeed  if,  during  the  long  struggle  for  consti- 
tutional liberty  in  England,  covering  the  whole  of  the  seventeenth 
century,  importance  was  justly  attached  to  a  distinct  declaration 
and  enumeration  of  individual  rights  on  the  part  of  the  govern- 
ment, when  it  was  still  in  the  power  of  the  governing  authorities 
to  infringe  upon  or  to  abrogate  them  at  any  time,  and  when,  con- 
sequently, the  declaration  could  possess  only  a  moral  force,  a  similar 
declaration  would  appear  to  be  of  even  more  value  in  the  Consti- 
tution of  the  United  States,  where  it  would  constitute  authoritative 
law,  and  be  subject  to  no  modification  or  repeal,  except  by  the 
people  themselves  whose  rights  it  was  designed  to  protect,  nor  even 
by  them  except  in  the  manner  by  the  Constitution  provided.2 

1  Jefferson's  Works,  Vol.  III.  201. 

2  Mr.  Jefferson  sums  up  the  objections  to  a  bill  of  rights  in  the  Constitution 
of  the  United  States,  and  answers  them  as  follows  :  "  1.  That  the  rights  in 
question  are  reserved  by  the  manner  in  which  the  Federal  powers  are  granted. 
Answer :  A  constitutive  act  may  certainly  be  so  formed  as  to  need  no  declara- 
tion of  rights.  The  act  itself  has  the  force  of  a  declaration,  as  far  as  it  goes; 
and  if  it  goes  to  all  material  points,  nothing  more  is  wanting.  In  the  draft  of 
a  constitution  -which  I  had  once  a  thought  of  proposing  in  Virginia,  and  printed 
afterwards,  I  endeavored  to  reach  all  the  great  objects  of  public  liberty,  and  did 
not  mean  to  add  a  declaration  of  rights.  Probably  the  object  was  imperfectly 
executed ;  but  the  deficiencies  would  have  been  supplied  by  others  in  the  course 
of  discussion.  But  in  a  constitutive  act  which  leaves  some  precious  articles  un- 
noticed, and  raises  implications  against  others,  a  declaration  of  rights  becomes 
necessary  by  way  of  supplement.  This  is  the  case  of  our  new  Federal  Consti- 
tution. This  instrument  forms  us  into  one  State,  as  to  certain  objects,  and  gives 
us  a  legislative  and  executive  body  for  those  objects.  It  should  therefore  guard 
us  against  their  abuses  of  power,  within  the  field  submitted  to  them.  2.  A  positive 
declaration  of  some  essential  rights  could  not  be  obtained  in  the  requisite  latitude. 
Answer :  Half  a  loaf  is  better  than  no  bread.  If  we  cannot  secure  all  our  rights, 
let  us  secure  what  we  can.  3.  The  limited  powers  of  the  Federal  government, 
and  jealousy  of  the  subordinate  governments,  afford  a  security,  which  exists  in 
no  other  instance.  Answer:  The  first  member  of  this  seems  resolvable  into  the 
first  objection  before  stated.  The  jealousy  of  the  subordinate  governments  is  a 
precious  reliance.  But  observe  that  those  governments  are  only  agents.  They 
must  have  principles  furnished  them  whereon  to  found  their  opposition.  The 
declaration  of  rights  will  be  the  text  whereby  they  will  try  all  the  acts  of  the 
Federal  government.  In  this  view  it  is  necessary  to  the  Federal  government 
also  ;  as  by  the  same  text  they  may  try  the  opposition  of  the  subordinate  govern- 

[292] 


CH.  IX.]   FEDERAL  PROTECTION  TO  PERSON  AND  PROPERTY.    *  259 

*  The  want  of  a  bill  of  rights  was,  therefore,  made  the  [*  259] 
ground  of  a  decided,  earnest,  and  formidable  opposition  to 

the  confirmation  of  the  national  Constitution  by  the  people  ;  and  its 
adoption  was  only  secured  in  some  of  the  leading  States  in  con- 
nection with  the  recommendation  of  amendments  which  should 
cover  the  ground.1 

The  clauses  inserted  in  the  original  instrument,  for  the  protection 
of  person  and  property,  had  reference  mainly  to  the  action  of  the 
State  governments,  and  were  made  limitations  upon  their  power. 
The  exceptions  embraced  a  few  cases  only,  in  respect  to  which  the 
experience  of  both  English  and  American  history  had  forcibly 
demonstrated  the  tendency  of  power  to  abuse,  not  when  wielded  by 
a  prince  only,  but  also  when  administered  by  the  agencies  of  the 
people  themselves. 

Bills  of  attainder  were  prohibited  to  be  passed,  either  by  the  Con- 
gress2 or  by  the  legislatures  of  the  several  States.3  Attainder, 
in  a  strict  sense,  means  an  extinction  of  civil  and  political  rights 
and  capacities ;  and  at  the  common  law  it  followed,  as  of  course, 
on  conviction  and  sentence  to  death  for  treason  ;  and,  in  greater 
or  less  degree,  on  conviction  and  sentence  for  the  different  classes 
of  felony. 

A  bill  of  attainder  was  a  legislative  conviction  for  alleged  crime, 

ments.  4.  Experience  proves  the  inefficacy  of  a  bill  of  rights.  True.  But 
though  it  is  not  absolutely  efficacious,  under  all  circumstances,  it  is  of  great 
potency  always,  and  rarely  inefficacious.  A  brace  the  more  will  often  keep  up 
the  building  which  would  have  fallen  with  that  brace  the  less.  There  is  a  re- 
markable difference  between  the  characters  of  the  inconveniences  which  attend  a 
declaration  of  rights,  and  those  which  attend  the  want  of  it.  The  inconveniences 
of  the  declaration  are,  that  it  may  cramp  government  in  its  useful  exertions.  But 
the  evil  of  this  is  short-lived,  moderate,  and  reparable.  The  inconveniences  of  the 
want  of  a  declaration  are  permanent,  afflictive,  and  irreparable.  They  are  in  con- 
stant progression  from  bad  to  worse.  The  executive,  in  our  governments,  is  not 
the  sole,  it  is  scarcely  the  principal,  object  of  my  jealousy.  The  tyranny  of  the  ,- 
legislatures  is  the  most  formidable  dread  at  present,  and  will  be  for  many  years. ' 
That  of  the  executive  will  come  in  its  turn;  but  it  will  be  at  a  remote  period." 
Letter  to  Madison,  March  15,  1789,  3  Jefferson's  Works,  p.  4.  See  also  same 
volume,  pp.  IS  and  101 ;  Vol.  II.  pp.  329,  358. 

1  For  the  various  recommendations  by  Massachusetts,  South  Carolina,  New 
Hampshire,  Virginia,  New  York,  North  Carolina,  and  Rhode  Island,  see  1  Elliott's 
Debates,  322-334. 

*  Constitution  of  United  States,  art.  1,  §  9. 

3  Constitution  of  United  States,  art.  1,  §  10. 

[  293] 


*  259  CONSTITUTIONAL    LIMITATIONS.  [CH.  IX. 

with  judgment  of  death.  Such  convictions  have  not  been  uncom- 
mon under  other  governments,  and  the  power  to  pass  these  bills  has 
been  exercised  by  the  Parliament  of  England  at  some  periods  in 

its  history,  under  the  most  oppressive  and  unjustifiable 
[*  260]  *  circumstances,  greatly  aggravated  by  an  arbitrary  course 

of  procedure,  which  had  few  of  the  incidents  of  a  judicial 
investigation  into  alleged  crime.  Of  late  years  in  England  no  one 
had  attempted  to  defend  it  as  a  legitimate  exercise  of  power  ;  and 
if  it  would  be  unjustifiable  anywhere,  there  were  many  reasons  why 
it  would  be  specially  obnoxious  under  a  free  government,  and  why 
consequently  its  prohibition,  under  the  existing  circumstances  of 
our  country,  would  be  a  matter  of  more  than  ordinary  importance. 
Every  one  must  concede  that  a  legislative  body,  from  its  numbers 
and  organization,  and  from  the  very  intimate  dependence  of  its 
members  upon  the  people,  which  renders  them  liable  to  be  pecul- 
iarly susceptible  to  popular  clamor,  is  not  properly  constituted  to 
try  with  coolness,  caution,  and  impartiality  a  criminal  charge, 
especially  in  those  cases  in  which  the  popular  feeling  is  strongly 
excited,  —  the  very  class  of  cases  most  likely  to  be  prosecuted 
by  this  mode.  And  although  it  would  be  conceded  that,  if  such 
bills  were  allowable,  they  should  properly  be  presented  only  for 
offences  against  the  general  laws  of  the  land,  and  be  proceeded 
with  on  the  same  full  opportunity  for  investigation  and  defence 
which  is  afforded  in  the  courts  of  the  common  law,  yet  it  was 
remembered  that  in  practice  they  were  often  resorted  to  because  an 
obnoxious  person  was  not  subject  to  punishment  under  the  gen- 
eral law,1  or  because,  in  proceeding  against  him  by  this  mode,  some 
rule  of  the  common  law  requiring  a  particular  species  or  degree  of 
evidence  might  be  evaded,  and  a  conviction  secured  on  proofs  that 

1  Cases  of  this  description  were  most  numerous  during  the  reign  of  Henry  VIII., 
and  among  the  victims  was  Cromwell,  who  is  said  to  have  first  advised  that  mon- 
arch to  resort  to  this  objectionable  proceeding.  Even  the  dead  were  attainted, 
as  in  the  case  of  Richard  III.,  and  later,  of  the  heroes  of  the  Commonwealth. 
The  most  atrocious  instance  in  history,  however,  only  relieved  by  its  weakness 
and  futility,  was  the  great  act  of  attainder  passed  in  1688  by  the  Parliament 
of  James  II.,  assembled  in  Dublin,  by  which  between  two  and  three  thousand 
persons  were  attainted,  their  property  confiscated,  and  themselves  sentenced  to 
death  if  they  failed  to  appear  at  a  time  named.  And,  to  render  the  whole  pro- 
ceeding as  horrible  in  barbarity  as  possible,  the  list  o  the  proscribed  was  care- 
fully kept  secret  until  after  the  time  fixed  for  their  appearance !  Macaulay's 
History  of  England,  c.  12. 

[294] 


CH.  IX.]   FEDERAL  PROTECTION  TO  PERSON  AND  PROPERTY. 


260 


a  jury  would  not  be  suffered  to  accept  as  overcoming  the  legal 
presumption  of  innocence.  Whether  the  accused  should  neces- 
sarily be  served  with  process ;  what  degree  or  species  of  evidence 
should  be  required  ;  whether  the  rules  of  law  should  be 
*  followed,  either  in  determining  what  constituted  a  crime,  [*  261] 
or  in  dealing  with  the  accused  after  conviction,  —  were  all 
questions  which  would  necessarily  address  themselves  to  the  legis- 
lative discretion  and  sense  of  justice  ;  and  the  very  qualities  which 
are  essential  in  a  court  to  protect  individuals  on  trial  before  them 
against  popular  clamor,  or  the  hate  of  those  in  power,  were  pre- 
cisely those  which  were  likely  to  prove  weak  or  wanting  in  the 
legislative  body  at  such  a  time.1  And  what  could  be  more  obnox- 
ious in  a  free  government  than  the  exercise  of  such  a  power  by 
a  popular  body,  controlled  by  a  mere  majority,  fresh  from  the 
contests  of  exciting  elections,  and  quite  too  apt,  under  the  most 
favorable  circumstances,  to  suspect  the  motives  of  their  adversa- 
ries, and  to  resort  to  measures  of  doubtful  propriety  to  secure 
party  ends  ? 

Legislative  punishments  of  this  severe  character,  however,  were 
not  the  only  ones  known  to  parliamentary  history  ;  but  there  were 
others  of  a  milder  form,  which  were  only  less  obnoxious  in  that 
the  consequences  were  less  terrible.  Those  legislative  convictions 
which  imposed  punishments  less  than  that  of  death  were  called 
bills  of  pains  and  penalties,  as  distinguished  from  bills  of  attainder ; 
but  the  constitutional  provisions  we  have  referred  to  were  undoubt- 
edly aimed  at  any  and  every  species  of  legislative  punishment  for 
criminal  or  supposed  criminal  offences  ;  and  the  term  "  bill  of 
attainder  "  is  used  in  a  generic  sense,  which  would  include  bills 
of  pains  and  penalties  also.2 

1  This  was  equally  true,  whether  the  attainder  was  at  the  command  of  the 
king,  as  in  the  case  of  Cardinal  Pole's  mother,  or  at  the  instigation  of  the  popu- 
lace, as  in  the  case  of  Wentworth,  Earl  of  Strafford.  The  last  infliction  of  capi- 
tal punishment  in  England,  under  a  bill  of  attainder,  was  upon  Sir  John  Fenwick, 
in  the  reign  of  William  and  Mary.  It  is  worthy  of  note  that  in  the  preceding 
reign  Sir  John  had  been  prominent  in  the  attainder  of  the  unhappy  Monmouth. 
Macaulay's  History  of  England,  c.  5. 

2  Fletcher  v.  Peck,  6  Cranch,  138  ;  Story  on  Constitution,  §  1344;  Cummings 
v.  Missouri,  4  Wal.  277  ;  Ex  parte  Garland,  ib.  333;  Drehman  v.  Stifle,  8  Wal. 
601.  "I  think  it  will  be  found  that  the  following  comprise  those  essential  ele- 
ments of  bills  of  attainder,  in  addition  to  those  I  have  already  mentioned  [which 
were  that  thev  declared  certain  persons  attainted  and  their  blood  corrupted,  so 

[295] 


*  262  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

[*  262]  *  The  thoughtful  reader  will  not  fail  to  discover,  in  the 
acts  of  the  American  States  during  the  Revolutionary 
period,  sufficient  reason  for  this  constitutional  provision,  even  if 
the  still  more  monitory  history  of  the  English  attainders  had  not 
been  so  freshly  remembered.  Some  of  these  acts  provided  for  the 
forfeiture  of  the  estates,  within  the  Commonwealth,  of  those  British 
subjects  who  had  withdrawn  from  the  jurisdiction  because  not  sat- 
isfied that  grievances  existed  sufficiently  serious  to  justify  the  last 
resort  of  an  oppressed  people,  or  because  of  other  reasons  not 
satisfactory  to  the  existing  authorities  ;  and  the  only  investigation 
provided  for  was  an  inquiry  into  the  desertion.  Others  mentioned 
particular  persons  by  name,  adjudged  them  guilty  of  adhering  to 
the  enemies  of  the  State,  and  proceeded  to  inflict  punishment  upon 
them,  so  far  as  the  presence  of  property  within  the  Commonwealth 
would  enable  the  government  to  do  so.1  These  were  the  resorts 
of  a  time  of  extreme  peril ;  and  if  possible  to  justify  them  in  a 
period  of  revolution,  when  every  thing  was  staked  on  success,  and 
when  the  public  safety  would  not  permit  too  much  weight  to  scru- 
ples concerning  the  private  rights  of  those  who  were  not  aiding  the 
popular  cause,  the  power  to  repeat  such  acts  under  any  possible 
circumstances  in  which  the  country  could  be  placed  again  was  felt 
to  be  too  dangerous  to  be  left  in  the  legislative  hands.  So  far  as 
proceedings  had  been  completed  under  those  acts,  before  the  treaty 
of  1783,  by  the  actual  transfer  of  property,  they  remained  valid 

that  it  bad  lost  all  beritable  property],  •which  distinguish  them  from  other  legisla- 
tion, and  which  made  them  so  obnoxious  to  the  statesmen  who  organized  our 
government :  1.  They  were  convictions  and  sentences  pronounced  by  the  legis- 
lative department  of  the  government,  instead  of  the  judicial.  2.  The  sentence 
pronounced  and  the  punishment  inflicted  were  determined  by  no  previous  law  or 
fixed  rule.  3.  The  investigation  into  the  guilt  of  the  accused,  if  any  such  were 
made,  was  not  necessarily  or  generally  conducted  in  his  presence  or  that  of  his 
counsel,  and  no  recognized  rule  of  evidence  governed  the  inquiry.'1  Per  Miller, 
J.,  in  Ex  parte  Garland,  4  Wal.  388. 

1  See  Belknap's  History  of  New  Hampshire,  c.  26 ;  2  Ramsay's  History  of 
South  Carolina,  351 ;  8  Rhode  Island  Colonial  Records,  609 ;  2  Arnold's  History 
of  Rhode  Island,  360,  449 ;  Thompson  v.  Carr,  5  N.  H.  510 ;  Sleght  v.  Kane,  2 
Johns.  Cas.  236 ;  Story  on  Const.  4th  ed.  §  13i4  note.  On  the  general  subject 
of  bills  of  attainder,  one  would  do  well  to  consult,  in  addition  to  the  cases  in  4 
Wallace,  those  of  Blair  v.  Ridgeley,  41  Mo.  63  (where  it  was  very  elaborately 
examined  by  able  counsel)  ;  State  v.  Staten,  6  Cold.  248  ;  Randolph  v.  Good,  3 
W.  Va.  551 ;  Ex  parte  Law,  decided  by  Mr.  Justice  Erskine,  in  the  United  States 
[296] 


CH.  IX.]       FEDERAL   PROTECTION   TO    PERSON   AND    PROPERTY.         *  262 

and  effectual  afterwards  ;  but  so  far  as  they  were  then  incomplete, 
they  were  put  an  end  to  by  that  treaty.1 

The  conviction  of  the  propriety  of  this  constitutional  provision 
has  been  so  universal,  that  it  has  never  been  questioned,  either  in 
legislative  bodies  or  elsewhere.  Nevertheless,  cases  have  recently 
arisen,  growing  out  of  the  attempt  to  break  up  and  destroy  the 
government  of  the  United  States,  in  which  the  Supreme 
Court  of  *  the  United  States  has  adjudged  certain  action  [*  263] 
of  Congress  to  be  in  violation  of  this  provision  and  con- 
sequently void.2    The  action  referred  to  was  designed  to  exclude 

District  Court  of  Georgia,  May  term,  18G6  ;  State  r.  Adams,  44  Mo.  570  ;  Beirne 
v.  Brown,  4  W.  Va.  72 ;  Poerce  v.  Carskadon,  ib.  234. 

1  Jackson  v.  Munson,  3  Caines,  137. 

2  On  the  2d  of  July,  1862,  Congress,  by   "  an  act  to  prescribe  an  oath  of 
office,  and  for  other  purposes,"  enacted  that  "  hereafter  every  person  elected  or 
appointed  to  any  office  of  honor  or  profit  under  the  government  of  the  United 
States,  either  in  the  civil,  military,  or  naval  departments  of  the  public  service, 
excepting  the  President  of  the  United  States,  shall,  before  entering  upon  the  du- 
ties of  such  office,  take  and  subscribe  the  following  oath  or  affirmation  :  I,  A  B, 
do  solemnly  swear  or  affirm  that  I  have  never  voluntarily  borne  arms  against  the 
United  States  since  I  have  been  a  citizen  thereof;  that  I  have  voluntarily  given 
no  aid,  countenance,  counsel,  or  encouragement  to  persons  engaged  in  armed  hos- 
tility thereto  ;  that  I  have  neither  sought  nor  accepted,  nor  attempted  to  exercise, 
the  functions  of  any  office  whatever,  under  any  authority  or  pretended  authority 
in  hostility  to  the  United  States ;  that  I  have  not  yielded  a  voluntary  support  to 
any  pretended  government,  authority,  power,  or  constitution  within  the  United 
States,  hostile  or  inimical  thereto.     And  I  do  further  swear  or  affirm  that,  to  the 
best  of  my  knowledge  and  ability,  I  will  support  and  defend  the  Constitution  of 
the  United  States  against  all  enemies,  foreign  and  domestic ;  that  I  will  bear  true 
faith  and  allegiance  to  the  same ;  that  I  take  this  obligation  freely,  without  any 
mental  reservation  or  purpose  of  evasion  ;  and  that  I  will  well  and  faithfully  dis- 
charge the  duties  of  the  office  on  which  I  am  about  to  enter,  so  help  me  God." 
On  the  24th  of  January,  1865,  Congress  passed  a  supplementary  act  as  follows  : 
"  No  person  after  the  date  of  this  act  shall  be  admitted  to  the  bar  of  the  Supreme 
Court  of  the  United  States,  or  at  any  time  after  the  4th  of  March  next  shall 
be  admitted  to  the  bar  of  any  Circuit  or  District  Court  of  the  United  States,  or 
of  the  Court  of  Claims,  as  an  attorney  or  counsellor  of  such  court,  or  shall  be 
allowed  to  appear  and  to  be  heard  in  any  such  court,  by  virtue  of  any  previous 
admission,  or  any  special  power  of  attorney,  unless  he  shall  have  first  taken  and 
subscribed  the  oath  "  aforesaid.   False  swearing,  under  each  of  the  acts,  was  made 
perjury.     See  12  Statutes  at  Large,  502 ;  13  ib.  424.     In  Ex  parte  Garland,  4 
Wal.  333,  a  majority  of  the  court  held  the  second  of  these  acts  void,  as  partaking 
of  the  nature  of  a  bill  of  pains  and  penalties,  and  also  as  being  an  ex  post  facto 
law.     The  act  was  looked  upon  as  inflicting  a  punishment  for  past  conduct ;  the 
exaction  of  the  oath  being  the  mode  provided  for  ascertaining  the  parties  upon 

[297  ] 


*  263  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

from  practice  in  the  United  States  courts  all  persons  who  had 
taken  up  arms  against  the  government  during  the  recent  rebellion, 
or  who  had  voluntarily  given  aid  and  encouragement  to  its  ene- 
mies ;  and  the  mode  adopted  to  effect  the  exclusion  was  to  require 
of  all  persons,  before  they  should  be  admitted  to  the  bar  or  allowed 
to  practise,  an  oath  negativing  any  such  disloyal  action.  This 
decision  was  not  at  first  universally  accepted  as  sound ;  and  the 
Supreme  Courts  of  West  Virginia  and  of  the  District  of  Columbia 
declined  to  follow  it,  insisting  that  permission  to  practise  in  the 

courts  is  not  a  right,  but  a  privilege,  and  that  the  with- 
[*  264]  holding  *  it  for  any  reason  of  State  policy  or   personal 

unfitness  could  not  be  regarded  as  the  infliction  of  crim- 
inal punishment.1 

The  Supreme  Court  of  the  United  States  have  also,  upon  the 
same  reasoning,  held  a  clause  in  the  Constitution  of  Missouri, 
which,  among  other  things,  excluded  all  priests  and  clergymen 
from  practising  or  teaching  unless  they  should  first  take  a  similar 
oath  of  loyalty,  to  be  void,  overruling  in  so  doing  a  decision  of  the 
Supreme  Court  of  that  State.2 

•whom  the  act  was  intended  to  operate.  See  Drehman  v.  Stifle,  8  Wal .  597. 
The  conclusion  declared  by  the  Supreme  Court  of  the  United  States  in  Ex  parte 
Garland  had  been  previously  reached  by  Mr.  Justice  Trigg,  of  the  United  States 
Circuit  Court,  in  Matter  of  Baxter;  by  Mr.  Justice  Busteed,  of  the  District 
Court  of  Alabama,  in  Matter  of  Shorter  et  al. ;  and  by  Mr.  Justice  Erskine,  of 
the  District  Court  of  Georgia,  in  Ex  parte  Law.  An  elector  cannot  be  ex- 
cluded from  the  right  to  vote  on  the  ground  of  being  a  deserter  who  has  never 
been  tried  and  convicted  as  such.  Huber  v.  Reily,  53  Penn.  St.  112  ;  McCafferty 
v.  Guyer,  59  Penn.  St.  109  ;  State  v.  Symonds,  57  Me.  148.     See  ante,  64,  note  3. 

1  See  the  cases  of  Ex  parte  Magruder,  American  Law  Register,  Vol.  VI.  N.  8. 
p.  292;  and  Ex  parte  Hunter,  ib.  410,  2  W.  Va.  122;  Ex  parte  Quarrier,  4  W. 
Va.  210.     See  also  Cohen  v.  Wright,  22  Cal.  293;  Ex  parte  Yale,  24  Cal.  241. 

2  Cummings  v.  Missouri,  4  Wall.  277.  See  also  the  case  of  State  v.  Adams, 
44  Mo.  570,  in  which  it  was  held  that  a  legislative  act  declaring  that  the  board 
of  curators  of  St.  Charles  College  had  forfeited  their  office,  was  of  the  nature 
of  a  bill  of  attainder  and  void.  The  Missouri  oath  of  loyalty  was  a  very  strin- 
gent one,  and  applied  to  electors,  State,  county,  city,  and  town  officers,  officers 
in  any  corporation,  public  or  private,  professors  and  teachers  in  educational  in- 
stitutions, attorneys  and  counsellors,  bishops,  priests,  deacons,  ministers,  elders, 
or  other  clergymen  of  any  denomination.  The  Supreme  Court  of  Missouri  had 
held  this  provision  valid  in  the  following  cases :  State  v.  Garesche,  36  Mo.  256, 
case  of  an  attorney ;  State  ».  Cummings,  36  Mo.  263,  case  of  a  minister,  reversed 
as  above  stated;  State  v.  Bernoudy,  36  Mo.  279,  case  of  the  recorder  of  St. 
Louis ;  State  v.  McAdoo,  36  Mo.  452,  where  it  is  held  that  a  certificate  of  elec- 

[298] 


CH.  IX.]   FEDERAL  PROTECTION  TO  PERSON  AND  PROPERTY.    *  264 

The  same  provisions  of  the  national  Constitution  which  we  have 
cited  1  also  forbid  the  passage  either  by  the  States  or  by  Congress 
of  any  ex  post  facto  law. 

At  an  early  day  it  was  settled  by  authoritative  decision,  in  oppo- 
sition to  what  might  seem  the  more  natural  and  obvious  meaning 
of  the  term  ex  post  facto,  that  in  their  scope  and  purpose  these 
provisions  were  confined  to  laws  respecting  criminal  punishments, 
and  had  no  relation  whatever  to  retrospective  legislation  of  any 
other  description.  And  it  has,  therefore,  been  repeatedly  held, 
that  retrospective  laws,  when  not  of  a  criminal  nature,  do  not 
come  in  conflict  with  the  national  Constitution,  unless  obnoxious 
to  its  provisions  on  other  grounds  than  their  retrospective  char- 
acter. 

"  The  prohibition  in  the  letter,"  says  Chase,  J.,  in  the  leading 
case,2  "  is  not  to  pass  any  law  concerning  or  after  the  fact  ;  but 
the  plain  and  obvious  meaning  and  intention  of  the  prohibition  is 
this  :  that  the  legislatures  of  the  several  States  shall  not  pass  laws 
after  a  fact  done  by  a  subject  or  citizen,  which  shall  have  relation 
to  such  fact,  and  punish  him  for  having  done  it.  The  pro- 
hibition, *  considered  in  this  light,  is  an  additional  bulwark  [*265] 
in  favor  of  the  personal  security  of  the  subject,  to  protect 
his  person  from  punishment  by  legislative  acts  having  a  retro- 
spective operation.  I  do  not  think  it  was  inserted  to  secure  the 
citizen  in  his  private  rights  of  either  property  or  contracts.  The 
prohibitions  not  to  make  any  thing  but  gold  and  silver  coin  a 
tender  in  payment  of  debts,  and  not  to  pass  any  law  impairing 
the  obligation  of  contracts,  were  inserted  to  secure  private  rights  ; 
but  the  restriction  not  to  pass  any  ex  post  facto  law  was  to 
secure  the  person  of  the  subject  from  injury  or  punishment,  in 
consequence  of  such  law.  If  the  prohibition  against  making  ex 
post  facto  laws  was  intended  to  secure  personal  rights  from  being 
affected   or   injured   by   such   law,  and    the   prohibition   is  suffi- 

tion  issued  to  one  who  failed  to  take  the  oath  as  required  by  the  constitution  was 
void.  In  Beirne  v.  Brown,  4  W.  Va.  72,  and  Peerce  v.  Carskadon,  ib.  234,  an 
act  excluding  persons  from  the  privilege  of  sustaining  suits  in  the  courts  of  the 
State,  or  from  proceedings  for  a  rehearing,  except  upon  their  taking  an  oath  that 
they  had  never  been  engaged  in  hostile  measures  against  the  government,  was 
sustained.     And  see  State  v.  Neal,  42  Mo.  119. 

1  Constitution  of  United  States,  art.  1,  §§  9  and  10. 

2  Calder  v.  Bull,  3  Dall.  390. 

[  299] 


*  265  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

ciently  extensive  for  that  object,  the  other  restraints  I  have  enu- 
merated were  unnecessary,  and  therefore  improper,  for  both  of 
them  are  retrospective. 

"  I  will  state  what  laws  I  consider  ex  post  facto  laws,  within 
the  words  and  the  intent  of  the  prohibition.  1st.  Every  law  that 
makes  an  action  done  before  the  passing  of  the  law,  and  which 
was  innocent  when  done,  criminal,  and  punishes  such  action. 
2d.  Every  law  that  aggravates  a  crime,  or  makes  it  greater  than 
it  was  when  committed.  3d.  Every  law  that  changes  the  punish- 
ment, and  inflicts  a  greater  punishment  than  the  law  annexed  to 
the  crime  when  committed.  4th.  Every  law  that  alters  the  legal 
rules  of  evidence,  and  receives  less  or  different  testimony  than 
the  law  required  at  the  time  of  the  commission  of  the  offence,  in 
order  to  convict  the  offender.  All  these  and  similar  laws  are 
manifestly  unjust  and  oppressive.  In  my  opinion,  the  true  dis- 
tinction is  between  ex  post  facto  laws  and  retrospective  laws. 
Every  ex  post  facto  law  must  necessarily  be  retrospective,  but 
every  retrospective  law  is  not  an  ex  post  facto  law  ;  the  former 
only  are  prohibited.  Every  law  that  takes  away  or  impairs  rights 
vested,  agreeably  to  existing  laws,  is  retrospective  and  is  generally 
unjust,  and  may  be  oppressive  ;  and  there  is  a  good  general  rule, 
that  a  law  should  have  no  retrospect ;  but  there  are  cases  in 
which  laws  may  justly,  and  for  the  benefit  of  the  community,  and 
also  of  individuals,  relate  to  a  time  antecedent  to  their  commence- 
ment ;  as  statutes  of  oblivion  or  of  pardon.  They  are  certainly 
retrospective,  and  literally  both  concerning  and  after  the  facts 
committed.     But  I  do  not  consider  any  law  ex  post  facto,  within 

the  prohibition   that  mollifies  the  rigor  of  the  criminal 
[*  266]  law  ;  but  *  only  those  that  create  or  aggravate  the  crime, 

or  increase  the  punishment,  or  change  the  rules  of  evi- 
dence for  the  purpose  of  conviction.  Every  law  that  is  to  have  an 
operation  before  the  making  thereof,  as  to  commence  at  an  antece- 
dent time,  or  to  save  time  from  the  statute  of  limitations,  or  to 
excuse  acts  which  were  unlawful,  and  before  committed,  and  the 
like,  is  retrospective.  But  such  acts  may  be  proper  and  necessary, 
as  the  case  may  be.  There  is  a  great  and  apparent  difference 
between  making  an  unlawful  act  lawful,  and  the  making  an  inno- 
cent act  criminal,  and  punishing  it  as  a  crime.  The  expressions 
ex  post  facto  are  technical;  they  had  been  in  use  long  before  the 
[  300] 


CH.  IX.]   FEDERAL  PROTECTION  TO  PERSON  AND  PROPERTY.    *  266 

Revolution,  and  had  acquired  an  appropriate  meaning,  by  legis- 
lators, lawyers,  and  authors."  x 

Assuming  this  construction  of  the  constitutional  provision  to  be 
correct,  —  and  it  has  been  accepted  and  followed  as  correct  by  the 
courts  ever  since,  —  it  would  seem  that  little  need  be  said  relative 
to  the  first,  second,  and  fourth  classes  of  ex  post  facto  laws,  as 
enumerated  in  the  opinion  quoted.  It  is  not  essential,  however,  in 
order  to  render  a  law  invalid  on  these  grounds,  that  it  should 
expressly  assume  the  action  to  which  it  relates  to  be  criminal,  or 
provide  for  its  punishment  on  that  ground.  If  it  shall  subject  an 
individual  to  a  pecuniary  penalty  for  an  act  which,  when  done, 
involved  no  responsibility,2  or  if  it  deprives  a  party  of  any  valuable 
right  —  like  the  right  to  follow  a  lawful  calling  —  for  acts  which 
were  innocent,  or  at  least  not  punishable  by  law  when  committed,3 
the  law  will  be  ex  post  facto  in  the  constitutional  sense,  notwith- 
standing it  does  not  in  terms  declare  the  acts  to  which  the  penalty 
is  attached  criminal.4  But  how  far  a  law  may  change  the  punishment 
for  a  criminal  offence,  and  make  the  change  applicable  to 
past  offences,  is  certainly  a  question  of  great  *  difficulty,  [*  267] 
which  has  been  increased  by  the  decisions  made  concern- 
ing it.  As  the  constitutional  provision  is  enacted  for  the  protection 
and  security  of  accused  parties  against  arbitrary  and  oppressive 
legislative  action,  it  is  evident  that  any  change  in  the  law  which 

1  See,  also,  Fletclier  v.  Peck,  6  Cranch,  87 ;  Ogden  v.  Saunders,  12  Wheat. 
266;  Satterlee  v.  Mathewson,  2  Pet.  380;  Watson  v.  Mercer,  8  Pet.  110; 
Charles  River  Bridge  v.  Warren  Bridge,  11  Pet.  421;  Carpenter  U.Pennsyl- 
vania, 17  How.  463  ;  Curnmings  v.  Missouri,  4  Wal.  277 ;  Ex  parte  Garland, 
ib.  333 ;  Baugher  v.  Nelson,  9  Gill,  299 ;  Woart  v.  Winnick,  3  N.  H.  475 ; 
Locke  v.  Dane,  9  Mass.  863;  Dash  v.  Van  Kleek,  7  Johns,  497;  Evans  v. 
Montgomery,  4  W.  &  S.  218;  Tucker  v.  Harris,  13  Geo.  1;  Perry's  Case,  3 
Grat.  632;  Municipality  No.  1  v.  Wheeler,  10  La.  An.  745;  New  Orleans  v. 
Poutz,  14  La.  An.  853.     Huber  v.  Reily,  53  Penn.  St.  115. 

2  Falconers.  Campbell,  2  McLean,  212. 

3  Curnmings  v.  Missouri,  4  Wal.  277 ;  Ex  parte  Garland,  ib.  333.  But  a 
divorce  is  not  a  punishment,  and  it  may  therefore  be  authorized  for  causes  hap- 
pening previous  to  the  passage  of  the  divorce  act.  Carson  v.  Carson,  40  Miss. 
349. 

4  The  repeal  of  an  amnesty  law  by  a  constitutional  convention  was  held  to  be 
ex  post  facto  as  to  the  cases  covered  by  the  law  in  State  v.  Keith,  63  N.  C.  140. 
An  act  to  validate  an  invalid  conviction  would  be  ex  post  facto.  In  re  Murphy, 
1  Woolw.  141. 

[301] 


*  267  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

goes  in  mitigation  of  the  punishment  is  not  liable  to  this  objection.1 
But  what  does  go  in  mitigation  of  the  punishment  ?  If  the  law- 
makes  a  fine  less  in  amount,  or  imprisonment  shorter  in  point  of 
duration,  or  relieves  it  from  some  oppressive  incident,  or  if  it 
dispenses  with  some  severable  portion  of  the  legal  penalty,  no 
embarrassment  would  be  experienced  in  reaching  a  conclusion  that 
the  law  was  favorable  to  the  accused,  and  therefore  not  ex  post  facto. 
But  who  shall  say,  when  the  nature  of  the  punishment  is  altogether 
changed,  and  a  fine  is  substituted  for  the  pillory,  or  imprisonment 
for  whipping,  or  imprisonment  at  hard  labor  for  life  for  the  death 
penalty,  that  the  punishment  is  diminished,  or  at  least  not  increased 
by  the  change  made  ?  What  test  of  severity  does  the  law  or  reason 
furnish  in  these  cases?  and  must  the  judge  decide  upon  his  own 
view  of  the  pain,  loss,  ignominy,  and  collateral  consequences  usually 
attending  the  punishment  ?  or  may  he  take  into  view  the  peculiar 
condition  of  the  accused,  and  upon  that  determine  whether,  in  his 
particular  case,  the  punishment  prescribed  by  the  new  law  is  more 
severe  than  that  under  the  old  or  not  ? 

In  State  v.  Arlin,2  the  respondent  was  charged  with  a  robbery, 
which,  under  the  law  as  it  existed  at  the  time  it  was  committed, 
was  subject  to  be  punished  by  solitary  imprisonment  not  exceeding 
six  months,  and  confinement  for  life  at  hard  labor  in  the  State 
prison.  As  incident  to  this  severe  punishment,  he  was  entitled  by 
the  same  law  to  have  counsel  assigned  him  by  the  government,  to 
process  to  compel  the  attendance  of  witnesses,  to  a  copy  of  his 
indictment,  a  list  of  the  jurors  who  were  to  try  him,  &c.  Before 
he  was  brought  to  trial,  the  punishment  for  the  offence  was  reduced 
to  solitary  imprisonment  not  exceeding  six  months,  and  confine- 
ment at  hard  labor  in  the  State  prison  for  not  less  than  seven 
nor  more  than  thirty  years.     By  the  new  act,  the  court,  if  they 

thought  proper,  were  to  assign  the  respondent  counsel,  and 
[*  268]  *  furnish  him  with  process  to  compel  the  attendance  of 

witnesses  in  his  behalf;  and,  acting  under  this  discretion, 
the  court  assigned  the  respondent  counsel,  but  declined  to  do  more  ; 
while  the  respondent  insisted  that  he  was  entitled  to  all  the  priv- 
ileges to  which  he  would  have  been  entitled  had  the  law  remained 

1  Strong  v.  State,  1  Blackf.  193  ;  Keen  v.  State,  3  Chand.  109 ;  Boston  v. 
Cummins,  16  Geo.  102;  Woart  v.  Winnick,  3  N.  H.  473;  State  v.  Arlin,  39 
N.  H.  180;  Clarke  v.  State,  23  Miss.  261 ;  Maul  v.  State,  25  Texas,  166. 

2  39  N.  H.  179. 

[  302  ] 


CH.  IX.]   FEDERAL  PROTECTION  TO  PERSON  AND  PROPERTY.    *  268 

unchanged.   The  court  held  this  claim  to  be  unfounded  in  the  law. 
"  It  is  contended,"  they  say,  "  that,  notwithstanding  the  severity  of 
the  respondent's  punishment  was  mitigated  by  the  alteration  of  the 
statute,  he  is  entitled  to  the  privileges  demanded,  as  incidents  to 
the  offence  with  which  he  is  charged,  at  the  date  of  its  commission  ; 
in  other  words,  it  seems  to  be  claimed,  that,  by  committing  the 
alleged  offence,  the  respondent  acquired  a  vested  right  to  have 
counsel  assigned  him,  to  be  furnished  with  process  to  procure  the 
attendance  of  witnesses,  and  to  enjoy  all  the  other  privileges  to 
which  he  would  have  been  entitled  if  tried  under  laws  subjecting 
him   to   imprisonment  for  life   upon    conviction.      This  position 
appears  to  us  wholly  untenable.     We  have  no  doubt  the  privileges 
the  respondent  claims  were  designed  and  created  solely  as  inci- 
dents   of  the   severe  punishment  to  which  his  offence   formerly 
subjected  him,  and  not  as  incidents  of  the  offence.    When  the  pun- 
ishment was  abolished,  its  incidents  fell  with  it ;  and  he  might  as 
well  claim  the  right  to  be  punished  under  the  former  law  as  to  be 
entitled  to  the  privileges  connected  with  a  trial  under  it."  x 
In  Strong  v.  State,2  the  plaintiff  in  error  was  indicted 
and   convicted  *  of  perjury,  which,  under  the  law  as  it  [*  269] 
existed  at  the  time  it  was  committed,  was  punishable  by 
not  exceeding  one  hundred  stripes.     Before  the  trial,  this  punish- 
ment was  changed  to  imprisonment  in  the  penitentiary  not  exceed- 
ing seven  years.     The  court  held  this  amendatory  law  not  to  be  ex 

1  With  great  deference  it  may  be  suggested  whether  this  case  does  not  over- 
look the  important  circumstance,  that  the  new  law,  by  taking  from  the  accused 
that  absolute  right  to  defence  by  counsel,  and  to  the  other  privileges  by  which 
the  old  law  surrounded  the  trial,  —  all  of  which  were  designed  as  securities 
against  unjust  convictions, — was  directly  calculated  to  increase  the  party's  peril, 
and  was  in  consequence  brought  within  the  reason  of  the  rule  which  holds  a  law 
ex  post  facto  which  changes  the  rules  of  evidence  after  the  fact,  so  as  to  make  a 
less  amount  or  degree  sufficient.  Could  a  law  be  void  as  ex  f)ost  facto  which 
made  a  party  liable  to  conviction  for  perjury  in  a  previous  oath  on  the  testimony 
of  a  single  witness,  and  another  law  unobjectionable  on  this  score  which  deprived 
a  party,  when  put  on  trial  for  a  previous  act,  of  all  the  usual  opportunities  of 
exhibiting  the  facts  and  establishing  his  innocence  ?  Undoubtedly,  if  the  party 
accused  was  always  guilty,  and  certain  to  be  convicted,  the  new  law  must  be 
regarded  as  mitigating  the  offence  ;  but,  assuming  every  man  to  be  innocent  until 
he  is  proved  to  be  guilty,  could  such  a  law  be  looked  upon  as  "  mollifying  the 
rifor"  of  the  prior  law,  or  as  favorable  to  the  accused,  when  its  mollifying  cir- 
cumstance is  more  than  counterbalanced  by  others  of  a  contrary  character  ? 

2  1  Blackf.  193. 

[  303] 


*  269  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

post  facto,  as  applied  to  the  case.  "  The  words  ex  post  facto  have  a 
definite,  technical  signification.  The  plain  and  obvious  meaning  of 
this  prohibition  is,  that  the  legislature  shall  not  pass  any  law,  after 
a  fact  done  by  any  citizen,  which  shall  have  relation  to  that  fact,  so 
as  to  punish  that  which  was  innocent  when  done,  or  to  add  to  the 
punishment  of  that  which  was  criminal,  or  to  increase  the  malig- 
nity of  a  crime,  or  to  retrench  the  rules  of  evidence  so  as  to  make 
conviction  more  easy."  "  Apply  this  definition  to  the  act  under 
consideration.  Does  this  statute  make  a  new  offence  ?  It  does  not. 
Does  it  increase  the  malignity  of  that  which  was  an  offence  before  ? 
It  does  not.  Does  it  so  change  the  rules  of  evidence  as  to  make 
conviction  more  easy  ?  This  cannot  be  alleged.  Does  it  then 
increase  the  punishment  of  that  which  was  criminal  before  its 
enactment?     We  think  not."  1 

So  in  Texas  it  has  been  held  that  the  infliction  of  stripes,  from 
the  peculiarly  degrading  character  of  the  punishment,  was  worse 
than  the  death  penalty.  "  Among  all  nations  of  civilized  man, 
from  the  earliest  ages,  the  infliction  of  stripes  has  been  considered 
more  degrading  than  death  itself."  2  While,  on  the  other  hand,  in 
South  Carolina,  where,  at  the  time  of  the  commission  of  a  forgery, 
the  punishment  was  death,  but  it  was  changed  before  final  judg- 
ment to  fine,  whipping,  and  imprisonment,  the  new  law  was 
applied  to  the  case  in  passing  the  sentence.3     These  cases  illus- 

1  Mr.  Bishop  says  of  this  decision  :  "  But  certainly  the  court  went  far  in  this 
case."     1  Bishop,  Crim.  Law,  §  219  (108). 

2  Herber  v.  State,  7  Texas,  69. 

3  State  v.  Williams,  2  Rich.  418.  In  Clark  v.  State,  23  Miss.  261,  defendant 
was  convicted  of  a  mayhem.  Between  the  commission  of  the  act  and  his  convic- 
tion, a  statute  had  been  passed,  changing  the  punishment  for  this  offence  from 
the  pillory  and  a  fine  to  imprisonment  in  the  penitentiary,  but  providing  further, 
that  "  no  offence  committed,  and  no  penalty  and  forfeiture  incurred  previous  to 
the  time  when  this  act  shall  take  effect  shall  be  affected  by  this  act,  except  that 
when  any  punishment,  forfeiture,  or  penalty  should  have  been  mitigated  by  it, 
its  provisions  should  be  applied  to  the  judgment  to  be  pronounced  for  offences 
committed  before  its  adoption."  In  regard  to  this  statute  the  court  say  :  "  We 
think  that  in  every  case  of  offence  committed  before  the  adoption  of  the  peni- 
tentiary code,  the  prisoner  has  the  option  of  selecting  the  punishment  prescribed 
in  that  code  in  lieu  of  that  to  which  he  was  liable  before  its  enactment."  But 
inasmuch  as  the  record  did  not  show  that  the  defendant  claimed  a  commutation 
of  his  punishment,  the  court  confirmed  a  sentence  imposed  according  to  the  terms 
of  the  old  law.  On  this  subject,  see  further  the  cases  of  Holt  t:.  State,  2  Texas, 
363 ;  Dawson  v.  State,  6  Texas,  347. 

[304] 


CH.  IX.]   FEDERAL  PROTECTION  OF  PERSON  AND  PROPERTY.    *  270 

trate  *  the  difficulty  of  laying  down  any  rule  which  will  [*  270] 
be  readily  and  universally  accepted  as  to  what  is  a  mitiga- 
tion of  punishment,  where  its  character  is  changed,  and  when  from 
the  very  nature  of  the  case  there  can  be  no  common  standard,  by 
which  all  minds,  however  educated,  can  measure  the  relative 
severity  and  ignominy. 

In  Hartung  v.  People,1  the  law  providing  for  the  infliction  of 
capital  punishment  had  been  so  changed  as  to  require  the  party 
liable  to  this  penalty  to  be  sentenced  to  confinement  at  hard  labor 
in  the  State  prison  until  the  punishment  of  death  should  be 
inflicted ;  and  it  further  provided  that  such  punishment  should 
not  be  inflicted  under  one  year,  nor  until  the  governor  should 
issue  his  warrant  for  the  purpose.  The  act  was  evidently  designed 
for  the  benefit  of  parties  convicted,  and,  among  other  things,  to 
enable  advantage  to  be  taken,  for  their  benefit,  of  any  circumstances 
subsequently  coming  to  light  which  might  show  the  injustice  of  the 
judgment,  or  throw  any  more  favorable  light  on  the  action  of  the 
accused.  Nevertheless,  the  court  held  the  act  inoperative  as  to 
offences  before  committed.  "  In  my  opinion,"  says  Denio,  J.,  "  it 
would  be  perfectly  competent  for  the  legislature,  by  a  general  law, 
to  remit  any  separable  portion  of  the  prescribed  punishment.  For 
instance,  if  the  punishment  were  fine  and  imprisonment,  a  law 
which  should  dispense  with  either  the  fine  or  the  imprisonment 
might,  I  think,  be  lawfully  applied  to  existing  offences  ;  and  so,  in 
my  opinion,  the  term  of  imprisonment  might  be  reduced,  or  the 
number  of  stripes  diminished,  in  cases  punishable  in  that  manner. 
Any  thing  which,  if  applied  to  an  individual  sentence,  would  fairly 
fall  within  the  idea  of  a  remission  of  a  part  of  the  sentence,  would 
not  be  liable  to  objection.  And  any  change  which  should  be  refer- 
able to  prison  discipline  or  penal  administration  as  its  primary 
object  might  also  be  made  to  take  effect  upon  past  as  well  as  future 
offences  ;  as  changes  in  the  manner  or  kind  of  employment  of  con- 
victs sentenced  to  hard  labor,  the  system  of  supervision, 
the  means  of  restraint,  or  the  like.  Changes  of  this  *  sort  [*  271] 
might  operate  to  increase  or  mitigate  the  severity  of  the 
punishment  of  the  convict,  but  would  not  raise  any  question  under 
the  constitutional  provision  we  are  considering.  The  change 
wrought  by  the  act  of  1860,  in  the  punishment  of  existing  offences 

1  22  N.  Y.  105. 

20  [  305  ] 


*  271  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

of  murder,  does  not  fall  within  either  of  these  exceptions.  If  it 
is  to  be  construed  to  vest  in  the  governor  a  discretion  to  deter- 
mine whether  the  convict  should  be  executed  or  remain  a  perpet- 
ual prisoner  at  hard  labor,  this  would  only  be  equivalent  to  what  he 
might  do  under  the  authority  to  commute  a  sentence.  But  he  can, 
under  the  Constitution,  only  do  this  once  for  all.  If  he  refuses 
the  pardon,  the  convict  is  executed  according  to  sentence.  If  he 
grants  it,  his  jurisdiction  of  the  case  ends.  The  act  in  question 
places  the  convict  at  the  mercy  of  the  governor  in  office  at  the 
expiration  of  one  year  from  the  time  of  the  conviction,  and  of  all 
of  his  successors  during  the  lifetime  of  the  convict.  He  may  be 
ordered  to  execution  at  any  time,  upon  any  notice,  or  without 
notice.  Under  one  of  the  repealed  sections  of  the  Revised  Stat- 
utes, it  was  required  that  a  period  should  intervene  between  the 
sentence  and  execution  of  not  less  than  four,  nor  more  than 
eight  weeks.  If  we  stop  here,  the  change  effected  by  the  statute  is 
between  an  execution  within  a  limited  time,  to  be  prescribed  by  the 
court,  or  a  pardon  or  commutation  of  the  sentence  during  that 
period,  on  the  one  hand,  and  the  placing  the  convict  at  the  mercy 
of  the  executive  magistrate  for  the  time,  and  his  successors,  to  be 
executed  at  his  pleasure  at  any  time  after  one  year,  on  the  other. 
The  sword  is  indefinitely  suspended  over  his  head,  ready  to  fall  at 
any  time.  It  is  not  enough  to  say,  if  even  that  can  be  said,  that 
most  persons  would  probably  prefer  such  a  fate  to  the  former  cap- 
ital sentence.  It  is  enough  to  bring  the  law  within  the  condem- 
nation of  the  Constitution,  that  it  changes  the  punishment  after 
the  commission  of  the  offence,  by  substituting  for  the  prescribed 
penalty  a  different  one.  We  have  no  means  of  saying  whether 
one  or  the  other  would  be  the  most  severe  in  a  given  case.  That 
would  depend  upon  the  disposition  and  temperament  of  the  con- 
vict. The  legislature  cannot  thus  experiment  upon  the  criminal 
law.  The  law,  moreover,  prescribes  one  year's  imprisonment,  at 
hard  labor  in  the  State  prison,  in  addition  to  the  punishment  of 
death.  In  every  case  of  the  execution  of  a  capital  sentence,  it 
must  be  preceded  by  the  year's  imprisonment  at  hard  labor.  True, 
the  concluding  part  of  the  punishment  cannot  be  executed 
[*  272]  *  unless  the  governor  concurs  by  ordering  the  execution. 
But  as  both  parts  may,  in  any  given  case,  be  inflicted, 
and  as  the  convict  is  consequently,  under  this  law,  exposed  to  the 
double  infliction,  it  is,  within  both  the  definitions  which  have  been 
[306] 


CH.  IX.]   FEDERAL  PROTECTION  OF  PERSON  AND  PROPERTY.    *  272 

mentioned,  an  ex  post  facto  law.  It  changes  the  punishment,  and 
inflicts  a  greater  punishment  than  that  which  the  law  annexed  to 
the  crime  when  committed.  It  is  enough,  in  my  opinion,  that  it 
changes  it  in  any  manner  except  by  dispensing  with  divisible  por- 
tions of  it;  but  upon  the  other  definition  announced  by  Judge 
Chase,  where  it  is  implied  that  the  change  must  be  from  a  less  to 
a  greater  punishment,  this  act  cannot  be  sustained."  This  decision 
has  since  been  several  times  followed  in  the  State  of  New  York,1 
and  it  must  now  be  regarded  as  the  settled  law  of  that  State,  that 
"  a  law  changing  the  punishment  for  offences  committed  before  its 
passage  is  ex  post  facto  and  void,  under  the  Constitution,  unless  the 
change  consists  in  the  remission  of  some  separable  part  of  the  pun- 
ishment before  prescribed,  or  is  referable  to  prison  discipline  or 
penal  administration  as  its  primary  object."  2  And  this  rule  seems 
to  us  a  sound  and  sensible  one,  with  perhaps  this  single  qualifica- 
tion, —  that  the  substitution  of  any  other  punishment  for  that  of 
death  must  be  regarded  as  a  mitigation  of  the  penalty.3 

But  so  far  as  mere  modes  of  procedure  are  concerned,  a  party 
has  no  more  right,  in  a  criminal  than  in  a  civil  action,  to  insist 
that  his  case  shall  be  disposed  of  under  the  law  in  force  when  the 
act  to  be  investigated  is  charged  to  have  taken  place.  Remedies 
must  always  be  under  the  control  of  the  legislature,  and  it  would 
create  endless  confusion  in  legal  proceedings  if  every  case  was  to 
be  conducted  only  in  accordance  with  the  rules  of  practice,  and 
heard  only  by  the  courts,  in  existence  when  its  facts  arose.  The 
legislature  may  abolish  courts  and  create  new  ones,  and  it  may 
prescribe  altogether  different  modes  of  procedure  in  its  discretion, 
though  it  cannot  lawfully,  we  think,  in  so  doing,  dispense  with 
any  of  those  substantial  protections  with  which  the  existing  law 
surrounds  the  person  accused  of  crime.  A  law  giving  the  govern- 
ment additional  challenges,4  and  another  which  authorized 
*  the  amendment   of  indictments,5  have  both  been  sus-  [*  273] 

1  Shepherd  v.  People,  25  N.  Y.  406  ;  Ratzky  v.  People,  29  N.  Y.  124 ;  Kuck- 
ler  v.  People,  6  Park.  Cr.  Rep.  212. 

2  Per  Davies,  J.,  in  Ratzky  v.  People,  29  N.  Y.  124. 

3  See  1  Bishop,  Crim.  Law,  §  219  (108). 

4  VValston  v.  Commonwealth,  16  B.  Monr.  15;  State  v.  Ryan,  13  Minn.  370; 
State  i'.  Wilson,  48  N.  H.  398;  Commonwealths.  Dorsey,  103  Mass.  412. 

5  State  v.  Manning,  14  Texas,  402  ;  Lasure  v.  State,  19  Oliio,  N.  s.  43.     See 
State  v.  Corson,  59  Me.  137.     The  defendant  in  any  case  must  be  proceeded 

[307] 


*  273  CONSTITUTIONAL    LIMITATIONS.  [CH.  IX. 

tained  as  applicable  to  past  transactions,  as  any  similar  law, 
tending  only  to  improve  the  remedy,  but  working  no  injustice  to 
the  defendant,  and  depriving  him  of  no  substantial  right,  doubt- 
less would  be. 

And  a-law  is  not  objectionable  as  ex  post  facto  which,  in  provid- 
ing for  the  punishment  of  future  offences,  authorizes  the  offender's 
conduct  in  the  past  to  be  taken  into  the  account,  and  the  punish- 
ment to  be  graduated  accordingly.  Heavier  penalties  are  often 
provided  by  law  for  a  second  or  any  subsequent  offence  than  for 
the  first ;  and  it  has  not  been  deemed  objectionable  that,  in  pro- 
viding for  such  heavier  penalties,  the  prior  conviction  authorized 
to  be  taken  into  the  account  may  have  taken  place  before  the  law 
was  passed.1  In  such  case,  it  is  the  second  or  subsequent  offence 
that  is  punished,  not  the  first ; 2  and  the  act  would  be  void  if  the 
offence  to  be  actually  punished  had  been  committed  before  it  had 
taken  effect,  even  though  it  was  after  its  passage.3 

Laws  impairing  the  Obligation  of  Contracts. 

The  Constitution  of  the  United  States  also  forbids  the  States 
passing  any  law  impairing  the  obligation  of  contracts.4  It  is 
remarkable  that    this    very    important    clause    was    passed  over 

against  and  punished  under  the  law  in  force  when  the  proceeding  is  had.  State 
v.  Williams,  2  Rich.  418;  Keene  v.  State,  2  Chand.  109;  People  v.  "Phelps,  5 
Wend.  9 ;  Rand  v.  Commonwealth,  9  Grat.  738.  A  law  is  not  unconstitutional 
which  precludes  a  defendant  in  a  criminal  case  from  taking  advantage  of  vari- 
ances which  do  not  prejudice  him.  Commonwealth  v.  Hall,  97  Mass.  570.  Nor 
one  which,  though  passed  after  the  commission  of  the  offence,  authorizes  a 
change  of  venue  to  another  county  of  the  judicial  district.  Gut  v.  State,  9 
Wal.  35  Nor  one  which  gives  the  government  a  right  to  additional  challenges. 
Walston  v.  Commonwealth,  16  B.  Monr.  15 ;  State  v.  Ryan,  13  Minn.  370  ;  State 
v.  Wilson,  48  N.  H.  398 ;  Commonwealth  v.  Dorsey,  103  Mass.  412.  Nor  one, 
it  seems,  which  requires  an  oath  of  past  loyalty  of  voters.  Blain  v.  Ridgeley, 
41  Mo.  63;  State  v.  Neal,  42  Mo.  119:  Contra,  Green  v.  Shumway,  39  N.  Y. 
418.  And  see  cases  cited,  ante,  64,  note  3.  But  a  statute  providing  that  the 
rule  of  law  precluding  a  conviction  on  the  uncorroborated  testimony  of  an  accom- 
plice should  not  apply  to  cases  of  misdemeanor,  it  was  held  could  not  have 
retrospective  operation.     Hart  v.  State,  40  Ala.  32. 

1  Rand  v.  Commonwealth,  9  Grat.  738;  Ross's  Case,  2  Pick.  165;  People  v. 
Butler,  3  Cow.  347. 

2  Rand  v.  Commonwealth,  9  Grat.  738. 

3  Riley's  Case,  2  Pick.  172. 
*  Const,  art  1,  §  10. 

[308] 


CH.  IX.]   FEDERAL  PROTECTION  OF  PERSON  AND  PROPERTY.    *  273 

almost  without  comment  during  the  discussions  preceding  the 
adoption  of  that  instrument,  though  since  its  adoption  no  clause 
which  the  Constitution  contains  has  been  more  prolific  of  litiga- 
tion, or  given  rise  to  more  animated  and  at  times  angry  contro- 
versy. It  is  but  twice  alluded  to  in  the  papers  of  the  Federalist ; 1 
and  though  its  great  importance  is  assumed,  it  is  evident  that  the 
writer  had  no  conception  of  the  prominence  it  was  afterwards  to 
hold  in  constitutional  discussions,  or  of  the  very  numerous  cases 
to  which  it  was  to  be  applied  in  practice. 

The  first  question  that  arises  under  this  provision  is, 
What  is  a  *  contract  in  the  sense  in  which  the  word  is  [*  274] 
here  employed  ?  In  the  leading  case  upon  this  subject, 
it  appeared  that  the  legislature  of  Georgia  had  made  a  grant  of 
land,  but  afterwards,  on  an  allegation  that  the  grant  had  been 
obtained  by  fraud,  a  subsequent  legislature  had  passed  another 
act  annulling  and  rescinding  the  first  conveyance,  and  asserting 
the  right  of  the  State  to  the  land  it  covered.  "  A  contract,"  says 
Ch.  J.  Marshall,  "  is  'a  compact  between  two  or  more  parties,  and 
is  either  executory  or  executed.  An  executory  contract  is  one  in 
which  a  party  binds  himself  to  do  or  not  to  do  a  particular  thing. 
Such  was  the  law  under  which  the  conveyance  was  made  by  the 
governor.  A  contract  executed  is  one  in  which  the  object  of 
the  contract  is  performed  ;  and  this,  says  Blackstone,  differs  in 
nothing  from  a  grant.  The  contract  between  Georgia  and  the 
purchasers  was  executed  by  the  grant.  A  contract  executed, 
as  well  as  one  which  is  executory,  contains  obligations  binding 
on  the  parties.  A  grant,  in  its  own  nature,  amounts  to  an  extin- 
guishment of  the  right  of  the  grantor,  and  implies  a  contract  not 
to  reassert  that  right.  A  party  is,  therefore,  always  estopped  by 
his  own  grant.  Since  then,  in  fact,  a  grant  is  a  contract  exe- 
cuted, the  obligation  of  which  still  continues,  and  since  the  Con- 
stitution uses  the  general  term  '  contract,'  without  distinguishing 
between  those  which  are  executory  and  those  which  are  executed, 
it  must  be  construed  to  comprehend  the  latter  as  well  as  the 
former.  A  law  annulling  conveyances  between  individuals,  and 
declaring  that  the  grantors  should  stand  seized  of  their  former 
estates,  notwithstanding  those  grants,  would  be  as  repugnant  to 
the  Constitution  as  a  law  discharging  the  vendors  of  property  from 

1  Federalist,  Nos.  7  and  44. 

[  309  ] 


*  274  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

the  obligation  of  executing  their  contracts  by  conveyances.  It 
would  be  strange  if  a  contract  to  convey  was  secured  by  the  Con- 
stitution, while  an  absolute  conveyance  remained  unprotected. 
If,  under  a  fair  construction  of  the  Constitution,  grants  are  com- 
prehended under  the  term  '  contracts,'  is  a  grant  from  the  State 
excluded  from  the  operation  of  the  provision  ?  Is  the  clause  to 
be  considered  as  inhibiting  the  State  from  impairing  the  obligation 
of  contracts  between  two  individuals,  but  as  excluding  from  that 
inhibition  contracts  made  with  itself?  The  words  themselves  con- 
tain no  such  distinction.  They  are  general,  and  are  applicable  to 
contracts  of  every  description.  If  contracts  made  with  the  State 
are  to  be  exempted  from  their  operations,  the  exception 
[*  275]  must  arise  from  the  character  of  *  the  contracting  party, 
not  from  the  words  which  are  employed."  And  the  court 
proceed  to  give  reasons  for  their  decision,  that  violence  should  not 
"  be  done  to  the  natural  meaning  of  words,  for  the  purpose  of  leav- 
ing to  the  legislature  the  power  of  seizing,  for  public  use,  the  estate 
of  an  individual,  in  the  form  of  a  law  annulling  the  title  by  which 
he  holds  that  estate."  1 

It  will  be  seen  that  this  leading  decision  settles  two  important 
points:  first,  that  an  executed  contract  is  within  the  provision, 
and  second,  that  it  protects  from  violation  the  contracts  of  States 
equally  with  those  entered  into  between  private  individuals.2    And 

1  Fletcher  v.  Peck,  6  Cranch,  133. 

2  This  decision  has  been  repeatedly  followed.  In  the  founding  of  the  Colony 
of  Virginia,  the  religious  establishment  of  England  was  adopted,  and  before  the 
Revolution  the  churches  of  that  denomination  had  become  vested,  by  grants  of 
the  crown  or  Colony,  with  large  properties,  which  continued  in  their  possession 
after  the  constitution  of  the  State  had  forbidden  the  creation  or  continuance  of 
any  religious  establishment,  possessed  of  exclusive  rights  or  privileges,  or  the 
compelling  the  citizens  to  worship  under  a  stipulated  form  or  discipline,  or  to  pay 
taxes  to  those  whose  creed  they  could  not  conscientiously  believe.  By  statute  in 
1801,  the  legislature  asserted  their  right  to  all  the  property  of  the  Episcopal 
churches  in  the  respective  parishes  of  the  State ;  and,  among  other  things, 
directed  and  authorized  the  overseers  of  the  poor  and  their  successors  in  each 
parish,  wherein  any  glebe  land  was  vacant  or  should  become  so,  to  sell  the  same 
and  appropriate  the  proceeds  to  the  use  of  the  poor  of  the  parish.  By  this  act, 
it  will  be  seen,  the  State  sought  in  effect  to  resume  grants  made  by  the  sover- 
eignty, —  a  practice  which  had  been  common  enough  in  English  history,  and  of 
which  precedents  were  not  wanting  in  the  history  of  the  American  Colonies. 
The  Supreme  Court  of  the  United  States  held  the  grant  not  revocable,  and  that 
the  legislative  act  was  therefore  unconstitutional  and  void.     Terrett  v.  Taylor,  9 

'   [310] 


CH.  IX.]   FEDERAL  PROTECTION  OP  PERSON  AND  PROPERTY.    *  275 

it  has  since  been  held  that  compacts  between  two  States  are  in 
like  manner  protected.1  These  decisions,  however,  do  not 
fully  *  determine  what  under  all  circumstances  is  to  be  [*  276] 
regarded  as  a  contract.  A  grant  of  land  by  a  State  is  a 
contract,  because  in  making  it  the  State  deals  with  the  purchaser 
precisely  as  any  other  vendor  might ;  and  if  its  mode  of  convey- 
ance is  any  different,  it  is  only  because  by  virtue  of  its  sover- 
eignty, it  has  power  to  convey  by  other  modes  than  those  which 
the  general  law  opens  to  private  individuals.  But  many  things 
done  by  the  State  may  seem  to  hold  out  promises  to  individuals, 
which  after  all  cannot  be  treated  as  contracts  without  hampering 
the  legislative  power  of  the  State  in  a  manner  that  would  soon 
leave  it  without  the  means  of  performing  its  essential  functions. 
The  State  creates  offices,  and  appoints  persons  to  fill  them  ;  it 
establishes  municipal  corporations,  with  large  and  valuable  privi- 
leges for  its  citizens ;  by  its  general  laws  it  holds  out  inducements 
to  immigration ;  it  passes  exemption  laws,  and  laws  for  the  en- 
couragement of  trade  and  agriculture ;  and  under  all  these  laws 
a  greater  or  less  number  of  citizens  expect  to  derive  profit  and 
emolument.  But  can  these  laws  be  regarded  as  contracts  between 
the  State  and  the  officers  and  corporations  who  are,  or  the  cit- 

Cranch,  -43.  See  also  Town  of  Pawlet  v.  Clark,  9  Cranch,  335;  People  v. 
Piatt,  17  Johns.  195;  Montgomery  v.  Kasson,  16  Cal.  189;  Grogan  v.  San 
Francisco,  18  Cal.  590;  Rehoboth  v.  Hunt,  1  Pick.  224;  Lowry  v.  Francis, 
2  Yerg.  534 ;  University  of  North  Carolina  v.  Foy,  2  Havw.  310 ;  State  v. 
Barker,  4  Kansas,  379  and  435.  The  lien  of  a  bondholder,  who  has  loaned 
money  to  the  State  on  a  pledge  of  property  by  legislative  act,  cannot  be  divested 
or  postponed  by  a  subsequent  legislative  act.  Wabash,  &c,  Co.  v.  Beers,  2 
Black,  448. 

1  On  the  separation  of  Kentucky  from  Virginia,  a  compact  was  entered  into 
between  the  proposed  new  and  the  old  State,  by  which  it  was  agreed  "that  all 
private  grants  and  interests  of  lands,  within  the  said  district,  derived  from  the 
laws  of  Virginia,  shall  remain  valid  and  secure  under  the  laws  of  the  proposed 
State,  and  shall  be  determined  by  the  laws  now  existing  in  this  State."  After 
the  admission  of  the  new  State  to  the  Union,  "  occupying  claimant "  laws  were 
passed  by  its  legislature,  such  as  were  not  in  existence  in  Virginia,  and  by  the 
force  of  which,  under  certain  circumstances,  the  owner  might  be  deprived  of  his 
title  to  land,  unless  he  would  pay  the  value  of  lasting  improvements  made  upon 
it  by  an  adverse  claimant.  These  acts  were  also  held  void ;  the  compact  was 
held  inviolable  under  the  Constitution,  and  it  was  deemed  no  objection  to  its 
binding  character,  that  its  effect  was  to  restrict,  in  some  directions,  the  legislative 
power  of  the  State  entering  into  it.  Green  v.  Biddle,  8  Wheat.  1.  See  also 
Hawkins  v.  Barney's  Lessee,  5  Pet.  457. 

[311] 


*  276  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

izens  of  the  State  who  expect  to  be,  benefited  by  their  passage,  so 
as  to  preclude  their  being  repealed  ? 

On  these  points  it  would  seem  that  there  could  be  no  difficulty. 
When  the  State  employs  officers  or  creates  municipal  corporations 
as  the  mere  agencies  of  government,  it  must  have  the  power 
to  discontinue  the  agency  whenever  it  comes  to  be  regarded  as 
no  longer  important.  "  The  framers  of  the  Constitution  did  not 
intend  to  restrain  the  States  in  the  regulation  of  their  civil 
institutions,  adopted  for  internal  government."  1  They  may, 
therefore,  discontinue  offices  and  abolish  or  change  the  organi- 
zation  of   municipal  corporations  at  any  time,  according  to  the 

existing  legislative  view  of  state  policy,  unless  forbidden 
[*277  ]   by  their  own  constitutions  from  doing  so.2   And  *  although 

municipal  corporations,  as  respects  the   property  which 

1  Dartmouth  College  v.  "Woodward,  4  Wheat.  629,  per  Marshall,  Ch.  J. 

2  Butler  v.  Pennsylvania,  10  How.  402;  Warner  v.  People,  2  Denio,  272; 
Commonwealth  v.  Bacon,  6  S.  &  R.  322;  Commonwealth  v.  Mann,  5  W.  &  S. 
418 ;  Conner  v.  New  York,  2  Sandf.  355,  and  5  N.  Y.  285  ;  Wilcox  v.  Rodman, 
46  Mo.  323;  State  v.  Douglass,  26  Wis.  428;  Perkins  v.  Corbin,  45  Ala.  103; 
Robinson  v.  White,  26  Ark.  139;  Alexander  v.  McKenzie,  2  S.  C.  (n.  s.)  81. 
Compare  People  v.  Bull,  46  N.  Y.  57;  s.  c.  7  Am.  Rep.  302.  "Where  an 
office  is  created  by  statute,  it  is  wholly  within  the  control  of  the  legislature.  The 
term,  the  mode  of  appointment,  and  the  compensation  may  be  altered  at  pleasure, 
and  the  latter  may  be  even  taken  away  without  abolishing  the  office.  Such 
extreme  legislation  is  not  to  be  deemed  probable  in  any  case.  But  we  are  now 
discussing  the  legislative  power,  not  its  expediency  or  propriety.  Having  the 
power,  the  legislature  will  exercise  it  for  the  public  good,  and  it  is  the  sole  judge 
of  the  exigency  which  demands  its  interference."  Per  Sandford,  J.,  2  Sandf.  369. 
"  Tlie  selection  of  officers  who  are  nothing  more  than  public  agents  for  the  effect- 
uating of  public  purposes  is  matter  of  public  convenience  or  necessity,  and  so, 
too,  are  the  periods  for  the  appointment  of  such  agents ;  but  neither  the  one  nor 
the  other  of  these  arrangements  can  constitute  any  obligation  to  continue  such 
agents,  or  to  reappoint  them,  after  the  measures  which  brought  them  into  being 
shall  have  been  found  useless,  shall  have  been  fulfilled,  or  shall  have  been  abrogated 
as  even  detrimental  to  the  well-being  of  the  public.  The  promised  compensation 
for  services  actually  performed  and  accepted,  during  the  continuance  of  the  par- 
ticular agency,  may  undoubtedly  be  claimed,  both  upon  principles  of  compact  and 
of  equity;  but  to  insist  beyond  this  upon  the  perpetuation  of  a  public  policy 
either  useless  or  detrimental,  and  upon  a  reward  for  acts  neither  desired  nor  per- 
formed, would  appear  to  be  reconcilable  with  neither  common  justice  nor  common 
sense."  Daniel,  J.,  in  10  How.  416.  See  also  Barker  v.  Pittsburgh,  4  Penn. 
St.  49;  Standiford  v.  Wingate,  2  Duv.  443;  Taft  v.  Adams,  3  Gray,  126; 
Walker  v.  Peelle,  18  Ind.  264 ;  People  v.  Haskell,  5  Cal.  357  ;  Territory  v.  Pyle, 
1  Oregon,  149  ;  Bryan  a;.  Cattell,  15  Iowa,  538.    But  if  the  term  of  an  office  is 

[312] 


CH.  IX.]   FEDERAL  PROTECTION  OF  PERSON  AND  PROPERTY.    *  277 

they  hold,  control,  and  manage  for  the  benefit  of  their  citizens, 
are  governed  by  the  same  rules  and  subject  to  the  same  liabilities 
as  individuals,  yet  this  property,  so  far  as  it  has  been  derived  from 
the  State,  or  obtained  by  the  exercise  of  the  ordinary  powers  of 
government,  must  be  held  subject  to  control  by  the  State,  but 
under  the  restriction  only,  that  it  is  not  to  be  appropriated  to  uses 
foreign  to  those  for  which  it  has  been  acquired.  And  the  fran- 
chises conferred  upon  such  a  corporation,  for  the  benefit  of  its 
citizens,  must  be  liable  to  be  resumed  at  any  time  by  that  author- 
ity which  may  mould  the  corporate  powers  at  its  will,  or  even 
revoke  them  altogether.  The  greater  power  will  comprehend  the 
less.1  If,  however,  a  grant  is  made  to  a  municipal  corpo- 
ration *  charged  with  a  trust  in  favor  of  an  individual,  [*  278] 

fixed  by  the  Constitution,  the  legislature  cannot  remove  the  officer — except  as 
that  instrument  may  allow  —  either  directly,  or  indirectly  by  abolishing  the 
office.  People  v.  Dubois,  23  111.  547  ;  State  v.  Messmore,  14  Wis.  163  ;  Com- 
monwealth v.  Gamble,  62  Penn.  St.  343 ;  s.  c.  1  Am.  Rep.  422 ;  Lowe  v.  Com- 
monwealth, 3  Met.  Ky.  240.  Compare  Christy  v.  Commissioners,  39  Cal.  3. 
Nor  can  the  legislature  take  from  a  constitutional  officer  a  portion  of  the  charac- 
teristic duties  belonging  to  the  office  and  devolve  them  upon  an  office  of  its  own 
creation.  State  v.  Brunst,  26  Wis.  413 ;  s.  c.  7  Am.  Rep.  84,  disapproving  State 
v.  Dews,  R.  M.  Charl.  397.  Compare  People  v.  Raymond,  37  N.  Y.  428; 
King  v.  blunder,  65  N.  C.  603  ;  s.  c.  6  Am.  Rep.  754.  As  to  control  of  munic- 
ipal corporations,  see  further,  Marietta  v.  Fearing,  4  Ohio,  427  ;  Bradford  v. 
Cary,  5  Greenl.  339;  Bush  v.  Shipman,  4  Scam.  186;  Trustees,  &c.  v.  Tatman, 
13  111.  27;  People  v.  Morris,  13  Wend.  325;  Mills  v.  Williams,  11  Ired.  558; 
People  v.  Banvard,  27  Cal.  470 ;  ante,  c.  8. 

1  In  East  Hartford  v.  Hartford  Bridge  Co.,  10  How.  533,  Mr.  Justice  Wood- 
bury, in  speaking  of  the  grant  of  a  ferry  franchise  to  a  municipal  corporation, 
savs  :  "Our  opinion  is.  .  .  .  that  the  parties  to  this  grant  did  not  by  their 
charter  stand  in  the  attitude  towards  each  other  of  making  a  contract  by  it,  such 
as  is  contemplated  by  the  Constitution,  and  as  could  not  be  modified  by  subse- 
quent legislation.  The  legislature  was  acting  here  on  the  one  part,  and  public 
municipal  and  political  corporations  on  the  other.  They  were  acting,  too,  in 
relation  to  a  public  object,  being  virtually  a  highway  across  the  river,  over 
another  highway  up  and  down  the  river.  From  this  standing  and  relation  of 
these  parties,  and  from  the  subject-matter  of  their  action,  we  think  that  the 
doings  of  the  legislature  as  to  this  ferry  must  be  considered  rather  as  public  laws 
than  as  contracts.  They  related  to  public  interests.  They  changed  as  those 
interests  demanded.  The  grantees,  likewise,  the  towns,  being  mere  organizations 
for  public  purposes,  were  liable  to  have  their  public  powers,  rights,  and  duties 
modified  or  abolished  at  any  moment  by  the  legislature.  They  are  incorporated 
for  public,  and  not  private  objects.  They  are  allowed  to  hold  privileges  or  prop- 
erty only  for  public  purposes.    The  members  are  not  shareholders  nor  joint  part- 

[313] 


*  278  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

[*  279]  private  corporation,  *  or  charity,  the  interest  which  the 
cestui   que   trust   has    under   the   grant   may   sustain   it 

ners  in  any  corporate  estate,  which  they  can  sell  or  devise  to  others,  or  which 
can  be  attached  and  levied  on  for  their  debts.     Hence,  generally,  the  doings 
between  them  and  the  legislature  are  in  the  nature  of  legislation  rather  than  com- 
pact, and  subject  to  all  the  legislative  conditions  just  named,  and  therefore  to  be 
considered  not  violated  by  subsequent  legislative  changes.     It  is  hardly  possible 
to  conceive  the  grounds  on  which  a  different  result  could  be  vindicated,  without 
destroying  all  legislative  sovereignty,  and  checking  most  legislative  improvements, 
as  well  as  supervision  over  its  subordinate  public  bodies."      A  different  doctrine 
was  advanced  by  Mr.  Justice  Barculo,  in  Benson  v.  Mayor,  &c,  of  New  York, 
10  Barb.  234,  who  cites  in  support  of  his  opinion,  that  ferry  grants  to  the  city  of 
New  York  could  not  be  taken  away  by  the  legislature,  what  is  said  by  Chancellor 
Kent  (2  Kent's  Com.  275),  that  "  public  corporations.   .    .   .  may  be  empowered 
to  take  and   hold  private  property  for  municipal  uses  ;    and  such  property  is 
invested  with  the   security  of  other  private  rights.      So   corporate   franchises, 
attached  to  public  corporations,  are  legal  estates,  coupled  with  an  interest,  and 
are  protected  as  private  property."   This  is  true  in  a  general  sense,  and  it  is  also 
true  that,  in  respect  to  such  property  and  franchises,  the  same  rules  of  responsi- 
bility are  to  be  applied  as  in  the   case  of  individuals.     Bailey  v.  Mayor,  &c,  of 
New  York,  3  Hill,  531.     But  it  does  not  follow  that  the  legislature,  under  its 
power  to  administer  the  government,  of  which  these  agencies  are  a  part,  and  for 
the  purposes  of  which  the  grant  has  been  made,  may  not  at  any  time  modify  the 
municipal  powers  and  privileges,  by  transferring  the  grant  to  some  other  agency, 
or  revoking  it  when  it  seems  to  have  become  unimportant.     In  People  v.  Power, 
25  111.  190,  Breese,  J.,  in  speaking  of  a  law  which  provided  that  three-fourths  of 
the  taxes  collected  in  the  county  of  Sangamon,  with  certain   deductions,  should 
be  paid  over  to  the  city  of  Springfield,  which  is  situated  therein,  says:   "While 
private  corporations  are  regarded  as  contracts,  which  the  legislature  cannot  con- 
stitutionally impair,  as  the  trustee  of  the  public  interests  it  has  the  exclusive  and 
unrestrained  control  over  public   corporations  ;  and  as  it  may  create,  so  it  may 
modify  or  destroy,  as  public  exigency  requires  or  the  public  interests  demand. 
Coles  v.  Madison   County,  Breese,  115.      Their  whole   capacities,  powers,  and 
duties  are  derived  from  the  legislature,  and  subordinate  to  that  power.    If,  then, 
the  legislature  can  destroy  a  county,  they  can  destroy  any  of  its  parts,  and  take 
from  it  any  one  of  its  powers.      The  revenues  of  a  county  are  not  the  property 
of  the  county,  in  the  sense  in  which  revenue  of  a  private  person  or  corporation 
is  regarded.      The  whole  State  has  an  interest  in  the  revenue  of  a  county,  and 
for  the  public  good  the  legislature  must  have  the  power  to  direct  its  application. 
The  power  conferred  upon  a  county  to  raise  a  revenue  by  taxation  is  a  political 
power,  and  its  application  when  collected  must  necessarily  be  within  the.  control 
of  the  legislature  for  political  purposes.     The  act  of  the  legislature  nowhere  pro- 
poses to  take  from  the  county  of  Sangamon,  and  give  to  the  city  of  Springfield, 
any  property  belonging  to   the   county,  or  revenues  collected  for  the  use  of  the 
county.      But  if  it  did,  it  would  not  be  objectionable.      But,  on  the  contrary,  it 
proposes  alone  to  appropriate  the  revenue  which  may  be  collected  by  the  county, 
by  taxes  levied  on  property  both  in  the  city  and  county,  in  certain  proportions 

[314] 


CH.  IX.]   FEDERAL  PROTECTION  OF  PERSON  AND  PROPERTY.   *  279 

against  legislative  revocation,  a  vested  equitable  interest  being 
property  in  the  same  sense  and  entitled  to  the  same  protection  as 
a  legal.1 

Those  charters  of  incorporation,  however,  which  are  granted,  not 
as  a  part  of  the  machinery  of  the  government,  but  for  the  private 
benefit  or  purposes  of  the  corporators,  stand  upon  a  different  foot- 
ing, and  are  held  to  be  contracts  between  the  legislature  and  the 
corporators,  having  for  their  consideration  the  liabilities  and  duties 
which  the  corporators  assume  by  accepting  them  ;  and  the  grant 
of  the  franchise  can  no  more  be  resumed  by  the  legislature,  or  its 
benefits  diminished  or  impaired  without  the  consent  of  the  grantees, 
than  any  other  grant  of  property  or  valuable  thing,  unless  the  right 
to  do  so  is  reserved  in  the  charter  itself.2 

ratably  to  the  city  and  county."  And  see  Bush  v.  Shipman,  4  Scam.  190;  Rich- 
land County  v.  Lawrence  County,  12  111.  1 ;  Borough  of  Dunmore's  Appeal,  52 
Penn.  St.  374  ;  Guilford  v.  Supervisors  of  Chenango,  18  Barb.  615,  and  13  N.  Y. 
143 ;  ante,  235-239,  and  cases  cited. 

1  See  Town  of  Pawlet  v.  Clark,  9  Cranch,  292,  and  Terrett  v.  Taylor,  9  Cranch, 
43.  The  municipal  corporation  holding  property  or  rights  in  trust  might  even 
be  abolished  without  affecting  the  grant ;  but  the  Court  of  Chancery  might  be 
empowered  to  appoint  a  new  trustee  to  take  charge  of  the  property,  and  to  exe- 
cute the  trust.     Montpelier  v.  East  Montpelier,  29  Vt.  12. 

2  Dartmouth  College  v.  Woodward,  4  Wheat.  519  ;  Trustees  of  Vincennes 
University  v.  Indiana,  14  How.  268  ;  Planters  Bank  v.  Sharp,  6  How.  301 ;  Piqua 
Bank  v.  Knoop,  16  How.  369 ;  Binghampton  Bridge  Case,  3  Wal.  51 ;  Norris  v. 
Trustees  of  Abingdon  Academy,  7  G.  &  J.  7  ;  Grammar  School  v.  Burt,  11  Vt. 
632  ;  Brown  v.  Hummel,  6  Penn.  St.  86  ;  State  v.  Heyward,  3  Rich.  389  ;  People 
v.  Manhattan  Co.,  9  Wend.  351;  Commonwealth  v.  Cullen,  13  Penn.  St.  133; 
Commercial  Bank  of  Natchez  v.  State,  14  Miss.  599;  Backus  v.  Lebanon,  11 
N.H.  19;  Michigan  State  Bank  v.  Hastings,  1  Doug.  (Mich.)  225;  Bridge  Co. 
v.  Hoboken  Co.,  2  Beas.  81;  Miners  Bank  v.  United  States,  1  Greene  (Iowa), 
553;  Edwards  v.  Jagers,  19  Ind.  407  ;  State  v.  Noyes,  47  Me.  189;  Bruffet  v. 
G.  W.  R.R.  Co.,  25  111.  353  ;  People  v.  Jackson  and  Michigan  Plank  Road  Co., 
9  Mich.  285;  Bank  of  the  State  v.  Bank  of  Cape  Fear,  13  Ired.  75;  Mills  v. 
Williams,  11  Ired.  558 ;  Hawthorne  v.  Calef,  2  Wal.  10 ;  Wales  v.  Stetson,  2 
Mass.  146  ;  Nichols  v.  Bertram,  3  Pick.  312  ;  King  v.  Dedham  Bank,  15  Mass. 
447  ;  State  v.  Tombeckbee  Bank,  2  Stew.  30 ;  Central  Bridge  v.  Lowell,  15  Gray, 
106  ;  Bank  of  the  Dominion  v.  McVeigh,  20  Grat.  457.  The  mere  passage  of  an 
act  of  incorporation,  however,  does  not  make  the  contract ;  and  it  may  be  repealed 
prior  to  a  full  acceptance  by  the  corporators.  Mississippi  Society  v.  Musgrove, 
44  Miss.  820 ;  s.  c.  7  Am.  Rep.  723.  It  is  under  the  protection  of  the  decision 
in  the  Dartmouth  College  Case  that  the  most  enormous  and  threatening  powers  in 
our  country  have  been  created ;  some  of  the  great  and  wealthy  corporations 
actually  having  greater  influence  in  the  country  at  large  and  upon  the  legislation 
of  the  country  than  the  States  to  which  they  owe  their  corporate  existence 

[315] 


■l 


*  280  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

[*  280]  *  Perhaps  the  most  interesting  question  which  arises  in 
this  discussion  is,  whether  it  is  competent  for  the  legislat- 
ure to  so  bind  up  its  own  hands  by  a  grant  as  topreclude  it  from 
exercising  for  the  future  any  of  the  essential  attributes  of  sover- 
eignty in  regard  to  any  of  the  subjects  within  its  jurisdiction; 
whether,  for  instance,  it  can  agree  that  it  will  not  exercise  the 
power  of  taxation,  or  the  police  power  of  the  State,  or  the  right 
of  eminent  domain,  as  to  certain  specified  property  or  persons  ; 
and  whether  if  it  shall  undertake  to  do  so,  the  agreement  is  not 
void  on  the  general  principle  that  the  legislature  cannot  diminish 
the  power  of  its  successors  by  irrepealable  legislation,  and  that  any 
other  rule  might  cripple  and  eventually  destroy  the  government 
itself.  If  the  legislature  has  power  to  do  this,  it  is  certainly  a  very 
dangerous  power,  exceedingly  liable  to  abuse,  and  may  possibly 
come  in  time  to  make  the  constitutional  provision  in  question  as 
prolific  of  evil  as  it  ever  has  been,  or  is  likely  to  be,  of  good. 
So  far  as  the  power  of  taxation  is  concerned,  it  has  been  so  often 

[  Every  privilege  granted  or  right  conferred  —  no  matter  by  what  means  or  on 
what  pretence  —  being  made  inviolable  by  the    Constitution,   the  government 

j  is  frequently  found  stripped  of  its  authority  in  very  important  particulars,  by 
unwise,  careless,  or  corrupt  legislation ;  and  a  clause  of  the  Federal  Constitu- 
tion, whose  purpose  was  to  preclude  the  repudiation  of  debts  and  just  contracts, 
protects  and  perpetuates  the  evil.     To  guard  against  such  calamities  in  the  fut- 

i  ure,  it  is  customary  now  for  the  people  in  framing  their  constitutions  to  forbid 
the  granting  of  corporate  powers  except  subject  to  amendment  and  repeal ;  but 
the  improvident  grants  of  an  early  day  are  beyond  their  reach. 

In  Mills  v.  Williams,  11  Ired.  561,  Pearson,  J.,  states  the  difference  between 
the  acts  of  incorporation  of  public  and  private  corporations  as  follows:  "  The 
substantial  distinction  is  this.  Some  corporations  are  created  by  the  mere  will 
of  the  legislature,  there  beiug  no  other  party  interested  or  concerned.  To  this 
party  a  portion  of  the  power  of  the  legislature  is  delegated,  to  be  exercised  for 
the  general  good,  and  subject  at  all  times  to  be  modified,  changed,  or  annulled. 
Other  corporations  are  the  result  of  contract.  The  legislature  is  not  the  only 
party  interested ;  for,  although  it  has  a  public  purpose  to  be  accomplished,  it 
chooses  to  do  it  by  the  instrumentality  of  a  second  party.  These  two  parties 
make  a  contract.  The  legislature,  for  and  in  consideration  of  certain  labor  and 
outlay  of  money,  confers  upon  the  party  of  the  second  part  the  privilege  of  being 
a  corporation,  with  certain  power  and  capacities.  The  expectation  of  benefit  to 
the  public  is  the  moving  consideration  on  one  side,  that  of  expected  remuneration 
for  the  outlay  is  the  consideration  on  the  other.  It  is  a  contract,  and  therefore 
cannot  be  modified,  changed,  or  annulled,  without  the  consent  of  both  parties." 
An  incorporated  academy,  whose  endowment  comes  exclusively  from  the  public, 
is  a  public  corporation.  Dart  v.  Houston,  22  Geo.  506.  Compare  State  v. 
Adams,  44  Mo.  570. 

[316] 


CH.  IX.]   FEDERAL  PROTECTION  OF  PERSON  AND  PROPERTY.    *  280 

decided  by  the  Supreme  Court  of  the  United  States,  though  not 
without  remonstrance  on  the  part  of  State  courts,1  that  an  agree- 
ment by  a  State,  for  a  consideration  received  or  supposed  to  be 
received,  that  certain  property,  rights,  or  franchises  shall  be 
exempt  from  taxation,  or  be  taxed  only  at  a  certain  *  agreed  [*  281] 
rate,  is  a  contract  protected  by  the  Constitution,  that  the 
question  can  no  longer  be  considered  an  open  one.2  In  any  case, 
however,  there  must  be  a  consideration,  so  that  the  State  can  be 
supposed  to  have  received  a  beneficial  equivalent ;  for  it  is  con- 
ceded on  all  sides  that  if  the  exemption  is  made  as  a  privilege 
only,  it  may  be  revoked  at  any  time.3 

1  Mechanics  and  Traders  Bank  v.  Debolt,  1  Ohio,  N.  8.  591;  Toledo  Bank  v. 
Bond,  ib.  622;  Knoop  v.  Piqua  Bank.  ib.  603  ;  Milan  and  R.  Plank  Road  Co.  v. 
Husted,  3  Ohio,  n.  s.  578;  Piscataqua  Bridge  v.  N.  H.  Bridge,  7  N.  H.  69; 
Brewster  v.  Hough,  10  N.  H.  143;  Backus  v.  Lebanon,  11  N.  H.  24;  Thorpe  v. 
R.  &  B.  R.R.  Co.,  27  Vt.  140;  Brainard  v.  Colchester,  31  Conn.  410;  Mott 
v.  Pennsylvania  R.R.  Co.,  30  Penn.  St.  9;  East  Saginaw  Salt  Manuf.  Co.  v. 
East  Saginaw,  19  Mich.  259.  See  also  the  dissenting  opinion  of  Mr.  Justice 
Miller  in  Washington  University  v.  Rouse,  8  Wal.  441,  in  which  the  Chief  Jus- 
tice and  Justice  Field  concurred.  Also  Raleigh,  &c,  R.R.  Co.  v.  Reid,  64 
N.  C.  155. 

2  New  Jersey  v.  Wilson,  7  Cranch,  164 ;  Gordon  v.  Appeal  Tax  Court, 
3  How.  133;  Piqua  Bank  v.  Knoop,  16  How.  369;  Ohio  Life  and  Trust  Co.  v. 
Debolt,  ib.  416  ;  Dodge  v.  Woolsey,  18  How.  331 ;  Mechanics  and  Traders 
Bank  v.  Debolt,  18  How.  380;  Mechanics  and  Traders  Bank  v.  Thomas,  ib. 
384  ;  McGee  v.  Mathis,  4  Wal.  143 ;  Home  of  the  Friendless  ».  Rouse,  8  Wal. 
430;  Washington  University  v.  Rouse,  ib.  431;  Wilmington  R.R.  Co.  v.  Reid, 
13  Wal.  264;  Raleigh  and  Gaston  R.R.  Co.  v.  Reid,  ib.  269.  See  also  Atwater 
v.  Woodbridge,  6  Conn.  223  ;  Osborne  v.  Humphrey,  7  Conn.  335 ;  Parker  v. 
Redfield,  10  Conn.  495;  Landon  v.  Litchfield,  11  Conn.  251;  Herrick  v.  Ran- 
dolph, 13  Vt.  525 ;  Armington  v.  Barnet,  15  Vt.  751 ;  O'Donnell  v.  Bailey,  24 
Miss.  386;  St.  Paul,  &c,  R.R.  Co.  v.  Parcher,  14  Minn.  297. 

3  Christ's  Church  v.  Philadelphia,  24  How.  300 ;  Brainard  v.  Colchester,  31 
Conn.  410.  See  also  Commonwealth  v.  Bird,  12  Mass.  442;  Dole  v.  The 
Governor,  3  Stew.  387.  If  an  exemption  from  taxation  exists  in  any  case,  it 
must  be  the  result  of  a  deliberate  intention  to  relinquish  this  prerogative  of 
sovereignty,  distinctly  manifested.  Easton  Bank  v.  Commonwealth,  10  Penn. 
St.  450;  Providence  Bank  v.  Billings,  4  Pet.  561  ;  Christ  Church  v.  Philadel- 
phia, 24  How.  302;  Gilman  v.  Sheboygan,  2  Black,  513;  Herrick  v.  Randolph, 
13  Vt.  531 ;  East  Saginaw  Salt  Manuf.  Co.  v.  East  Saginaw,  19  Mich.  259 ; 
s.  c.  13  Wal.  373  ;  People  v.  Roper,  25  N.  Y.  629  ;  People  v.  Commissioners  of 
Taxes,  47  N.  Y.  501;  Lord  v.  Litchfield,  36  Conn.  116;  s.  c.  4  Am.  Rep.  41; 
Erie  Railway  Co.  v.  Commonwealth,  66  Penn.  St.  84 ;  s.  c.  5  Am.  Rep.  351  ; 
Bradley  v.  McAtee,  7  Bush,  667 ;  s.  c.  3  Am.  Rep.  309 ;  North  Missouri  R.R. 
Co.  v.  Maguire,  49  Mo.  490 ;  s.  c.  8  Am.  Rep.  141. 

[317] 


*  281  CONSTITUTIONAL  LIMITATIONS.  [CH.  IX. 

The  power  of  the  legislature  to  preclude  itself  in  any  case  from 
exercising  the  power  of  eminent  domain  is  not  so  plainly  decided. 
It  must  be  conceded,  under  the  authorities,  that  the  State  may 
grant  exclusive  franchises,  —  like  the  right  to  construct  the  only 
railroad  which  shall  be  built  between  certain  termini ;  or  the  only 
bridge  which  shall  be  permitted  over  a  river  between  specified 
limits ;  or  to  own  the  only  ferry  which  shall  be  allowed  at  a  cer- 
tain point,1  —  but  the  grant  of  an  exclusive  privilege  will  not  pre- 
vent the  legislature  from  exercising  the  power  of  eminent  domain 
in  respect  thereto.  Franchises,  like  every  other  thing  of  value, 
and  in  the  nature  of  property,  within  the  State,  are  subject  to  this 
power,  and  any  of  their  incidents  may  be  taken  away,  or  them- 
selves altogether  annihilated  by  means  of  its  exercise.2  And  it  is 
believed  that  an  express  agreement  in  the  charter,  that  the  power 
of  eminent  domain  should  not  be  so  exercised  as  to  impair  or  affect 
the  franchise  granted,  if  not  void  as  an  agreement  beyond  the 
power  of  the  legislature  to  make,  must  be  considered  as  only  a 
valuable  portion  of  the  privilege  secured  by  the  grant,  and  as  such 
liable  to  be  appropriated  under  the  power  of  eminent 
[*  282]  domain.  The  exclusiveness  *of  the  grant,  and  the  agree- 
ment against  interference  with  it,  if  valid,  constitute 
elements  in  its  value  to  be  taken  into  account  in  assessing  com- 
pensation ;  but  appropriating  the  franchise  in  such  a  case  no  more 
violates  the  obligation  of  the  contract  than  does  the  appropriation 
of  land  which  the  State  has  granted  under  an  express  or  implied 
agreement  for  quiet  enjoyment  by  the  grantee,  but  which  never- 
theless may  be  taken  when  the  public  need  requires.  All  grants 
are  subject  to  this  implied  condition ;  and  it  may  well  be  worthy 
of  inquiry,  whether  the  agreement  that  a  franchise  granted  shall 
not  afterwards  be  appropriated  can  have  any  other  or  greater 
force  than  words  which  would  make  it  an  exclusive  franchise,  but 
which,  notwithstanding,  would  not  preclude  a  subsequent  grant 

1  West  River  Bridge  Co.  v.  Dix,  16  Vt.  446,  and  6  How.  507 ;  Binghampton 
Bridge  Case,  3  Wal.  51 ;  Shorter  v.  Smith,  9  Geo.  529 ;  Piscataqua  Bridge  v. 
N.  H.  Bridge,  7  N.  H.  35 ;  Boston  Water  Power  Co.  v.  Boston  and  Worcester 
R.R.  Co.,  23  Pick.  360;  Boston  and  Lowell  R.R.  v.  Salem  and  Lowell  R.R., 
2  Gray,  9;  Costar  v.  Brush,  25  Wend.  628;  California  Telegraph  Co.  v.  Alta 
Telegraph  Co.,  22  Cal.  398. 

2  Matter  of  Kerr,  42  Barb.  119  ;  Endfield  Toll  Bridge  Co.  v.  Hartford  and 
N.  H.  R.R.  Co.,  17  Conn.  40,  454;  West  River  Bridge  Co.  v.  Dix,  16  Vt.  446, 
and  6  How.  507. 

[318] 


CH.  IX.]   FEDERAL  PROTECTION  OF  PERSON  AND  PROPERTY.   *  282 

on  making  compensation.1  The  words  of  the  grant  are  as  much 
in  the  way  of  the  grant  of  a  conflicting  franchise  in  the  one  case 
as  in  the  other. 

It  has  also  been  intimated  in  a  very  able  opinion  that 
the  *  police  power  of  the  State  could  not  be  alienated  even  [*  283] 
by  express  grant.2   And  this  opinion  is  supported  by  those 

1  Mr.  Greenleaf,  in  a  note  to  his  edition  of  Cruise  on  Real  Property,  Vol.  II. 
p.  67,  says  upon  this  subject:  "  In  regard  to  the  position  that  the  grant  of  the 
franchise  of  a  ferry,  bridge,  turnpike,  or  railroad,  is  in  its  nature  exclusive,  so 
that  the  State  cannot  interfere  with  it  by  the  creation  of  another  similar  franchise, 
tending  materially  to  impair  its  value,  it  is  with  great  deference  submitted  that 
an  important  distinction  should  be  observed  between  those  powers  of  government 
which  are  essential  attributes  of  sovereignty,  indispensable  to  be  always  pre- 
served in  full  vigor,  such  as  the  power  to  create  revenues  for  the  public  purposes, 
to  provide  for  the  common  defence,  to  provide  safe  and  convenient  ways  for  the 
public  necessity  and  convenience,  and  to  take  private  property  for  public  uses, 
and  the  like,  and  those  powers  which  are  not  thus  essential,  such  as  the  power 
to  alienate  the  lands  and  other  property  of  the  State,  and  to  make  contracts  of 
service,  and  of  purchase  and  sale,  or  the  like.  Powers  of  the  former  cla.-s  are 
essential  to  the  constitution  of  society,  as  without  them  no  political  community 
can  well  exist;  and  necessity  requires  that  they  should  continue  unimpaired. 
They  are  intrusted  to  the  legislature  to  be  exercised,  not  to  be  bartered  away ; 
and  it  is  indispensable  that  each  legislature  should  assemble  with  the  same 
measure  of  sovereign  power  which  was  held  by  its  predecessors.  Any  act  of  the 
legislature  disabling  itself  from  the  future  exercise  of  powers  intrusted  to  it  for 
the  public  good  must  be  void,  being  in  effect  a  covenant  to  desert  its  paramount 
duty  to  the  whole  people.  It  is  therefore  deemed  not  competent  for  a  legislat- 
ure to  covenant  that  it  will  not,  under  any  circumstances,  open  another  avenue 
for  the  public  travel  within  certain  limits,  or  in  a  certain  term  of  time ;  such 
covenant  being  an  alienation  of  sovereign  powers,  and  a  violation  of  public  duty." 
See  also  Redfield  on  Railways  (3d  ed.),  Vol.  I.  p.  258.  That  the  intention  to 
relinquish  the  right  of  eminent  domain  is  not  to  be  presumed  in  any  legislative 
grant,  see  People  v.  Mayor,  &c,  of  New  York,  32  Barb.  113 ;  Illinois  and 
Michigan  Canal  v.  Chicago  and  Rock  Island  Railroad  Co.,  14  111.  321. 

2  "  We  think  the  power  of  the  legislature  to  control  existing  railways  in  this 
respect  may  be  found  in  the  general  control  over  the  police  of  the  country,  which 
resides  in  the  law-making  power  in  all  free  States,  and  which  is,  by  the  fifth  arti- 
cle of  the  Bill  of  Rights  in  this  State,  expressly  declared  to  reside  perpetually 
and  inalienably  in  the  legislature,  which  is,  perhaps,  no  more  than  the  enuncia- 
tion of  a  general  principle  applicable  to  all  free  states,  and  which  cannot  there- 
fore be  violated  so  as  to  deprive  the  legislature  of  the  power,  even  by  express 
grant,  to  any  mere  public  or  private  corporation.  And  when  the  regulation  of 
the  police  of  a  city  or  town,  by  general  ordinances,  is  given  to  such  cities  or 
towns,  and  the  regulation  of  their  own  internal  police  is  given  to  railroads,  to  be 
carried  into  effect  by  their  by-laws  and  other  regulations,  it  is,  of  course,  always, 
in  all  such  cases,  subject  to  the  superior  control  of  the  legislature.     That  is  a 

[319] 


*  283  CONSTITUTIONAL    LIMITATIONS.  [CH.  IX. 

cases  where  it  has  been  held  that  licenses  to  make  nse  of  property 
in  certain  modes  may  be  revoked  by  the  State,  notwithstanding 
they  may  be  connected  with  grants  and  based  upon  a  considera- 
tion.1    But  this  subject  we  shall  recur  to  hereafter. 

It  would  seem,  therefore,  to  be  the  prevailing  opinion,  and  one 
based  upon  sound  reason,  that  the  State  could  not  barter  away, 
or  in  any  manner  abridge  or  weaken,  any  of  those  essential 
powers  which  are  inherent  in  all  governments,  and  the  existence 
of  which  in  full  vigor  is  important  to  the  well-being  of  organized 
society ;  and  that  any  contracts  to  that  end,  being  without  author- 
ity, cannot  be  enforced  under  the  provision  of  the  national  Con- 
stitution now  under  consideration.  If  the  tax  cases  are  to  be 
regarded  as  an  exception  to  this  statement,  the  exception  is  per- 
haps to  be  considered  a  nominal  rather  than  a  real  one,  since 
taxation  is  for  the  purpose  of  providing  the  State  a  revenue,  and 
the  State  laws  which  have  been  enforced  as  contracts  in  these 

case  have  been  supposed  to  be  based  upon  consideration, 
[*  284]  *  by  which  the  State  receives  the  benefit  which  would  bave 

accrued  from  an  exercise  of  the  relinquished  power  in  the 
ordinary  mode. 

responsibility  which  legislatures  cannot  divest  themselves  of,  if  they  would." 
Thorpe  v.  R.  &  B.  R.R.  Co.,  27  Vt.  149,  per  Redfield,  Ch.  J.  See  also  Indian- 
apolis, &c,  R.R.  Co.  v.  Kcrcheval,  16  Ind.  84;  Ohio,  &c,  R.R.  Co.  v.  M'Clel- 
land,  25  111.  140.  See  State  v.  Noyes,  47  Me.  189,  on  the  same  subject.  In 
Bradley  v.  McAtee,  7  Bush,  367 ;  s.  c.  3  Am.  Rep.  309,  it  was  decided  that  a 
provision  in  a  city  charter  that,  after  the  first  improvement  of  a  street,  repairs 
should  be  made  at  the  expense  of  the  city,  was  not  a  contract;  and  on  its  repeal 
a  lot  owner,  who  had  paid  for  the  improvement,  might  have  his  lot  assessed  for 
the  repairs.  Compare  Hammett  v.  Philadelphia,  65  Penn.  St.  146;  8.  c.  3  Am. 
Rep.  615. 

1  See,  upon  this  subject,  Brick  Presbyterian  Church  v.  Mayor,  &c,  of  New 
York,  5  Cow.  538 ;  Vanderbilt  v.  Adams,  7  Cow.  349 ;  State  v.  Sterling,  8  Mo. 
697;  Hirn  v.  State,  1  Ohio,  N.  s.  15;  Calder  v.  Kurby,  5  Gray,  597;  Brimmer 
v.  Boston,  102  Mass.  19.  Whether  a  State,  after  granting  licenses  to  sell  liquors 
for  which  a  fee  is  received,  can  revoke  them  by  a  general  law  forbidding  sales,  is 
in  dispute  upon  the  authorities.  See  Freleigh  v.  State,  8  Mo.  606 ;  State  v. 
Sterling,  ib.  697 ;  Calder  v.  Kurby,  5  Gray,  597 ;  Metropolitan  Board  of  Ex- 
cise v.  Barrie,  34  N.  Y.  657 ;  and  Commonwealth  v.  Brennan,  103  Mass.  70, 
which  hold  that  it  may :  and  State  v.  Phalen,  3  Harr.  441  ;  Adams  v.  Hackett,  7 
Fost.  294;  and  Boyd  v.  State,  46  Ala.,  which  are  contra.  See  also  State  v. 
Hawthorn,  9  Mo.  389.  If  it  has  the  power,  it  would  seem  an  act  of  bad  faith  to 
exercise  it,  without  refunding  the  money  received  for  the  license.  Hirn  v.  State, 
1  Ohio,  N.  s.  21. 

[320] 


CH.  IX.]   FEDERAL  PROTECTION  OF  PERSON  AND  PROPERTY.    *  284 

"We  have  said  in  another  place  that  citizens  have  no  vested  right 
in  the  existing  general  laws  of  the  State  which  can  preclude  their 
amendment  or  repeal,  and  that  there  is  no  implied  promise  on  the 
part  of  the  State  to  protect  its  citizens  against  incidental  injury 
occasioned  by  changes  in  the  law.  Nevertheless  there  may  be 
laws  which  amount  to  propositions  on  the  part  of  the  State,  which, 
if  accepted  by  individuals,  will  become  binding  contracts.  Of  this 
class  are  perhaps  to  be  considered  bounty  laws,  by  which  the  State 
promises  the  payment  of  a  gratuity  to  any  one  who  will  do  any 
particular  act  supposed  to  be  for  the  State  interest.  Unquestion- 
ably the  State  may  repeal  such  an  act  at  any  time ; 1  but  when 
the  proposition  has  been  accepted  by  the  performance  of  the  act 
before  the  law  is  repealed,  the  contract  would  seem  to  be  com- 
plete, and  the  promised  gratuity  becomes  a  legal  debt.2  And 
where  a  State  was  owner  of  the  stock  of  a  bank,  and  by  the  law 
its  bills  and  notes  were  to  be  received  in  payment  of  all  debts 
due  to  the  State,  it  was  properly  held  that  this  law  constituted  a 
contract  with  those  who  should  receive  the  bills  before  its  repeal, 
and  that  a  repeal  of  the  law  could  not  deprive  these  holders  of  the 
right  which  it  assured.  Such  a  law,  with  the  acceptance  of  the 
bills  under  it,  "comes  within  the  definition  of  a  contract.  It  is 
a  contract  founded  upon  a  good  and  valuable  consideration, — 
a  consideration  beneficial  to  the  State,  as  its  profits  are  increased 
by  sustaining  the  credit,  and  consequently  extending  the  circula- 
tion of  the  paper  of  the  bank."3 

That  laws  permitting  the  dissolution  of  the  contract  of  mar- 
riage are  not  within  the  intention  of  the  clause  of  the  Constitution 
under  discussion  seems  to  be  the  prevailing  opinion.4  It  has  been 
intimated,  however,  that,  so  far  as  property  rights  are  concerned, 
the  contract  must  stand  on  the  same  footing  as  any  other,  and  that 
a  law  passed  after  the  marriage,  vesting  the  property  in  the  wife  for 

1  Christ  Church  v.  Philadelphia,  24  How.  300  ;  East  Saginaw  Salt  Manuf.  Co. 
v.  East  Saginaw,  19  Mich.  259 ;  s.  c.  2  Am.  Rep.  82,  and  13  Wall.  373. 

2  People  v.  Auditor-General,  9  Mich.  327.  See  Montgomery  v.  Kasson,  16 
Cal.  189 ;  Adams  v.  Palmer,  51  Me.  480. 

3  Woodruff  v.  Trapnall,  10  How.  190.  See  Winter  v.  Jones,  10  Geo.  190; 
Furman  v.  Nichol,  8  Wall.  4-1 ;  Antoni  v.  Wright,  22  Grat.  833. 

4  Per  Marshall,  Ch.  J.,  Dartmouth  College  v.  Woodward,  4  Wheat.  629; 
Maguire  v.  Maguire,  7  Dana,  183;  Clark  j;.  Clark,  10  N.  H.  385;  Cronise  v. 
Cronise,  54  Penn.  St.  255 ;  Carson  v.  Carson,  40  Miss.  349 ;  Adams  v.  Palmer, 

51  Me.  480. 

21  [321] 


*  284  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

her  sole  use,  would  be  void,  as  impairing  the  obligation  of 
[*  285]  contracts.1  *  But  certainly  there  is  no  such  contract  em- 
braced in  the  marriage  as  would  prevent  the  legislature 
changing  the  law,  and  vesting  in  the  wife  solely  all  property 
which  she  should  acquire  thereafter  ;  and  if  the  property  had 
already  become  vested  in  the  husband,  it  would  be  protected  in 
him,  against  legislative  transfer  to  the  wife,  on  other  grounds  than 
the  one  here  indicated. 

"  The  obligation  of  a  contract"  it  is  said,  "  consists  in  its  bind- 
ing force  on  the  party  who  makes  it.  This  depends  upon  the  laws 
in  existence  when  it  is  made ;  these  are  necessarily  referred  to 
in  all  contracts,  and  forming  a  part  of  them  as  the  measure  of 
the  obligation  to  perform  them  by  the  one  party,  and  the  right 
acquired  by  the  other.  There  can  be  no  other  standard  by  which 
to  ascertain  the  extent  of  either,  than  that  which  the  terms  of  the 
contract  indicate,  according  to  their  settled  legal  meaning  ;  when 
it  becomes  consummated,  the  law  defines  the  duty  and  tbe  right, 
compels  one  party  to  perform  the  thing  contracted  for,  and  gives 
the  other  a  right  to  enforce  the  performance  by  the  remedies  then 
in  force.  If  any  subsequent  law  affect  to  diminish  the  duty,  or  to 
impair  the  right,  it  necessarily  bears  on  the  obligation  of  the  con- 
tract, in  favor  of  one  party,  to  the  injury  of  the  other ;  hence  any 
law  which,  in  its  operations,  amounts  to  a  denial  or  obstruction  of 
the  rights  accruing  by  a  contract,  though  professing  to  act  only  on 
the  remedy,  is  directly  obnoxious  to  the  prohibition  of  the  Consti- 
tution." 2     "  It  is  the  civil  obligation  of  contracts  which  [the  Con- 

1  Holmes  v.  Holmes,  4  Barb.  295. 

2  McCracken  v.  Hayward,  2  How.  612.  "  The  obligation  of  a  contract  .  .  . 
is  the  law  which  binds  the  parties  to  perform  their  agreement.  The  law,  then, 
which  has  this  binding  obligation,  must  govern  and  control  the  contract,  in  every 
shape  in  which  it  is  intended  to  bear  upon  it,  whether  it  affects  its  validity,  con- 
struction, or  discharge.  It  is,  then,  the  municipal  law  of  the  State,  whether  that 
be  written  or  unwritten,  which  is  emphatically  the  law  of  the  contract  made 
within  the  State,  and  must  govern  it  throughout,  whenever  its  performance  is 
sought  to  be  enforced."  Washington,  J.,  in  Ogden  v.  Saunders,  12  Wheat.  259. 
"  As  I  understand  it,  the  law  of  the  contract  forms  its  obligation."  Thompson, 
J.,  ib.  3<)2.  "  The  obligation  of  the  contract  consists  in  the  power  and  efficacy 
of  the  law  which  applies  to,  and  enforces  performance  of,  the  contract,  or  the 
payment  of  an  equivalent  for  non-performance.  The  obligation  does  not  inhere 
and  subsist  in  the  contract  itself,  proprio  vigore,  but  in  the  law  applicable  to  the 
contract.     This  is  the  sense,  I  think,  in  which  the  Constitution  uses  the  term 

•  obligation.'  "     Trimble,  J.,  ib.  318.     And  see  Van  Baumbach  v.  Bade,  9  Wis. 

[322  ] 


CB\  IX.]   FEDERAL  PEOTECTION  TO  PERSON  AND  PROPERTY.    *  285 

stitution]   is  designed  to  reach ;   that  is,  the  obligation 
which  is  recognized  *  by,  and  results  from,  the  law  of  the  [*  286] 
State  in  which  it  is  made.     If,  therefore,  a  contract  when 
made  is  by  the  law  of  the  place  declared  to  be  illegal,  or  deemed 
to  be  a  nullity,  or  a  nude  pact,  it  has  no  civil  obligation,  because 
the  law,  in  such  cases,  forbids  its  having  any  binding  efficacy  or 
force.     It  confers  no  legal  right  on  the  one  party  and  no  corre- 
spondent legal  duty  on  the  other.     There  is  no  means  allowed  or 
recognized  to  enforce  it ;  for  the  maxim  is  ex  nudo  pacto  non  oritur 
actio.     But  when  it  does  not  fall  within  the  predicament  of  being 
either  illegal  or  void,  its  obligatory  force  is  coextensive  with  its 
stipulations."  * 

Such  being  the  obligation  of  a  contract,  it  is  obvious  that  the 
rights  of  the  parties  in  respect  to  it  are  liable  to  be  affected  in 
many  ways  by  changes  in  the  laws,  which  it  could  not  have  been 
the  intention  of  the  constitutional  provision  to  preclude.  "  There 
are  few  laws  which  concern  the  general  police  of  a  State,  or  the 
government  of  its  citizens,  in  their  intercourse  with  each  other  or 
with  strangers,  which  may  not  in  some  way  or  other  affect  the 
contracts  which  they  have  entered  into  or  may  thereafter  form. 
For  what  are  laws  of  evidence,  or  which  concern  remedies,  frauds, 
and  perjuries,  laws  of  registration,  and  those  which  affect  landlord 
and  tenant,  sales  at  auction,  acts  of  limitation,  and  those  which 
limit  the  fees  of  professional  men,  and  the  charges  of  tavern- 
keepers,  and  a  multitude  of  others  which  crowd  the  codes  of  every 
State,  but  laws  which  affect  the  validity,  construction,  or  duration, 
or  discharge  of  contracts  ?  "  2     But  the  changes  in  these  laws  are 

577;  Johnson  v.  Higgins,  3  Met.  (Ky.)  566.  A  law  giving  interest  on  debts 
which  bore  none  when  contracted,  was  held  void  in  Goggans  v.  Turnispeed,  1 
S.  C.  n.  s.  40 ;  s.  c.  7  Am.  Rep.  273.  The  legislature  cannot  authorize  the 
compulsory  extinction  of  ground  rents  on  payment  of  a  sum  in  gross.  Palairet's 
Appeal,  67  Penn.  St.  479 ;  s.  c.  5  Am.  Rep.  450. 

1  Story  on  Const.  §  1380.  Slave  contracts  which  were  legal  when  made,  are 
not  rendered  invalid  by  the  abolition  of  slavery,  nor  can  the  States  make  them 
void  by  their  constitutions,  or  deny  remedies  for  their  enforcement.  White  v. 
Hart,  13  Wall.  649 ;  Osborn  v.  Nicholson,  ib.  653.  An  act  of  indemnity  held 
not  to  relieve  a  Sheriff  from  his  obligation  on  his  official  bond  to  account  for 
moneys  which  had  been  paid  away  under  military  compulsion.  State  v.  Gatz- 
weiler,  89  Mo.  17 ;  s.  c.  8  Am.  Rep.  119. 

2  Washington,  J.,  in  Ogden  v.  Saunders,  12  Wheat.  259.  As  to  the  indirect 
modification  of   contracts  by  the  operation  of  police  laws,  see  post,  574-584. 

[323  ] 


*  286  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

not  regarded  as  necessarily  affecting  the  obligation  of  contracts. 
Whatever  belongs  merely  to  the  remedy  may  be  altered  accord- 
ing to  the  will  of  the  State,  provided  the  alteration  does  not 
impair  the  obligation  of  the  contract ; x  and  it  does  not  impair  it, 
provided  it  leaves  the  parties  a  substantial  remedy,  according  to 
the  course  of  justice  as  it  existed  at  the  time  the  contract  was 

made.2 
[*  287]        *  It   has   accordingly   been   held   that   laws   changing 
remedies   for  the  enforcement  of   legal  contracts  will  be 
valid,  even  though  the  new  remedy  be  less  convenient  than  the 
old,  or  less  prompt  and  speedy.3 

"  Without  impairing  the  obligation  of  the  contract,  the  remedy 
may  certainly  be  modified  as  the  wisdom  of  the  nation  shall 
direct." 4     To  take  a  strong  instance ;    although  the  law  at  the 

The  taxing  power  conferred  upon  a  municipal  corporation  is  not  a  contract 
between  it  and  the  State.    Richmond  v.  Richmond,  &c,  R.  R.  Co.,  21  Grat.  611. 

1  Bronson  v.  Kinzie,  1  How.  316,  per  Taney,  Ch.  J. 

2  Stocking  v.  Hunt,  3  Denio,  274 ;  Van  Baumbach  v.  Bade,  9  Wis.  578 ; 
Bronson  t>.  Kinzie,  1  How.  316  ;  McCracken  v.  Hayward,  2  How.  608 ;  Butler  v. 
Palmer,  1  Hill,  324;  Van  Renselaer  v.  Snyder,  9  Barb.  302,  and  13  N.  Y.  299; 
Conkey  v.  Hart,  14  N.  Y.  22  ;  Guild  v.  Rogers,  8  Barb.  502  ;  Story  v.  Furman, 
25  N.  Y.  214;  Coriell  v.  Ham,  4  Greene  (Iowa),  455;  Heyward  v.  Judd,  4 
Minn.  483  ;  Swift  v.  Fletcher,  6  Minn.  550  ;  Maynes  v.  Moor,  16  Ind.  116  ;  Smith 
v.  Packard,  12  Wis.  371 ;  Grosvenor  v.  Chesley,  48  Me.  369  ;  Van  Renselaer  v. 
Ball,  19  N.  Y.  100;  Van  Renselaer  v.  Hays,  ib.  68;  Litchfield  v.  McComber, 
42  Barb.  288  ;  Paschal  v.  Perez,  7  Texas,  365  ;  Auld  v.  Butcher,  2  Kansas,  155  ; 
Kenyon  v.  Stewart,  44  Penn.  St.  179  ;  Clark  v.  Martin,  49  Penn.  St.  299  ;  Rison 
v.  Farr,  24  Ark.,  161;  Sanders  i'.  Hillsborough  Insurance  Co.,  44  N.  H.  238; 
Huntzinger  v.  Brock,  3  Grant's  Cases,  243 ;  Mechanics,  &c,  Bank  Appeal,  31 
Conn.  63. 

3  Odgen  v.  Saunders,  12  Wheat.  270;  Beers  v.  Haughton,  9  Pet.  359;  Bum- 
gardner  v.  Circuit  Court,  4  Mo.  50 ;  Trapley  v.  Hamer,  17  Miss.  310 ;  Quack- 
enbush  v.  Danks,  1  Denio,  128,  3  Denio  594,  and  1  N.  Y.  129 ;  Bronson  v. 
Newberry,  2  Doug.  Mich.  38 ;  Rockwell  v.  Hubbell's  Adm'rs,  ib.  197  ;  Evans  v. 
Montgomery,  4  W.  &  S.  218 ;  Holloway  v.  Sherman,  12  Iowa,  282 ;  Sprecker 
v.  Wakeley,  11  Wis.  432;  Smith  v.  Packard,  12  Wis.  371 ;  Porter  v.  Mariner,  50 
Mo.  364;  Morse  v.  Goold,  11  N.  Y.  281 ;  Penrose  v.  Erie  Canal  Co.,  56  Penn. 
St.  46  ;  Smith  v.  Van  Gilder,  26  Ark.  527. 

4  Sturges  v.  Crowninshield,  4  Wheat.  122,  per  Marshall,  Ch.  J.  A  statute 
allowing  the  defence  of  want  of  consideration  in  a  sealed  instrument  previously 
given  does  not  violate  the  obligation  of  contracts.  Williams  v.  Haines,  27  Iowa, 
251.  See,  further,  Parsons  v.  Casey,  28  Iowa,  436  ;  Curtis  v.  Whitney,  13  Wall. 
68;  Cook  v.  Gregg,  46  N.  Y.  439.  A  statutory  judgment  lien  may  be  taken 
away.   Watson  v.  N.  Y.  Central  R.R.  Co.,  47  N.  Y.  157 ;  Woodbury  v.  Grimes, 

[324] 


CH.  IX.]   FEDERAL  PROTECTION  TO  PERSON  AND  PROPERTY.    *  287 

time  the  contract  is  made  permits  the  creditor  to  take  the  body  of 
his  debtor  in  execution,  there  can  be  no  doubt  of  the  right 
to  abolish  all  laws  for  this  purpose,  leaving  the  creditor  to  his 
remedy  against  property  alone.  "  Confinement  of  the  debtor  may 
be  a  punishment  for  not  performing  his  contract,  or  may  be  al- 
lowed as  a  means  of  inducing  him  to  perform  it.  But  the  State 
may  refuse  to  inflict  this  punishment,  or  may  withhold  this  means, 
and  leave  the  contract  in  full  force.  Imprisonment  is  no  part  of 
the  contract,  and  simply  to  release  the  prisoner  does  not  impair 
the  obligation."1  Nor  is  there  any  constitutional  objection  to 
such  a  modification  of  those  laws  which  exempt  certain  portions 
of  a  debtor's  property  from  execution  as  shall  increase  the 
exemptions,  nor  to  the  modifications  being  made  applicable  to 
contracts  previously  entered  into.  The  State  "  may,  if  it  thinks 
proper,  direct  that  the  necessary  implements  of  agriculture,  or  the 
tools  of  the  mechanic,  or  articles  of  necessity  in  household  fur- 
niture, shall,  like  wearing  apparel,  not  be  liable  to  execution  on 
judgments.  Regulations  of  this  description  have  always  been  con- 
sidered, in  every  civilized  community,  as  properly  belonging  to  the 
remedy,  to  be  exercised  or  not,  by  every  sovereignty,  ac- 
cording to  its  own  views  of  policy  and  humanity.  It  *must  [*  288] 
reside  in  every  State  to  enable  it  to  secure  its  citizens  from 
unjust  and  harrassing  litigation,  and  to  protect  them  in  those  pur- 
suits which  are  necessary  to  the  existence  and  well-being  of  every 
community."  2 

1  Col.  100.  Or  extended  before  it  has  expired.  Ellis  v.  Jones,  51  Mo.  180. 
The  obligation  of  the  contract  is  not  impaired  if  a  substantial  remedy  remains. 
Richmond  v.  Richmond,  &c,  R.R.  Co.,  21  Grat.  611. 

1  Sturges  v.  Crowninshield,  4  Wheat.  122,  per  Marshall,  Ch.  J. ;  Mason  v. 
Haile,  12  Wheat.  370;  Bronson  v.  Newberry,  2  Doug.  (Mich.)  38;  Maxey  v. 
Loyal,  38  Geo.  540.  A  special  act  admitting  a  party  imprisoned  on  a  judgment  for 
tort  to  take  the  poor  debtors1  oath  was  sustained  in  Matter  of  Nichols,  8  R.  I.  50. 

2  Bronson  v.  Kinzie,  1  How.  311,  per  Taney,  Ch.  J.  ;  Rockwell  v.  HnbhelFs 
AdmVs,  2  Doug.  (Mich.)  197  ;  Quackenbush  v.  Danks,  1  Denio,  128,  3  Denio, 
594,  and  1  NY.  129;  Morse  v.  Goold,  11  N.  Y.  281;  Sprecker  v.  Wakeley,  11 
Wis.  432;  Cusic  ».  Douglas,  3  Kansas,  123;  Maxey  v.  Loyal,  38  Geo.  531; 
Hardhnan  v.  Downer,  3y  Geo.  425;  Hill  v.  Kessler,  63  N.  C.  437;  Farley  v. 
Dowe,  45  Ala.  321 ;  Sneider  v.  Heidelberger,  ib.  126  ;  In  re  Kennedy,  2  S.  C. 
N.  s.  216  ;  Gunn  v.  Barry,  44  Geo.  351.  The  case  of  Kibbey  v.  Jones,  7  Bush, 
243,  seems  to  be  contra.  The  increase  in  exemptions,  however,  must  not  go  to 
the  extent  to  render  the  remedy  nugatory  or  impracticable.  Stephenson  v. 
Osborne,  41  Miss.  119.     It  has  been  decided  that  a  homestead  exemption  may 

[325  ] 


*  288  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

And  laws  which  change  the  rules  of  evidence  relate  to  the 
remedy  only ;  and  while,  as  we  have  elsewhere  shown,  such  laws 
may,  on  general  principles,  be  applied  to  existing  causes  of  action, 
so,  too,  it  is  plain  that  they  are  not  precluded  from  such  application 
by  the  constitutional  clause  we  are  considering.1  And  it  has 
been  held  that  the  legislature  may  even  take  away  a  common- 
law  remedy  altogether,  without  substituting  any  in  its  place, 
if  another  and  efficient  remedy  remains.  Thus,  a  law  abolishing 
distress  for  rent  has  been  sustained  as  applicable  to  leases  in  force 
at  its  passage ; 2  and  it  was  also  held  that  an  express  stipulation 
in  the  lease,  that  the  lessor  should  have  this  remedy,  would  not 
prevent  the  legislature  from  abolishing  it,  because  this  was  a 
subject  concerning  which  it  was  not  competent  for  the  parties  to 
contract  in  such  manner  as  to  bind  the  hands  of  the  State.  In 
the  language  of  the  court :  "  If  this  is  a  subject  on  which  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  whatever  at  any  time  exists  as 
part  of  the  machinery  for  the  administration  of  justice  may  be 
perpetuated,  if  parties  choose  so  to  agree.  That  this  can  scarcely 
have  been  within  the  contemplation  of  the  makers  of  the  Consti- 
tution, 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  continuance  of  the 
[*  289]   process.     The  State  is  no  party  to  *  their  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 

be  made  applicable  to  previously  existing  contracts.  Hill  v.  Kessler,  63  N.  C. 
437  ;  Hardiman  v.  Downer,  39  Geo.  425 ;  Ladd  v.  Adams,  66  N.  C.  164.  Contra, 
Homestead  Cases,  22  Grat.  266.  4'  Statutes  pertaining  to  the  remedy  are  merely 
such  as  relate  to  the  course  and  form  of  proceedings,  but  do  not  affect  the  sub- 
stance of  a  judgment  when  pronounced."  Per  Merrick,  Ch.  J.,  in  Morton  v. 
Valentine,  15  La.  An.  153.    See  Watson  v.  N.  Y.  Central  R.R.  Co. ,  47  N.  Y.  157. 

1  Neass  v.  Mercer,  15  Barb.  318.  On  this  subject  see  the  discussions  in  the 
Federal  courts,  Sturges  v.  Crowninshield,  4  Wheat.  122  ;  Ogden  v.  Saunders, 
12  Wheat.  213  ;  Bronson  v.  Kinzie,  1  How.  311 ;  McCracken  v.  Hayward,  2  How. 
608  ;  Curtis  v.  Whitney,  13  Wall.  68. 

2  Van  Renselaer  v.  Synder,  9  Barb.  302,  and  13  N.  Y.  299  ;  Guild  v.  Rogers, 
8  Barb.  502 ;    Conkey  v.  Hart,  14  N.  Y.  22. 

[326  ] 


CH.  IX.]   FEDERAL  PROTECTION  TO  PERSON  AND  PROPERTY.    *  289 

subject  of  contract  between  private  parties.  In  truth,  it  is  not  at 
all  probable  that  the  parties  made  their  agreement  with  reference 
to  the  possible  abolition  of  distress  for  rent.  The  first  clause  of 
this  special  provision  is,  that  the  lessor  may  distrain,  sue,  re-enter, 
or  resort  to  any  other  legal  remedy,  and  the  second  is,  that  in 
cases  of  distress  the  lessee  waives  the  exemption  of  certain 
property  from  the  process,  which  by  law  was  exempted.  This 
waiver  of  exemption  was  undoubtedly  the  substantial  thing  which 
the  parties  had  in  view ;  but  yet  perhaps  their  language  cannot  be 
confined  to  this  object,  and  it  may  therefore  be  proper  to  consider 
the  contract  as  if  it  had  been  their  clear  purpose  to  preserve  their 
legal  remedy,  even  if  the  legislature  should  think  fit  to  abolish  it. 
In  that  aspect  of  it  the  contract  was  a  subject  over  which  they  had 
no  control."  x 

But  a  law  which  deprives  a  party  of  all  legal  remedy  must 
necessarily  be  void.  "  If  the  legislature  of  the  State  were  to 
undertake  to  make  a  law  preventing  the  legal  remedy  upon  a 
contract  lawfully  made,  and  binding  on  the  party  to  it,  there  is  no 
question  that  such  legislature  would,  by  such  act,  exceed  its  legiti- 
mate powers.  Such  an  act  must  necessarily  impair  the  obligation 
of  the  contract  within  the  meaning  of  the  Constitution."2  This 
has  been  held  in  regard  to  those  cases  in  which  it  was  sought  to 
deprive  certain  classes  of  persons  of  the  right  to  maintain  suits, 
because  of  their  having  participated  in  rebellion  against  the 
government.3     And   where   a  statute   does   not   leave  a  party  a 

1  Conkey  v.  Hart.  14  N.  Y.  30;  citing  Handy  v.  Chatfield,  23  Wend.  35; 
Mason  v.  Haile,  12  Wheat.  370  ;  Stocking  v.  Hunt,  3  Denio,  274  ;  and  Van  Ren- 
selaer  v.  Snyder,  13  N.  Y.  299. 

2  Call  v.  Hagger,  8  Mass.  430.  Osborne  v.  Nicholson,  13  Wall.  662 ;  U.  S. 
v.  Conway,  Hempst.  313 ;  Johnson  v.  Bond,  ib.  533 ;  West  v.  Sansom,  44  Geo. 
295.  See  Griffin  v.  Wilcox,  21  Ind.  370 ;  Penrose  v.  Erie  Canal  Co.,  56  Penn.  St. 
46.  In  Jackoway  v.  Denton,  25  Ark.  641,  a  clause  in  the  Constitution  of  Ar- 
kansas declaring  all  contracts  for  the  sale  or  purchase  of  slaves  void,  was  held 
invalid.  Affirmed  in  White  v.  Hart,  13  Wall.  649.  An  act  withdrawing  all  the 
property  of  a  debtor  from  the  operation  of  legal  process,  leaving  only  a  barren 
right  to  sue,  is  void.     State  v.  Bank  of  South  Carolina,  1  S.  C.  n.  S.  63. 

3  Rison  v.  Farr,  24  Ark.  161;  McFarland  v.  Butler,  8  Minn.  116;  Jackson 
v.  Same,  ib.  117.  The  case  of  Drehman  v.  Stifle,  8  Wall.  599,  should  be  consid- 
ered in  connection  with  these.  A  remedy  may,  however,  be  denied  to  a  party 
until  he  has  performed  his  duty  to  the  State  in  respect  to  the  demand  in  suit : 
e.  g.  paid  the  tax  upon  the  debt  sued  for.  Walker  v.  Whitehead,  43  Geo.  538  ; 
Garrett  v.  Cordell,  ib.  366  ;  Welborn  v.  Akin,  44  Geo.  420. 

[  327] 


*  289  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

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  proceedings  to  enforce 
the  remedy,  so  as  to  destroy  it  entirely,  and  thus  impair 
[*  290]  the  contract  so  far  as  it  is  in  the  *  power  of  the  legislat- 
ure to  do  it,  such  statute  cannot  be  regarded  as  a  mere 
regulation  of  the  remedy,  but  is  void,  because  a  substantial  denial 
of  right.1 

And  where  a  statute  dividing  a  town  and  incorporating  a  new 
one  enacted  that  the  new  town  should  pay  its  proportion  towards 
the  support  of  paupers  then  constituting  a  charge  against  the  old 
town,  it  was  held  that  a  subsequent  statute  exonerating  the  new 
town  from  this  liability  was  void  as  impairing  the  contract  created 
by  the  first-mentioned  statute.2  And  in  any  case  the  lawful  repeal 
of  a  statute  cannot  constitutionally  be  made  to  destroy  contracts 
which  have  been  entered  into  under  it,  but  being  legal  when  made, 
they  remain  valid  notwithstanding  the  repeal.3 

80  where,  by  its  terms,  a  contract  provides  for  the  payment  of 
money  by  one  party  to  another,  and,  by  the  law  then  in  force, 
property  would  be  liable  to  be  seized,  and  sold  on  execution  to  the 
highest  bidder,  to  satisfy  any  judgment  recovered  on  such  contract, 
a  subsequent  law,  forbidding  property  from  being  sold  on  execution 
for  less  than  two  thirds  the  valuation  made  by  appraisers,  pursuant 
to  the  directions  contained  in  the  law,  though  professing  to  act 
only  on  the  remedy,  amounts  to  a  denial  or  obstruction  of  the 
rights  accruing  by  the  contract,  and  is  directly  obnoxious  to  the 
prohibition  of  the  Constitution.4     So  a  law  which  takes  away  from 

1  Oatnian  v.  Bond,  15  Wis.  28.     As  to  control  of  remedies,  see  post,  361. 

2  Bowdoinham  v .  Richmond,  6  Greenl.  12. 

3  Tuolumne  Redemption  Co.  v.  Sedgwick,  15  Cal.  515;  McCauley  v.  Brooks, 
16  Cal.  11  ;  Commonwealth  v.  New  Bedford  Bridge,  2  Gray,  339;  State  v. 
Phalen,  3  Harr.  441 ;  State  v.  Hawthorn,  9  Mo.  389. 

4  McCracken  v.  Hayward,  2  How.  608 ;  Willard  v.  Longstreet,  2  Doug.  (Mich.) 
172;  Rawley  v.  Hooker,  21  Ind.  144.  So  a  law  which,  as  to  existing  mortgages 
foreclosable  by  sale,  prohibits  the  sale  for  less  than  half  the  appraised  value  of 
the  land,  is  void  for  the  same  reason.  Gantley's  Lessee  i».  Ewing,  3  How.  707  ; 
Bronson  v.  Kinzie,  1  How.  311.  And  a  law  authorizing  property  to  be  turned 
out  in  satisfaction  of  a  contract  is  void.  Abercrombie  v.  Baxter,  44  Geo.  36. 
The  "scaling  laws,"  so  called,  under  which  contracts  made  while  Confederate 
notes  were  the  only  currency,  are  allowed  to  be  satisfied  on  payment  of  a  sum 
equal  to  what  the  sum  called  for  bv  them  in  Confederate  notes  was  worth  when 

[328] 


CH.  IX.]   FEDERAL  PROTECTION  TO  PERSON  AND  PROPERTY.    *  290 

mortgagees  the  right  to  possession  under  their  mortgages  until 
after  foreclosure  is  void,  because  depriving  them  of  the  right  to  the 
rents  and  profits,  which  was  a  valuable  portion  of  the  right  secured 
by  the  contract.  "  By  this  act  the  mortgagee  is  required  to  incur 
the  additional  expense  of  foreclosure,  before  obtaining  possession, 
and  is  deprived  of  the  right  to  add  to  his  security,  by  the  percep- 
tion of  the  rents  and  profits  of  the  premises,  daring  the  time 
required  to  accomplish  this  and  the  time  of  redemption,  and  during 
that  time  the  rents  and  profits  are  given  to  another,  who  may  or 
may  not  appropriate  them  to  the  payment  of  the  debt,  as 
he  chooses,  and  the  mortgagee  in  the  *  mean  time  is  sub-  [*  291] 
jected  to  the  risk,  often  considerable,  of  the  depreciation  in 
the  value  of  the  security/' 1  So  a  law  is  void  which  extends  the 
time  for  the  redemption  of  lands  sold  on  execution,  or  for  delin- 
quent taxes,  after  the  sales  have  been  made  ;  for  in  such  a  case  the 
contract  with  the  purchaser,  and  for  which  he  has  paid  his  money, 
is,  that  he  shall  have  title  at  the  time  then  provided  by  the  law ; 
and  to  extend  the  time  for  redemption  is  to  alter  the  substance  of 
the  contract,  as  much  as  would  be  the  extension  of  the  time  for 
payment  of  a  promissory  note.2  So  a  law  which  shortens  the  time 
for  redemption  from  a  mortgage,  after  a  foreclosure  sale  has  taken 
place,  is  void  ;  the  rights  of  the  party  being  fixed  by  the  foreclosure 
and  the  law  then  in  force,  and  the  mortgagor  being  entitled,  under 

they  were  made,  have  been  sustained,  but  this  is  on  the  assumption  that  the  con- 
tracts are  enforced  as  near  as  possible  according  to  the  actual  intent.  Harmon  v. 
Wallace,  2  S.  C.  n.  s.  208;  Robeson  v.  Brown,  63  N.  C.  554;  Hillard  v. 
Moore,  65  N.  C.  540;  Pharis  v.  Dice,  21  Grat.  303;  Thornington  v.  Smith, 
8  Wall.  1. 

1  Mundy  v.  Monroe,  1  Mich.  76  ;  Blackwood  v.  Vanvleet,  11  Mich.  252.  Com- 
pare Dikeman  v.  Dikeman,  11  Paige,  484 ;  James  v.  Stull,  9  Barb.  482 ;  Cook  v. 
Gray,  2  Houston,  455.  In  the  last  case  it  was  held  that  a  statute  shortening  the 
notice  to  be  given  on  foreclosure  of  a  mortgage  under  the  power  of  sale,  from 
twenty-four  to  twelve  weeks,  was  valid  as  affecting  the  remedy  only  ;  and  that  a 
stipulation  in  a  mortgage  that  on  default  being  made  in  payment  the  mortgagee 
might  sell  "  according  to  law,"  meant  according  to  the  law  as  it  should  be  when 
sale  was  made.  See  also  Bathold  v.  Fox,  13  Minn.  501,  in  which  it  was  decided 
that  in  the  case  of  a  mortgage  given  while  the  law  allowed  the  mortgagee  posses- 
sion during  the  period  allowed  for  redemption  after  foreclosure,  such  law  might 
be  so  changed  as  to  take  away  this  right. 

2  Robinson  v.  Howe,  13  Wis.  341 ;  Dikeman  v.  Dikeman,  11  Paige,  484 ;  Goe- 
nen  v.  Schroeder,  8  Minn.  387.  But  see  Stone  v.  Basset,  4  Minn.  298  ;  Hey  ward 
v.  Judd,  ib.  483 ;  Freeborn  v.  Pettibone,  5  Minn.  277. 

[329  ] 


*  291  CONSTITUTIONAL    LIMITATIONS.  [CH.  IX. 

the  law,  to  possession  of  the  land  until  the  time  of  redemption 
expires.1  And  where  by  statute  a  purchaser  of  lands  from  the 
State  had  the  right,  upon  the  forfeiture  of  his  contract  of  purchase 
for  the  non-payment  of  the  sum  due  upon  it,  to  revive  it  at  any 
time  before  a  public  sale  of  the  lands,  by  the  payment  of  all  sums 
due  upon  the  contract,  with  a  penalty  of  five  per  cent,  it  was  held 
that  this  right  could  not  be  taken  away  by  a  subsequent  change 

in  the  law  which  subjected  the  forfeited  lands  to  private 
[*  292]  entry  and  sale.2     And  a  statute  which  *  authorizes  stay  of 

execution,  for  an  unreasonable  or  indefinite  period,  on 
judgments  rendered  on  pre-existing  contracts,  is  void,  as  postpon- 
ing payment,  and  taking  away  all  remedy  during  the  continuance 
of  the  stay.3     And  a  law  is  void  on  this  ground  which  declares  a 

1  Cargill  v.  Power,  1  Mich.  369.  The  contrary  ruling  was  made  in  Butler  v. 
Palmer,  1  Hill,  324,  by  analogy  to  the  statute  of  limitations.  The  statute,  it  was 
said,  was  no  more  in  effect  than  saying :  "  Unless  you  redeem  within  the  shorter 
time  prescribed,  you  shall  have  no  action  for  a  recovery  of  the  land,  nor  shall 
your  defence  against  an  action  be  allowed,  provided  you  get  possession."  And 
in  Robinson  v.  Howe,  13  Wis.  346,  the  court,  speaking  of  a  similar  right  in  a 
party,  say  :  "  So  far  as  his  right  of  redemption  was  concerned,  it  was  not  derived 
from  any  contract,  but  was  given  by  the  law  only ;  and  the  time  within  which  he 
might  exercise  it  might  be  shortened  by  the  legislature,  provided  a  reasonable 
time  was  left  in  which  to  exercise  it,  without  impairing  the  obligation  of  any  con- 
tract."   And  see  Smith  v.  Packard,  12  Wis.  371,  to  the  same  effect. 

2  State  v.  Commissioners  of  School  and  University  lands,  4  Wis.  414. 

3  Chadwick  v.  Moore,  8  W.  &  S.  49;  Bunn  t;.  Gorgas,  41  Penn.  St.  441; 
Stevens  v.  Andrews,  31  Mo.  205 ;  Hasbrouck  v.  Shipman,  16  Wis.  296.  In  Brei- 
tenbach  v.  Bush,  44  Penn.  St.  313,  and  Coxe  v.  Martin,  ib.  322,  it  was  held  that 
an  act  staying  all  civil  process  against  volunteers  who  had  enlisted  in  the  national 
service  for  three  years  or  during  the  war  was  valid,  —  "  during  the  war  "  being 
construed  to  mean  unless  the  war  should  sooner  terminate.  See  also  State  v. 
Carew,  13  Rich.  498.  A  general  law  that  all  suits  pending  should  be  continued 
until  peace  between  the  Confederate  States  and  the  United  States,  was  held  void 
in  Burt  v.  Williams,  24  Ark.  94.  See  also  Taylor  v.  Stearns,  18  Grat.  244 ; 
Hudspeth  v.  Davis,  41  Ala.  389 ;  Aycock  v.  Martin,  37  Geo.  124 ;  Coffman  v. 
Bank  of  Kentucky,  40  Miss.  29 ;  Jacobs  v.  Smallwood,  63  N.  C.  112 ;  Cutts  v. 
Hardee,  38  Geo.  350 ;  Sequestration  Cases,  30  Texas,  688.  A  law  permitting  a 
year's  stay  upon  judgments  where  security  is  given,  is  valid.  Farnsworth  v. 
Vance,  2  Cold.  108.  But  a  statute  was  held  void  which  stayed  all  proceedings 
against  volunteers  who  had  enlisted  "during  the  war,"  this  period  being  indefinite, 
Clark  v.  Martin,  3  Grant's  Cas.  393.  In  Johnson  v.  Higgins,  3  Met.  (Ky.)  566, 
it  was  held  that  the  act  of  the  Kentucky  legislature  of  May  24,  1861,  which  for- 
bade the  rendition  in  all  the  courts  of  the  State,  of  any  judgment  from  date  till 
January  1st,   1862,  was  valid.     It  related,  it  was  said,  not  to  the  remedy  for 

[  330] 


CH.  IX.]   FEDERAL  PROTECTION  TO  PERSON  AND  PROPERTY.    *  292 

forfeiture  of  the  charter  of  a  corporation  for  acts  or  omissions 
which  constituted  no  cause  of  forfeiture  at  the  time  they  occurred.1 
And  it  has  been  held  that  where  a  statute  authorized  a  municipal 
corporation  to  issue  bonds,  and  to  exercise  the  power  of  local  tax- 
ation in  order  to  pay  them,  and  persons  bought  and  paid  value  for 
bonds  issued  accordingly,  this  power  of  taxation  is  part  of  the  con- 
tract, and  cannot  be  withdrawn  until  the  bonds  are  satisfied ;  that 
an  attempt  to  repeal  or  restrict  it  by  statute  is  void  ;  and  that 
unless  the  corporation  imposes  and  collects  the  tax  in  all  respects 
as  if  the  subsequent  statute  had  not  been  passed,  it  will  be  com- 
pelled to  do  so  by  mandamus.2     And  it  has  also  been  held  that  a 
statute  repealing  a  former  statute,  which  made  the  stock  of  stock- 
holders in  a  corporation  liable  for  its  debts,  was,  in  respect  to 
creditors  existing  at  the  time  of  the  repeal,  a  law  impairing  the 
obligation    of  contracts.3      In  each  of  these  cases  it  is 
evident  that  substantial  rights   *  were  affected  ;    and   so  [*  293] 
far  as  the  laws  which  were  held  void  operated  upon  the 
remedy,  they  either  had  an  effect  equivalent  to  importing  some 
new  stipulation  into  the  contract,  or  they  failed  to  leave  the  party  a 
substantial  remedy  such  as  was  assured  to  him  by  the  law  in  force 
when  the  contract  was  made.      In  Pennsylvania  it  has  been  held 
that  a  statute  authorizing  a  stay  of  execution  on  contracts  in  which 
the  debtor  had  waived  the  right  was  unconstitutional ; 4  but  it  seems 
to  us  that  an  agreement  to  waive  a  legal  privilege  which  the  law 
gives  as  a  matter  of  State  policy  cannot  be  binding  upon  a  party, 
unless  the  law  itself  provides  for  the  waiver.5 

enforcing  a  contract,  but  to  the  courts  which  administer  the  remedy  ;  and  those 
courts,  in  a  legal  sense,  constitute  no  part  of  the  remedy.  A  law  exempting 
soldiers  from  civil  process  until  thirty  days  after  their  discharge  from  military 
service  was  held  valid  as  to  all  contracts  subsequently  entered  into,  in  Bruns  v. 
Crawford,  34  Mo.  330.  And  see  McCormick  v.  Rusch,  15  Iowa,  127.  A  statute 
suspending  limitation  laws  during  the  existence  of  civil  war,  and  until  the  State 
was  restored  to  her  proper  relations  to  the  Union,  was  sustained  in  Bender  v.  Craw- 
ford, 33  Texas,  745.     Compare  Bradford  v.  Shine,  13  Fla.  393. 

1  People  u.  Jackson  and  Michigan  Plank  Road  Co.,  9  Mich.  285,  per  Chris- 
tiancy,  J. ;  State  v.  Tombeckbee  Bank,  2  Stew.  30.  See  Ireland  v.  Turnpike  Co., 
19  Ohio,  k.  s.  373. 

2  Van  Hoffman  v.  Quincy,  4  Wall.  535.  See  also  Soutter  v.  Madison,  15  Wis. 
30  ;  Smith  v.  Appleton,  19  Wis.  468. 

3  Hawthorne  v.  Calef,  2  Wall.  10. 

4  Billmeyer  v.  Evans,  40  Penn.  St.  324 ;  Lewis  v.  Lewis,  44  Penn.  St.  127. 

5  See  Conkey  v.  Hart,  14  N.  Y.  30;  Handy  v.  Chatfield,  23  Wend.  35. 

[331] 


*  293  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

Where,  however,  by  the  operation  of  existing  laws,  a  contract 
cannot  be  enforced  without  some  new  action  of  a  party  to  fix  his 
liability,  it  is  as  competent  to  prescribe  by  statute  the  requisites  to 
the  legal  validity  of  such  act  as  it  would  be  in  any  case  to  prescribe 
the  legal  requisites  of  a  contract  to  be  thereafter  made.  Thus, 
though  a  verbal  promise  is  sufficient  to  revive  a  debt  barred  by 
the  statute  of  limitations  or  by  bankruptcy,  yet  this  rule  may  be 
changed  by  a  statute  making  all  such  future  promises  void  unless 
in  writing.1  It  is  also  equally  true  that  where  a  legal  impediment 
exists  to  the  enforcement  of  a  contract  which  parties  have  entered 
into,  the  constitutional  provision  in  question  will  not  preclude  the 
legislature  from  removing  such  impediment  and  validating  the 
contract.  A  statute  of  that  description  would  not  impair  the  obli- 
gation of  contracts,  but  would  perfect  and  enforce  it.2  And  for 
similar  reasons  the  obligation  of  contracts  is  not  impaired  by  con- 
tinuing the  charter  of  a  corporation  for  a  certain  period,  in  order 
to  the  proper  closing  its  business.3 

One  other  topic  remains  to  be  mentioned  in  this  connection,  and 
that  relates  to  the  power  of  the  States  to  pass  insolvent  laws,  and 
the  classes  of  contracts  to  which  they  may  be  made  to  apply.  As 
this  whole  subject  has  been  gone  over  very  often  and  very  fully  by 
the  Supreme  Court  of  the  United  States,  and  the  important  ques- 
tions seem  at  last  to  be  finally  set  at  rest,  and  moreover  as  it  is 
comparatively  unimportant  while  a  federal  bankrupt  law 
[*  294]  exists,  we  shall  *  content  ourselves  with  giving  what  we 
understand  to  be  the  conclusions  of  the  court. 

1.  The  several  States  have  power  to  legislate  on  the  subject  of 
bankrupt  and  insolvent  laws,  subject,  however,  to  tlie  authority 
conferred  upon  Congress  by  the  Constitution  to  adopt  a  uniform 
system  of  bankruptcy,  which  authority,  when  exercised,  is  para- 
mount, and  State  enactments  in  conflict  with  those  in  Congress 
upon  the  subject  must  give  way.4 

1  Joy  v.  Thompson,  1  Doug.  (Mich.)  373 ;  Kingsley  v.  Cousins,  47  Me.  91. 

2  As  where  the  defence  of  usury  to  a  contract  is  taken  away  by  statute. 
Welsh  v.  Wadsworth,  30  Conn.  149;  Curtis  v.  Leavitt,  15  N.  Y.  9.  And  see 
Wood  v.  Kennedy,  19  Ind.  68,  and  the  cases  cited,  post,  pp.  375,  376. 

3  Foster  v.  Essex  Bank,  16  Mass.  245. 

4  Sturges  v.  Crowninshield,  4  Wheat.  122 ;  Farmers1  and  Mechanics'  Bank  v. 
Smith,  6  Wheat.  131;  Ogden  v.  Saunders,  12  Wheat.  213;  Baldwin  v.  Hale, 
1  Wall.  229. 

[332  ] 


CH.  IX.]   FEDERAL  PROTECTION  TO  PERSON  AND  PROPERTY.    *  294 

2.  Such  State  laws,  however,  discharging  the  person  or  the  prop- 
erty of  the  debtor,  and  thereby  terminating  the  legal  obligation  of 
the  debts,  cannot  constitutionally  be  made  to  apply  to  contracts 
entered  into  before  they  were  passed,  but  they  may  be  made  appli- 
cable to  such  future  contracts  as  can  be  considered  as  having  been 
made  in  reference  to  them.1 

3.  Contracts  made  within  a  State  where  an  insolvent  law  exists, 
between  citizens  of  that  State,  are  to  be  considered  as  made  in 
reference  to  the  law,  and  are  subject  to  its  provisions.  But  the  law 
cannot  apply  to  a  contract  made  in  one  State  between  a  citizen 
thereof  and  a  citizen  of  another  State,2  nor  to  contracts  not  made 
within  the  State,  even  though  made  between  citizens  of  the  same 
State,3  except,  perhaps,  where  they  are  citizens  of  the  State  pass- 
ing the  law.4  And  where  the  contract  is  made  between  a  citizen 
of  one  State  and  a  citizen  of  another,  the  circumstance  that  the 
contract  is  made  payable  in  the  State  where  the  insolvent  law 
exists  will  not  render  such  contract  subject  to  be  discharged  under 
the  law.5  If,  however,  the  creditor  in  any  of  these  cases  makes 
himself  a  party  to  proceedings  under  the  insolvent  law,  he  will  be 
bound  thereby  like  any  other  party  to  judicial  proceedings,  and  is 
not  to  be  heard  afterwards  to  object  that  his  debt  was  excluded  by 
the  Constitution  from  being  affected  by  the  law.6 

New  provisions  for  personal  liberty,  and  for  the  protection  of  the 
right  to  life,  liberty,  and  property,  are  made  by  the  thirteenth  and 
fourteenth  amendments  to  the  Constitution  of  the  United  States ; 
and  these  will  be  referred  to  in  the  two  succeeding  chapters.7  The 
most  important  clause  in  the  fourteenth  amendment  is  that  part  of 
section  1  which  declares  that  all  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof,  are  citizens 

1  Ogden  v.  Saunders,  12  Wheat.  213. 

2  Ogden  v.  Saunders,  12  Wheat.  213;  Springer  v.  Foster,  2  Story,  387; 
Bovle  v.  Zacharie,  6  Pet.  348;  Woodhull  v.  Wagner,  Baldw.  300;  Suydham  v. 
Broadnax,  14  Pet.  75 ;  Cook  v.  Moffat,  5  How.  310 ;  Baldwin  v.  Hale,  1  Wall. 
231. 

3  McMillan  v.  McNeill,  4  Wheat.  209. 

4  Marsh  v.  Putnam,  3  Gray,  551. 

5  Baldwin  v.  Hale,  1  Wall.  223 ;  Baldwin  v.  Bank  of  Newberry,  ib,  234 ; 
Gilman  v.  Lockwood,  4  Wall.  409. 

6  Clay  v.  Smith,  3  Pet.  411 ;  Baldwin  v.  Hale,  1  Wall.  223 :  Gilman  v.  Lock- 
wood,  4  Wall.  409. 

7  See  ante,  p.  11;  post,  pp.  299,  397. 

[  333] 


*  294  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

of  the  United  States  and  of  the  State  wherein  they  reside.1  This 
provision  very  properly  puts  an  end  to  any  question  of  the  title  of 
the  freedmen  and  others  of  their  race  to  the  rights  of  citizenship ; 
but  it  may  be  doubtful  whether  the  further  provisions  of  the  same 
section  surround  the  citizen  with  any  protections  additional  to 
those  before  possessed  under  the  State  constitutions  ;  though,  as  a 
principle  of  State  constitutional  law  has  now  been  made  a  part  of 
the  Constitution  of  the  United  States,  the  effect  will  be  to  make  the 
Supreme  Court  of  the  United  States  the  final  arbiter  of  cases  in 
which  a  violation  of  this  principle  by  State  laws  is  complained  of, 
inasmuch  as  the  decisions  of  the  State  courts  upon  laws  which  are 
supposed  to  violate  it  will  be  subject  to  review  in  that  court  on 
appeal.2 

1  The  complete  text  of  this  section  is  as  follows  :  "  Section  1.  All  persons  born 
or  naturalized  in  the  United  States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States,  and  of  the  State  wherein  they  reside.  No  State 
shall  make  or  enforce  any  law  which  shall  abridge  the  privileges  and  immunities 
of  citizens  of  the  United  States ;  nor  shall  any  State  deprive  any  person  of  life, 
liberty,  or  property  without  due  process  of  law,  nor  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  the  laws.'1 

2  See  ante,  pp.  12-14.  Notwithstanding  this  section,  the  protection  of  all 
citizens  in  their  privileges  and  immunities,  and  in  their  right  to  an  impartial 
administration  of  the  laws,  is  just  as  much  the  business  of  the  individual  States 
as  it  was  before.  This  amendment  of  the  Constitution  does  not  concentrate  power 
in  the  general  government  for  any  purpose  of  police  government  within  the 
States;  its  object  is  to  preclude  legislation  by  any  State  which  shall  "abridge 
the  privileges  or  immunites  of  citizens  of  the  United  States,"  or  "  deprive  any 
person  of  life,  liberty,  or  property  without  due  process  of  law,"  or  "  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the  laws  "  ;  and  Congress  is 
empowered  to  pass  all  laws  necessary  to  render  such  unconstitutional  State  legis- 
lation ineffectual.  This  amendment  received  a  very  careful  examination  at  the 
hands  of  the  Supreme  Court  of  the  United  States  in  the  recent  case  of  the  Live 
Stock  Dealers  and  Butchers  Association  v.  The  Crescent  City,  &c,  Co.,  not  yet 
reported.     See  Story  on  Const.  4th  ed.  App.  to  vol.  2. 

[  334  ] 


CH.  X.]      CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.       *  295 


CHAPTER    X.  *295 

OF   THE    CONSTITUTIONAL   PROTECTIONS   TO    PERSONAL   LIBERTY. 

Although  the  people  from  whom  we  derive  our  laws  now  possess 
a  larger  share  of  civil  and  political  liberty  than  any  other  in  Europe, 
there  was  a  period  in  their  history  when  a  considerable  proportion 
were  in  a  condition  of  servitude.  Of  the  servile  classes  one  portion 
were  villeins  regardant,  or  serfs  attached  to  the  soil,  and  transfer- 
able with  it,  but  not  otherwise,1  while  the  other  portion  were  vil- 
leins in  gross,  whose  condition  resembled  that  of  the  slaves  known 
to  modern  law  in  America.2  How  these  people  became  reduced  to 
this  unhappy  condition,  it  may  not  be  possible  to  determine  at 
this  distance  of  time  with  entire  accuracy ;  but  in  regard  to  the 
first  class,  we  may  suppose  that  when  a  conqueror  seized  the  terri- 
tory upon  which  he  found  them  living,  he  seized  also  the  people  as 
a  part  of  the  lawful  prize  of  war,  granting  them  life  on  condition 
of  their  cultivating  the  soil  for  his  use  ;  and  that  the  second  were 
often  persons  whose  lives  had  been  spared  on  the  field  of  battle, 
and  whose  ownership,  in  accordance  with  the  custom  of  barbar- 
ous times,  would  pertain  to  the  persons  of  their  captors.  Many 
other  causes  also  contributed  to  reduce  persons  to  this  condition.3 

1  Litt.  §  181 ;  2  Bl.  Com.  92.  "  They  originally  held  lands  of  their  lords  on 
condition  of  agricultural  service,  which  in  a  certain  sense  was  servile,  but  in 
reality  was  not  so,  as  the  actual  work  was  done  by  the  theows,  or  slaves.  .  .  . 
They  did  not  pay  rent,  and  were  not  removable  at  pleasure ;  they  went  with  the 
land  and  rendered  services,  uncertain  in  their  nature,  and  therefore  opposed  to 
rent.  They  were  the  originals  of  copyholders."  Note  to  Reeves,  History  of 
English  Law,  Pt.  I.  c   1. 

2  Litt.  §  181 ;  2  Bl.  Com.  92.  "  These  are  the  persons  who  are  described 
by  Sir  William  Temple  as  '  a  sort  of  people  who  were  in  a  condition  of  down- 
right servitude,  used  and  employed  in  the  most  servile  works ;  and  belonging, 
they  and  their  children  and  effects,  to  the  lord  of  the  soil,  like  the  rest  of  the 
stock  or  cattle  upon  it.' "     Reeves,  History  of  English  Law,  Pt.  I.  c.  1. 

3  For  a  view  of  the  condition  of  the  servile  classes,  see  Wright,  Domestic 
Manners  and  Sentiments,  101,  102 ;  Crabbe,  History  of  English  Law  (ed.  of 
1829),  pp.  8,  78,  365;  Hallam,  Middle  Ages,  Pt.  II.  c.  2 ;  Vaughan,  Revolutions 
in  English  History,  Book  2,  c.  8 ;  Broom,  Const.  Law,  74  et  seq. 

[  335  ] 


*  295  CONSTITUTIONAL    LIMITATIONS.  [CH.  X. 

At  the  beginning  of  the  reign  of  John  it  has  been  estimated  that 
one  half  of  the  Anglo-Saxons  were  in  a  condition  of  servitude,  and 
if  we  go  back  to  the  time  of  the  Conquest,  we  find  a  still  larger 
proportion  of  the  people  held  as  the  property  of  their  lords,  and 
incapable  of  acquiring  and  holding  any  property  as  their  own.1 
Their  treatment  was  such  as  might  have  been  expected  from 
masters  trained  to  war  and  violence,  accustomed  to  think  lightly 
of  human  life  and  human  suffering,  and  who  knew  little  of  and 
cared  less  for  any  doctrine  of  human  rights  which  embraced  within 
its  scope  others  besides  the  governing  classes. 

It  would  be  idle  to  attempt  to  follow  the  imperceptible 
[*  296]  steps  by  *  which  involuntary  servitude  at  length  came  to 
an  end  in  England.  It  was  never  abolished  by  statute,2 
and  the  time  when  slavery  ceased  altogether  cannot  be  accurately 
determined.3  The  causes  were  at  work  silently  for  centuries  ;  the 
historian  did  not  at  the  time  note  them  ;  the  statesman  did  not 
observe  them  ;  they  were  not  the  subject  of  agitation  or  contro- 
versy ;  but  the  time  arrived  when  the  philanthropist  could  examine 
the  laws  and  institutions  of  his  country,  and  declare  that  slavery 
had  ceased  to  be  recognized,  though  at  what  precise  point  in  legal 
history  the  condition   became  unlawful  he  might   not  be  able  to 

1  Hume,  History  of  England,  Vol.  I.,  App.  1. 

2  Barrington  on  the  Statutes  (3d  ed.),  272. 

3  Mr.  Hargrave  says,  at  the  commencement  of  the  seventeenth  century.  20 
State  Trials,  40;  May,  Const.  Hist.  c.  11.  And  Mr.  Barrington  (On  Stat. 
3d  ed.  p.  278)  cites  from  Bymer  a  commission  from  Queen  Elizabeth  in  the 
year  1574,  directed  to  Lord  Burghley  and  Sir  Walter  Mildmay,  for  inquiring 
into  the  lands,  tenements,  and  other  goods  of  all  her  bondmen  and  bondwomen 
in  the  counties  of  Cornwall,  Devonshire,  Somerset,  and  Gloucester,  such  as 
were  by  blood  in  a  slavish  condition,  by  being  born  in  any  of  her  manors,  and 
to  compound  with  any  or  all  of  such  bondmen  or  bondwomen  for  their  manu- 
mission and  freedom.  And  this  commission,  he  says,  in  connection  with  other 
circumstances,  explains  why  we  hear  no  more  of  this  kind  of  servitude.  And 
see  Crabbe,  History  of  English  Law  (ed.  of  1829),  574.  This  author  says  that 
villeinage  had  disappeared  by  the  time  of  Charles  II.  Hurd  says  in  1661.  Law 
of  Freedom  and  Bondage,  Vol.  I.  p.  136.  And  see  2  Bl.  Com.  96.  Macaulay 
says  there  were  traces  of  slavery  under  the  Stuarts.  History  of  England,  c.  1. 
Hume  (History  of  England,  c.  23)  thinks  there  was  no  law  recognizing  it  after 
the  time  of  Henry  VII.,  and  that  it  had  ceased  before  the  death  of  Elizabeth. 
Froude  (History  of  England,  c.  1)  says  in  the  reign  of  Henry  VIII.  it  had 
practically  ceased.  Mr.  Christian  says  the  last  claim  of  villeinage  which  we 
find  recorded  in  our  courts  was  in  15th  James  I.  Noy,  27  ;  11  State  Trials,  342. 
Note  to  Blackstone,  Book  2,  p.  96. 

[336  ] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.      *  296 

determine.  Among  the  causes  of  its  abrogation  he  might  be  able 
to  enumerate :  1.  That  the  slaves  were  of  the  same  race  with  their 
masters.  There  was  therefore  not  only  an  absence  of  that  antip- 
athy which  is  often  found  existing  when  the  ruling  and  the  ruled 
are  of  different  races,  and  especially  of  different  color,  but  instead, 
thereof  an  active  sympathy  might  often  be  supposed  to  exist,  which 
would  lead  to  frequent  emancipations.  2.  The  common  law  pre- 
sumed every  man  to  be  free  until  proved  to  be  otherwise  ;  and  this 
presumption,  when  the  slave  was  of  the  same  race  as  his  master, 
and  had  no  natural  badge  of  servitude,  must  often  have  rendered  it 
extremely  difficult  to  recover  the  fugitive  who  denied  his  thraldom. 
3.  A  residence  for  a  year  and  a  day  in  a  corporate  town  rendered 
the  villein  legally  free  ;*  so  that  to  him  the  towns  consti- 
tuted cities  of  *  refuge.  4.  The  lord  treating  him  as  a  [*  297] 
freeman,  —  as  by  receiving  homage  from  him  as  tenant,  or 
entering  into  a  contract  with  him  under  seal,  —  thereby  emancipated 
him,  by  recognizing  in  him  a  capacity  to  perform  those  acts  which 
only  a  freeman  could  perform.  5.  Even  the  lax  morals  of  the  times 
were  favorable  to  liberty,  since  the  condition  of  the  child  followed 
that  of  the  father ; 2  and  in  law  the  illegitimate  child  was  nullius 
Jilius,  —  had  no  father.  And,  6.  The  influence  of  the  priesthood 
was  generally  against  slavery,  and  must  often  have  shielded  the 
fugitive  and  influenced  emancipations  by  appeals  to  the  con- 
science, especially  when  the  master  was  near  the  close  of  life,  and 
the  conscience  naturally  most  sensitive.3     And  with  all  these  influ- 

1  Crabbe,  History  of  English  Law  (ed.  of  1829),  p.  79.  But  this  was  only 
as  to  third  persons.  The  claim  of  the  lord  might  be  made  within  three  years. 
Ibid.     And  see  Mackintosh,  History  of  England,  c.  4. 

2  Barrington  on  Statutes  (3d  ed.),  276,  note ;  2  Bl.  Com.  93.  But  in  the 
very  quaint  account  of  "Villeinage  and  Niefty,"  in  Mirror  of  Justices,  §  28,  it 
is  said,  among  other  things,  that  "  those  are  villeins  who  are  begotten  of  a  free- 
man and  a  nief,  and  born  out  of 'matrimony."  The  ancient  rule  appears  to  have 
been  that  the  condition  of  the  child  followed  that  of  the  mother ;  but  this  was 
changed  in  the  time  of  Henry  I.  Crabbe,  History  of  English  Law  (ed.  of  1829), 
p.  78 ;  Hallam,  Middle  Ages,  Pt.  II.  c.  2. 

8  In  1514,  Henry  VHI.  manumitted  two  of  his  villeins  in  the  following  words  : 
"  Whereas  God  created  all  men  free,  but  afterwards  the  laws  and  customs  of 
nations  subjected  some  under  the  yoke  of  servitude,  we  think  it  pious  and  merito- 
rious with  God  to  manumit  Henry  Knight,  a  tailor,  and  John  Herle,  a  husband- 
man, our  natives,  as  being  born  within  the  manor  of  Stoke  Clymercysland,  in 
our  county  of  Cornwall,  together  with  all  their  issue  born  or  to  be  born,  and  all 
their  goods,  lands,  and  chattels  acquired,  so  as  the  said  persons  and  their  issue 

22  [  337  ] 


*  297  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

ences  there  should  be  noted  the  further  circumstance,  that  a  class 
of  freemen  was  always  near  to  the  slaves  in  condition  and  suffering, 
with  whom  they  were  in  association,  and  between  whom  and  them- 
selves there  were  frequent  intermarriages,1  and  that  from  these  to 
the  highest  order  in  the  State  there  were  successive  grades  ;  the 
children  of  the  highest  gradually  finding  their  way  into  those  below 
them,  and  ways  being  open  by  which  the  children  of  the  lowest 
might  advance  themselves,  by  intelligence,  energy,  or  thrift,  through 
the  successive  grades  above  them,  until  the  descendants  of  dukes 
and  earls  were  found  cultivating  the  soil,  and  the  man  of  obscure 
descent  winning  a  place  among  the  aristocracy  of  the  realm, 
through  his  successful  exertions  at  the  bar,  or  his  services  to  the 
State.  Inevitably  these  influences  must  at  length  over- 
[*  298]  throw  the  *  slavery  of  white  men  which  existed  in  Eng- 
land,2 and  no  other  ever  became  established  within  the 
realm.  Slavery  was  permitted,  and  indeed  fostered,  in  the  colo- 
nies ;  in  part  because  a  profit  was  made  of  the  trade,  and  in  part 
also  because  it  was  supposed  that  the  peculiar  products  of  some  of 
them  could  not  be  profitably  cultivated  with  free  labor  ; 3  and  at 
times  masters  brought  their  slaves  with  them  to  England  and  re- 
moved them  again  without  question,  until  in  Sommersett's  Case, 
in  1771,  it  was  ruled  by  Lord  Mansfield  that  slavery  was  repug- 
nant to  the  common  law,  and  to  bring  a  slave  into  England  was  to 
emancipate  him.4 

shall  from  henceforth  by  us  be  free  and  of  free  condition."  Barrington  on  Stat- 
utes (3d  ed.),  275.  See  Mackintosh,  History  of  England,  c.  4.  Compare  this 
with  a  deed  of  manumission  in  Massachusetts,  to  be  found  in  Sumner's  Speeches, 
II.  289  ;  Memoir  of  Chief  Justice  Parsons,  by  his  son,  176,  note. 

1  Wright,  Domestic  Manners  and  Sentiments,  p.  112. 

2  Macaulay  (History  of  England,  c.  1  )  says  the  chief  instrument  of  emanci- 
pation was  the  Christian  religion.  Mackintosh  (History  of  England,  c.  4)  also 
attributes  to  the  priesthood  great  influence  in  this  reform,  not  only  by  their 
direct  appeals  to  the  conscience,  but  by  the  judges,  who  were  ecclesiastics,  mul- 
tiplying presumptions  and  rules  of  evidence  consonant  to  the  equal  and  humane 
spirit  winch  breathes  throughout  the  morality  of  the  Gospel.  Hume  (History  of 
England,  c.  23)  seems  to  think  emancipation  was  brought  about  by  selfish  con- 
siderations on  the  part  of  the  barons,  and  from  a  conviction  that  the  returns 
from  their  lands  would  be  increased  by  changing  villeinage  into  socage  tenures. 

3  Robertson,  America,  Book  9;  Bancroft,  United  States,  Vol.  I.  c.  5. 

4  LofFt,  18 ;  20  Howell,  State  Trials,  1 ;  Life  of  Granville.  Sharp,  by  Hoare, 
c.  4;  Hurd,  Law  of  Freedom  and  Bondage,  Vol.  I.  p.  189.  The  judgment  of 
Lord  Mansfield  is  said  to  have  been  delivered  w  th  evident  reluctance.     20  State 

[338] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.     *  298 

The  same  opinion  had  been  previously  expressed  by  Lord  Holt, 
but  without  authoritative  decision.1 

In  Scotland  a  condition  of  servitude  continued  to  a  later  period. 
The  holding  of  negroes  in  slavery  was  indeed  held  to  be 
illegal  *  soon  after  the  Sommersett  Case ;  but  the  salters  [*  299] 
and  colliers  did  not  acquire  their  freedom  until  1799, 
nor  without  an  act  of  Parliament.2  A  previous  statute  for  their 
enfranchisement  through  judicial  proceedings  had  proved  .  in- 
effectual^ 

The  history  of  slavery  in  this  country  pertains  rather  to  general 
history  than  to  a  work  upon  State  constitutional  law.  Through- 
out the  land  involuntary  servitude  is  abolished  by  constitutional 
amendment,  except  as  it  may  be  imposed  in  the  punishment  of 
crime.4  Nor  do  we  suppose  the  exception  will  permit  the  convict  to 
be  subjected  to  other  servitude  than  such  as  is  under  the  control 
and  direction  of  the  public  authorities,  in  the  manner  heretofore 

Trials,  79;  per  Lord  Stowell,  2  Hagg.  Adm.  105,  110;  Broom,  Const.  Law, 
105.  Of  the  practice  prior  to  the  decision  Lord  Stowell  said:  " The  personal 
traffic  in  slaves  resident  in  England  had  been  as  public  and  as  authorized  in 
London  as  in  any  of  our  West  India  Islands.  They  were  sold  on  the  Exchange, 
and  other  places  of  public  resort,  by  parties  themselves  resident  in  London, 
and  with  as  little  reserve  as  they  would  have  been  in  any  of  our  West  India 
possessions.  Such  a  state  of  things  continued  without  impeachment  from  a 
very  early  period  up  to  nearly  the  end  of  the  last  century."  The  Slave  Grace, 
2  Hagg.  Adm.  105.  In  this  case  it  was  decided  that  if  a  slave,  carried  by  his 
master  into  a  free  country,  voluntarily  returned  with  him  to  a  country  where 
slavery  was  allowed  by  the  local  law,  the  stahts  of  slave  would  still  attach  to 
him,  and  the  master's  right  to  his  service  be  resumed.  Mr.  Broom  collects  the 
authorities  on  this  subject  in  general,  in  the  notes  to  Sommersett's  Case,  Const. 
Law,  105. 

1  "As  soon  as  a  slave  comes  into  England,  he  becomes  free;  one  may  be  a 
villein  in  England,  but  not  a  slave."  Holt,  Ch.  J.,  in  Smith  v.  Brown,  2  Salk. 
666.  See  also  Smith  v.  Gould,  Ld.  Rayin.  1274 ;  s.  c.  Salk.  666.  There  is  a 
learned  note  in  Quincy's  Rep.  p.  94,  collecting  the  English  authorities  on  the 
subject  of  slavery. 

2  39  Geo.  III.  c.  56. 

3  May's  Const.  Hist.  c.  11. 

4  Amendments  to  Const,  of  U.  S.  art.  13.  See  Cooley's  Story  on  the  Consti- 
tution, c.  46,  for  the  history  of  this  article,  and  the  decisions  bearing  upon  it. 
The  Maryland  act  for  the  apprenticing  of  colored  children,  which  made  impor- 
tant and  invidious  distinctions  between  them  and  white  children,  and  gave  the 
master  property  rights  in  their  services  not  given  in  other  cases,  was  held  void 
under  this  article.     Matter  of  Turner,  1  Abb.  U.  S.  84. 

[339] 


*  299  CONSTITUTIONAL    LIMITATIONS.  [CH.  X. 

customary.  The  laws  of  the  several  States  allow  the  letting  of  the 
services  of  the  convicts,  either  singly  or  in  numbers,  to  contractors 
who  are  to  employ  them  in  mechanical  trades  in  or  near  the  prison, 
and  under  the  surveillance  of  its  officers ;  but  it  might  well  be 
doubted  if  a  regulation  which  should  suffer  the  convict  to  be  placed 
upon  the  auction  block  and  sold  to  the  highest  bidder,  either  for 
life  or  for  a  term  of  years,  would  be  in  harmony  with  the  constitu- 
tional prohibition.  It  is  certain  that  it  would  be  open  to  very  grave 
abuses,  and  it  is  so  inconsistent  with  the  general  sentiment  in 
countries  where  slavery  does  not  exist,  that  it  may  well  be  believed 
not  to  have  been  within  the  understanding  of  the  people  in  incor- 
porating the  exception  with  the  prohibitory  amendment.1 

The  common  law  of  England  permits  the  impressment  of  sea- 
faring men  to  man  the  royal  navy;2  but  this  species  of  servitude 
was  never  recognized  in  the  law  of  America.3  The  citizen  may 
doubtless  be  compelled  to  serve  his  country  in  her  wars ;  but  the 
common  law  as  adopted  by  us  has  never  allowed  arbitrary  dis- 
criminations for  this  purpose  between  persons  of  different  avo- 
cations. 

Unreasonable    Searches  and  Seizures. 

Near  in  importance  to  exemption  from  any  arbitrary  control  of 
the  person  is  that  maxim  of  the  common  law  which  secures  to  the 
citizen  immunity  in  his  home  against  the  prying  eyes  of  the  govern- 
ment, and  protection  in  person,  property,  and  papers,  against  even 
the  process  of  the  law,  except  in  a  few  specified  cases.  The 
maxim  that  "  every  man's  house  is  his  castle,"4  is  made 
[*  300]  a  *  part  of  our  constitutional  law  in  the  clauses  prohibit- 

1  The  State  has  no  power  to  imprison  a  child  in  a  house  of  correction  who  has 
committed  no  crime,  on  a  mere  allegation  that  he  is  "  destitute  of  proper  parental 
care,  and  is  growing  up  in  mendicancy,  ignorance,  idleness,  and  vice."  People 
v.  Turner,  55  111.  280;  s.  c.  8  Am.  Rep.  645.  Compare  Prescott  v.  State,  19 
Ohio,  n.  s.  184  ;  s.  c.  2  Am.  Rep.  388. 

2  Broadfoot's  Case,  18  State  Trials,  1323  ;  Fost.  Cr.  Law,  178  ;  Rex  v.  Tubbs, 
Cowp.  512  ;  Ex  parte  Fox,  5  State  Trials,  276  ;  1  Bl.  Com.  419  ;  Broom,  Const. 
Law,  116. 

3  There  were  cases  of  impressment  in  America  before  the  Revolution,  but 
they  were  never  peaceably  acquiesced  in  by  the  people.  See  Life  and  Times  of 
Warren,  55. 

4  Broom,  Maxims,  321.  The  eloquent  passage  in  Chatham's  speech  on  Gen- 
eral Warrants  is  familiar :  "  The  poorest  man  may,  in  his  cottage,  bid  defiance  to 

[  340] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.     *  800 

ing  unreasonable  searches  and  seizures,  and  has  always  been 
looked  upon  as  of  high  value  to  the  citizen. 

If  in  English  history  we  inquire  into  the  original  occasion  for 
these  constitutional  provisions,  we  shall  probably  find  it  in  the 
abuse  of  executive  authority,  and  in  the  unwarrantable  intrusion 
of  executive  agents  into  the  houses  and  among  the  private  papers 
of  individuals,  in  order  to  obtain  evidence  of  political  offences 
either  committed  or  designed.  The  final  overthrow  of  this  practice 
is  so  clearly  and  succinctly  stated  in  a  recent  work  on  the  constitu- 
tional history  of  England  that  we  cannot  refrain  from  copying  the 
account  in  the  note  below.1 

all  the  forces  of  the  Crown.  It  may  be  frail ;  its  roof  may  shake  ;  the  wind  may 
blow  through  it ;  the  storm  may  enter ;  the  rain  may  enter ;  but  the  king-  of 
England  may  not  enter ;  all  his  force  dares  not  cross  the  threshold  of  the  ruined 
tenement."    And  see  Lieber  on  Civil  Liberty  and  Self-Government,  c.  6. 

1  "  Among  the  remnants  of  a  jurisprudence  which  had  favored  prerogative  at 
the  expense  of  liberty  was  that  of  the  arrest  of  persons  under  general  warrants, 
without  previous  evidence  of  their  guilt  or  identification  of  their  persons.  This 
practice  survived  the  Revolution,  and  was  continued  without  question,  on  the 
ground  of  usage,  until  the  reign  of  George  III.,  when  it  received  its  death-blow 
from  the  boldness  of  Wilkes  and  the  wisdom  of  Lord  Camden.  This  question 
was  brought  to  an  issue  by  No.  45  of  the  '  North  Briton,'  already  so  often  men- 
tioned. There  was  a  libel,  but  who  was  the  libeller?  Ministers  knew  not,  nor 
waited  to  inquire,  after  the  accustomed  forms  of  law ;  but  forthwith  Lord  Hal- 
ifax, one  of  the  secretaries  of  state,  issued  a  warrant,  directing  four  messengers, 
taking  with  them  a  constable,  to  search  for  the  authors,  printers,  and  publishers  ; 
•and  to  apprehend  and  seize  them,  together  with  their  papers,  and  bring  them  in 
safe  custody  before  him.  No  one  having  been  charged  or  even  suspected,  —  no 
evidence  of  crime  having  been  offered,  — no  one  was  named  in  this  dread  instru- 
ment. The  offence  only  was  pointed  at,  not  the  offender.  The  magistrate  who 
should  have  sought  proofs  of  crime  deputed  this  office  to  his  messengers.  Armed 
with  their  roving  commission,  they  set  forth  in  quest  of  unknown  offenders  ;  and, 
unable  to  take  evidence,  listened  to  rumors,  idle  tales,  and  curious  guesses. 
They  held  in  their  hands  the  liberty  of  every  man  whom  they  were  pleased  to 
suspect.  Nor  were  they  triflers  in  their  work.  In  three  days  they  arrested  no 
less  than  forty-nine  persons  on  suspicion,  —  many  as  innocent  as  Lord  Halifax 
himself.  Among  the  number  was  Dryden  Leach,  a  printer,  whom  they  took  from 
his  bed  at  night.  They  seized  his  papers,  and  even  apprehended  his  journeymen 
and  servants.  He  had  printed  one  number  of  the  '  North  Briton,'  and  was  then 
reprinting  some  other  numbers ;  but  as  he  happened  not  to  have  printed  No.  45, 
he  was  released  without  being  brought  before  Lord  Halifax.  They  succeeded, 
however,  in  arresting  Kearsley  the  publisher,  and  Balfe  the  printer,  of  the  obnox- 
ious number,  with  all  their  workmen.  From  them  it  was  discovered  that  Wilkes 
was  the  culprit  of  whom  they  were  in  search  ;  but  the  evidence  was  not  on  oath ; 
and  the  messengers  received  verbal  directions  to  apprehend  Wilkes  under  the 

[341] 


*  301  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

[*  301]       *  The  history  of   this  controversy  should  be   read    in 
connection  with  that  in  America  immediately  previous  to 

general  warrant.  Wilkes,  far  keener  than  the  crown  lawyers,  not  seeing  his  own 
name  there,  declared  it  '  a  ridiculous  warrant  against  the  whole  English  nation,' 
and  refused  to  obey  it.  But  after  being  in  custody  of  the  messengers  for  some 
hours,  in  his  own  house,  he  was  taken  away  in  a  chair,  to  appear  before  the  sec- 
retaries of  state.  No  sooner  had  he  been  removed  than  the  messengers,  return- 
ing to  his  house,  proceeded  to  ransack  his  drawers  ;  and  carried  off  all  his  private 
papers,  including  even  his  will  and  his  pocket-book.  When  brought  into  the 
presence  of  Lord  Halifax  and  Lord  Egremont,  questions  were  put  to  Wilkes 
which  he  refused  to  answer ;  whereupon  he  was  committed  close  prisoner  to  the 
Tower,  denied  the  use  of  pen  and  paper,  and  interdicted  from  receiving  the  vis- 
its of  his  friends  or  even  of  his  professional  advisers.  From  this  imprisonment, 
however,  he  was  shortly  released  on  a  writ  of  habeas  corpus,  by  reason  of  his 
privilege  as  a  member  of  the  House  of  Commons. 

"Wilkes  and  the  printers,  supported  by  Lord  Temple's  liberality,  soon  ques- 
tioned the  legality  of  the  general  warrant.  First,  several  journeymen  printers 
brought  action  against  the  messengers.  On  the  first  trial,  Lord  Chief  Justice 
Pratt  —  not  allowing  bad  precedents  to  set  aside  the  sound  principles  of  English 
law  —  held  that  the  general  warrant  was  illegal ;  that  it  was  illegally  executed  ; 
and  that  the  messengers  were  not  indemnified  by  statute.  The  journeymen  re- 
covered three  hundi*ed  pounds  damages;  and  the  other  plaintiffs  also  obtained 
verdicts.  In  all  these  cases  however,  bills  of  exceptions  were  tendered  and 
allowed.  Mr.  Wilkes  himself  brought  an  action  against  Mr.  Wood,  under-sec- 
retary  of  state,  who  had  personally  superintended  the  execution  of  the  warrant. 
At  this  trial  it  was  proved  that  Mr.  Wood  and  the  messengers,  after  Wilkes's 
removal  in  custody,  had  taken  entire  possession  of  his  house,  refusing  admission 
to  his  friends  ;  had  sent  for  a  blacksmith,  who  opened  the  drawers  of  his  bureau;* 
and  having  taken  out  the  papers,  had  carried  them  away  in  a  sack,  without  taking 
any  list  or  inventory.  All  his  private  manuscripts  were  seized,  and  his  pocket- 
book  filled  up  the  mouth  of  the  sack.  Lord  Halifax  was  examined,  and  admitted 
that  the  warrant  had  been  made  out  three  days  before  he  had  received  evidence 
that  Wilkes  was  the  author  of  the  '  North  Briton.'  Lord  Chief  Justice  Pratt 
thus  spoke  of  the  warrant :  '  The  defendant  claimed  a  right,  under  precedents, 
to  force  persons'  houses,  break  open  escritoires,  and  seize  their  papers  upon  a 
general  warrant,  where  no  inventory  is  made  of  the  things  thus  taken  away, 
and  where  no  offenders'  names  are  specified  in  the  warrant,  and  therefore  a 
discretionary  power  given  to  messengers  to  search  wherever  their  suspicions 
may  chance  to  fall.  If  such  a  power  is  truly  invested  in  a  secretary  of  state, 
and  he  can  delegate  this  power,  it  certainly  may  affect  the  person  and  property 
of  every  man  in  this  kingdom,  and  is  totally  subversive  of  the  liberty  of  the 
subject.'  The  jury  found  a  verdict  for  the  plaintiff  with  one  thousand  pounds 
damages. 

"  Four  days  after  Wilkes  had  obtained  his  verdict  against  Mr.  Wood,  Dryden 
Leach,  the  printer,  gained  another  verdict,  with  four  hundred  pounds  damages, 
against  the  messengers.     A  bill  of  exceptions,   however,   was  tendered  and  re- 
[342] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.     *  301 

the  American  Revolution,  *  in  regard  to  writs  of  assistance  [*  802] 
issued  by  the  courts  to  the  revenue  officers,  empowering 

ceived  in  tbis  as  in  other  cases,  and  came  on  for  hearing  before  the  Court  of 
King's  Bench  in  1765.  After  much  argument,  and  the  citing  of  precedents  show- 
ing tbe  practice  of  the  secretary  of  state's  office  ever  since  the  Revolution,  Lord 
Mansfield  pronounced  the  warrant  illegal,  saying  :  '  It  is  not  fit  that  the  judging 
of  the  information  should  be  left  to  the  discretion  of  the  officer.  The  magistrate 
should  judge,  and  give  certain  directions  to  the  officer.'  Tbe  other  three  judges 
agreed  tbat  tbe  warrant  was  illegal  and  bad,  '  believing  that  no  degree  of  an- 
tiquity can  give  sanction  to  an  usage  bad  in  itself.'  Tbe  judgment  was  therefore 
affirmed. 

"Wilkes  had  also  brought  actions  for  false  imprisonment  against  both  the 
secretaries  of  state.  Lord  Egremont's  death  put  an  end  to  the  action  against 
him ;  and  Lord  Halifax,  by  pleading  privilege,  and  interposing  other  delays 
unworthy  of  his  position  and  character,  contrived  to  put  off  his  appearance  until 
after  Wilkes  had  been  outlawed,  when  he  appeared  and  pleaded  the  outlawry. 
But  at  length,  in  1769,  no  further  postponement  could  be  contrived ;  the  action 
■was  tried,  and  Wilkes  obtained  no  less  than  four  thousand  pounds  damages. 
Not  only  in  this  action,  but  throughout  the  proceedings,  in  which  persons  ag- 
grieved by  the  general  warrant  bad  sought  redress,  the  government  offered  an 
ob  tinate  and  vexatious  resistance.  The  defendants  were  harrassed  by  every 
obstacle  which  the  law  permitted,  and  subjected  to  ruinous  costs.  The  expenses 
which  government  itself  incurred  in  these  various  actions  were  said  to  have 
amounted  to  one  hundred  thousand  pounds. 

"The  liberty  of  the  subject  was  further  assured  at  this  period  by  another 
remarkable  judgment  of  Lord  Camden.  In  November,  1762,  the  Earl  of  Hali- 
fax, as  secretary  of  state,  had  issued  a  warrant  directing  certain  messengers, 
taking  a  constable  to  their  assistance,  to  search  for  John  Entinck,  clerk,  the 
author  or  one  concerned  in  the  writing  of  several  numbers  of  the  '  Monitor,  or 
British  Freeholder,'  and  to  seize  him,  together  with  his  books  and  papers,  and 
bring  him  in  safe  custody  before  tbe  secretary  of  state.  In  execution  of  this 
warrant,  the  messengers  apprehended  Mr.  Entinck  in  his  house,  and  seized  the 
books  and  papers  in  his  bureau,  writing-desk,  and  drawers.  This  case  differed 
from  that  of  Wilkes,  as  the  warrant  specified  the  name  of  the  person  against 
whom  it  was  directed.  In  respect  of  the  person,  it  was  not  a  general  warrant ; 
but  as  regards  the  papers,  it  was  a  general  search-warrant,  —  not  specifying  any 
particular  papers  to  be  seized,  but  giving  authority  to  the  messengers  to  take  all 
his  books  and  papers  according  to  their  discretion. 

"Mr.  Entinck  brought  an  action  of  trespass  against  the  messengers  for  the 
seizure  of  his  papers,  upon  which  a  jury  found  a  special  verdict,  with  three  hun- 
dred pounds  damages.  This  special  verdict  was  twice  learnedly  argued  before 
the  Court  of  Common  Pleas,  where,  at  length,  in  1765,  Lord  Camden  pronounced 
an  elaborate  judgment.  He  even  doubted  the  right  of  the  secretary  of  state  to 
commit  persons  at  all,  except  for  high  treason ;  but  in  deference  to  prior  deci- 
sions, the  court  felt  bound  to  acknowledge  the  right.  The  main  question,  how- 
ever, was  the  legality  of  a  search-warrant  for  papers.     ■  If  this  point  should  be 

[343] 


*  302  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

[*  303]  them,  in  their  discretion,  to  search  *  suspected  places  for 
smuggled  goods,  and  which  Otis  pronounced  "  the  worst 
instrument  of  arbitrary  power,  the  most  destructive  of  English 
liberty  and  the  fundamental  principles  of  law,  that,  ever  was  found 
in  an  English  law  book ;  "  since  they  placed  "  the  liberty  of  every 
man  in  the  hands  of  every  petty  officer."  1  All  these  matters  are 
now  a  long  way  in  the  past ;  but  it  has  not  been  deemed  unwise  to 
repeat  in  the  State  constitutions,  as  well  as  in  the  Constitution  of 
the  United  States,2  the  principles  already  settled  in  the  common 
law  upon  this  vital  point  in  civil  liberty. 

determined  in  favor  of  the  jurisdiction,1  said  Lord  Camden,  '  the  secret  cabinets 
and  bureaus  of  every  subject  in  this  kingdom  will  be  thrown  open  to  the  search 
and  inspection  of  a  messenger,  whenever  the  secretary  of  state  shall  see  fit  to 
charge,  or  even  to  suspect,  a  person  to  be  the  author,  printer,  or  publisher  of  a 
seditious  libel.'  'This  power,  so  assumed  by  the  secretary  of  state,  is  an  execu- 
tion upon  all  the  party's  papers  in  the  first  instance.  His  house  is  rifled ;  his  most 
valuable  papers  are  taken  out  of  his  possession,  before  the  paper,  for  which  he  is 
charged,  is  found  to  be  criminal  by  any  competent  jurisdiction,  and  before  he 
is  convicted  either  of  writing,  publishing,  or  being  concerned  in  the  paper.'  It 
had  been  found  by  the  special  verdict  that  many  such  warrants  had  been  issued 
since  the  Revolution  ;  but  he  wholly  denied  their  legality.  He  referred  the  origin 
of  the  practice  to  the  Star  Chamber,  which  in  pursuit  of  libels  had  given  search- 
warrants  to  their  messenger  of  the  press ;  a  practice  which,  after  the  abolition 
of  the  Star  Chamber,  had  been  revived  and  authorized  by  the  licensing  act  of 
Charles  II.,  in  the  person  of  the  secretary  of  state.  And  he  conjectured  that 
this  practice  had  been  continued  after  the  expiration  of  that  act,  —  a  conjecture 
shared  by  Lord  Mansfield  and  the  Court  of  King's  Bench.  With  the  unanimous 
concurrence  of  the  other  judges  of  his  court,  this  eminent  magistrate  now  finally 
condemned  this  dangerous  and  unconstitutional  practice."  May's  Constitutional 
History  of  England,  c.  11.  See  also  Semayne's  Case,  5  Coke,  91;  1  Smith's 
Lead.  Cas.  183;  Entinck  v.  Carrington,  2  Wils.  275,  and  19  State  Trials,  1030; 
Note  to  same  case  in  Broom,  Const.  Law,  613;  Money  v.  Leach,  Burr.  1742; 
Wilkes's  Case,  2  Wils.  151,  and  19  State  Trials,  1405.  For  debates  in  Parlia- 
ment on  the  same  subject,  see  Hansard's  Debates,  Vol.  XV.  p.  1393  to  1418, 
Vol.  XVI.  pp.  6  and  209.  In  further  illustration  of  the  same  subject,  see 
De  Lolme  on  the  English  Constitution,  c.  18;  Story  on  Const.  §§  1901,  1902; 
Bell  v.  Clapp,  10  Johns.  263;  Sailly  v.  Smith,  11  Johns.  500. 

1  Works  of  John  Adams,  Vol.  II.  pp.  523,  524 ;  2  Hildreth's  U.  S.  499 ;  4 
Bancroft's  U.  S.  414;  Quincy,  Mass.  Reports,  51.  See  also  the  appendix  to 
these  reports,  p.  395,  for  a  history  of  writs  of  assistance. 

2  U.  S.  Const.  4th  Amendment.  The  scope  of  this  work  does  not  call  for  any  dis- 
cussion of  the  searches  of  private  premises,  and  seizures  of  books  and  papers,  which 
are  made  under  the  authority,  or  claim  of  authority,  of  the  revenue  laws  of  the 
United  States.  Perhaps,  under  no  other  laws  are  such  liberties  taken  by  minis- 
terial officers  ;  and  it  would  be  surprising  to  find  oppressive  action  on  their  part  so 

[344] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.      *  303 

For  the  service  of  criminal  process,  the  houses  of  private  par- 
ties are  subject  to  be  broken  and  entered  under  circumstances 
which  are  fully  explained  in  the  works  on  criminal  law,  and  need 
not  be  enumerated  here.  And  there  are  also  cases  where  search- 
warrants  are  allowed  to  be  issued,  under  which  an  officer  may  be 
protected  in  the  like  action.  But  as  search-warrants  are  a  species 
of  process  exceedingly  arbitrary  in  character,  and  which  ought  not 
to  be  resorted  to  except  for  very  urgent  and  satisfactory  reasons, 
the  rules  of  law  which  pertain  to  them  are  of  more  than  ordinary 
strictness ;  and  if  the  party  acting  under  them  expects  legal  pro- 
tection, it  is  essential  that  these  rules  be  carefully  observed. 

*  In  the  first  place  they  are  only  to  be  granted  in  the  [*  304] 
cases  expressly  authorized  by  law ;  and  not  generally  in 
such  cases  until  after  a  showing  made  before  a  judicial  officer, 
under  oath,  that  a  crime  has  been  committed,  and  that  the  party 
complaining  has  reasonable  cause  to  suspect  that  the  offender,  or 
the  property  which  was  the  subject  or  the  instrument  of  the  crime, 
is  concealed  in  some  specified  house  or  place.1  And  the  law,  in 
requiring  a  showing  of  reasonable  cause  for  suspicion,  intends  that 
evidence  shall  be  given  of  such  facts  as  shall  satisfy  the  magistrate 
that  the  suspicion  is  well  founded  ;  for  the  suspicion  itself  is  no 
ground  for  the  warrant  except  as  the  facts  justify  it.2 

In  the  next  place,  the  warrant  which  the  magistrate  issues  must 
particularly  specify  the  place  to  be  searched,  and  the  object  for 
which  the  search  is  to  be  made.  If  a  building  is  to  be  searched, 
the  name  of  the  owner  or  occupant  should  be  given ; 3  or,  if  not 
occupied,  it  should  be  particularly  described,  so  that  the  officer  will 
be  left  to  no  discretion  in  respect  to  the  place  ;  and  a  misdescrip- 
tion in  regard  to  the  ownership,4  or  a  description  so  general  that  it 
applies  equally  well  to  several  buildings  or  places,  would  render 

often  submitted  to  without  legal  contest,  if  the  facilities  they  possess  to  embarass, 
annoy,  and  obstruct  the  merchant  in  his  business,  were  not  borne  in  mind.  The 
federal  decisions,  however,  go  very  far  to  establish  the  doctrine  that,  in  matters 
of  revenue,  the  regulations  Congress  sees  fit  to  establish,  however  unreasonable 
they  may  seem,  must  prevail.  For  a  very  striking  case,  see  Henderson's  Dis- 
tilled Spirits,  14  Wall.  44. 

1  2  Hale,  P.  C.  142  ;  Bishop,  Cr.  Pro.  §§  716-719 ;  Archbold,  Cr.  Law,  147. 

2  Commonwealth  v.  Lottery  Tickets,  5  Cush.  369 ;  Else  v.  Smith,  1  D.  & 
R.  97. 

3  Stone  v.  Dana,  5  Met.  98. 

4  Sandford  v.  Nichols,  13  Mass.  286 ;  Allen  v.  Staples,  6  Gray,  491. 

[345] 


*  304  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

the  warrant  void  in  law.1  Search-warrants  are  always  obnoxious 
to  very  serious  objections;  and  very  great  particularity  is  justly 
required  in  these  cases,  before  the  privacy  of  a  man's  premises  is 
allowed  to  be  invaded  by  the  minister  of  the  law.2  And  therefore 
a  designation  of  goods  to  be  searched  for  as  "  goods,  wares,  and 
merchandises,"  without  more  particular  description,  has  been 
regarded  as  insufficient,  even  in  the  case  of  goods  supposed  to  be 
smuggled,3  where  there  is  usually  greater  difficulty  in  giving 
description,   and   where   consequently   more    latitude    should   be 

permitted  than  in  the  case  of  property  stolen. 
[*  305]  *  Lord  Hale  says,  "  It  is  fit  that  such  warrants  to  search 
do  express  that  search  be  made  in  the  day-time  ;  and  though 
I  do  not  say  they  are  unlawful  without  such  restriction,  yet  they 
are  very  inconvenient  without  it ;  for  many  times,  under  pretence 
of  searches  made  in  the  night,  robberies  and  burglaries  have  been 
committed,  and  at  best  it  creates  great  disturbance."  4  And  the 
statutes  upon  this  subject  will  generally  be  found  to  provide  for 
searches  in  the  day-time  only,  except  in  very  special  cases. 

The  warrant  should  also  be  directed  to  the  sheriff  or  other 
proper  officer,  and  not  to  private  persons  ;  though  the  party  com- 
plainant may  be  present  for  the  purposes  of  identification,5  and 
other  assistance  can  lawfully  be  called  in  by  the  officer  if  necessary. 

The  warrant  must  also  command  that  the  goods  or  other  articles 
to  be  searched  for,  if  found,  together  with  the  party  in  whose  cus- 
tody they  are  found,  be  brought  before  the  magistrate,  to  the  end 
that,  upon  further  examination  into  the  facts,  the  goods,  and  the 
party  in  whose  custody  they  were,  may  be  disposed  of  according 
to  law.6     And  it  is  a  fatal  objection  to  such  a  warrant,  that  it 

1  Thus,  a  warrant  to  search  the  "houses  and  buildings  of  Hiram  Ide  and 
Henry  Ide,"  is  too  general.  Humes  v.  Tabor,  1  R.  I.  464.  See  McGlinchy  v. 
Barrows,  41  Me.  74;  Ashley  v.  Peterson,  25  Wis.  621.  So  a  warrant  for  the 
arrest  of  an  unknown  person  under  the  designation  of  John  Doe,  without  further 
description,  is  void.     Commonwealth  v.  Crotty,  10  Allen,  403. 

2  A  warrant  for  searching  a  dwelling-house  will  not  justify  a  forcible  entry  into 
a  barn  adjoining  the  dwelling-house.  Jones  v.  Fletcher,  41  Me.  254;  Downing 
v.  Porter,  8  Gray,  539 ;  Bishop,  Cr.  Pro.  §§  716-719. 

3  Sandford  v.  Nichols,  13  Mass.  286 ;  Archbold,  Cr.  Law,  143. 

4  2  Hale,  P.  C.  150.     See  Archbold,  Cr.  Law  (7th  ed.),  145. 

5  2  Hale,  P.  C.  150;  Archbold,  Cr.  Law  (7th  ed.),  145. 

6  2  Hale,  P.  C.  150 ;  Bell  &  Clapp,  10  Johns.  263  ;  Hibbard  v.  People,  4  Mich. 
126 ;  Fisher  v.  McGirr,  1  Gray,  1. 

[346] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.     *  305 

leaves  the  disposition  of  the  goods  searched  for  to  the  ministerial 
officer,  instead  of  requiring  them  to  be  brought  before  the  magis- 
trate, that  he  may  pass  his  judgment  upon  the  truth  of  the  com- 
plaint made ;  and  it  would  also  be  a  fatal  objection  to  a  statute 
authorizing  such  a  warrant,  if  it  permitted  a  condemnation  or 
other  final  disposition  of  the  goods,  without  notice  to  the  claim- 
ant, and  without  an  opportunity  for  a  hearing  being  afforded  him.1 
The  warrant  is  not  allowed  for  the  purpose  of  obtaining  evidence 
of  an  intended  crime  ;  but  only  after  lawful  evidence  of  an  offence 
actually  committed.2  Nor  even  then  is  it  allowable  to  invade  one's 
privacy  for  the  sole  purpose  of  obtaining  evidence  against 
him,3  *  except  in  a  few  special  cases  where  that  which  is  [*  306] 
the  subject  of  the  crime  is  supposed  to  be  concealed,  and 
the  public  or  the  complainant  has  an  interest  in  it  or  in  its  destruc- 
tion. Those  special  cases  are  familiar  and  well  understood  in  the 
law.  Search-warrants  have  heretofore  been  allowed  to  search  for 
stolen  goods,  for  goods  supposed  to  have  been  smuggled  into  the 
country  in  violation  of  the  revenue  laws,  for  implements  of  gaming 
or  counterfeiting,  for  lottery  tickets  or  prohibited  liquors  kept  for 
sale  contrary  to  law,  for  obscene  books  and  papers  kept  for  sale  or 
circulation,  and  for  powder  or  other  dangerous  or  explosive  mate- 
rial so  kept  as  to  endanger  the  public  safety.4  A  statute  which 
should  permit  the  breaking  and  entering  a  man's  house,  and  the 

1  The  "  Search  and  Seizure"  clause  in  some  of  the  prohibitory  liquor  laws  was 
held  void  on  this  ground.  Fisher  v.  McGirr,  1  Gray,  1  ;  Greene  v.  Briggs,  1  Curtis, 
311  ;  Hibbard  v.  People,  4  Mich.  126.  See  also  Matter  of  Morton,  10  Mich. 
208,  for  a  somewhat  similar  principle. 

2  We  do  not  say  that  it  would  be  incompetent  to  authorize,  by  statute,  the 
issue  of  search-warrants  for  the  prevention  of  offences  in  some  cases  ;  but  it  is 
difficult  to  state  any  case  in  which  it  might  be  proper,  except  in  such  cases  of 
attempts,  or  of  preparations  to  commit  crime,  as  are  in  themselves  criminal. 

3  The  fourth  amendment  to  the  Constitution  of  the  United  States,  found  also 
in  many  State  constitutions,  would  clearly  preclude  the  seizure  of  one's  papers 
in  order  to  obtain  evidence  against  him  ;  and  the  spirit  of  the  fifth  amendment  — 
that  no  person  shall  be  compelled  in  a  criminal  case  to  give  evidence  against  him- 
self—  would  also  forbid  such  seizure. 

4  These  are  the  most  common  cases,  but  in  the  following  search-warrants  are 
also  sometimes  provided  for  by  statute  :  books  and  papers  of  a  public  character, 
retained  from  their  proper  custody ;  females  supposed  to  be  concealed  in  houses 
of  ill-fame  ;  children  enticed  or  kept  away  from  parents  or  guardians  ;  concealed 
weapons  ;  counterfeit  money,  and  forged  bills  or  papers.  See  cases  under  English 
statutes  specified  in  4  Broom  and  Hadley's  Commentaries,  332. 

[347] 


*  306  CONSTITUTIONAL    LIMITATIONS.  [CH.  X. 

examination  of  books  and  papers  with  a  view  to  discover  the  evi- 
dence of  crime,  might  possibly  not  be  void  on  constitutional  grounds 
in  some  other  cases  ;  but  the  power  of  the  legislature  to  authorize 
a  resort  to  this  process  is  one  which  can  properly  be  exercised  only 
in  extreme  cases,  and  it  is  better  oftentimes  that  crime  should  go 
unpunished  than  that  the  citizen  should  be  liable  to  have  his  prem- 
ises invaded,  his  desks  broken  open,  his  private  books,  letters,  and 
papers  exposed  to  prying  curiosity,  and  to  the  misconstructions  of 
ignorant  and  suspicious  persons ;  and  all  this  under  the  direction 
of  a  mere  ministerial  officer,  who  brings  with  him  such  assistants 
as  he  pleases,  and  who  will  select  them  more  often  with  reference 
to  physical  strength  and  courage  than  to  their  sensitive  regard  to 
the  rights  and  feelings  of  others.  To  incline  against  the  enact- 
ment of  such  laws,  is  to  incline  to  the  side  of  safety.1  In 
[*  307]  principle  they  are  *  objectionable ;  in  the  mode  of  execu- 
tion they  are  necessarily  odious ;  and  they  tend  to  invite 

1  Instances  sometimes  occur  in  which  ministerial  officers  take  such  liberties, 
in  endeavoring  to  detect  and  punish  offenders,  as  are  even  more  criminal  than 
the  offences  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,  cannot  be  too  often  or  too  strongly  condemned ;  and  that  prying  into 
private  correspondence  by  officers,  which  has  sometimes  been  permitted  by 
postmasters,  is  directly  in  the  face  of  the  law,  and  cannot  be  excused.  The 
importance  of  public  confidence  in  the  inviolability  of  correspondence  through 
the  post-office  cannot  well  be  overrated ;  and  the  proposition  to  permit  letters  to 
be  opened,  at  the  discretion  of  a  ministerial  officer,  would  excite  general  indig- 
nation. In  Maine  it  has  been  decided  that  a  telegraph  operator  may  be  com- 
pelled to  disclose  the  contents  of  a  message  sent  by  him  for  another  party,  and 
that  no  rule  of  public  policy  would  forbid.  State  v.  Litchfield,  58  Me.  2C7.  The 
case  is  treated  as  if  no  other  considerations  were  involved  than  those  which  arise 
in  the  ordinary  case  of  a  voluntary  disclosure  by  one  private  person  to  another, 
without  necessity.  Such,  however,  is  not  the  nature  of  the  communication  made 
to  the  operator  of  the  telegraph.  That  instrument  is  used  as  a  means  of  cor- 
respondence, and  as  a  valuable,  and  in  many  cases  an  indispensable,  substitute  for 
the  postal  facilities  ;  and  the  communication  is  made,  not  because  the  party  desires 
to  put  the  operator  in  possession  of  facts,  but  because  transmission  without  it  is 
impossible.  It  is  not  voluntary  in  any  other  sense  than  this,  that  the  party  makes 
it  rather  than  deprive  himself  of  the  benefits  of  this  great  invention  and  improve- 
ment. The  reasons  of  a  public  nature  for  maintaining  the  secrecy  of  telegraphic 
communication  are  the  same  with  those  which  protect  correspondence  by  mail ; 
and  though  the  operator  is  not  a  public  officer,  that  circumstance  appears  to  us 
immaterial.  He  fulfils  an  important  public  function,  and  the  propriety  of  his  pre- 
serving inviolable  secrecy  in  regard  to  communications  is  so  obvious,  that  it  is 
common  to  provide  statutory  penalties  for  disclosures.     If  on  grounds  of  public 

[348] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.      *  307 

abuse  and  to  cover  the  commission  of  crime.  We  thi  ik  it  would 
generally  be  safe  for  the  legislature  to  regard  all  those  searches 
and  seizures  "  unreasonable  "  which  have  hitherto  been  unknown 
to  the  law,  and  on  that  account  to  abstain  from  authorizing  them  ; 
leaving  parties  and  the  public  to  the  accustomed  remedies.1 

We  have  said  that  if  the  officer  follows  the  command  of  his  war- 
rant he  is  protected  ;  and  this  is  so  even  when  the  complaint  proves 

policy  the  operator  should  not  voluntarily  disclose,  why  do  not  the  same  con- 
siderations forbid  the  courts  compelling  him  to  do  so  ?  Or  if  it  be  proper  to 
make  him  testify  to  the  correspondence  by  telegraph,  what  good  reason  can  be 
given  why  the  postmaster  should  not  be  made  subject  to  the  process  of  subpoena 
for  a  like  purpose,  and  compelled  to  bring  the  correspondence  which  passes 
through  his  hands  into  court,  and  open  it  for  the  purposes  of  evidence  ? 

We  must  maintain  the  opinion,  notwithstanding  the  decision  of  so  eminent  a 
tribunal,  that  the  public  are  not  entitled  to  a  man's  private  correspondence, 
whether  obtainable  by  seizing  it  in  the  mails,  or  by  compelling  the  operator  of 
the  telegraph  to  testify  to  it,  or  by  requiring  his  servants  to  take  from  his  desks 
his  private  letters  and  journals,  and  bring  them  into  court  on  subpoena  duces 
tecum.  Any  such  compulsory  process  to  obtain  it  would  be  nothing  short  of  a 
most  arbitrary  and  unjustifiable  seizure  of  private  papers;  such  an  "unreason- 
able seizure  "  as  is  directly  condemned  by  the  Constitution.  In  England,  the 
secretary  of  state  sometimes  issues  his  warrant  for  opening  a  particular  letter, 
where  he  is  possessed  of  such  facts  as  he  is  satisfied  would  justify  him  with 
the  public ;  but  no  American  officer  or  body  possesses  such  authority,  and  its 
usurpation  should  not  be  tolerated.  For  an  account  of  the  former  and  present 
English  practice  on  this  subject,  see  May,  Constitutional  History,  c.  11 ;  Todd, 
Parliamentary  Government,  Vol.  I.  p.  272 ;  Broom,  Const.  Law,  615. 

1  A  search-warrant  for  libels  and  other  papers  of  a  suspected  party  was  illegal 
at  the  common  law.  See  11  State  Trials,  313,  321 ;  Archbold,  Cr.  Law  (7th  ed.), 
141;  Wilkes  v.  Wood,  19  State  Trials,  1153.  "Search-warrants  were  never 
recognized  by  the  common  law  as  processes  which  might  be  availed  of  by  indi- 
viduals in  the  course  of  civil  proceedings,  or  for  the  maintenance  of  any  mere 
private  right;  but  their  use  was  confined  to  the  case  of  public  prosecutions 
instituted  and  pursued  for  the  suppression  of  crime,  and  the  detection  and  pun- 
ishment of  criminals.  Even  in  those  cases,  if  we  may  rely  on  the  authority  of 
Lord  Coke,  their  legality  was  formerly  doubted ;  and  Lord  Camden  said  that 
they  crept  into  the  law  by  imperceptible  practice.  But  their  legality  has  long 
been  considered  to  be  established,  on  the  ground  of  public  necessity ;  because 
without  them  felons  and  other  malefactors  would  escape  detection."  Merrick,  J., 
in  Robinson  v.  Richardson,  13  Gray,  456.  "  To  enter  a  man's  house,"  said  Lord 
Camden,  "  by  virtue  of  a  nameless  warrant,  in  order  to  procure  evidence,  is  worse 
than  the  Spanish  Inquisition  ;  a  law  under  which  no  Englishman  would  wish  to  live 
an  hour.1'  See  his  opinion  in  Entinck  v.  Carrington,  19  State  Trials,  1029  ;  s.  C. 
2  Wils.  275;  and  Broom,  Const.  Law,  558;  Huckle  v.  Money,  2  VVils.  205; 
Leach  v.  Money,  19  State  Trials,  1001;  s.  c.  3  Burr.  1692;  and  1  W.  Bl.  555; 
Note  to  Entinck  v.  Carrington,  Broom,  Const.  Law.  613. 

[  349  ] 


*  307  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

to  have  been  unfounded.1  But  if  he  exceed  the  command 
[*  308]  by  *  searching  in  places  not  described  therein,  or  by  seiz- 
ing persons  or  articles  not  commanded,  he  is  not  protected 
by  the  warrant,  and  can  only  justify  himself  as  in  other  cases  where 
he  assumes  to  act  without  process.2  Obeying  strictly  the  command 
of  his  warrant,  he  may  break  open  outer  or  inner  doors,  and  his 
justification  does  not  depend  upon  his  discovering  that  for  which 
he  is  to  make  search.3 

In  other  cases  than  those  to  which  we  have  referred,  and  sub- 
ject to  the  general  police  power  of  the  State,  the  law  favors  the 
complete  and  undisturbed  dominion  of  every  man  over  his  own 
premises,  and  protects  him  therein  with  such  jealousy  that  he 
may  defend  his  possession  against  intruders,  in  person  or  by  his 
servants  or  guests,  even  to  the  extent  of  taking  the  life  of  the 
intruder,  if  that  seem  essential  to  the  defence.4 

Quartering  Soldiers  in  Private  Souses. 

A  provision  is  found  incorporated  in  the  constitution  of  nearly 
every  State,  that  "  no  soldier  shall  in  time  of  peace  be  quartered  in 
any  house  without  the  consent  of  the  owner,  nor  in  time  of  war 

'■  Barnard  v.  Bartlett,  10  Cush.  501. 

2  Crozier  v.  Cudney,  9  D.  &  R.  224;  Same  case,  6  B.  &  C.  232;  State  v. 
Brennan's  Liquors,  25  Conn.  278. 

3  2  Hale,  P.  C.  151 ;  Barnard  v.  Bartlett,  10  Cush.  501. 

4  That  in  defence  of  himself,  any  member  of  his  family  or  his  dwelling,  a  man 
has  a  right  to  employ  all  necessary  violence,  even  to  the  taking  of  life,  see 
Shorter  v.  People,  2  N.  Y.  193 ;  Yates  v.  People,  32  N.  Y.  509 ;  Logue  v.  Com- 
monwealth, 38  Penn.  St.  265;  Pond  v.  People,  8  Mich.  150;  Maher  v.  People, 
24  111.  241 ;  Bohannan  v.  Commonwealth,  8  Bush,  481 ;  s.  c.  8  Am.  Rep.  474. 
But  except  where  a  forcible  felony  is  attempted  against  person  or  property,  he 
should  avoid  such  consequences  if  possible,  and  cannot  justify  standing  up  and 
resisting  to  the  death,  when  the  assailant  might  have  been  avoided  by  retreat. 
People  v.  Sullivan,  7  N.  Y.  396.  But  a  man  assaulted  in  his  dwelling  is  under 
no  obligation  to  retreat ;  his  house  is  his  castle,  which  he  may  defend  to  any 
extremity.  And  this  means  not  simply  the  dwelling-house  proper,  but  includes 
whatever  is  within  the  curtilage  as  understood  at  the  common  law.  Pond  v. 
People,  8  Mich.  150.  And  in  deciding  what  force  it  is  necessary  to  employ  in 
resisting  the  assault,  a  person  must  act  upon  the  circumstances  as  they  appear  to 
him  at  the  time ;  and  he  is  not  to  be  held  criminal  because  on  a  calm  survey  of 
the  facts  afterwards  it  appears  that  the  force  employed  in  defence  was -excessive. 
See  the  cases  above  cited.  Also  Schiner  v.  People,  23  111.  17  ;  Patten  v.  People, 
18  Mich.  314 ;  Henton  v.  State,  24  Texas,  454. 

[350] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.      *  308 

but  in  a  manner  to  be  prescribed  by  law."    To  us,  after  four-fifths 
of  a  century  have  passed  away  since  occasion  has  existed  for  com- 
plaint of  the  action  of  the  government  in  this  particular,  the  repe- 
tition of  this  declaration  seems  to  savor  of  idle  form  and  ceremony ; 
but  "  a  frequent  recurrence  to  the  fundamental  principles  of  the 
Constitution  "  can  never  be  unimportant,  and  indeed  may  well  be 
regarded  as  "  absolutely  necessary  to  preserve  the  advantages  of 
liberty,  and  to  maintain  a  free  government."  1     It  is  difficult  to 
imagine  a  more  terrible  engine  of  oppression  than  the  power  in  the 
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  officer  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 ;  who  is  sent  as  an  instru- 
ment of  *  punishment,  and  with  whom  insult  and  outrage  [*  309] 
may  appear  quite  in  the  line  of  his  duty.     However  con- 
trary to  the  spirit  of  the  age  such  a  proceeding  may  be,  it  may 
always  be  assumed  as  possible  that  it  may  be  resorted  to  in  times 
of  great  excitement,  when  party  action  is  generally  violent ;  and 
"  the  dragonades  of  Louis  XIV.  in  France,  of  James  II.  in  Scot- 
land, and  those  of  more  recent  and  present  date  in  certain  countries, 
furnish  sufficient  justification  of  this   specific  guaranty." 2     The 
clause,  as  we  find  it  in  the  national  and  State  constitutions,  has 
come  down  to  us  through  the  Petition  of  Right,  the  Bill  of  Rights 
of  1688,  and  the  Declaration  of  Independence ;  and  it  is  but  a 
branch  of  the  constitutional  principle,  that  the  military  shall  in 
time  of  peace  be  in  strict  subordination  to  the  civil  power.3 

1  Constitutions  of  Massachusetts,  New  Hampshire,  Vermont,  Florida,  Illinois, 
and  North  Carolina.  See  also  Constitutions  of  Virginia,  Nebraska,  and  Wiscon- 
sin, for  a  similar  declaration. 

2  Lieber,  Civil  Liberty  and  Self-Government,  c.  11. 

3  Story  on  the  Constitution,  §§  1899,  1900;  Rawle  on  Constitution,  126.  In 
exceptional  cases,  however,  martial  law  may  be  declared  and  enforced,  whenever 
the  ordinary  legal  authorities  are  unable  to  maintain  the  public  peace,  and  sup- 
press violence  and  outrage.  Todd,  Parliamentary  Government  in  England,  Vol. 
I.  p.  342 ;  1  Bl.  Com.  413-415.  As  to  martial  law  in  general,  see  Ex  parte 
Milligan,  4  Wall.  129. 

[351] 


*  309  CONSTITUTIONAL    LIMITATIONS.  [CH.  X. 


Criminal  Accusations. 

Perhaps  the  most  important  of  the  protections  to  personal  liberty 
consists  in  the  mode  of  trial  which  is  secured  to  every  person  ac- 
cused of  crime.  At  the  common  law,  accusations  of  felony  were 
made  in  the  form  of  an  indictment  by  a  grand  jury;  and  this 
process  is  still  retained  in  many  of  the  States,1  while  others  have 
substituted  in  its  stead  an  information  filed  by  the  prosecuting 
officer  of  the  State  or  county.  The  mode  of  investigating  the  facts, 
however,  is  the  same  in  all;  and  this  is  through  a  trial  by  jury, 
surrounded  by  certain  safeguards  which  are  a  well  understood  part 
of  the  system,  and  which  the  government  cannot  dispense  with. 

First,  we  may  mention  that  the  humanity  of  our  law  always 
presumes  an  accused  party  innocent  until  he  is  proved  to  be  guilty. 
This  is  a  presumption  which  attends  all  the  proceedings  against 
him,  from  their  initiation  until  they  result  in  a  verdict,  which 
either  finds  the  party  guilty  or  converts  the  presumption  of  inno- 
cence into  an  adjudged  fact.2 

If  there  were  any  mode  short  of  confinement  which  would,  with 
reasonable  certainty,  insure  the  attendance  of  the  accused  to 
answer  the  accusation,  it  would  not  be  justifiable  to  inflict  upon 
him  that  indignity,  when  the  effect  is  to  subject  him,  in  a  greater 
or  less  degree,  to  the  punishment  of  a  guilty  person,  while  as  yet 

1  The  indictment,  to  accomplish  the  purpose  of  the  constitutional  require- 
ment, should  set  out  the  material  facts  charged  against  the  accused.  State  v. 
OTlaherty,  7  Nev.  153.  This,  however,  would  not  preclude  the  legislature  from 
establishing  forms,  provided  they  furnished  such  reasonable  information  as  would 
apprize  the  accused  of  the  charge  he  was  to  meet. 

2  It  is  sometimes  claimed  that  where  insanity  is  set  up  as  a  defence  in  a  crim- 
inal case,  the  defendant  takes  upon  himself  the  burden  of  proof  to  establish  it, 
and  that  he  must  make  it  out  beyond  a  reasonable  doubt.  For  recent  cases 
taking  this  view,  see  State  v.  Felton,  32  Iowa,  49 ;  McKenzie  v.  State.  42  Geo. 
334 ;  Boswell  v.  Commonwealth,  20  Grat.  860.  Other  well-considered  cases  do 
not  support  this  view.  The  burden  of  proof,  it  is  held,  rests  throughout  upon  the 
prosecution  to  establish  all  the  conditions  of  guilt ;  and  the  presumption  of  inno- 
cence that  all  the  while  attends  the  prisoner  entitles  him  to  an  acquittal,  if  the 
jury  are  not  reasonably  satisfied  of  his  guilt.  A  reasonable  doubt  of  his  capacity 
to  commit  the  crime  as  justly  entitles  him  to  an  acquittal,  as  a  reasonable  doubt 
on  any  other  branch  of  the  case.  See  State  v.  Marler,  2  Ala.  43 ;  People  v. 
McCann,  16  N.  Y.  58 ;  Commonwealth  v.  Kimball,  24  Pick.  373  ;  Commonwealth 
v.  Dana,  2  Met.  340 ;  Hopps  v.  People,  31  111.  385 ;  People  v.  Garbutt,  17  Mich. 
23;  State  v.  Klinger,  43  Mo.  127;  State  v.  Hundley,  46  Mo.  414. 

[  352] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.      *  309 

it  is  not  determined  that  he  has  committed  any  crime.  If 
the  punishment  on  conviction  cannot  exceed  in  severity  the  for- 
feiture of  a  large  sum  of  money,  then  it  is  reasonable  to  suppose 
that  such  a  sum  of  money,  or  an  agreement  by  responsible 
*  parties  to  pay  it  to  the  government  in  case  the  accused  [*  310] 
should  fail  to  appear,  would  be  sufficient  security  for  his 
attendance ;  and  therefore,  at  the  common  law,  it  was  customary 
to  take  security  of  this  character  in  all  cases  of  misdemeanor  ;  one 
or  more  friends  of  the  accused  undertaking  for  his  appearance  for 
trial,  and  agreeing  that  a  certain  sum  of  money  should  be  levied  of 
their  goods  and  chattels,  lands  and  tenements,  if  he  made  default. 
But  in  the  case  of  felonies,  the  privilege  of  giving  bail  before  trial 
was  not  a  matter  of  right ;  and  in  this  country,  although  the  crim- 
inal code  is  much  more  merciful  than  it  formerly  was  in  England, 
and  in  some  cases  the  allowance  of  bail  is  almost  a  matter  of 
course,  there  are  others  in  which  it  is  discretionary  with  the  mag- 
istrate to  allow  it  or  not,  and  where  it  will  sometimes  be  refused  if 
the  evidence  of  guilt  is  strong  or  the  presumption  great.  Capital 
offences  are  not  generally  regarded  as  bailable ;  at  least,  after  in- 
dictment, or  when  the  party  is  charged  by  the  finding  of  a  coroner's 
jury  ; 1  and  this  upon  the  supposition  that  one  who  may  be  sub- 
jected to  the  terrible  punishment  that  would  follow  a  conviction, 
would  not  for  any  mere  pecuniary  considerations  remain  to  abide 
the  judgment.2  And  where  the  death  penalty  is  abolished  and 
imprisonment  for  life  substituted,  it  is  believed  that  the  rule  would 
be  the  same  notwithstanding  this  change,  and  bail  would  still  be 
denied  in  the  case  of  the  highest  offences,  except  under  very  pecu- 
liar circumstances.3  In  the  case  of  other  felonies  it  is  not  usual 
to  refuse  bail,  and  in  some  of  the  State  constitutions  it  has  been 
deemed  important  to  make  it  a  matter  of  right  in  all  cases  except 
on  capital  charges  "  when  the  proof  is  evident  or  the  presumption 
great."  i 

1  Matter  of  Barronet,  1  El.  &  Bl.  1  ;  Ex  parte  Tayloe,  5  Cow.  39. 

2  State  v.  Summons,  19  Ohio,  139. 

3  The  courts  have  power  to  bail,  even  in  capital  cases.  United  States  v. 
Hamilton,  3  Dall.  18;  United  States  v.  Jones,  3  Wash.  224;  State  v.  Rockafel- 
low,  1  Halst.  332 ;  Commonwealth  v.  Semmes,  11  Leigh,  665 ;  Commonwealth  v. 
Archer,  6  Grat.  705 ;  People  v.  Smith,  1  Cal.  9 ;  People  v.  Van  Home,  8  Barb. 
158.  In  England,  when  all  felonies  were  capital,  it  was  discretionary  with  the 
courts  to  allow  bail  before  trial.     4  Bl.  Com.  297,  and  note. 

4  The  Constitutions  of  a  majority  of  the  States  now  contain  provisions  to 

23  [  353  ] 


*  310  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

When  bail  is  allowed,  unreasonable  bail  is  not  to  be  re- 
[*  311]  quired ;  *  but  the  constitutional  principle  that  demands 
this  is  one  which,  from  the  very  nature  of  the  case,  ad- 
dresses itself  exclusively  to  the  judicial  discretion  and  sense  of 
justice  of  the  court  or  magistrate  empowered  to  fix  upon  the 
amount.  That  bail  is  reasonable  which,  in  view  of  the  nature  of 
the  offence,  the  penalty  which  the  law  attaches  to  it,  and  the  proba- 
bilities that  guilt  will  be  established  on  the  trial,  seems  no  more 
than  sufficient  to  secure  the  party's  attendance.  In  determining 
this,  some  regard  should  be  had  to  the  prisoner's  pecuniary  cir- 
cumstances ;  that  which  is  reasonable  bail  to  a  man  of  wealth, 
being  equivalent  to  a  denial  of  right  if  exacted  of  a  poor  man 
charged  with  the  like  offence.  When  the  court  or  magistrate  re- 
quires greater  security  than  in  his  judgment  is  needful  to  secure 
attendance,  and  keeps  the  prisoner  in  confinement  for  failure  to 
give  it,  it  is  plain  that  the  right  to  bail  which  the  constitution 
attempts  so  carefully  to  secure  has  been  disregarded  ;  and  though 
the  wrong  is  one  for  which,  in  the  nature  of  the  case,  no  remedy 
exists,  the  violation  of  constitutional  privilege  is  aggravated,  in- 
stead of  being  diminished,  by  that  circumstance.1 

The  presumption  of  innocence  is  an  absolute  protection  against 
conviction  and  punishment,  except  either,  first,  on  confession  in 
open  court ;  or,  second,  on  proof  which  places  the  guilt  beyond  any 
reasonable  doubt.  Formerly,  if  a  prisoner  arraigned  for  felony 
stood  mute  wilfully,  and  refused  to  plead,  a  terrible  mode  was 
resorted  to  f  r  the  purpose  of  compelling  him  to  do  so  ;  and  this 
might  even  end  in  his  death  : 2  but  a  more  merciful  proceeding  is 

this  effect.  And  see  Foley  v.  People,  Breese,  31 ;  Ullery  v.  Commonwealth, 
8  B.  Monr.  3;  Shore  v.  State,  6  Mo.  640;  State  v.  Summons,  19  Ohio,  139; 
Ex  parte  Wray,  30  Miss.  673;  Moore  v.  State,  36  Miss.  137  ;  Ex  parte  Banks, 
28  Ala.  89. 

1  The  magistrate  in  taking  bail  exercises  an  authority  essentially  judicial. 
Regina  v.  Badger,  4  Q.  B.  468;  Linford  v.  Fitzroy,  13  Q.  B.  240.  As  to  his 
duty  to  look  into  the  nature  of  the  charge  and  the  evidence  to  sustain  it,  see 
Barronet's  Case,  1  El.  &  Bl.  1. 

*  4  Bl.  Com.  324.  In  treason,  petit  felony,  and  misdemeanors,  wilfully 
standing  mute  was  equivalent  to  a  conviction,  and  the  same  punishment  might  be 
imposed ;  but  in  other  cases  there  could  be  no  trial  or  judgment  without  plea ; 
and  an  accused  party  might  therefore  sometimes  stand  mute  and  suffer  himself 
to  be  pressed  to  death,  in  order  to  save  his  property  from  forfeiture.  Poor  Giles 
Corey,  .accused  of  witchcraft,  was  perhaps  the  only  person  ever  pressed  to  death 
[364] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.     *  31 

now  substituted ;  the  court  entering  a  plea  of  not  guilty  for  a 
party  who,  for  any  reason,  fails  to  plead  for  himself. 

Again,  it  is  required  that  the  trial  be  speedy  ;  and  here  also  the 
injunction  is  addressed  to  the  sense  of  justice  and  sound  judgment 
of  the  court.    In  this  country,  where  officers  are  specially  appointed 
or  elected  to  represent  the  people  in  these  prosecutions,  their  posi- 
tion gives  them  an  immense  power  for  oppression  ;  and  it  is  to  be 
feared  they  do  not  always  sufficiently  appreciate  the  responsibility, 
and  wield  the  power  with  due  regard  to  the  legal  rights  and  priv- 
ileges of   the  accused.1     When  a  person  charged  with  crime  is 
willing  to  proceed  at  once  to  trial,  no  delay  on  the    part  of  the 
prosecution   is  reasonable,   except   only  that   which  is  necessary 
for  proper  preparation  and  to  secure  the  attendance  of 
*  witnesses.2     Very  much,  however,  must  be  left  to  the  [*  312] 
judgment  of  the  prosecuting  officer  in  these  cases ;  and 
the  court  would  not  compel  the  government  to  proceed  to  trial  at 
the  first  term  after  indictment  found  or  information  filed,  if  the 
officer  who  represents  it  should  state,  under  the  responsibility  of 
his  official  oath,  that  he  was  not  and  could  not  be  ready  at  that 
time.3    But  further  delay  would  not  generally  be  allowed  without  a 
more  specific  showing  of  the  causes  which  prevent  the  State  proceed- 
ing to  trial,  including  the  names  of  the  witnesses,  the  steps  taken  to 
procure  them,  and  the  facts  expected  to  be  proved  by  them,  in  order 
that  the  court  might  judge  of  the  reasonableness  of  the  applica- 
tion, and  that  the  prisoner  might,  if  he  saw  fit  to  take  that  course, 

for  refusal  to  plead  in  America.  3  Bancroft's  U.  S.  93 ;  2  Hildreth's  U.  S.  160. 
For  English  cases,  see  Cooley's  Bl.  Coin.  325,  note.  Now  in  England  the  court 
enters  a  plea  of  not  guilty  for  a  prisoner  refusing  to  plead,  and  the  trial  proceeds 
as  in  other  cases. 

1  It  is  the  duty  of  the  prosecuting  attorney  to  treat  the  accused  with  judicial 
fairness ;  and  to  inflict  injury  at  the  expense  of  justice  is  no  part  of  the  purpose 
for  which  he  is  chosen.  Unfortunately,  however,  we  sometimes  meet  with  cases 
in  which  these  officers  appear  to  regard  themselves  as  the  counsel  for  the  com- 
plaining party  rather  than  the  impartial  representative  of  public  justice.  Bu 
we  trust  it  is  not  often  that  cases  occur  like  a  recent  one  in  Tennessee,  in  which 
the  Supreme  Court  felt  called  upon  to  set  aside  a  verdict  in  a  criminal  case, 
where  by  the  artifice  of  the  prosecuting  officer  the  prisoner  had  been  induced  to 
go  to  trial  under  the  belief  that  certain  witnesses  for  the  State  were  absent,  when 
in  fact  they  were  present  and  kept  in  concealment  by  this  functionary.  Curtis  v. 
State,  6  Cold.  9. 

2  See  this  discussed  in  Ex  parte  Stanley,  4  Nev.  113. 

3  Watts  v.  State,  26  Geo.  231.  ' 

[355] 


*  312  CONSTITUTIONAL    LIMITATIONS.  [CH.  X. 

secure  an  immediate  trial  by  admitting  that  the  witnesses,  if  pres- 
ent, would  testify  to  the  facts  which  the  prosecution  have  claimed 
could  be  proved  by  them.1 

It  is  also  requisite  that  the  trial  be  public.  By  this  is  not  meant 
that  every  person  who  sees  fit  shall  in  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  supported,  the  motives  to  attend  the  trial  on  the 
part  of  portions  of  the  community  would  be  of  the  worst  char- 
acter, and  where  a  regard  to  public  morals  and  public  decency 
would  require  that  at  least  the  young  be  excluded  from  hearing 
and  witnessing  the  evidences  of  human  depravity  which  the  trial 
must  necessarily  bring  to  light.  Tbe  requirement  of  a  public  trial 
is  for  the  benefit  of  the  accused  ;  that  the  public  may  see  he  is  fairly 
dealt  with  and  not  unjustly  condemned,  and  that  the  presence  of 
interested  spectators  may  keep  his  triers  keenly  alive  to  a  sense  of 
their  responsibility  and  to  the  importance  of  their  functions  ;  and 
the  requirement  is  fairly  met  with,  if,  without  partiality  or  favorit- 
ism, a  reasonable  proportion  of  the  public  is  suffered  to  attend, 
notwithstanding  that  those  persons  whose  presence  could  be  of  no 
service  to  the  accused,  and  who  would  only  be  drawn  thither  by  a 

prurient  curiosity,  are  excluded  altogether. 
[*  313]  *  But  a  far  more  important  requirement  is  that  the  pro- 
ceeding to  establish  guilt  shall  not  be  inquisitorial.  A 
peculiar  excellence  of  the  common-law  system  of  trial  over  that 
which  has  prevailed  in  other  civilized  countries,  consists  in  the  fact 
that  the  accused  is  never  compelled  to  give  evidence  against  him- 
self. Much  as  there  was  in  that  system  that  was  heartless  and 
cruel,  it  recognized  fully  the  dangerous  and  utterly  untrustworthy 
character  of  extorted  confessions,  and  was  never  subject  to  the 
reproach  that  it  gave  judgment  upon  them.2 

1  The  Habeas  Corpus  Act,  31  Ch.  II.  c.  2,  §  1,  required  a  prisoner  charged 
with  crime  to  be  released  on  bail,  if  not  indicted  the  first  term  after  the  commit- 
ment, unless  the  king's  witnesses  could  not  be  obtained ;  and  that  he  should  be 
brought  to  trial  as  early  as  the  second  term  after  the  commitment.  The  prin- 
ciples of  this  statute  are  considered  as  having  been  adopted  into  the  American 
common  law:  post,  345. 

2  See  Lieber's  paper  on  Inquisitorial  Trials,  Appendix  to  Civil  Liberty  and 
Self-Government.  Also  the  article  on  Criminal  Procedure  in  Scotland  and  Eng- 
land, Edinb.  Review,  Oct.  1858.  And  for  an  illustration  of  inquisitorial  trials  in 
our  own  day,  see  Trials  of  Troppman  and  Prince  Pierre  Bonaparte,  Am.  Law 

[356] 


CH.  X.]       CONSTITUTIONAL  PEOTECTIONS  TO  PERSONAL  LIBERTY.     *  313 

It  is  the  law  in  some  of  the  States,  when  a  person  is  charged 
with  crime,  and  is  brought  before  an  examining  magistrate,  and 
the  witnesses  in  support  of  the  charge  have  been  heard,  that  the 
prisoner  may  also  make  a  statement  concerning  the  transaction 
charged  against  him,  and  that  this  may  be  used  against  him  on  the 
trial  if  supposed  to  have  a  tendency  to  establish  guilt.  But  the 
prisoner  is  to  be  first  cautioned  that  he  is  under  no  obligation  to 
answer  any  question  put  to  him  unless  he  chooses,  and  that  what- 
ever he  says  and  does  must  be  entirely  voluntary.1  He  is  also  to  be 
allowed  the  presence  and  advice  of  counsel ;  and  if  that  privilege 
is  denied  him  it  may  be  sufficient  reason  for  discrediting  any  dam 
aging  statements  he  may  have  made.2  When,  however,  the  statute 
has  been  complied  with,  and  no  species  of  coercion  appears  to 
have  been  employed,  the  statement  the  prisoner  may  have  made  is 
evidence  which  can  be  used  against  him  on  his  trial,  and  is  gen- 
erally entitled  to  great  weight.3  And  in  any  other  case 
*  except  treason4  the  confession  of  the  accused  may  be  [*  314] 

Review,  Vol.  V.  p.  14.  Judge  Foster  relates  from  Wbitelocke,  that  the  bishop 
of  London  having  said  to  Felton,  who  had  assassinated  the  Duke  of  Bucking- 
ham, "  If  you  will  not  confess,  you  must  go  to  the  rack,"  the  man  replied,  "  If  it 
must  be  so,  I  know  not  whom  I  may  accuse  in  the  extremity  of  my  torture,  — 
Bishop  Laud,  perhaps,  or  any  lord  of  this  board."  "  Sound  sense,"  adds  Foster, 
"  in  the  mouth  of  an  enthusiast  and  ruffian."  Laud  having  proposed  the  rack,  the 
matter  was  shortly  debated  at  the  board,  and  it  ended  in  a  reference  to  the  judges, 
who  unanimously  resolved  that  the  rack  could  not  be  legally  used.  De  Lolme  on 
Constitution  of  England  (ed.  of  1807),  p.  181,  note;  4  Bl.  Com.  325;  Broom, 
Const.  Law,  148  ;  Trial  of  Felton,  3  State  Trials,  368,  371 ;  Brodie,  Const.  Hist, 
c.  8.  A  legislative  body  has  no  more  right  than  a  court  to  make  its  examination 
of  parties  or  witnesses  inquisitorial.     Emery's  Case,  107  Mass.  172. 

1  See  Rev.  Stat,  of  New  York,  Pt.  4,  c.  2,  tit.  2,  §§  14-16. 

2  Rex  v.  Ellis,  Ry.  &  Mood.  432.  However,  there  is  no  absolute  right  to  the 
presence  of  counsel,  or  to  publicity  in  these  preliminary  examinations,  unless 
given  by  statute.     Cox  v.  Coleridge,  1  B.  &  C.  37. 

3  It  should  not,  however,  be  taken  on  oath,  and  if  it  is,  that  will  be  sufficient 
reason  for  rejecting  it.  Rex  v.  Smith,  1  Stark.  242 ;  Rex  v.  Webb,  4  C.  &  P. 
564;  Rex  v.  Lewis,  6  C.  &  P.  161;  Rex  v.  Rivers,  7  C.  &  P.  177;  Regina  v. 
Pikesley,  9  C.  &.  P.  124;  People  v.  McMahon,  15  N.  Y.  384.  "  The  view  of 
the  English  judges,  that  an  oath,  even  where  a  party  is  informed  he  need  answer 
no  questions  unless  he  pleases,  would,  with  most  persons,  overcome  that  caution, 
is,  I  think,  founded  on  good  reason  and  experience.     I  think  there  is  no  country 

certainly  there  is  none  from  which  any  of  our  legal  notions  are  borrowed  — 

where  a  prisoner  is  ever  examined  on  oath."  People  v.  Thomas,  9  Mich.  318, 
per  Campbell,  J. 

4  In  treason  there  can  be  no  conviction  unless  on  the  testimony  of  two  wit- 

[357] 


*  314  CONSTITUTIONAL    LIMITATIONS.  [CH.  X. 

received  in  evidence  to  establish  his  guilt,  provided  no  circum- 
stance accompanies  the  making  of  it  which  should  detract  from 
ts  weight  in  producing  conviction. 

But  to  make  it  admissible  in  any  case  it  ought  to  appear  that  it 
was  made  voluntarily,  and  that  no  motives  of  hope  or  fear  were 
employed  to  induce  the  accused  to  confess.  The  evidence  ought 
to  be  clear  and  satisfactory  that  the  prisoner  was  neither  threat- 
ened nor  cajoled  into  admitting  what  very  possibly  was  untrue. 
Under  the  excitement  of  a  charge  of  crime,  coolness  and  self-pos- 
session are  to  be  looked  for  in  very  few  persons  ;  and  however 
strongly  we  may  reason  with  ourselves  that  no  one  will  confess  a 
heinous  offence  of  which  he  is  not  guilty,  the  records  of  criminal 
courts  bear  abundant  testimony  to  the  contrary.  If  confessions 
could  prove  a  crime  beyond  doubt,  no  act  which  was  ever  punished 
criminally  would  be  better  established  than  witchcraft ; 1  and  the 
judicial  executions  which  have  been  justified  by  such  confessions 
ought  to  constitute  a  solemn  warning  against  the  too  ready  reli- 
ance upon  confessions  as  proof  of  guilt  in  any  case.  As  "  Mr. 
Justice  Parke  several  times  observed  "  while  holding  one  of  his 
•circuits,  "  too  great  weight  ought  not  to  be  attached  to  evidence  of 
what  a  party  has  been  supposed  to  have  said,  as  it  very  frequently 
happens,  not  only  that  the  witness  has  misunderstood  what  the 
party  has  said,  but  that  by  unintentionally  altering  a  few  of  the 
expressions  really  used,  he  gives  an  effect  to  the  statement  com- 
pletely at  variance  with  what  the  party  really  did  say."2  And 
when  the  admission  is  full  and  positive,  it  perhaps  quite  as  often 
happens  that  it  has  been  made  under  the  influence  of  the  terrible 
fear  excited  by  the  charge,  and  in  the  hope  that  confession  may 

nesses  to  the  same  overt  act,  or  on  confession  in  open  court.  Const,  of  United 
States,  art.  3,  §  3. 

1  See  Mary  Smith's  Case,  2  Howell's  State  Trials,  1049 ;  Case  of  Essex 
Witches,  4  ib.  817  ;  Case  of  Suffolk  Witches,  6  ib.  647  ;  Case  of  Devon  Witches, 
8  ib.  1017.  It  is  true  that  torture  was  employed  freely  in  cases  of  alleged  witch- 
craft, but  the  delusion  was  one  which  often  seized  upon  the  victims  as  well  as  their 
accusers,  and  led  the  former  to  freely  confess  the  most  monstrous  and  impossible 
actions.  Much  curious  and  valuable  information  on  this  subject  may  be  found  in 
"Superstition  and  Force,"  by  Lea ;  "  A  Physician's  Problems,"  by  Elam ;  and 
Leckey,  History  of  Rationalism. 

■  Note  to  Earle  v.  Picken,  5  C.  &  P.  542.  See  also  1  Greenl  Ev.  §  214, 
and  note ;  Commonwealth  v.  Curtis,  97  Mass.  574 ;  Derby  v.  Derby,  21  N.  J 
Eq.  36. 

[358] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.     *  314 

ward  *  off  some  of  the  consequences  likely  to  follow  if  guilt  [*  315] 
were  persistently  denied. 

A  confession  alone  ought  not  to  be  sufficient  evidence  of  the 
corpus  delicti.  There  should  be  other  proof  that  a  crime  has  actu- 
ally been  committed  ;  and  the  confession  should  only  be  allowed 
for  the  purpose  of  connecting  the  defendant  with  the  offence.1  And 
if  the  party's  hopes  or  fears  are  operated  upon  to  induce  him  to 
make  it,  this  fact  will  be  sufficient  to  preclude  the  confession  being 
received  ;  the  rule  upon  this  subject  being  so  strict  that  even  say- 
ing to  the  prisoner  it  will  be  better  for  him  to  confess,  has  been 
decided  to  be  a  holding  out  of  such  inducements  to  confession, 
especially  when  said  by  a  person  having  a  prisoner  in  custody,  as 
should  render  the  statement  obtained  by  means  of  it  inad- 
missible.2 If,  however,  *  statements  have  been  made  [*  316] 
before  the  confession,  which  were  likely  to  do  away  with 

1  In  Stringfellow  v.  State,  26  Miss.  157,  a  confession  of  murder  was  held  not 
sufficient  to  warrant  conviction,  unless  the  death  of  the  person  alleged  to  have 
been  murdered  was  shown  by  other  evidence.  In  People  v.  Hennessey,  15  Wend. 
147,  it  was  decided  that  a  confession  of  embezzlement  by  a  clerk  would  not  war- 
rant a  conviction  where  that  constituted  the  sole  evidence  that  an  embezzlement 
had  been  committed.  So  on  an  indictment  for  blasphemy,  the  admission  by  the 
defendant  that  he  spoke  the  blasphemous  charge,  is  not  sufficient  evidence  of  the 
uttering.  People  v.  Porter,  2  Park.  Cr.  R.  1-4.  And  see  State  v.  Guild,  5  Halst. 
163 ;  Long's  Case,  1  Hayw.  524 ;  People  v.  Lambert,  5  Mich.  349 ;  RulotF  v. 
State,  18  N.  Y.  179. 

2  Rex  v.  Enoch,  5  C.  &  P.  539  ;  State  v.  Bostick,  4  Harr.  563  ;  Boyd  v.  State, 
2  Humph.  390;  Morehead  v.  State,  9  Humph.  635;  Commonwealth  v.  Taylor, 
5  Cush.  605;  Rex  v.  Partridge,  7  C.  &  P.  551;  Commonwealth  v.  Curtis,  97 
Mass.  574;  State  v.  Staley,  14  Minn.  105;  Frain  v.  State,  40  Geo.  529;  Austine 
v.  State,  51  111.  236;  People  v.  Phillips,  42  N.  Y.  200;  State  v.  Brockman,  46 
Mo.  566.  Mr.  Phillips  states  the  rule  thus :  "  A  promise  of  benefit  or  favor,  or 
threat  or  intimation  of  disfavor,  connected  with  the  subject  of  the  charge,  held  oi  t 
by  a  person  having  authority  in  the  matter,  will  be  sufficient  to  exclude  a  con- 
fession made  in  consequence  of  such  inducements,  either  of  hope  or  fear.  The 
prosecutor,  or  prosecutor's  wife  or  attorney,  or  the  prisoner's  master  or  mistress, 
or  a  constable,  or  a  person  assisting  him  in  the  apprehension  or  custody,  or  a 
magistrate  acting  in  the  business,  or  other  magistrate,  has  been  respectively  looked 
upon  as  having  authority  in  the  matter  ;  and  the  same  principle  applies  if  the  prin- 
ciple has  been  held  out  by  a  person  without  authority,  in  the  presence  of  a 
person  who  has  such  authority,  and  with  his  sanction,  either  express  or  implied." 
1  Phil.  Ev.  by  Cowen,  Hill,  and  Edwards,  544,  and  cases  cited.  But  we  think 
the  better  reason  is  in  favor  of  excluding  confessions  where  inducements  have  been 
held  out  by  any  person,  whether  acting  by  authority  or  not.  Rex  v.  Simpson,  1 
Mood.  C.  C.  410;  State  v.  Guild,  5  Halst.  163;  Spears  v.  State,  2  Ohio,  n.  a. 

[359] 


*  316  CONSTITUTIONAL    LIMITATIONS.  [CH.  X. 

the  effect  of  the  inducements,  so  that  the  accused  cannot  be  sup- 
posed to  have  acted  under  their  influence,  the  confession  may  be 

583 ;  Commonwealth  v.  Knapp,  9  Pick.  496  ;  Rex  v.  Clewes,  4  C.  &  P.  221 ;  Rex 
v.  Kingston,  ib.  387  ;  Rex  v.  Dunn,  ib.  543 ;  Rex  v.  Walkley,  6  C.  &  P.  175  ;  Rex 
v.  Thomas,  ib.  353.  "The  reason  is,  that  in  the  agitation  of  mind  in  which  the 
party  charged  is  supposed  to  be,  he  is  liable  to  be  influenced  by  the  hope  of 
advantage  or  fear  of  injury  to  state  things  which  are  not  true."  Per  Morton,  J., 
in  Commonwealth  v.  Knapp,  9  Pick.  496;  People  v.  McMahon,  15  N.  Y.  387. 
There  are  not  wanting  many  opposing  authorities,  which  proceed  upon  the  idea, 
that  "  a  promise  made  by  an  indifferent  person,  who  interfered  officiously  without 
any  kind  of  authority,  and  promised  without  the  means  of  performance,  can  scarcely 
be  deemed  sufficient  to  produce  any  effect,  even  on  the  weakest  mind,  as  an 
inducement  to  confess.".  1  Greenl.  Ev.  §  223.  No  supposition  could  be  more 
fallacious  ;  and  in  point  of  fact  a  case  can  scarcely  occur  in  which  some  one,  from 
age,  superior  wisdom  or  experience,  or  from  his  relations  to  the  accused  or  to 
the  prosecutor,  would  not  be  likely  to  exercise  more  influence  upon  his  mind 
than  some  of  the  persons  who  are  regarded  as  "in  authority  "  under  the  rule  as 
stated  by  Mr.  Phillips.  Mr.  Greenleaf  thinks  that,  while  as  a  rule  of  law  all 
confessions  made  to  persons  in  authority  should  be  rejected,  "  promises  and  threats 
by  private  persons,  not  being  found  so  uniform  in  their  operation,  perhaps  may, 
with  more  propriety,  be  treated  as  mixed  questions  of  law  and  fact ;  the  prin- 
ciple of  law,  that  a  confession  must  be  voluntary,  being  strictly  adhered  to,  and 
the  question,  whether  the  promises  or  threats  of  the  private  individuals  who 
employed  them  were  sufficient  to  overcome  the  mind  of  the  prisoner,  being  left 
to  the  discretion  of  the  judge  under  all  the  circumstances  of  the  case."  1  Greenl. 
Ev.  §  223.  This  is  a  more  reasonable  rule  than  that  which  admits  such  confessions 
under  all  circumstances ;  but  it  is  impossible  for  a  judge  to  say  whether  induce- 
ments, in  a  particular  case,  have  influenced  the  mind  or  not;  if  their  nature  were 
such  that  they  were  calculated  to  have  that  effect,  it  is  safer,  and  more  in  accord- 
ance with  the  human  principles  of  our  criminal  law,  to  presume,  in  favor  of  life 
and  liberty,  that  the  confessions  were  "forced  from  the  mind  by  the  flattery  of 
hope,  or  by  the  torture  of  fear"  (per  Eyre,  C.  B.,  Warickshall's  Case,  1  Leach, 
C.  C.  299),  and  exclude  them  altogether.  This  whole  subject  is  very  fully  con- 
sidered in  note  to  2  Leading  Criminal  Cases,  182.  And  see  Whart.  Cr.  Law, 
§  686  et  seq.  The  cases  of  People  v.  McMahon,  15  N.  Y.  385,  and  Common- 
wealth v.  Curtis,  97  Mass.  574,  have  carefully  considered  the  general  subject. 
In  the  second  of  these,  the  prisoner  had  asked  the  officer  who  made  the  arrest, 
whether  he  had  better  plead  guilty,  and  the  officer  had  replied  that  "as  a  general 
thing  it  was  better  for  a  man  who  was  guilty  to  plead  guilty,  for  he  got  a  lighter 
sentence."  After  this  he  made  statements  which  were  relied  upon  to  prove 
guilt.  These  statements  were  not  allowed  to  be  given  in  evidence.  Per  Foster,  J.  : 
"  There  is  no  doubt  that  any  inducement  of  temporal  fear  or  favor  coming  from 
one  in  authority,  which  preceded  and  may  have  influenced  a  confession,  will  cause 
it  to  be  rejected,  unless  the  confession  is  made  under  such  circumstances  as  to 
show  that  the  influence  of  the  inducement  had  passed  away.  No  cases  require 
more  careful  scrutiny  than  those  of  disclosures  made  by  the  party  under  arrest  to 

[360] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.      *  316 

received  in  evidence  ; 1  but  the  showing  ought  to  be  very  satisfac- 
tory on  this  point  before  the  court  should  presume  that  the  pris- 
oner's hopes  did  not  still  cling  to,  or  his  fears  dwell  upon,  the  first 
inducements.2 

Before  prisoners  were  allowed  the  benefit  of  assistance  from 
counsel  on  trials  for  high  crimes,  it  was  customary  for  them  to 
make  such  statements  as  they  saw  fit  concerning  the  charge  against 
them,  during  the  progress  of  the  trial,  or  after  the  evidence  for  the 
prosecution  was  put  in  ;  and  upon  these  statements  the  prose- 
cuting officer  or  the  court  would  sometimes  ask  questions,  which 
the  accused  might  answer  or  not  at  his  option.  And  although  this 
practice  has  now  become  obsolete,  yet  if  the  accused  in  any  case 
should  manage  or  assist  in  his  own  defence,  and  should  claim  the 
right  of  addressing  the  jury,  it  would  be  difficult  to  confine  him 
to  "  the  record  "  as  the  counsel  may  be  confined  in  his 
*  argument.  A  disposition  has  been  manifested  of  late  to  [*  317] 
allow  the  accused  to  give  evidence  in  his  own  behalf;  and 
statutes  to  that  effect  are  in  existence  in  some  of  the  States,  the 
operation  of  which  is  believed  to  have  been  generally  satisfactory.3 
These  statutes,  however,  cannot  be  so  construed  as  to  authorize 
compulsory  process  against  an  accused  to  compel  him  to  disclose 
more  than  he  chooses  ;  they  do  not  so  far  change  the  old  system 

the  officer  who  has  him  in  custody,  and  in  none  will  slighter  threats  or  promises 
of  favor  exclude  the  subsequent  confessions.  Commonwealth  v.  Taylor,  5  Cush. 
610 ;  Commonwealth  v.  Tuckerman,  10  Gray,  193 ;  Commonwealth  v.  Morey, 
1  Gray,  461.  '  Saying  to  the  prisoner  that  it  will  be  the  worse  for  him  if  he  does 
not  confess,  or  that  it  will  be  the  better  for  him  if  he  does,  is  sufficient  to  exclude 
the  -confession,  according  to  constant  experience.'  2  Hale,  P.  C.  659  ;  1  Greenl. 
Ev.  §  219;  2  Bennett  and  Heard's  Lead.  Cr.  Cas.  164.  Each  case  depends 
largely  on  its  own  special  circumstances.  But  we  have  before  us  an  instance  in 
which  the  officer  actually  held  out  to  the  defendant  the  hope  and  inducement  of 
a  lighter  sentence  if  he  pleaded  guilty.  And  a  determination  to  plead  guilty  at 
the  trial,  thus  induced,  would  naturally  lead  to  an  immediate  disclosure  of  guilt." 
And  the  court  held  it  an  unimportant  circumstance  that  the  advice  of  the  officer 
was  o-iven  at  the  request  of  the  prisoner,  instead  of  being  volunteered. 

1  State  v.  Guild,  5  Halst.  163  ;  Commonwealth  v.  Harman,  4  Penn.  St.  269  ; 
State  v.  Vaigneur,  5  Rich.  391 ;  Rex  v.  Cooper,  5  C.  &  P.  535;  Rex  v.  Howes, 
6  C.  &  P.  404;  Rex?;.  Richards,  5  C.  &  P.  318;  Thompson  v.  Commonwealth, 
20  Grat.  724. 

2  See  State  v.  Roberts,  1  Dev.  259  ;  Rex  v.  Cooper,  5  C.  &  P.  535  ;  Thomp- 
son v.  Commonwealth,  20  Grat.  724;  State  v.  Lowhorne,  66  N.  C.  538. 

3  See  American  Law  Register,  Vol.  V.  (x.  s.)  pp.  129,  705. 

[361] 


*  317  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

as  to  establish  an  inquisitorial  process  for  obtaining  evidence  ; 
they  confer  a  privilege,  which  the  defendant  may  use  at  his  option  ; 
If  he  does  not  choose  to  avail  himself  of  it,  unfavorable  inferences 
are  not  to  be  drawn  to  his  prejudice  from  that  circumstance ; 1  and 
if  he  does  testify,  he  is  at  liberty  to  stop  at  any  point  he  chooses, 
and  it  must  be  left  to  the  jury  to  give  a  statement,  which  he  declines 
to  make  a  full  one,  such  weight  as,  under  the  circumstances,  they 
think  it  entitled  to ;  2  otherwise  the  statute  must  have  set  aside 
and  overruled  the  constitutional  maxim  which  protects  an  accused 

1  People  v.  Tyler,  36  Cal.  522;  State  v.  Cameron,  40  Vt.  555.  For  a  case 
resting  upon  an  analogous  principle,  see  Carne  v.  Litchfield,  2  Mich.  340.  A 
different  view  would  seem  to  be  taken  in  Maine.  See  State  v.  Bartlett,  55  Me. 
200.  And  see  the  next  note.  In  Devries  v.  Phillips,  63  N.  C.  53,  the  Supreme 
Court  of  North  Carolina  held  it  not  admissible  for  counsel  to  comment  to  the 
jury  on  the  fact  that  the  opposite  party  did  not  come  forward  to  be  sworn  as  a 
witness  as  the  statute  permitted.  See  also  Crandall  v.  People,  2  Lansing,  309. 
In  Michigan  the  wife  of  an  accused  party  may  be  sworn  as  a  witness  with  his 
assent ;  but  it  has  been  held  that  his  failure  to  call  her  was  not  to  subject  him 
to  inferences  of  guilt,  even  though  the  case  was  such  that  if  his  defence  was 
true,  his  wife  must  have  been  cognizant  of  the  facts.  Knowles  v.  People,  15 
Mich.  408. 

2  By  a  recent  case  this  paragraph  appears  to  have  led  to  some  misapprehension 
of  our  views,  and  consequently  we  must  regard  it  as  unfortunately  worded. 
Nevertheless,  after  full  consideration,  it  has  been  concluded  to  leave  it  as  it 
stands.  What  we  intend  to  affirm  by  it  is,  that  the  privilege  to  testify  in  his 
own  behalf  is  one  the  accused  may  waive  without  justly  subjecting  himself  to  un- 
favorable comments;  and  that  if  he  avails  himself  of  it,  and  stops  short  of  a  full 
disclosure,  no  compulsory  process  can  be  made  use  of  to  compel  him  to  testify 
further.  It  was  not  designed  to  be  understood  that,  in  the  latter  case,  his  failure 
to  answer  any  proper  question  would  not  be  the  subject  of  comment  and  criticism 
by  counsel;  but,  on  the  contrary,  it  was  supposed  that  this  was  implied  in  the 
remark,  that  "  it  must  be  left  to  the  jury  to  give  a  statement  which  he  declines  to 
make  a  full  one  such  weight  as,  under  the  circumstances,  they  think  it  entitled 
to.1'  All  circumstances  which  it  is  proper  for  the  jury  to  consider,  it  is  proper 
for  counsel  to  comment  upon. 

The  case  referred  to  is  that  of  State  v.  Ober,  just  decided  in  the  Supreme 
Court  of  New  Hampshire.  The  defendant  was  put  on  trial  for  an  illegal  sale 
of  liquors;  and,  having  offered  himself  as  a  witness,  was  asked  on  cross-examin- 
ation a  question  directly  relating  to  the  sale.  He  declined  to  answer,  on  the 
ground  that  it  might  tend  to  criminate  him.  Being  convicted,  it  was  alleged  for 
error  that  the  court  suffered  the  prosecuting  officer  to  comment  on  this  refusal 
to  the  jury.  The  Supreme  Court  held  this  no  error.  We  not  only  approve  of 
this  ruling,  but  we  should  be  at  a  loss  for  reasons  which  could  furnish  plausible 
support  for  any  other.  It  is  in  entire  accord  with  the  practice  which  has  pre- 
vailed without  question  in  Michigan,  and  which  has  always  assumed  that  the 

[362] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.      *  317 

party  against  being  compelled  to  testify  against  himself,  and  the 
statutory  privilege  becomes  a  snare  and  a  danger.1 

*  The  testimony  for  the  people  in  criminal  cases  can   [*  318] 
only,  as  a  general  rule,  be  given  by  witnesses  who  are 
present  in  court.2      The  defendant  is  entitled  to  be  confronted 

right  of  comment,  where  the  party  makes  himself  his  own  witness  and  then 
refuses  to  answer  proper  questions,  was  as  clear  as  the  right  to  exemption  from 
unfavorable  comment  when  he  abstains  from  asserting  his  statutory  privilege. 

The  case  of  Connors  v.  People,  50  N.  Y.  240,  is  different.  There  the 
defendant,  having  taken  the  stand  as  a  witness,  objected  to  answer  a  question ; 
but  was  directed  by  the  court  to  do  so,  and  obeyed  the  direction.  This  was  held 
no  error,  because  he  had  waived  his  pr  vilege.  If  the  defendant  had  persisted  in 
refusing,  we  are  not  advised  what  action  the  court  would  have  deemed  it  proper 
to  take,  and  it  is  easy  to  conceive  of  serious  embarrassments  in  such  a  case. 
Under  the  Michigan  practice,  when  the  court  had  decided  the  question  to  be  a 
proper  one,  it  would  have  been  left  to  the  defendant  to  answer  or  not  at  his 
option,  but  if  he  failed  to  answer  what  seemed  to  the  jury  a  proper  inquiry, 
it  would  be  thought  surprising  if  they  gave  his  imperfect  statement  much  cre- 
dence. 

1  The  statute  of  Michigan  of  1861,  p.  169,  removed  the  common-law  disabili- 
ties of  parties  to  testify,  and  added,  "  Nothin  r  in  this  act  shall  be  construed  as 
giving  the  right  to  compel  a  defendant  in  criminal  cases  to  testify ;  but  any  such 
defendant  shall  be  at  liberty  to  make  a  statement  to  the  court  or  jury,  and  may 
be  cross-examined  on  any  such  statement.  It  has  been  held  that  this  statement 
should  not  be  under  oath.  People  v.  Thomas,  9  Mich.  314.  That  its  purpose 
was  to  give  every  person  on  trial  for  crime  an  opportunity  to  make  full  explana- 
tion to  the  jury,  in  respect  to  the  circumstances  given  in  evidence  which  are  sup- 
posed to  have  a  bearing  against  him.  Annis  v.  People,  13  Mich.  511.  That  the 
statement  is  evidence  in  the  case,  to  which  the  jury  can  attach  such  weight  as 
they  think  it  entitled  to.  Maher  v.  People,  10  Mich.  212.  That  the  court  has 
no  right  to  instruct  the  jury  that,  when  it  conflicts  with  the  testimony  of  an  un- 
impeached  witness,  they  must  believe  the  latter  in  preference.  Durant  v.  People, 
13  Mich,  351.  And  that  the  prisoner,  while  on  the  stand,  is  entitled  to  the 
assistance  of  counsel  in  directing  his  attention  to  any  branch  of  the  chai'ge,  that 
he  may  make  explanations  concerning  it  if  he  desires.  Annis  v.  People,  13  Mich. 
511.  The  prisoner  does  not  cease  to  be  a  defendant  by  becoming  a  witness,  nor 
forfeit  righ  s  by  accepting  a  privilege.  In  People  v.  Thomas,  9  Mich.  321, 
Campbell,  J.,  in  speaking  of  the  right  which  the  statute  gives  to  cross-examine  a 
defendant  who  has  made  his  statement,  says  :  "  And  while  his  constitutional  right 
of  decli  ing  to  answer  questions  cannot  be  removed,  yet  a  refusal  by  a  party 
to  answer  any  fair  question,  not  going  outside  of  what  he  has  offered  to  explain, 
would  have  its  proper  weight  with  the  jury."  See  Commonwealth  v.  Mullen,  97 
Mass.  547;  Commonwealth  v.  Curtis,  ib.  574 ;  Commonwealth  v.  Morgan,  107 
Mass.  19. 

2  State  v.  Thomas,  64  N.  C.  74 ;  Goodman  v.  State,  Meigs,  197;  Jackson  v. 
Commonwealth,  19  Grat.  656.     By  the  old  common  law,  a  party  accused  of  felony 

[  363  ] 


*  318  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

with  the  witnesses  against  him ;  and  if  any  of  them  be  absent 
from  the  Commonwealth,  so  that  their  attendance  cannot  be  com- 
pelled, or  if  they  be  dead,  or  have  become  incapacitated  to  give 
evidence,  there  is  no  mode  by  which  their  statements  against  the 
prisoner  can  be  used  for  his  conviction.  The  exceptions  to  this 
rule  are  of  cases  which  are  excluded  from  its  reasons  by  their 
peculiar  circumstances  ;  but  they  are  far  from  numerous.  If  the 
witness  was  sworn  before  the  examining  magistrate,  or  before  a 
coroner,  and  the  accused  had  an  opportunity  then  to  cross-examine 
him,  or  if  there  were  a  former  trial  on  which  he  was  sworn,  it 
seems  allowable  to  make  use  of  his  deposition,  or  of  the  minutes 
of  his  examination,  if  the  witness  has  since  deceased,  or  is  insane, 
or  sick  and  unable  to  testify,  or  has  been  summoned  but  appears 
to  have  been  kept  away  by  the  opposite  party.1  So,  also,  if  a  per- 
son is  on  trial  for  homicide,  the  declarations  of  the  party  whom  he 
is  charged  with  having  killed,  if  made  under  the  solemnity  of  a  con- 
viction that  he  was  at  the  point  of  death,  and  relating  to  matters 
of  fact  concerning  the  homicide,  which  passed  under  his  own  obser- 
vation, may  be  given  in  evidence  against  the  accused  ;  the  condition 
of  the  party  who  made  them  being  such  that  every  motive  to  false- 
hood must  be  supposed  to  have  been  silenced,  and  the  mind  to  be 
impelled  by  the  most  powerful  considerations  to  tell  the  truth.2 

was  not  allowed  to  call  witnesses  to  contradict  the  evidence  for  the  Crown  ;  and 
this  seems  to  have  been  on  some  idea  that  it  would  be  derogatory  to  the  royal 
dignity  to  permit  it.  Afterwards,  when  they  were  permitted  to  be  called,  they 
made  their  statements  without  oath ;  and  it  was  not  uncommon  for  both  the 
prosecution  and  the  court  to  comment  upon  their  testimony  as  of  little  weight 
because  unsworn.  It  was  not  until  Queen  Anne's  time  that  they  were  put  under 
oath. 

The  rule  that  the  prisoner  shall  be  confronted  with  the  witnesses  against  him 
does  not  preclude  such  documentary  evidence  to  establish  collateral  facts  as 
would  be  admissible  under  the  rules  of  the  common  law  in  other  cases.  U.  S.  v. 
Benner,  Baldw.  240;  U.  S.  v.  Little,  2  Wash.  C.  C.  205;  U.  S.  v.  Ortega,  4 
Wash.  C.  C.  531.  But  the  corpus  delicti  —  e.g.  the  fact  of  marriage  in  an  in- 
dictment for  bigamy  —  cannot  be  proved  by  certificates.  People  v.  Lambert, 
5  Mich.  349. 

1  1  Greenl.  Ev.  §§  163-166  ;  Bishop,  Cr.  Pro.  §§  520-527 ;  Whart.  Cr.  Law, 
§  667  ;  2  Phil.  Ev.  by  Cowen,  Hill,  and  Edwards,  217,  229.  Whether  evidence 
that  the  witness  cannot  be  found  after  diligent  inquiry,  or  is  out  of  the  jurisdic- 
tion, would  be  sufficient  to  let  in  proof  of  his  former  testimony,  see  Bui.  N.  P. 
239,  242;  Rex  v.  Hagan,  8  C.  &  P.  167  ;  Sills  v.  Brown,  9  C.  &  P.  601. 

2  1  Greenl.  Ev.  §  156 ;  1  Phil.  Ev.  by  Cowen,  Hill,  and  Edwards,  285-289 ; 

[364] 


CH.  X.]      CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.     *  318 

Not  that  such  evidence  is  of  very  conclusive  character :  it  is  not 
always  easy  for  the  hearer  to  determine  how  much  of  the  declara- 
tion related  to  what  was  seen  and  positively  known,  and 
how  much  was  surmise  *  and  suspicion  only  ;   but  it  is    [*  319] 
admissible  from  the  necessity  of  the  case,  and  the  jury 
must  judge  of  the  weight  to  be  attached  to  it. 

In  cases  of  felony,  where  the  prisoner's  life  or  liberty  is  in  peril, 
he  has  the  right  to  be  present,  and  must  be  present,  during  the 
whole  of  the  trial,  and  until  the  final  judgment.  If  be  be  absent, 
either  in  prison  or  by  escape,  there  is  a  want  of  jurisdiction  over 
the  person,  and  the  court  cannot  proceed  with  the  trial,  or  receive 
the  verdict,  or  pronounce  the  final  judgment.1  But  misdemeanors 
may  be  tried  in  the  absence  of  the  accused. 

The    Traverse   Jury. 

Accusations  of  criminal  conduct  are  tried  at  the  common  law  by 
jury ; 2  and  wherever  the  right  to  this  trial  is  guaranteed  by  the 
constitution  without  qualification  or  restriction,  it  must  be  under- 
stood as  retained  in  all  those  cases  which  were  triable  by  jury  at 

Whart.  O.  Law,  §§  669-682 ;  Donnelly  v.  State,  2  Dutch.  463 ;  Hill's  Case,  2 
Grat.  594;.  State  v.  Freeman,  1  Speers,  57  ;  State  v.  Brunette-,  13  La  An.  45; 
Dunn  v.  State,  2  Pike,  229  ;  Mose  v.  State,  35  Ala.  421  ;  Brown  v.  State,  32  Miss. 
433 ;  Whitley  v.  State,  38  Geo.  70 ;  State  v.  Quick,  15  Rich.  158 ;  Jackson  v 
Commonwealth,  19  Grat.  656 ;  State  v.  Oliver,  2  Houston,  585.  This  whole 
subject  was  largely  considered  in  Morgan  v.  State,  31  Ind.  193. 

1  See  Andrews  v.  State,  2  Sneed,  550  ;  Jacobs  v.  Cone,  5S.&R.  335 ;  Witt 
v.  State,  5  Cold.  11;  State  v.  Alman,  64  N.  C.364;  Gladden  v.  State,  12  Fla. 
577  ;  Maurer  v.  People,  43  N.  Y.  1 ;  Note  to  Winchell  v.  State,  7  Cow.  525.  In 
capital  cases  the  accused  stands  upon  all  his  rights,  and  waives  nothing.  Demp- 
sey  v.  People,  47  Bl.  325  ;  People  v.  McKay,  18  Johns.  217  ;  Burley  v.  State,  1 
Neb.  385.  The  court  cannot  make  an  order  changing  the  venue  in  a  criminal 
case  in  the  absence  of  and  without  notice  to  the  defendant.  Ex  parte  Bryan, 
44  Ala.  404.  Nor  in  the  course  of  the  trial  allow  evidence  to  be  given  to  the 
jury  in  his  absence,  even  though  it  be  that  of  a  witness  which  had  been  previously 
reduced  to  writing.  Jackson  v.  Commonwealth,  19  Grat.  656  ;  Wade  v.  State, 
12  Geo.  25.  And  in  a  capital  case  the  record  must  affirmatively  show  the  pres- 
ence of  the  accused  at  the  trial,  and  when  the  verdict  is  received  and  sentence 
pronounced.     Dougherty  v.  Commonwealth,  69  Penn.  St.  286. 

2  It  is  worthy  of  note  that  all  that  is  extant  of  the  legislation  of  the  Plymouth 
Colony  for  the  first  five  years,  consists  of  the  single  regulation,  "  that  all  criminal 
facts,  and  also  all  manner  of  trespasses  and  debts  between  man  and  man,  shall 
be  tried  by  the  verdict  of  twelve  honest  men,  to  be  impanelled  by  authority,  in 
form  of  a  jury,  upon  their  oath."     1  Palfrey's  New  England,  340. 

[365  ] 


*  319  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

the  common  law,  and  with  all  the  common-law  incidents  to  a  jury 
trial,  so  far,  at  least,  as  they  can  be  regarded  as  tending  to  the 
protection  of  the  accused.1 

A  petit,  petty,  or  traverse  jury  is  a  body  of  twelve  men,  who  are 
sworn  to  try  the  facts  of  a  case,  as  they  are  presented  in  the 
evidence  placed  before  them.  Any  less  than  this  number  of 
twelve  would  not  be  a  common-law  jury,  and  not  such  a  jury  as 
the  Constitution  guarantees  to  accused  parties,  when  a  less  number 
is  not  allowed  in  express  terms ;  and  the  necessity  of  a  full  panel 
could  not  be  waived  —  at  least,  in  case  of  felony — even  by 
consent.2  The  infirmity  in  case  of  a  trial  by  a  jury  of  less  than 
twelve,  by  consent,  would  be  that  the  tribunal  would  be  one 
unknown  to  the  law,  created  by  mere  voluntary  act  of  the  parties  ; 
and  it  would  in  effect  be  an  attempt  to  submit  to  a  species  of 
arbitration  the  question  whether  the  accused  has  been  guilty  of  an 
offence  against  the  State.  But  in  those  cases  which  formerly  were 
not  triable  by  jury,  if  the  legislature  provide  for  such  a  trial  now, 
they  may  doubtless  create  for  the  purpose  a  statutory  tribunal, 
composed  of  any  number  of  persons,  and  no  question  of  constitu- 
tional power  or  right  could  arise. 

1  See  note  to  p.  410,  post.  A  citizen  not  in  the  land  or  naval  service,  or  in 
the  militia  in  actual  service,  cannot  be  tried  by  court-martial  or  military  commis- 
sion, on  a  charge  of  discouraging  volunteer  enlistments  or  resisting  a  military 
conscription.  In  re  Kemp,  16  Wis.  359.  See  Ex  parte  Milligan,  4  Wall.  2. 
The  constitutional  right  of  trial  by  jury  extends  to  newly  created  offences. 
Plimpton  v.  Somerset,  33  Vt.  283 ;  State  v.  Peterson,  41  Vt.  504.  But  not  to 
offences  against  city  by-laws.     McGear  v.  Woodruff,  4  Vroom,  213. 

2  Work  v.  State,  2  Ohio,  n.  s.  296;  Cancemi  v.  People,  18  N.  Y.  128; 
Brown  v.  State,  8  Blackf.  561;  2  Lead.  Cr.  Gas.  337;  Hill  v.  People,  16  Mich. 
351.  And  see  State  v.  Everett,  14  Minn.  447.  In  Commonwealth  v.  Dailey,  12 
Cush.  80,  it  was  held  that,  in  a  case  of  misdemeanor,  the  consent  of  the  defend- 
ant that  a  verdict  might  be  received  from  eleven  jurors  was  binding  upon  him, 
and  the  verdict  was  valid.  See  also  State  v.  Cox,  3  Eng.  436  ;  Murphy  v.  Com- 
monwealth, 1  Met.  (Ky.)  365;  Tyzee  v.  Commonwealth,  2  Met.  (Ky.)  1;  State 
v.  Mansfield,  41  Mo.  470;  Brown  v.  State,  16  Ind.  496;  Opinions  of  Judges,  41 
N.  H.  550.  In  Hill  v.  People,  16  Mich.  356,  it  was  decided  that  if  one  of  the 
jurors  called  was  an  alien,  the  defendant  did  not  waive  the  objection  by  failing  to 
challenge  him,  if  he  was  not  aware  of  the  disqualification  ;  and  if  the  court  refused 
to  set  aside  the  verdict  on  affidavits  showing  these  facts,  the  judgment  upon  it 
would  be  reversed  on  error.  The  case  of  State  t\  Quarrel,  2  Bay,  150,  is  contra. 
The  case  of  Stone  v.  State,  2  Scam.  326,  in  which  it  was  held  competent  for  the 
court,  even  in  a  capital  case,  to  strike  off  a  juryman  after  he  was  sworn,  because 
of  alienage,  affords  some  support  for  Hill  v.  People. 

[366] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.     *~019 

Many  of  the  incidents  of  a  common-law  trial  by  jury  are  essen- 
tial elements  of  the  right.  The  jury  must  be  indifferent  between 
the  prisoner  and  the  commonwealth  ;  and  to  secure  impartiality 
challenges  are  allowed,  both  for  cause,  and  also  peremptory  with- 
out assigning  cause.  Th  jury  must  also  be  summoned 
*  from  the  vicinage  where  the  crime  is  supposed  to  have  [*  320] 
been  committed  ; 1  and  the  accused  will  thus  have  the 
benefit  on  his  trial  of  his  own  good  character  and  standing  with 
his  neighbors,  if  these  he  has  preserved  ;  and  also  of  such 
knowledge  as  the  jury  may  possess  of  the  witnesses  who  may  give 
evidence  against  him.  He  will  also  be  able  with  more  certainty  to 
secure  the  attendance  of  his  own  witnesses.  The  jury  must  unani- 
mously concur  in  the  verdict.     This  is  a  very  old  requirement  in 

1  Offences  against  the  United  States  are  to  be  tried  in  the" district,  and  those 
against  the  State  in  the  county  in  which  they  are  charged  to  have  been  committed  ; 
but  courts  are  generally  empowered,  on  the  application  of  an  accused  party,  to 
order  a  change  of  venue,  where  for  any  reason  a  fair  and  impartial  trial  cannot 
be  had  in  the  locality.  It  has  been  held  incompetent  to  order  such  a  change  of 
venue  on  the  application  of  the  prosecution.  Kirk  v.  State,  1  Cold.  34-4.  See  also 
Wheeler  v.  State,  24  Wis.  52 ;  Osborn  v.  State,  24  Ark.  629.  And  in  another 
case  in  Tennessee  it  was  decided  that  a  statute  which  permitted  offences  com- 
mitted near  the  boundary  line  of  two  counties  to  be  tried  in  either  was  an  invasion 
of  the  constitutional  principle  stated  in  the  text.  Armstrong  v.  State,  1  Cold. 
338.  See  also  State  v.  Denton,  6  Cold.  539.  But  see  State  v.  Robinson,  14 
Minn.  447. 

A  most  extraordinary  attempt  1o  deprive  a  party  of  the  benefit  of  trial  by  a 
jury  of  the  vicinage  was  recently  frustrated  by  the    ecision  of  Judge  Blatchford, 
U.S.  District  Judge  for  the  southern  district  of  New  York.  The  "  New  York  Sun," 
of  which  Mr.  Charles  A.  Dana  was  editor-in-chief,  published  an  article  reflecting 
upon  the  public  conduct  of  an  official  at  Washington.     This  article  was  claimed 
to  be  a  libel.     The  actual  offence,  if  any,  was  committed  in  New  York;  but  a 
technical  publication  also  took  place  in  Washington,  by  the  sale  of  papers  there. 
The  offended  party  chose  to  have  his  complaint  tried  summarily  by  a  police  justice 
of  the  latter  city,  instead  of  submitting  it  to  a  jury  required  to  be  indifferent 
between  the  parties.     A  U.  S.  Commissioner,  well  read  rather  in  the  arbitrary 
lessons  of  civil  war  than  in  the  principles  of  civil  liberty,  had  no  hesitation  in 
issuing  a  warrant  for  Mr.  Dana's  arrest  in  New  York  for  transportation  to  Wash- 
ington for  trial ;  but  Judge  Blatchford  treated  the  proceeding  with  little  respect, 
and  ordered  Mr.  Dana's  discharge.     It  would  have  been  a  singular  result  of  a 
revolution  where  one  of  the  grievances  complained  of  was  the  assertion  of  a  right 
to  send  parties  abroad  for  trial,  if  it  should  have  been  found  that  an  editor  might 
be  seized  any  where  in  the  Union  and  transported  by  a  federal  officer  to  every 
territory  in  which  his  paper  might  find  its  way,    o  be  tr    d  in      ch  in  succession 
for  offences  which  consisted  in  a  single  act  not  actually  done  in  any  of  them. 

[367] 


*  320  CONSTITUTIONAL    LIMITATIONS.  [CH.  X. 

the  English  common  law,  and  it  has  been  adhered  to,  notwithstand- 
ing very  eminent  men  have  assailed  it  as  unwise  and  inexpedient.1 
And  the  jurors  must  be  left  free  to  act  in  accordance  with  the 
dictates  of  their  judgment.  The  final  decision  upon  the  facts  is  to 
rest  with  them,  and  interference  by  the  court  with  a  view  to  coerce 
them  into  a  verdict  against  their  convictions,  is  unwarrantable  and 
irregular.  A  judge  is  not  justified  in  expressing  his  opinion  to 
the  jury  that  the  defendant  is  guilty  upon  the  evidence  adduced.2 
Still  less  would  he  be  justified  in  refusing  to  receive  and  record  the 
verdict  of  the  jury,  because  of  its  being,  in  his  opinion,  rendered 
in  favor  of  the  prisoner  when  it  ought  not  to  have  been. 

1  For  the  origin  of  this  principle,  see  Forsyth,  Trial  by  Jury,  c.  11.  The 
requirement  of  unanimity  does  not  prevail  in  Scotland,  or  on  the  Continent. 
Among  the  eminent  men  who  have  not  approved  it  may  be  mentioned  Locke  and 
Jeremy  Bentham.  See  Forsyth,  supra ;  Lieber,  Civil  Liberty  and  Self-Govern- 
ment, c.  20. 

2  A  judge  who  urges  his  opinion  upon  the  facts  to  the  jury  decides  the  cause, 
while  avoiding  the  responsibility.  How  often  would  a  jury  be  found  bold  enough 
to  declare  their  opinion  in  opposition  to  that  of  the  judge  upon  the  bench,  whose 
words  would  fall  upon  their  ears  with  all  the  weight  which  experience,  learning, 
and  commanding  position  must  always  carry  with  them  ?  What  lawyer  would 
care  to  sum  up  his  case,  if  he  knew  that  the  judge,  whose  words  would  be  so 
much  more  influential,  was  to  declare  in  his  favor,  or  would  be  bold  enough  to 
argue  the  facts  to  the  jury,  if  he  knew  the  judge  was  to  declare  against  him  ? 
Blackstone  has  justly  remarked  that  "  in  settling  and  adjusting  a  question  of  fact, 
where  intrusted  to  any  single  magistrate,  partiality  and  injustice  have  an  ample 
field  to  range  in ;  either  by  boldly  asserting  that  to  be  proved  which  is  not  so,  or 
by  more  artfully  distinguishing  away  the  remainder."  3  Bl.  Com.  380.  These 
are  evils  which  jury  trial  is  designed  to  prevent;  but  the  effort  must  be  vain  if 
the  judge  is  to  control  by  his  opinion  where  the  law  has  given  him  no  power  to 
command.  In  Lord  Campbell's  Lives  of  the  Chancellors,  c.  181,  the  author 
justly  condemns  the  practice  with  some  judges  in  libel  cases,  of  expressing  to  the 
jury  their  belief  in  the  defendant's  guilt.  On  the  trial  of  parties,  charged  with 
a  libel  on  the  Empress  of  Russia,  Lord  Kenyan,  sneering  at  the  late  Libel  Act, 
said:  "  I  am  bound  by  my  oath  to  declare  my  own  opinion,  and  I  should  forget 
my  duty  were  I  not  to  say  to  you  that  it  is  a  gross  libel."  Upon  this  Lord 
Campbell  remarks  :  "  Mr.  Fox's  act  only  requires  the  judges  to  give  their  opinion 
on  matters  of  law  in  libel  cases  as  in  other  cases.  But  did  any  judge  ever  say, 
'  Gentlemen,  I  am  of  opinion  that  this  is  a  wilful,  malicious,  and  atrocious  mur- 
der '  ?  For  a  considerable  time  after  the  act  passed,  against  the  unanimous  oppo- 
sition of  the  judges,  they  almost  all  spitefully  followed  this  course.  I  myself 
h  ard  one  judge  say  :  '  As  the  legislature  requires  me  to  give  my  own  opinion  in 
the  present  case,  1  am  of  opinion  that  this  is  a  diabolically  atrocious  libel." 
Upon  this  subject,  see  McGuffie  v.  State,  17  Geo.  497 ;  State  v.  McGinnis,  5 
Nev.  337  ;  Pittock  v.  O'Niell,  63  Penn.  St.  253  ;  s.  c.  3  Am.  Rep.  541. 

[368  J 


CH.  X.]      CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.      *  320 

*  He  discharges  his  duty  of  giving  instructions  to  the  [*  321] 
jury  when  he  informs  them  what  in  his  view  the  law  is 
which  is  applicable  to  the  case  before  them,  and  what  is  essential 
to  constitute  the  offence  charged  ;  and  the  jury  should  be  left  free 
and  unbiassed  by  his  opinion  to  determine  for  themselves  whether 
the  facts  in  evidence  are  such  as,  in  the  light  of  the  instructions  of 
the  judge,  make  out  beyond  any  reasonable  doubt  that  the  accused 
party  is  guilty  as  alleged.1 

How  far  the  jury  are  to  judge  of  the  law  as  well  as  of  the  facts, 
is  a  question,  a  discussion  of  which  we  do  not  propose  to  enter  upon. 
If  it  be  their  choice  to  do  so,  they  may  return  specially  what  facts 
they  find  established  by  the  evidence,  and  allow  the  court  to  apply 
the  law  to  those  facts,  and  thereby  to  determine  whether  the  party 
is  guilty  or  not.  But  they  are  not  obliged  in  any  case  to  find  a 
special  verdict ;  they  have  a  right  to  apply  for  themselves  the  law 
to  the  facts,  and  to  express  their  own  opinion,  upon  the  whole  evi- 
dence, of  the  defendant's  guilt.  Where  a  general  verdict  is  thus 
given,  the  jury  necessarily  determine  in  their  own  mind  what  the 
law  of  the  case  is  ; 2  and  if  their  determination  is  favorable  to  the 
prisoner,  no  mode  is  known  to  the  law  in  which  it  can  be  reviewed 
or  reversed.  A  writ  of  error  does  not  lie  on  behalf  of  the  Com- 
monwealth to  reverse  an  acquittal,  unless  expressly  given 
by  statute ; 3  nor  can  a  new  *  trial  be  granted  in  such  a  [*  322] 

1  The  independence  of  the  jury,  so  far  as  regards  the  matters  of  fact  in  issue 
before  them,  was  settled  by  Penn's  Case,  6  Howell's  State  Trials,  951,  and  by 
Bushel's  Case,  which  grew  out  of  it,  and  is  reported  in  Vaughan's  Reports,  135. 
A  very  full  account  of  these  cases  is  also  found  in  Forsyth  on  Trial  by  Jury, 
397.  See  Bushel's  Case  also  in  Broom's  Const.  Law,  120,  and  the  valuable  note 
thereto.  Bushel  was  foreman  of  the  jury  which  refused  to  find  a  verdict  of  guilty 
at  the  dictation  of  the  court,  and  he  was  punished  as  for  contempt  of  court  for 
his  refusal,  but  was  released  on  habeas  corpus. 

2  "As  the  main  object  of  the  institution  of  the  trial  by  a  jury  is  to  guard 
accused  persons  against  all  decisions  whatsoever  by  men  intrusted  with  any  per- 
manent official  authority,  it  is  not  only  a  settled  principle  that  the  opinion  which 
the  judge  delivers  has  no  weight  but  such  as  the  jury  choose  to  give  it,  but  their 
verdict  must  besides  [unless  they  see  fit  to  return  a  special  finding]  comprehend 
the  whole  matter  in  trial,  and  decide  as  well  upon  the  fact  as  upon  the  point  of 
law  which  may  arise  out  of  it ;  in  other  words,  they  must  pronounce  both  on  the 
commission  of  a  certain  fact,  and  on  the  reason  which  makes  such  fact  to  be  con- 
trary to  law."     DeLolme  on  the  Constitution  of  England,  c.  13. 

3  See  State  v.  Reynolds,  4  Hayw.  110 ;  United  States  v.  More,  3  Cranch,  174 ; 
People  v.  Dill,  1  Scam.  257;  People  v.  Royal,  ib.  557;  Commonwealth  v.  Cum- 

24  [  369  ] 


*  322  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

case ; 1  but  neither  a  writ  of  error  nor  a  motion  for  a  new  trial 
could  reach  an  erroneous  determination  by  the  jury,  because, 
as  they  do  not  give  reasons  for  their  verdict,  the  precise  grounds 
for  it  can  never  be  legally  known,  and  it  is  always  presumable  that 
it  was  given  in  favor  of  the  accused  because  the  evidence  was  not 
sufficient  in  degree  or  satisfactory  in  character ;  and  no  one  is  at 
liberty  to  allege  or  suppose  that  they  have  disregarded  the  law. 

Nevertheless,  as  it  is  the  duty  of  the  court  to  charge  the  jury 
upon  the  law  applicable  to  the  case,  it  is  still  an  important  question 
whether  it  is  the  duty  of  the  jury  to  receive  and  act  upon  the  law 
as  given  to  them  by  the  court,  or  whether  on  the  other  hand,  his 
opinion  is  advisory  only,  so  that  they  are  at  liberty  either  to  follow 
it  if  it  accords  with  their  own  convictions,  or  to  disregard  it  if  it 
does  not. 

In  one  class  of  cases,  that  is  to  say,  in  criminal  prosecutions  for 
libels,  it  is  now  very  generally  provided  by  the  State  constitutions, 
or  by  statute,  that  the  jury  shall  determine  the  law  and  the  facts.2 

mings,  3  Cush.  212  ;  People  v.  Corning,  2  N.  Y.  9  ;  State  v,  Kemp,  17  Wis.  669. 
A  constitutional  provision,  saving  "to  the  defendant  the  right  of  appeal"  in 
criminal  cases,  does  not,  by  implication,  preclude  the  legislature  from  giving  to 
the  prosecution  the  same  right.     State  v.  Tait,  22  Iowa,  143. 

1  People  v.  Comstock,  8  Wend.  549  ;  State  ».  Brown,  16  Conn.  54 ;  State  v. 
Kanouse,  1  Spencer,  115 ;  State  v.  Burns,  3  Texas,  118 ;  State  v.  Taylor,  1 
Hawks,  462. 

2  See  Constitutions  of  Alabama,  Connecticut,  California,  Delaware,  Georgia, 
Kentucky,  Maine,  Michigan,  Missouri,  Nebraska,  New  York,  Pennsylvania,  South 
Carolina,  Tennessee,  and  Texas.  That  of  Maryland  makes  the  jury  judges  of  the 
law  in  all  criminal  cases  ;  and  the  same  rule  is  established  by  constitution  or  statute 
in  some  other  States.  In  Holder  v.  State,  5  Geo.  444,  the  following  view  was  taken 
of  such  a  statute:  "  Our  penal  code  declares,  'On  every  trial  of  a  crime  or 
offence  contained  in  this  code,  or  for  any  crime  or  offence,  the  jury  shall  be  judges 
of  the  law  and  the  fact,  and  shall  in  every  case  give  a  general  verdict  of  guilty  or 
not  guilty,  and  on  the  acquittal  of  any  defendant  or  prisoner,  no  new  trial  shall  on 
any  account  be  granted  by  the  court.'  Juries  were,  at  common  law,  in  some  sense 
judges  of  the  law.  Having  the  right  of  rendering  a  general  verdict,  that  right 
involved  a  judgment  on  the  law  as  well  as  the  facts,  yet  not  such  a  judgment  as 
necessarily  to  control  the  court.  The  early  commentators  on  the  common  law, 
notwithstanding  they  concede  this  right,  yet  hold  that  it  is  the  duty  of  the  jury 
to  receive  the  law  from  the  court.  Thus  Blackstone  equivocally  writes  :  '  And 
such  public  or  open  verdict  may  be  either  general,  guilty  or  not  guilty,  or  special, 
setting  forth  all  the  circumstances  of  the  case,  and  praying  the  judgment  of  the 
court  whether,  for  instance,  on  the  facts  stated,  it  be  murder  or  manslaughter,  or 
no  crime  at  all.    This  is  where  they  doubt  the  matter  of  law,  and  therefore  choose 

[  370  ] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.     *  322 

How  great  a  change  is  made  in  the  common  law  by  these 

*  provisions  it  is  difficult  to  say,  because  the  rule  of  the  [*  323] 

common  law  was  not  very  clear  upon  the  authorities  ;  but 

for  that  very  reason,  and  because  the  law  of  libel  was  sometimes 

administered  with  great  harshness,  it  was  certainly  proper,  and 

highly  desirable,  that  a  definite  and  liberal  rule  should  be  thus 

established.1 

In  all  other  cases  the  jury  have  the  clear  legal  right  to  return  a 
simple  verdict  of  guilty  or  not  guilty,  and  in  so  doing  they  necessa- 
rily decide  such  questions  of  law  as  well  as  of  fact  as  are  involved 
in  the  general  question  of  guilt.  If  their  view  conduce  to  an 
acquittal,  their  verdict  to  that  effect  can  neither  be  reviewed  nor 
set  aside.  In  such  a  case,  therefore,  it  appears  that  they  pass  upon 
the  law  as  well  as  the  facts,  and  that  their  finding  is  conclusive.  If, 
on  the  other  hand,  their  view  leads  them  to  a  verdict  of  guilty,  and 
it  is  the  opinion  of  the  court  that  such  verdict  is  against  law,  the 
verdict  will  be  set  aside  and  a  new  trial  granted.  In  such  a  case, 
although  they  have  judged  of  the  law,  the  court  sets  aside  their 
conclusion  as  improper  and  unwarranted.  But  it  is  clear  that  the 
jury  are  no  more  the  judges  of  the  law  when  they  acquit  than 

to'leave  it  to  the  determination  of  the  court,  though  they  have  an  unquestionable 
right  of  determining  upon  all  the  circumstances,  and  of  finding  a  general  verdict 
if  they  think  proper  so  to  hazard  a  breach  of  their  oath,'  &c.  4  Bl.  Com.  361 ; 
Co.  Lit.  228  a;  2  Hale,  P.  C.  313.  Our  legislature  have  left  no  doubt  about 
this  matter.  The  juries  in  Georgia  can  find  no  special  verdict  at  law.  They  are 
declared  to  be  judges  of  the  law  and  the  facts,  and  are  required  in  every  case  to 
give  a  general  verdict  of  guilty  or  not  guilty;  so  jealous  and  rightfully  jealous 
were  our  ancestors  of  the  influence  of  the  State  upon  the  trial  of  a  citizen  charged 
with  crime.  We  are  not  called  upon  in  this  case  to  determine  the  relative  strength 
of  the  judgment  of  the  court  and  the  jury,  upon  the  law  in  criminal  cases,  and 
shall  express  no  opinion  thereon.  We  only  say  it  is  the  right  and  duty  of  the 
court  to  declare  the  law  in  criminal  cases  as  well  as  civil,  and  that  it  is  at  the 
same  time  the  right  of  the  jury  to  judge  of  the  law  as  well  as  of  the  facts  in  crimi- 
nal cases.  I  would  not  be  understood  as  holding  that  it  is  not  the  province  of 
the  court  to  give  the  law  of  the  case  distinctly  in  charge  to  the  jury ;  it  is  unques- 
tionably its  privilege  and  its  duty  to  instruct  them  as  to  what  the  law  is,  and 
officially  to  direct  their  finding  as  to  the  law,  yet  at  the  same  time  in  such  way  as 
not  to  limit  the  range  of  their  judgment."  See  also  McGuffie  v.  State,  17  Geo. 
497  ;  Clem  v.  State,  31  Ind.  480. 

1  For  a  condensed  history  of  the  struggle  in  England  on  this  subject,  see 
May's  Constitutional  History,  c.  9.  See  also  Lord  Campbell's  Lives  of  the 
Chancellors,  c.  178  ;  Introduction  to  Speeches  of  Lord  Erskine,  edited  by  James 
L.  High ;  Forsyth's  Trial  by  Jury,  c.  12. 

[371] 


*  323  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

when  they  condemn,  and  the  different  result  in  the  two  cases  comes 
from  the  merciful  maxim  of  the  common  law,  which  will  not  suffer 
an  accused  party  to  be  twice  put  in  jeopardy  for  the  same  cause, 
however  erroneous  may  have  been  the  first  acquittal.     In  theory, 

therefore,  the  rule  of  law  would  seem  to  be,  that  it  is  the 
[*  324]   duty  of  the  *  jury  to  receive  and  follow  the  law  as  delivered 

to  them  by  the  court;  and  such  is  the  clear  weight  of 
authority.1 

There  are,  however,  opposing  decisions,2  and  it  is  evident  that 
the  judicial  prerogative  to  direct  conclusively  upon  the  law  cannot 
be  carried  very  far  or  insisted  upon  with  much  pertinacity,  when 
the  jury  have  such  complete  power  to  disregard  it,  without  the 

1  United  States  v.  Battiste,  2  Sum.  240;  Stittinus  v.  United  States,  5  Cranch, 
C.  C.  573 ;  United  States  v.  Morris,  1  Curt.  53  ;  United  States  v.  Riley,  5  Blatch. 
206 ;  Montgomery  v.  State,  11  Ohio,  427 ;  Robhins  v.  State,  8  Ohio,  n.  s.  131 ; 
Commonwealth  v.  Porter,  10  Met.  263 ;  Commonwealth  v.  Anthes,  5  Gray,  185 ; 
Commonwealth  v.  Rock,  10  Gray,  4  ;  State  v.  Peace,  1  Jones,  251  ;  Handy  v. 
State,  7  Mo.  607;  Nels  v.  State,  2  Texas,  280;  People  v.  Pine,  2  Barb.  566; 
Carpenter  v.  People,  8  Barb.  603  ;  People  v.  Finnigan,  1  Park.  C.  R.  147  ;  Safford 
v.  People,  ib.  474;  McGowan  v.  State,  9  Yerg.  184;  Pleasant  v.  State,  13  Ark. 
360;  Montee  v.  Commonwealth,  3  J.  J.  Marsh.  132;  Commonwealth  v.  Van 
Tuyl,  1  Met.  (Ky.)  1 ;  Pierce  v.  State,  13  N.  H.  536 ;  People  v.  Stewart,  7  Cal. 
40 ;  Batre  v.  State,  18  Ala.  119,  reviewing  previous  cases  in  the  same  State.  "As 
the  jury  have  the  right,  and  if  required  by  the  prisoner  are  bound  to  return  a 
general  verdict  of  guilty  or  not  guilty,  they  must  necessarily,  in  the  discharge  of 
their  duty,  decide  such  questions  of  law  as  well  as  of  fact  as  are  involved  in  the 
general  question,  and  there  is  no  mode  in  which  their  opinions  on  questions  of 
law  can  be  reviewed  by  this  court  or  any  other  tribunal.  But  this  does  not 
diminish  the  obligation  of  the  court  to  explain  the  law.  The  instructions  of  the 
court  in  matters  of  law  may  safely  guide  the  consciences  of  the  jury,  unless  they 
know  them  to  be  wrong  ;  and  when  the  jury  undertake  to  decide  the  law  (as  they 
undoubtedly  have  the  power  to  do)  in  opposition  to  the  advice  of  the  court, 
they  assume  a  high  responsibility,  and  should  be  very  careful  to  see  clearly  that 
they  are  right."  Commonwealth  v.  Knapp,  10  Pick.  496,  cited  with  approval  in 
McGowan  v.  State,  9  Yerg.  195,  and  Dale  v.  State,  10  Yerg.  555. 

2  See  especially  State  v.  Croteau,  23  Vt.  14,  where  will  be  found  a  very  full 
and  carefully  considered  opinion,  holding  that  at  the  common  law  the  jury  are 
the  judges  of  the  law  in  criminal  cases.  See  also  State  v.  Wilkinson,  2  Vt.  280  ; 
Doss  v.  Commonwealth,  1  Grat.  557  ;  State  v.  Jones,  5  Ala.  666  ;  State  v.  Snow, 
6  Shep.  346  ;  State  v.  Allen,  1  McCord,  525  ;  Armstrong  v.  State,  4  Blackf.  247  ; 
Warren  v.  State,  ib.  150;  Stocking  v.  State,  7  Ind.  326  ;  Lynch  v.  State,  9  Ind. 
541  ;  Nelson  v.  State,  2  Swan,  482 ;  People  v.  Thayers,  1  Park.  C.R.  596  ;  People 
v.  Videto,  ib.  603;  McPherson  v.  State,  22  Geo.  478.  The  subject  was  largely 
discussed  in  People  v.  Croswell,  3  Johns.  Cas.  337. 

[372] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.     *  324 

action  degenerating  into  something  like  mere  scolding.  Upon  this 
subject  the  remarks  of  Mr.  Justice  Baldwin,  of  the  Supreme  Court 
of  the  United  States,  to  a  jury  assisting  him  in  the  trial  of  a  crim- 
inal charge,  and  which  are  given  in  the  note,  seem  peculiarly  dig- 
nified and  appropriate,  and  at  the  same  time  to  embrace  about  all 
that  can  properly  be  said  to  a  jury  on  this  subject.1 

1  "  In  repeating  to  you  what  was  said  on  a  former  occasion  to  another  jury, 
that  you  have  the  power  to  decide  on  the  law,  as  well  as  the  facts  of  this  case, 
and  are  not  bound  to  find  according' to  our  opinion  of  the  law,  we  feel  ourselves 
constrained  to  make  some  explanations  not  then  deemed  necessary,  but  now 
called  for  from  the  course  of  the  defence.  You  may  find  a  general  verdict  of 
guilty  or  not  guilty,  as  you  think  proper,  or  you  may  find  the  facts  specially,  and 
leave  the  guilt  or  innocence  of  the  prisoner  to  the  judgment  of  the  court.  If 
your  verdict  acquit  the  prisoner,  we  cannot  grant  a  new  trial,  however  much  we 
may  differ  with  you  as  to  the  law  which  governs  the  case ;  and  in  this  respect  a 
jury  are  the  judges  of  the  law,  if  they  choose  to  become  so.  Their  judgment  is 
final,  not  because  they  settle  the  law,  but  because  they  think  it  not  applicable,  or 
do  not  choose  to  apply  it  to  the  case. 

"  But  if  a  jury  find  a  prisoner  guilty  against  the  opinion  of  the  court  on  the 
law  of  the  case,  a  new  trial  will  be  granted.  No  court  will  pronounce  a  judg- 
ment on  a  prisoner  against  what  they  believe  to  be  the  law.  On  an  acquittal 
there  is  no  judgment ;  and  the  court  do  not  act,  and  cannot  judge,  there  remain- 
ing nothing  to  act  upon. 

"  This,  then,  you  will  understand  to  be  what  is  meant  by  your  power  to  decide 
on  the  law,  but  you  will  still  bear  in  mind  that  it  is  a  very  old,  sound,  and  valuable 
maxim  in  law,  that  the  court  answers  to  questions  of  law,  and  the  jury  to  facts. 
Every  day's  experience  evinces  the  wisdom  of  this  rule."  United  States  v.  Wil- 
son, Baldw.  108.  We  quote  also  from  an  Alabama  case  :  "  When  the  power  of 
juries  to  find  a  general  verdict,  and  consequently  their  right  to  determine  without 
appeal  both  law  and  fact,  is  admitted,  the  abstract  question  whether  it  is  or  is  not 
their  duty  to  receive  the  law  from  the  court  becomes  rather  a  question  of  casuistry 
or  conscience  than  one  of  law ;  nor  can  we  think  that  any  thing  is  gained  in  the 
administration  of  criminal  justice  by  urging  the  jury  to  disregard  the  opinion  of 
the  court  upon  the  law  of  the  case.  It  must,  we  think,  be  admitted,  that  the 
judge  is  better  qualified  to  expound  the  law,  from  his  previous  training,  than  the 
jury ;  and  in  practice,  unless  he  manifests  a  wanton  disregard  of  the  rights  of 
the  prisoner.  —  a  circumstance  which  rarely  happens  in  this  age  of  the  world 
and  in  this  country,  —  his  opinion  of  the  law  will  be  received  by  the  jury  as  an 
authoritative  exposition,  from  their  conviction  of  his  superior  knowledge  of  the 
subject.  The  right  of  the  jury  is  doubtless  one  of  inestimable  value,  especially 
in  those  cases  where  it  may  be  supposed  that  the  government  has  an  interest  in 
the  conviction  of  the  criminal ;  but  in  this  country  where  the  government  in  all 
its  branches,  executive,  legislative,  and  judicial,  is  created  by  the  people,  and  is 
in  fact  their  servant,  we  are  unable  to  perceive  why  the  jury  should  be  invited 
or  urged  to  exercise  this  right  contrary  to  their  own  convictions  of  their  capacity 
to  do  so,  without  danger  of  mistake.    It  appears  to  us  that  it  is  sufficient  that  it 

[373] 


*  325  CONSTITUTIONAL    LIMITATIONS.  [CH.  X. 

[*  325]       *  One  thing  more  is  essential  to  a  proper  protection  of 
accused  parties,  and  that  is,  that  one  shall  not  be  subject  to 

is  admitted  that  it  is  their  peculiar  province  to- determine  facts,  intents,  and  pur- 
poses ;  that  it  is  their  right  to  find  a  general  verdict,  and  consequently  that  they 
must  determine  the  law ;  and  whether  in  the  exercise  of  this  right  they  will  dis- 
trust the  court  as  expounders  of  the  law,  or  whether  they  will  receive  the  law 
from  the  court,  must  be  left  to  their  own  discretion  under  the  sanction  of  the  oath 
they  have  taken."  State  v.  Jones,  5  Ala.  672.  But  as  to  this  case,  see  Batre  v. 
State,  18  Ala.  119. 

It  cannot  be  denied  that  discredit  is  sometimes  brought  upon  the  administra- 
tion of  justice  by  juries  acquitting  parties  who  are  sufficiently  shown  to  be  guilty, 
and  where,  had  the  trial  been  by  the  court,  a  conviction  would  have  been  sure  to 
follow.  In  such  cases  it  must  be  supposed  that  the  jury  have  been  controlled  by 
their  prejudices  or  their  sympathies.  However  that  may  be,  it  by  no  means  fol- 
lows that  because  the  machinery  of  jury  trial  does  not  work  satisfactorily  in 
every  case,  we  must  therefore  condemn  and  abolish  the  system,  or,  what  is  still 
worse,  tolerate  it,  and  yet  denounce  it  as  being  unworthy  of  public  confidence. 
Jury  trial,  when  considered  in  all  its  aspects,  —  as  an  instrument  in  the  admin- 
istration of  justice ;  as  an  educator  of  the  people  in  law  and  politics  ;  and  as  a 
means  of  making  them  feel  their  responsibility  in  the  government,  and  the 
important  part  they  bear  in  its  administration, — is  by  far  the  best  system  of 
trial  yet  devised ;  and  we  must  take  it  with  all  its  concomitants,  among  which  is 
a  due  sense  of  independence  in  the  jurors.  The  institution  loses  its  value  when 
the  jury  becomes  a  mere  instrument  for  receiving  and  echoing  back  the  opinions 
of  the  judge  on  the  case  in  trial.  Concede  its  defects,  and  the  truth  still 
remains,  that  its  benefits  are  indispensable.  The  remarks  of  Lord  Erslcine,  the 
most  distinguished  jury  lawyer  known  to  English  history,  may  be  quoted  as 
peculiarly  appropriate  in  this  connection  :  "  It  is  of  the  nature  of  every  thing 
that  is  great  and  useful,  both  in  the  animate  and  inanimate  world,  to  be  wild  and 
irregular,  and  we  must  be  content  to  take  them  with  the  alloys  which  belong  to 
them,  or  live  without  them.  .  .  .  Liberty  herself,  the  last  and  best  gift  of  God 
to  his  creatures,  must  be  taken  just  as  she  is.  You  might  pare  her  down  into 
bashful  regularity,  shape  her  into  a  perfect  model  of  severe,  scrupulous  law ;  but 
she  would  then  be  Liberty  no  longer;  and  you  must  be  content  to  die  under 
the  lash  of  this  inexorable  justice  which  you  have  exchanged  for  the  banners  of 
freedom." 

The  province  of  the  jury  is  sometimes  invaded  by  instructions  requiring  them 
to  adopt,  as  absolute  conclusions  of  law,  those  deductions  which  they  are  at 
liberty  to  draw  from  a  particular  state  of  facts,  if  they  regard  them  as  reason- 
able :  such  as  that  a  homicide  must  be  presumed  malicious,  unless  the  defendant 
proves  the  contrary ;  which  is  a  rule  contradictory  of  the  results  of  common 
observation;  or  that  evidence  of  a  previous  good  character  in  the  defendant 
ought  to  be  disregarded,  unless  the  other  proof  presents  a  doubtful  case ;  which 
would  deprive  an  accused  party  of  his  chief  protection  in  many  cases  of  false 
accusations  and  conspiracies.  See  People  v.  Garbutt,  17  Mich.  9;  People  v. 
Lamb,  2  Keyes,  360;  State  v.  Henry,  5  Jones,  N.  C.  66;  Harrington  v.  State, 

[374] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.     *  325 

be  twice  put  in  jeopardy  *  upon  the  same  charge.  One  [*  326] 
trial  and  verdict  must,  as  a  general  rule,  protect  him 
against  any  subsequent  accusation  of  the  same  offence,  whether 
the  verdict  be  for  or  against  him,  and  whether  the  courts  are  satis- 
fied with  the  verdict  or  not.  We  shall  not  attempt  in  this  place  to 
collect  together  the  great  number  of  judicial  decisions  bearing 
upon  the  question  of  legal  jeopardy,  and  the  exceptions  to  the  gen- 
eral rule  above  stated :  for  these  the  reader  must  be  referred  to 
the  treatises  on  criminal  law,  where  the  subject  will  be  found  to  be 
extensively  treated.  It  will  be  sufficient  for  our  present  purpose 
to  indicate  very  briefly  some  general  principles. 

A  person  is  in  legal  jeopardy  when  he  is  put  upon  trial,  before  a 
court  of  competent  jurisdiction,  upon  indictment  or  infor- 
mation *  which  is  sufficient  in  form  and  substance  to  sus-  [*  327] 
tain  a  conviction,  and  a  jury  has  been  charged  with  his 
deliverance.1     And  a  jury  is  said  to  be  thus  charged  when  they 
have  been  impanelled  and  sworn.2     The  defendant  then  becomes 

19  Ohio,  n.  s.  269 ;  Remsen  v.  People,  43  N.  Y.  6.  Upon  the  presumption  of 
malice  in  homicide,  the  reader  is  referred  to  the  Review  of  the  Trial  of  Professor 
Webster,  by  Hon.  Joel  Parker,  in  te  North  American  Review,  No.  72,  p.  178. 
See  also  upon  the  functions  of  judge  and  jury  respectively,  the  cases  of  Common- 
wealth v.  Wood,  11  Gray,  86;  Maher  v.  People,  10  Mich.  212;  Commonwealth 
v.  Billings,  97  Mass.  405;  State  v.  Patterson,  63  N.  C.  520;  State  v.  Newton,  4 
Nev.  410. 

1  Commonwealth  v.  Cook,  6  S.  &  R.  586 ;  State  v.  Norvell,  2  Yerg.  24 ; 
Williams  v.  Commonwealth,  2  Grat.  568  ;  People  v.  McGowan,  17  Wend.  386 ; 
Mounts  v.  State,  14  Ohio,  295;  Price  v.  State,  19  Ohio,  423;  Wright  v.  State, 
5  Ind.  292;  State  v.  Nelson",  26  Ind.  366;  State  v.  Spier,  1  Dev.  491;  State  v. 
Ephraim,  2  Dev.  &  Bat.  162 ;  Commonwealth  v.  Tuck,  20  Pick.  356  ;  People  v. 
Webb,  28  Cal.  467;  People  v.  Cook,  10  Mich.  164;  State  v.  Ned,  7  Port.  217; 
State  v.  Callendine,  8  Iowa,  288.  It  cannot  be  said,  however,  that  a  party  is  in 
legal  jeopardy  in  a  prosecution  brought  about  by  his  own  procurement ;  and  a 
former  conviction  or  acquittal  is  consequently  no  bar  to  a  second  indictment,  if 
the  former  trial  was  brought  about  by  the  procurement  of  the  defendant,  and  the 
conviction  or  acquittal  was  the  result  of  fraud  or  collusion  on  his  part.  Common- 
wealth v.  Alderman,  4  Mass.  477  ;  State  v.  Little,  1  N.  H.  257 ;  State  v.  Green, 
16  Iowa,  239.  See  also  State  v.  Reed,  26  Conn.  202.  And  if  a  jury  is  called 
and  sworn,  and  then  discharged  for  the  reason  that  it  is  discovered  the  defendant 
has  not  been  arraigned,  this  will  not  constitute  a  bar.  United  States  v.  Riley,  5 
Blatch.  205. 

2  McFadden  v.  Commonwealth,  23  Penn.  St..  12 ;  Lee  v.  State,  26  Ark.  260; 
8.  c.  7  Am.  Rep.  611.  A  different  view  is  taken  in  O'Brian  v.  Commonwealth,  6 
Bush,  563. 

[375] 


*  327  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

entitled  to  a  verdict  which  shall  constitute  a  bar  to  a  new  pros- 
ecution ;  and  he  cannot  be  deprived  of  this  bar  by  a  nolle  prosequi 
entered  by  the  prosecuting  officer  against  his  will,  or  by  a  discharge 
of  the  jury  and  continuance  of  the  cause.1 

If,  however,  the  court  had  no  jurisdiction  of  the  cause,2  or  if  the 
indictment  was  so  far  defective  that  no  valid  judgment  could  be 
rendered  upon  it,3  or  if  by  any  overruling  necessity  the  jury  are 
discharged  without  a  verdict,4  which  might  happen  from  the  sick- 
ness or  death  of  the  judge  holding  the  court,5  or  of  a  juror,6  or  the 
inability  of  the  jury  to  agree  upon  a  verdict  after  reasonable  time 
for  deliberation  and  effort ; 7  or  if  the  term  of  the  court  as  fixed  by 
law  comes  to  an  end  before  the  trial  is  finished ; 8  or  the  jury  are 
discharged  with  the  consent  of  the  defendant  expressed  or  implied  ;9 
or  if,  after  verdict  against  the  accused,  it  has  been  set  aside  on 

1  People  v.  Barrett,  2  Caines,  304;  Commonwealth  v.  Tuck,  20  Pick.  365; 
Mounts  v.  State,  14  Ohio,  295  ;  State  v.  Connor,  5  Cold.  311;  State  v.  Callen- 
dine,  8  Iowa,  288  ;  Baker  v.  State,  12  Ohio,  N.  s.  214 ;  Grogan  v.  State,  44  Ala. 
9 ;   State  v.  Alman,  64  N.  C.  364  ;   contra,  Swindel  v.  State,  32  Texas,  102. 

2  Commonwealth  v.  Goddard,  13  Mass.  455;  People  v.  Tyler,  7  Mich.  161. 

3  Gerard  v.  People,  3  Scam.  363;  Pritchett  v.  State,  2  Sneed,  285;  People 
v.  Cook,  10  Mich.  164;  Mount  v.  Commonwealth,  2  Duv.  (Ky.)  93;  People  v. 
McNealy,  17  Cal.  333;  Kohlheimer  v.  State,  39  Miss.  548;  State  v.  Kason,  20 
La.  An.  48  ;  Black  v.  State,  36  Geo.  447 ;  Commonwealth  v.  Bakeman,  105 
Mass.  53. 

4  United  States  v.  Perez,  9  Wheat.  579 ;  State  v.  Ephraim,  2  Dev.  &  Bat. 
166  ;  Commonwealth  v.  Fells,  9  Leigh,  620  ;  People  v.  Goodwin,  18  Johns.  205  ; 
Commonwealth  v.  Bowden,  9  Mass.  194;  Hoffman  v.  State,  20  Md.  425;  Price 
v.  State,  36  Miss.  533.  In  State  v.  Wiseman,  68  N.  C.  203,  the  officer  in  charge 
of  the  jury  was  found  to  have  been  conversing  with  them  in  a  way  calculated  to 
influence  them  unfavorably  towards  the  evidence  of  the  prosecution,  and  it  was 
held  that  this  was  such  a  case  of  necessity  as  authorized  the  judge  to  permit  a 
juror  to  be  withdrawn,  and  that  it  did  not  operate  as  an  acquittal. 

5  Nugent  v.  State,  4  Stew.  &  Port.  72. 

6  Hector  v.  State,  2  Mo.  166;  State  v.  Curtis,  5  Humph.  601;  Mahala  v. 
State,  10  Yerg.  532;  Commonwealth  v.  Fells,  9  Leigh,  613. 

7  People  v.  Goodwin,  18  Johns.  187;  Commonwealth  v.  Olds,  5  Lit.  140; 
Dobbins  v.  State,  14  Ohio,  n.  s.  493;  Miller  v.  State,  8  Ind.  325;  State  v. 
Walker,  26  Ind.  346  ;  Commonwealth  v.  Fells,  9  Leigh,  613  ;  Winsor  v.  The 
Queen,  L.  R.  1  Q.  B.  289;  State  v.  Prince,  63  N.  C.  529;  Moseley  v.  State,  33 
Texas,  671  ;  Lester  v.  State,  33  Geo.  329. 

8  State  v.  Brooks,  3  Humph.  70  ;  State  v.  Battle,  7  Ala.  259  ;  Mahala  v.  State, 
10  Yerg.  532 ;  State  v.  Spier,  1  Dev.  491  ;  Wright  v.  State,  5  Ind.  290. 

9  State  v.  Slack,  6  Ala.  676  ;  Elijah  v.  State,  1  Humph.  103 ;  Commonwealth 
v.  Stowell,  9  Met.  572. 

[376] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.     *  328 

*  his  motion  for  a  new  trial  or  on  writ  of  error,1  or  the  [*  328] 
judgment  thereon  been  arrested,2  —  in  any  of  these  cases 
the  accused  may  again  be  put  upon  trial  upon  the  same  facts  before 
charged  against  him,  and  the  proceedings  had  will  constitute  no 
protection.  But  where  the  legal  bar  has  once  attached,  the  gov- 
ernment cannot  avoid  it  by  varying  the  form  of  the  charge  in  a 
new  accusation  :  if  the  first  indictment  or  information  were  such 
that  the  accused  might  have  been  convicted  under  it  on  proof  of 
the  facts  by  which  the  second  is  sought  to  be  sustained,  then  the 
jeopardy  which  attached  on  the  first  must  constitute  a  protection 
against  a  trial  on  the  second.3  And  if  a  prisoner  is  acquitted  on 
some  of  the  counts  in  an  indictment,  and  convicted  on  others,  and 
a  new  trial  is  obtained  on  his  motion,  he  can  be  put  upon  trial  a 
second  time  on  those  counts  only  on  which  he  was  before  convicted, 
and  is  for  ever  discharged  from  the  others.4 

Excessive  Fines  and  Cruel  and  Unusual  Punishments. 

It  is  also  a  constitutional  requirement  that  excessive  bail  shall 
not  be  required,  nor  cruel  and  unusual  punishments  inflicted. 

1  And  it  seems,  if  the  verdict  is  so  defective  that  no  judgment  can  be  rendered 
upon  it,  it  may  be  set  aside  even  against  the  defendant's  objection,  and  a  new 
trial  had.     State  v.  Redman,  17  Iowa,  329. 

2  Casborus  v.  People,  13  Johns.  351.  But  where  the  indictment  was  good, 
and  the  judgment  was  erroneously  arrested,  the  verdict  was  held  to  be  a  bar. 
State  v.  Norvell,  2  Yerg.  24.  See  People  v.  Webb,  28  Cal.  467.  So  if  the  error 
was  in  the  judgment  and  not  in  the  prior  proceedings,  if  the  judgment  is  reversed, 
the  prisoner  must  be  discharged.  See  post,  p.  330.  But  it  is  competent  for  the 
legislature  to  provide  that  on  reversing  the  erroneous  judgment  in  such  case,  the 
court,  if  the  prior  proceedings  are  regular,  shall  remand  the  case  for  the  proper 
sentence.  McKee  v.  People,  32  N.  Y.  239.  It  is  also  competent,  we  suppose, 
in  the  absence  of  express  constitutional  prohibition,  to  allow  an  appeal  or  writ 
of  error  to  the  prosecution,  in  criminal  cases.  See  State  v.  Tait,  22  Iowa,  141. 
Compare  People  v.  Webb,  38  Cal.  467. 

3  State  v.  Cooper,  1  Green,  360;  Commonwealth  v.  Roby,  12  Pick.  504; 
People  v.  McGowan,  17  Wend.  386  ;  Price  v.  State,  19  Ohio,  423  ;  Leslie  v.  State, 
18  Ohio,  N.  s.  395;  State  v.  Benham,  7  Conn.  414. 

4  Campbell  v.  State,  9  Yerg.  333 ;  State  v.  Kettle,  2  Tyler,  475 ;  Morris  v. 
State,  8  S.  &  M.  762 ;  Esmon  v.  State,  1  Swan,  14  ;  Guenther  v.  People,  24 
N.  Y.  100 ;  State  v.  Kattleman,  35  Mo.  105  ;  State  v.  Ross,  29  Mo.  39  ;  State  v. 
Martin,  30  Wis.  219  ;  Barnett  v.  People,  54  111.  331.  Contra,  State  v.  Behimer, 
20  Ohio,  n.  s.  572.  A  nolle  prosequi  on  one  count  of  an  indictment  after  a  jury 
is  called  and  sworn,  is  a  bar  to  a  new  indictment  for  the  offence  charged  therein. 
Baker  v.  State,  12  Ohio,  n.  s.  214. 

[377] 


*  328  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

Within  such  bounds  as  may  be  prescribed  by  law,  the  question 
what  fine  shall  be  imposed  is  one  addressed  to  the  discretion  of  the 
court.  But  it  is  a  discretion  to  be  judicially  exercised  ;  and  there 
may  be  cases  in  which  a  punishment,  though  not  beyond  any  limit 
fixed  by  statute,  is  nevertheless  so  clearly  excessive  as  to  be  erro- 
neous in  law.1  A  fine  should  have  some  reference  to  the 
[*  329]  party's  ability  to  pay  it.  *  By  Magna  Charta  a  freeman 
was  not  to  be  amerced  for  a  small  fault,  but  according  to 
the  degree  of  the  fault,  and  for  a  great  crime  in  proportion  to  the 
heinousness  of  it,  saving  to  him  his  contenement ;  and  after  the 
same  manner  a  merchant,  saving  to  him  his  merchandise.  And  a 
villein  was  to  be  amerced  after  the  same  manner,  saving  to  him  his 
wainage.  The  merciful  spirit  of  these  provisions  addresses  itself 
to  the  criminal  courts  of  the  American  States  through  the  provi- 
sions of  their  constitutions. 

It  has  been  decided  by  the  Supreme  Court  of  Connecticut  that  it 
was  not  competent  in  the  punishment  of  a  common-law  offence  to 
inflict  fine  and  imprisonment  without  limitation.  The  precedent, 
it  was  said,  cited  by  counsel  contending  for  the  opposite  doctrine, 
of  the  punishment  for  a  libel  upon  Lord  Chancellor  Bacon,  was 
deprived  of  all  force  of  authority  by  the  circumstances  attending 
it ;  the  extravagance  of  the  punishment  being  clearly  referable  to 
the  temper  of  the  times.  "  The  common  law  can  never  require  a 
fine  to  the  extent  of  the  offender's  goods  and  chattels,  or  sentence 
of  imprisonment  for  life.  The  punishment  is  both  uncertain  and 
unnecessary.  It  is  no  more  difficult  to  limit  the  imprisonment  of 
an  atrocious  offender  to  an  adequate  number  of  years  than  to  pre- 
scribe a  limited  punishment  for  minor  offences.  And  when  there 
exists  no  firmly  established  practice,  and  public  necessity  or  con- 
venience does  not  imperiously  demand  the  principle  contended  for, 
it  cannot  be  justified  by  the  common  law,  as  it  wants  the  main 
ingredients  on  which  that  law  is  founded.     Indefinite  punishments 

1  The  subject  of  cruel  and  unusual  punishments  was  somewhat  considered  in 
Barker  v.  People,  3  Cow.  686,  in  which  case  the  opinion  was  expressed  by  Chan- 
cellor Stanford  that  a  forfeiture  of  fundamental  rights  —  e.g.,  the  right  to  jury- 
trial —  could  not  be  imposed  as  a  punishment  for  crime,  but  that  a  forfeiture  of 
the  right  to  hold  office  might  be.  In  Done  v.  People,  5  Park.  864,  the  cruel 
punishments  of  colonial  times,  such  as  burning  alive  and  breaking  on  the  wheel, 
were  enumerated  by  W.  W.  Campbell,  J.,  who  was  of  opinion  that  they  must  be 
regarded  as  "  cruel"  if  not  "  unusual,"  and  therefore  as  being  now  forbidden 
bv  the  Constitution. 

[378] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.     *  329 

are  fraught  with  danger,  and  ought  not  to  be  admitted  unless  the 
written  law  should  authorize  them."  : 

It  is  certainly  difficult  to  determine  precisely  what  is  meant  by 
cruel  and  unusual  punishments.  Probably  any  punishment  declared 
by  statute  for  an  offence  which  was  punishable  in  the  same  way  at 
the  common  law,  could  not  be  regarded  as  cruel  or  unusual  in  the 
constitutional  sense.     And  probably  any  new  statutory  offence  may 
be  punished  to  the  extent  and  in  the  mode  permitted  by  the  com- 
mon law  for  offences  of  similar  nature.     But  those  degrading  pun- 
ishments which  in  any  State  had  become  obsolete  before  its  existing 
constitution  was  adopted,  we  think  may  well  be  held  forbidden  by 
it  as  cruel  and  unusual.     We  may  well  doubt  the  right  to 
establish   the   whipping-post  and  the   pillory  in   *  States  [*330] 
where  they  were  never  recognized  as  instruments  of  pun- 
ishment, or  in    States  whose   constitutions,  revised    since  public 
opinion  had  banished  them,  have  forbidden  cruel  and  unusual  pun- 
ishments.     In  such  States  the  public  sentiment  must  be  regarded 
as  having  condemned  them  as  "  cruel,"  and  any  punishment  which, 
if  ever  employed  at  sall,  has  become  altogether  obsolete,  must  cer- 
tainly be  looked  upon  as  "  unusual." 

A  defendant,  however,  in  any  case  is  entitled  to  have  the  precise 
punishment  meted  out  to  him  which  the  law  provides,  and  no 
other.  A  different  punishment  cannot  be  substituted  on  the  ground 
of  its  being  less  in  severity.  Sentence  to  transportation  for  a 
capital  offence  would  be  void  ;  and  as  the  error  in  such  a  case 
would  be  in  the  judgment  itself,  the  prisoner  would  be  entitled  to 
his  discharge,  and  could  not  be  tried  again.2  If,  however,  the  legal 
punishment  consists  of  two  distinct  and  severable  things,  —  as  fine, 
and  imprisonment,  —  the  imposition  of  either  is  legal,  and  the 
defendant  cannot  be  heard  to  complain  that  the  other  was  not 
imposed  also.3 

1  Per  Hosmer,  Ch.  J.,  in  State  v.  Danforth,  3  Conn.  115.  Peters,  J.,  in  the 
same  case,  pp.  122-124,  collects  a  number  of  cases  in  which  perpetual  imprison- 
ment was  awarded  at  the  common  law,  but,  as  his  associates  believed,  unwar- 
rantably. 

2  Bourne  v.  The  King,  7  Ad.  &  El.  58 ;  Lowenberg  v.  People,  27  N.  Y.  336. 
See  also  Whitebread  v.  The  Queen,  7  Q.  B.  582 ;  Rex  v.  Fletcher,  Buss.  &  Ry. 
58.  In  this  last  case  the  court  was  equally  divided  on  the  question  whether  the 
omission,  in  a  sentence  of  death,  of  the  subsequent  directions  which  the  law  pro- 
vided for,  rendered  the  sentence  void.  See  further,  Hartung  v.  People,  26  N.Y. 
167  ;  Elliott  v.  People,  13  Mich.  365  ;  Ex  parte  Page,  49  Mo.  291. 

3  See  Kane  v.  People,  8  Wend.  203. 

[  379  ] 


330  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 


The  Right  to   Counsel. 

Perhaps  the  privilege  most  important  to  the  person  accused  of 
crime,  connected  with  his  trial,  is  that  to  be  defended  by  counsel. 
From  very  early  days  a  class  of  men,  who  have  made  the  laws  of 
their  country  their  special  study,  and  who  have  been  accepted  for 
the  confidence  of  the  court  in  their  learning  and  integrity,  have 
been  set  apart  as  officers  of  the  court,  whose  special  duty  it  should 
be  to  render  aid  to  the  parties  and  the  court 1  in  the  application  of 
the  law  to  legal  controversies.  These  persons,  before  entering  upon 
their  employment,  were  to  take  an  oath  of  fidelity  to  the  courts 

whose  officers  they  were,  and  to  their  clients  ; 2  and  it  was 
[*  331]  their  special  *  duty  to  see  that  no  wrong  was  done  their 

clients  by  means  of  false  or  prejudiced  witnesses,  or 
through  the  perversion  or  misapplication  of  the  law  by  the  court. 
Strangely  enough,  however,  the  aid  of  this  profession  was  denied 
in  the' very  cases  in  which  it  was  needed  most,  and  it  has  cost  a 
long  struggle,  continuing  even  into  the  present  century,  to  rid  the 
English  law  of  one  of  its  most  horrible  features.     In  civil  causes 

o 

1  In  Commonwealth  v.  Knapp,  9  Pick.  498,  the  court  denied  the  application 
of  the  defendant  that  Mr.  Rantoul  should  be  assigned  as  his  counsel,  because, 
though  admitted  to  the  Common  Pleas,  he  was  not  yet  an  attorney  of  the  Supreme 
Court,  and  that  court,  consequently,  had  not  the  usual  control  over  him ;  and, 
besides,  counsel  was  to  give  aid  to  the  court  as  well  as  to  the  prisoner,  and  there- 
fore it  was  proper  that  a  person  of  more  legal  experience  should  be  assigned. 

2  "  Every  countor  is  chargeable  by  the  oath  that  he  shall  do  no  wrong  nor 
falsity,  contrary  to  his  knowledge,  but  shall  plead  for  his  client  the  best  he  can, 
according  to  his  understanding."  Mirror  of  Justices,  c.  2,  §  5.  The  oath  in 
Pennsylvania,  on  the  admission  of  an  attorney  to  the  bar,  "to  behave  himself 
in  the  office  of  an  attorney,  according  to  the  best  of  his  learning  and  ability,  and 
with  all  good  fidelity,  as  well  to  the  court  as  to  the  client;  that  he  will  use  no 
falsehood,  nor  delay  any  man's  cause,  for  lucre  or  malice,"  is  said,  by  Mr.  Shars- 
wood,  to  present  a  comprehensive  summary  of  his  duties  as  a  practitioner. 
SharswoocTs  Legal  Ethics,  p.  3.  The  advocate's  oath,  in  Geneva,  was  as  follows : 
"  I  solemnly  swear,  before  Almighty  God,  to  be  faithful  to  the  Republic,  and  to 
the  canton  of  Geneva ;  never  to  depart  from  the  respect  due  to  the  tribunals  and 
authorities  ;  never  to  counsel  or  maintain  a  cause  which  does  not  appear  to  be 
just  or  equitable,  unless  it  be  the  defence  of  an  accused  person  ;  never  to  em- 
ploy, knowingly,  for  the  purpose  of  maintaining  the  causes  confided  to  me,  any 
means  contrary  to  truth,  and  never  seek  to  mislead  the  judges  by  any  artifice  or 
false  statement  of  facts  or  law ;  to  abstain  from  all  offensive  personality,  and  to 
advance  no  fact  contrary  to  the  honor  and  reputation  of  the  parties,  if  it  be  not 
indispensable  to  the  cause  with  which  I  may  be  charged ;  not  to  encourage  either 

[380] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.       *  831 

and  on  the  trial  of  charges  of  misdemeanor,  the  parties  were 
entitled  to  the  aid  of  counsel  in  eliciting  the  facts,  and  in  present- 
ing both  the  facts  and  the  law  to  the  court  and  jury  ;  but  when  the 
government  charged  a  person  with  treason  or  felony,  he 
was  denied  this  privilege.1  Only  such  *  legal  questions  as  [*  332] 
he  could  suggest  was  counsel  allowed  to  argue  for  him ; 
and  this  was  but  a  poor  privilege  to  one  who  was  himself  unlearned 
in  the  law,  and  who,  as  he  could  not  fail  to  perceive  the  monstrous 
injustice  of  the  whole  proceeding,  would  be  quite  likely  to  accept  any 
perversion  of  the  law  that  might  occur  in  the  course  of  it  as  reg- 
ular and  proper,  because  quite  in  the  spirit  that  denied  him  a 
defence.     Only  after  the  Revolution  of  1688  was  a  full  defence 

the  commencement  or  continuance  of  a  suit  from  any  motives  of  passion  or  inter- 
est ;  nor  to  reject,  for  any  consideration  personal  to  myself,  the  cause  of  the 
weak,  the  stranger,  or  the  oppressed."  In  "  The  Lawyer's  Oath,  its  Obligations, 
and  some  of  the  Duties  springing  out  of  them,"  by  D.  Bethune  Duffield,  Esq., 
a  masterly  analysis  is  given  of  this  oath;  and  he  well  says  of  it:  "Here  you 
have  the  creed  of  an  upright  and  honorable  lawyer.  The  clear,  terse,  and  lofty 
language  in  which  it  is  expressed  needs  no  argument  to  elucidate  its  principles, 
no  eloquence  to  enforce  its  obligations.  It  has  in  it  the  sacred  savor  of  divine 
inspiration,  and  sounds  almost  like  a  restored  reading  from  Sinai's  original,  but 
broken  tablets." 

1  When  an  ignorant  person,  unaccustomed  to  public  assemblies,  and  perhaps 
feeble  in  body  or  in  intellect,  was  put  upon  trial  on  a  charge  which,  whether  true 
or  false,  might  speedily  consign  him  to  an  ignominious  death,  with  able  counsel 
arrayed  against  him,  and  all  the  machinery  of  the  law  ready  to  be  employed  in 
bringing  forward  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  preparations  which 
might  otherwise  have  been  within  his  power.  A  "trial"  under  such  circum- 
stances would  be  only  a  judicial  murder  in  very  many  cases.  The  spirit  in  which 
the  old  law  was  administered  may  be  judged  of  from  the  case  of  Sir  William 
Parkins,  tried  for  high  treason  before  Lord  Holt  and  his  associates  in  1695,  after 
the  statute  7  William  III.  c.  3,  allowing  counsel  to  prisoners  indicted  for  treason, 
had  been  passed,  but  one  day  before  it  was  to  take  effect.  He  prayed  to  be  allowed 
counsel,  and  quoted  the  preamble  to  the  statute  that  such  allowance  was  just  and 
reasonable.  His  prayer  was  denied,  Lord  Holt  declaring  that  he  must  administer 
the  law  as  he  found  it,  and  could  not  anticipate  the  operation  of  an  act  of  Parlia- 
ment, even  by  a  single  day.  The  accused  was  convicted  and  executed.  See 
Lieber's  Hermeneutics,  c.  4,  §15;  Sedgwick  on  Stat.  &  Const.  Law,  81.  In 
proceedings  by  the  Inquisition  against  suspected  heretics  the  aid  of  counsel  was 
expressly  prohibited.     Lea's  Superstition  and  Force,  377. 

[381] 


*  332  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

allowed  on  trials  for  treason,1  and  not  until  1836  was 
[*  333]  *  the  same  privilege  extended  to  persons  accused  of  other 
felonies.2 

1  See  an  account  of  the  final  passage  of  this  bill  in  Macaulay's  "England," 
Vol.  IV.  c.  21.  It  is  surprising,  that  the  effort  to  extend  the  same  right  to  all 
persons  accused  of  felony  was  so  strenuously  resisted  afterwards,  and  that,  too, 
notwithstanding  the  best  lawyers  in  the  realm  admitted  its  importance  and  jus- 
tice. "  I  have  myself,"  said  Mr.  Scarlett,  "  often  seen  persons  I  thought  inno- 
cent convicted,  and  the  guilty  escape,  for  want  of  some  acute  and  intelligent 
counsel  to  show  the  bearings  of  the  different  circumstances  on  the  conduct  and 
situation  of  the  prisoner."  House  of  Commons  Debates,  April  25,  1826.  "It 
has  lately  been  my  lot,"  said  Mr.  Denman,  on  the  same  occasion,  "to  try  two 
prisoners  who  were  deaf  and  dumb,  and  who  could  only  be  made  to  understand 
what  was  passing  by  the  signs  of  their  friends.  The  cases  were  clear  and  sim- 
ple ;  but  if  they  had  been  circumstantial  cases,  in  what  a  situation  would  the 
judge  and  jury  be  placed,  when  the  prisoner  could  have  no  counsel  to  plead  for 
him."  The  cases  looked  clear  and  simple,  to  Mr.  Denman ;  but  how  could  he 
know  they  would  not  have  looked  otherwise,  had  the  coloring  of  the  prosecution 
been  relieved  by  a  counter-presentation  for  the  defence  ?  See  Sydney  Smith's 
article  on  Counsel  for  Prisoners,  45  Edinb.  Rev.  p.  74 ;  Works,  Vol.  II.  p.  353. 
The  plausible  objection  to  extending  the  right  was,  that  the  judge  would  be  coun- 
sel for  the  prisoner,  —  a  pure  fallacy  at  the  best,  and,  with  some  judges,  a  fright- 
ful mockery.  Baron  Oarrow,  in  a  charge  to  a  grand  jury,  said:  "  It  has  been 
truly  said  that,  in  criminal  cases,  judges  were  counsel  for  the  prisoners.  So, 
undoubtedly,  they  were,  as  far  as  they  could  bey  to  prevent  undue  prejudice,  to 
guard  against  improper  influence  being  excited  against  prisoners ;  but  it  was  im- 
possible for  them  to  go  further  than  this,  for  they  could  not  suggest  the  course  of 
defence  prisoners  ought  to  pursue ;  for  judges  only  saw  the  deposition  so  short 
a  time  before  the  accused  appeared  at  the  bar  of  their  country,  that  it  was  quite 
impossible  for  them  to  act  fully  in  that  capacity." 

If  one  would  see  how  easily,  and  yet  in  what  a  shocking  manner,  a  judge  might 
pervert  the  law  and  the  evidence,  and  act  the  part  of  both  prosecutor  and  king's 
counsel,  while  assuming  to  be  counsel  for  the  prisoner,  he  need  not  go  further 
back  than  the  early  trials  in  our  own  country,  and  he  is  referred  for  a  specimen 
to  the  trials  of  Robert  Tucker  and  others  for  piracy,  before  Chief  Justice  Trott, 
at  Charleston,  S.  C,  in  1718,  as  reported  in  6  Hargrave's  State  Trials,  156  et 
seq.  Especially  may  he  there  see  how  the  statement  of  prisoners  in  one  case, 
to  which  no  credit  was  given  for  their  exculpation,  was  used  as  hearsay  evidence 
to  condemn  a  prisoner  in  another  case.  All  these  abuses  would  have  been 
checked,  perhajis  altogether  prevented,  had  the  prisoners  had  able  and  fearless 
counsel.  But  without  counsel  for  the  defence,  and  under  such  a  judge,  the 
witnesses  were  not  free  to  testify,  the  prisoners  could  not  safely  make  even 
the  most  honest  explanation,  and  the  jury,  when  they  retired,  could  only  feel 


2  By  statute  6  &  7  William  IV.  c.  114;  4  Cooley's  Bl.  Com.  355;   May's 
Const.  Hist.  c.  18. 
[382] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.      *  334 

*  With  us  it  is  a  universal  principle  of  constitutional  law,  [*  334] 
that  the  prisoner  shall  be  allowed  a  defence  by  counsel. 
And  generally  it  will  be  found  that  the  humanity  of  the  law  has 
provided  that,  if  the  prisoner  is  unable  to  employ  counsel,  the 
court  may  designate  some  one  to  defend  him  who  shall  be  paid  by 
the  government ;  but  when  no  such  provision  is  made,  it  is  a  duty 
which  counsel  so  designated  owes  to  his  profession,  to  the  court 
engaged  in  the  trial,  and  to  the  cause  of  humanity  and  justice,  not 
to  withhold  his  assistance  nor  spare  his  best  exertions,  in  the 
defence  of  one  who  has  the  double  misfortune  to  be  stricken  by 
poverty  and  accused  of  crime.  No  one  is  at  liberty  to  decline  such 
an  appointment,1  and  few,  it  is  to  be  hoped,  would  be  disposed  to 
do  so. 

In  guaranteeing  to  parties  accused  of  crime  the  right  to  the  aid 

that  returning  a  verdict  in  accordance  with  the  opinion  of  the  judge  was  only 
matter  of  form.  Sydney  Smith's  lecture  on  "  The  judge  that  smites  contrary  to 
the  law  "  is  worthy  of  being  carefully  pondered  in  this  connection.  "  If  ever  a 
nation  was  happy,  if  ever  a  nation  was  visibly  blessed  by  God,  if  ever  a  nation 
was  honored  abroad,  and  left  at  home  under  a  government  (which  we  can  now 
conscientiously  call  a  liberal  government)  to  the  full  career  of  talent,  industry, 
and  vigor,  we  are  at  this  moment  that  people,  and  this  is  our  happy  lot.  First, 
the  Gospel  has  done  it,  and  then  justice  has  done  it ;  and  he  who  thinks  it  his 
duty  that  this  happy  condition  of  existence  may  remain,  must  guard  the  piety  of 
these  times,  and  he  must  watch  over  the  spirit  of  justice  which  exists  in  these 
times.  First,  he  must  take  care  that  the  altars-  of  God  are  not  polluted,  that  the 
Christian  faith  is  retained  in  purity  and  in  perfection ;  and  then,  turning  to 
human  affairs,  let  him  strive  for  spotless,  incorruptible  justice;  praising,  hon- 
oring, and  loving  the  just  judge,  and  abhorring  as  the  worst  enemy  of  mankind 
him  who  is  placed  there  to  'judge  after  the  law,  and  who  smites  contrary  to  the 
law.'" 

1  Vise  v.  Hamilton  County,  19  111.  18.  It  has  been  held  that,  in  the  absence 
of  express  statutory  provisions,  counties  are  not  obliged  to  compensate  counsel 
assigned  by  the  court  to  defend  poor  prisoners.  Bacon  v.  Wayne  County,  1  Mich. 
461.  But  there  are  several  cases  to  the  contrary.  Webb  v.  Baird,  6  Ind.  13; 
Hall  v.  Washington  County,  2  Greene  (Iowa),  473  ;  Carpenter  v.  Dane  County, 
9  Wis.  277.  But  we  think  a  court  has  a  right  to  require  the  service  whether  com- 
pensation is  to  be  made  or  not ;  and  that  counsel  who  should  decline  to  perform 
it,  for  no  other  reason  than  that  the  law  does  not  provide  pecuniary  compensation, 
is  unworthy  to  hold  his  responsible  office  in  the  administration  of  justice.  Said 
Chief  Justice  Hale  in  one  case  :  "  Although  sergeants  have  a  monopoly  of  prac- 
tice in  the  Common  Pleas,  they  have  a  right  to  practise,  and  do  practise,  at  this 
bar  ;  and  if  we  were  to  assign  one  of  them  as  counsel,  and  he  was  to  refuse  to 
act,  we  should  make  bold  to  commit  him  to  prison."  Life  of  Chief  Justice  Hale 
in  Campbell's  Lives  of  the  Chief  Justices,  Vol.  II. 

[383] 


*  334  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

of  counsel,  the  Constitution  secures  it,  with  all  its  accustomed 
incidents.  Among  these  is  that  shield  of  protection  which  is  thrown 
around  the  confidence  the  relation  of  counsel  and  client  requires, 
and  which  does  not  permit  the  disclosure  by  the  former,  even  in  the 
courts  of  justice,  of  communications  which  may  have  been  made  to 
him  by  the  latter  with  a  view  to  pending  or  anticipated  litigation. 
This  is  the  client's  privilege ;  the  counsel  cannot  waive  it ;  and  the 
court  would  not  permit  the  disclosure  even  if  the  client  were  not 

present  to  take  the  objection.1 
[*  335]       *  Having  once  engaged  in  a  cause,  the  counsel  is  not 

afterwards  at  liberty  to  withdraw  from  it  without  the 
consent  of  his  client  and  of  the  court ;  and  even  though  he  may 
be  impressed  with  a  belief  in  his  client's  guilt,  it  will  nevertheless 
be  his  duty  to  see  that  a  conviction  is  not  secured  contrary  to  the 
law.2  The  worst  criminal  is  entitled  to  be  judged  by  the  laws  ; 
and  if  his  conviction  is  secured  by  means  of  a  perversion  of  the 
law,  the  injury  to  the  cause  of  public  justice  will  be  more  serious 
and  lasting  in  its  results  than  his  being  allowed  to  escape 
altogether.3 

1  The  history  and  reason  of  the  rule  which  exempts  counsel  from  disclosing 
professional  communications  are  well  stated  in  Whiting  v.  Barney,  30  N.  Y.  330. 
And  see  1  Phil.  Ev.  by  Cowen,  Hill,  and  Edwards,  130  el  seq.  The  privilege 
would  not  cover  communications  made,  not  with  a  view  to  professional  assist- 
ance, but  in  order  to  induce  the  attorney  to  aid  in  a  criminal  act.  People  v. 
Blakely,  4  Park.  Cr.  P.  176  ;  Bank  of  Uticau.  Mersereau,  3  Barb.  Ch.  398.  And 
see  the  analogous  case  of  Hewitt  v.  Prince,  21  Wend.  79.  Communications 
extraneous  or  impertinent  to  the  subject-matter  of  the  professional  consultation 
are  not  privileged.  Dixon  v.  Parmelee,  2  Vt.  185.  See  Brandon  v.  Gowing, 
7  Rich.  459. 

It  has  been  intimated  in  New  York  that  the  statute  making  parties  witnesses 
has  done  away  with  the  rule  which  protects  professional  communications.  Mitch- 
ell's Case,  12  Abb.  Pr.  R.  249  ;  Note  to  1  Phil.  Ev.  by  Cowen,  Hill,  and  Edwards, 
p.  159  (marg.).  Supposing  this  to  be  so  in  civil  cases,  the  protection  would 
still  be  the  same  in  the  case  of  persons  charged  with  crime,  for  such  persons  can- 
not be  compelled  to  give  evidence  against  themselves,  so  that  the  reason  for 
protecting  professional  confidence  is  the  same  as  formerly. 

2  If  one  would  consider  this  duty  and  the  limitations  upon  it  fully,  he  should 
read  the  criticisms  upon  the  conduct  of  Mr.  Charles  Phillips  on  the  trial  of  Cour- 
voisier  for  the  murder  of  Lord  William  Russell.  See  Shaiswood,  Legal  Ethics, 
46;  Littell,  Living  Age,  Vol.  XXIV.  pp.  179,  230;  Vol.  XXV.  pp.  289,  306; 
West.  Rev.  Vol.  XXXV.  p.  1. 

3  There  may  be  cases  in  which  it  will  become  the  duty  of  counsel  to  interpose 
between  the  court  and  the  accused,  and  fearlessly  to  brave  all  consequences 

[384] 


CH.  X.]      CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.      *  335 

But  how  persistent  counsel  may  be  in  pressing  for  the  acquittal 
of  his  client,  and  to  what  extent  he  may  be  justified  in  throwing 
his  own  personal  character  as  a  weight  in  the  scale  of  justice,  are 
questions  of  ethics  rather  than  of  law.  No  counsel  is  justifiable 
who  defends  even  a  just  cause  with  the  weapons  of  fraud  and 
falsehood,  and  no  man  on  the  other  hand  can  excuse  himself  for 
accepting  the  confidence  of  the  accused,  and  then  betraying  it 
by  a  feeble  and  heartless  defence.  And  in  criminal  cases  we 
think  the  court  may  sometimes  have  a  duty  to  perform  in  seeing 

personal  to  himself,  where  it  appears  to  him  that  in  no  other  mode  can  the  law 
be  vindicated  and  justice  done  to  his  client ;  but  these  cases  are  so  rare,  that 
doubtless  they  will  stand  out  in  judicial  history  as  notable  exceptions  to  the 
ready  obedience  which  the  bar  should  yield  to  the  authority  of  the  court.  The 
famous  scene  between  Mr.  Justice  Buller  and  Mr.  Erskine,  on  the  trial  of  the 
Dean  of  St.  Asaphs  for  libel, — 5  Campbell's  Lives  of  the  Chancellors,  c.  158; 
Erskine's  Speeches,  by  Jas.  L.  High,  Vol.  I.  p.  242, —  will  readily  occur  to  the 
reader  as  one  of  the  exceptional  cases.  Lord  Campbell  says  of  Erskine's  con- 
duct: "This  noble  stand  for  the  independence  of  the  bar  would  alone  have 
entitled  Erskine  to  the  statue  which  the  profession  affectionately  erected  to  his 
memory  in  Lincoln's  Inn  Hall.  We  are  to  admire  the  decency  and  propriety  of 
his  demeanor  during  the  struggle,  no  less  than  its  spirit,  and  the  felicitous  pre- 
cision Avith  which  he  meted  out  the  requisite  and  justifiable  portion  of  defiance. 
His  example  has  had  a  salutary  effect  in  illustrating  and  establishing  the  relative 
duties  of  judge  and  advocate  in  England."  And  elsewhere,  in  speaking  of  Mr. 
Fox's  Libel  Act,  he  makes  the  following  somewhat  extravagant  remark:  "I 
have  said;  and  I  still  think,  that  this  great  constitutional  triumph  is  mainly  to  be 
ascribed  to  Lord  Camden,  who  had  been  fighting  in  the  cause  for  half  a  century, 
and  uttered  his  last  words  in  the  House  of  Lords  in  its  support;  but  had  he  not 
received  the  invaluble  assistance  of  Erskine,  as  counsel  for  the  Dean  of  St. 
Asaphs,  tlie  Star  Chamber  might  have  been  re-established  in  this  country.'"  And 
Lord  Brougham  says  of  Erskine:  "He  was  an  undaunted  man;  he  was  an 
undaunted  advocate.  To  no  court  did  he  ever  truckle,  neither  to  the  Court  of 
the  King,  neither  to  the  Court  of  the  King's  Judges.  Their  smiles  and  their 
frowns  he  disregarded  alike  in  the  fearless  discharge  of  his  duty.  He  upheld  the 
liberty  of  the  peers  against  the  one ;  he  defended  the  rights  of  the  people  against 
both  combined  to  destroy  them.  If  there  be  yet  amongst  us  the  power  of  freely 
discussing  the  acts  of  our  rulers  ;  if  there  be  yet  the  privilege  of  meeting  for  the 
promotion  of  needful  reforms ;  if  he  who  desires  wholesome  changes  in  our  Con- 
stitution be  still  recognized  as  a  patriot,  and  not  doomed  to  die  the  death  of  a 
traitor,  —  let  us  acknowledge  with  gratitude  that  to  this  great  man,  under 
Heaven,  we  owe  this  felicity  of  the  times."  Sketches  of  Statesmen  of  the  Time 
of  George  III.  A  similar  instance  of  the  independence  of  counsel  is  narrated 
of  that  eminent  advocate,  Mr.  Samuel  Dexter,  in  the  reminiscences  of  his  life  by 
"Sigma,"  published  at  Boston,  1857,  p.  61.  See  Story  on  Const.  (4th  ed.) 
§  1064,  note. 

25  [  385  ] 


*  335  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

[*  336]  that  the  prisoner  suffers  nothing  *  from  inattention  or  haste 
on  the  part  of  his  counsel,  or  impatience  on  the  part  of 
the  prosecuting  officer  or  of  the  court  itself.  Time  may  be  precious 
to  the  court,  but  it  is  infinitely  more  so  to  him  whose  life  or  whose 
liberty  may  depend  upon  the  careful  and  patient  consideration  of 
the  evidence,  when  the  counsel  for  the  defence  is  endeavoring  to 
sift  the  truth  from  the  falsehood,  and  to  subject  the  whole  to  logical 
analysis,  so  as  to  show  that  how  suspicious  soever  the  facts  may  be, 
they  are  nevertheless  consistent  with  innocence.  Often  indeed  it 
must  happen  that  the  impression  of  the  prisoner's  guilt,  which  the 
judge  and  the  jury  unavoidably  receive  when  the  case  is  opened  to 
them  by  the  prosecuting  officer,  will,  insensibly  to  themselves,  color 
all  the  evidence  in  the  case,  so  that  only  a  sense  of  duty  will  induce 
a  due  attention  to  the  summing  up  for  the  prisoner,  which  after  all 
may  prove  unexpectedly  convincing.  Doubtless  the  privilege  of 
counsel  is  sometimes  abused  in  these  cases ;  we  cannot  think  an 
advocate  of  high  standing  and  character  has  a  right  to  endeavor  to 
rob  the  jury  of  their  opinion  by  asseverating  his  own  belief  in  the 
innocence  of  his  client ;  and  cases  may  arise  in  which  the  court 
will  feel  compelled  to  impose  some  reasonable  restraints  upon  the 
address  to  the  jury,1  but  it  is  better  in  these  cases  to  err  on  the 
side  of  liberality  ;  and  restrictions  which  do  not  leave  to  counsel, 
who  are  apparently  acting  in  good  faith,  such  reasonable  time  and 
opportunity  as  they  may  deem  necessary  for  presenting  their  cli- 
ent's case  fully,  may  possibly  in  some  cases  be  so  far  erroneous  in 
law  as  to  warrant  setting  aside  a  verdict  of  guilty.2 

Whether  counsel  are  to  address  the  jury  on  questions  of  law  in 
criminal  cases,  generally,  is  a  point  which  is  still  in  dispute.  If 
the  jury  in  the  particular  case,  by  the  constitution  or  statutes  of 
the  State,  are  judges  of  the  law,  it  would  seem  that  counsel  should 
be  allowed  to  address  them  fully  upon  it,3  though  the  contrary 
seems  to  have  been  held  in  Maryland : 4  while  in  Massachusetts, 

1  Thus  it  has  been  held,  that,  even  though  the  jury  are  the  judges  of  the  law 
in  criminal  cases,  the  court  may  refuse  to  allow  counsel  to  read  law  books  to  the 
jury.  Murphy  v.  State,  6  Ind.  490.  And  see  Lynch  v.  State,  9  Ind.  541 ;  Phoe- 
nix Insurance  Co.  v.  Allen,  11  Mich.  501. 

2  In  People  v.  Keenan,  13  Cal.  581,  a  verdict  in  a  capital  case  was  set  aside 
on  this  ground. 

3  Lynch  v.  State,  9  Ind.  541 ;  Murphy  v.  State,  6  Ind.  490. 

4  Franklin  v.  State,  12  Md.  236.  What  was  held  in  that  case  was,  that  counsel 
should  not  be  allowed  to  argue  the  constitutionality  of  a  statute  to  the  jury ;  and 

[386] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.      *  336 

where  it  is  *  expected  that  the  jury  will  receive  the  [*  337] 
law  from  the  court,  it  is  nevertheless  held  that  counsel 
has  a  right  to  address  them  upon  the  law.1  It  is  unquestionably 
more  decorous  and  more  respectful  to  the  bench  that  argument 
upon  the  law  should  always  be  addressed  to  the  court ;  and  such, 
we  believe,  is  the  general  practice.  The  jury  hear  the  argument, 
and  they  have  a  right  to  give  it  such  weight  as  it  seems  to  them 
properly  to  be  entitled  to. 

For  misconduct  in  their  practice  the  members  of  the  legal 
profession  may  be  summarily  dealt  with  by  the  courts,  who  will  not 
fail,  in  all  proper  cases,  to  use  their  power  to  protect  clients  or  the 
public,  as  well  as  to  preserve  the  profession  from  the  contamination 
and  disgrace  of  a  vicious  associate.2   A  man  of  bad  reputation  may 

that  the  Constitution,  in  making  the  jury  judges  of  the  law  as  well  as  of  the  facts, 
did  not  empower  them  to  decide  a  statute  invalid.  This  ruling  corresponds  to 
that  of  Judge  Chase  in  the  United  States  v.  Callendar,  Whart.  State  Trials,  688, 
710.     But  see  remarks  of  Perkins,  J.,  in  Lynch  v.  State,  9  Ind.  542. 

1  Commonwealth  v.  Porter,  10  Met.  263 ;  Commonwealth  v.  Austin,  7  Gray, 
51. 

2  "Asa  class,  attorneys  are  supposed  to  be,  and  in  fact  have  always  been, 
the  vindicators  of  individual  rights,  and  the  fearless  assertors  of  the  principles 
of  civil  liberty,  existing,  where  alone  they  can  exist,  in  a  government,  not  of  par- 
ties nor  of  men,  but  of  laws.  On  the  other  hand,  to  declare  them  irresponsible 
to  any  power  but  public  opinion  and  their  consciences,  would  be  incompatible  with 
free  government.  Individuals  of  the  class  may,  and  sometimes  do,  forfeit  their 
professional  franchise  by  abusing  it ;  and  a  power  to  exact  the  forfeiture  must  be 
lodged  somewhere.  Such  a  power  is  indispensable  to  protect  the  court,  the 
administration  of  justice,  and  themselves.  Abuses  must  necessarily  creep  in; 
and  having  a  deep  stake  in  the  character  of  their  profession,  they  are  vitally 
concerned  in  preventing  it  from  being  sullied  by  the  misconduct  of  unworthy 
members  of  it.  No  class  of  community  is  more  dependent  on  its  reputation  for 
honor  and  integrity.  It  is  indispensable  to  the  purposes  of  its  creation  to  assign 
it  a  high  and  honorable  standing  ;  but  to  put  it  above  the  judiciary,  whose  official 
tenure  is  good  behavior,  and  whose  members  are  removable  from  office  by  the 
legislature,  would  render  it  intractable  ;  and  it  is  therefore  necessary  to  assign  it 
but  an  equal  share  of  independence.  In  the  absence  of  specific  provision  to  the 
contrary,  the  power  of  removal  is,  from  its  nature,  commensurate  with  the  power 
of  appointment,  and  it  is  consequently  the  business  of  the  judges  to  deal  with 
delinquent  members  of  the  bar,  and  withdraw  their  faculties  when  they  are  incor- 
rigible." Gibson,  Ch.  J.,  In  re  Austin  et  al.,  5  Rawle,  203.  See  State  v.  Kirke, 
12  Fla.  278 ;  Rice's  Case,  18  B.  Monr.  472 ;  Walker  v.  State,  4  W.  Va.  749. 

An  attorney  may  be  disbarred  for  a  personal  attack  upon  the  judge  for  his 
conduct  as  such ;  but  the  attorney  is  entitled  to  notice,  and  an  opportunity  to  be 
heard  in  defence.     Beene  v.  State,  22  Ark.  149.     See  In  re  Wallace,  L.  R. 

[387  J 


*  337  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

be  expelled  for  that  alone  ; 1  and  counsel  who  has  once  taken  part 
in  litigation,  and  been  the  adviser  or  become  intrusted  with  the 
secrets  of  one  party,  will  not  afterwards  be  suffered  to  engage  for 
an  opposing  party,  notwithstanding  the  original  employment  has 

ceased,  and  there  is  no  imputation  upon  his  motives.2  And, 
[*  338]  on  the  *  other  hand  the  court  will  not  allow  counsel  to  be 

made  the  instrument  of  injustice,  nor  permit  the  client  to 
exact  of  him  services  which  are  inconsistent  with  the  obligation  he 
owes  to  the  court  and  to  public  justice  ;  a  higher  and  more  sacred 
obligation  than  any  which  can  rest  upon  him  to  gratify  a  client's 
whims,  or  to  assist  in  his  revenge.3 

1  P.  C.  283 ;  Ex  parte  Bradley,  7  Wall.  364 ;  Withers  v.  State,  35  Ala.  252 ; 
Matter  of  Moore  et  al.,  63  N.  C.  397 ;  Biggs,  Ex  parte,  64  N.  C.  202 ;  Bradley 
v.  Fisher,  13  Wall.  335 ;  Dickens's  Case,  67  Perm.  St.  169. 

1  For  example,  one  whose  reputation  for  truth  and  veracity  is  such  that  his 
neighbors  would  not  believe  him  when  under  oath.  Matter  of  Mills,  1  Mich. 
393.  See  In  re  Percy,  36  N.  Y.  651  ;  People  v.  Ford,  54  111.  520.  An  attorney 
convicted  and  punished  for  perjury,  and  disbarred,  was  refused  restoration,  not- 
withstanding his  subsequent  behavior  had  been  unexceptionable.  Ex  parte  Gar- 
bett,  IS  C.  B.  403. 

2  In  Gaulden  v.  State,  11  Geo.  47,  the  late  solicitor-general  was  not  suffered 
to  assist  in  the  defence  of  a  criminal  case,  because  he  had,  in  the  course  of  his 
official  duty  instituted  the  prosecution,  though  he  was  no  longer  connected  with 
it.     And  See  Wilson  v.  State,  16  Ind.  392. 

3  Upon  this  subject  the  remarks  of  Chief  Justice  Gibson  in  Rush  v.  Cavanaugh, 

2  Penn.  St.  189,  are  worthy  of  being  repeated  in  this  connection.  The  prose- 
cutor in  a  criminal  case  had  refused  to  pay  the  charges  of  the  counsel  employed 
by  him  to  prosecute  in  the  place  of  the  attorney-general,  because  the  counsel, 
after  a  part  of  the  evidence  had  been  put  in,  had  consented  that  the  charge  might 
be  withdrawn.  In  considering  whether  this  was  sufficient  reason  for  the  refusal, 
the  learned  judge  said:  "The  material  question  is,  did  the  plaintiff  violate  his 
professional  duty  to  his  client  in  consenting  to  withdraw  his  charge  .  .  .  instead 
of  lending  himself  to  the  prosecution  of  one  whom  he  then  and  has  since  believed 
to  be  an  innocent  man  ? 

"  It  is  a  popular  but  gross  mistake  to  suppose  that  a  lawyer  owes  no  fidelity 
to  any  one  except  his  client,  and  that  the  latter  is  the  keeper  of  his  professional 
conscience.  He  is  expressly  bound  by  his  official  oath  to  behave  himself  in  his 
office  of  attorney  with  all  due  fidelity  to  the  court  as  well  as  to  the  client ;  and 
he  violates  it  when  be  consciously  presses  for  an  unjust  judgment ;  much  more  so 
when  he  presses  for  the  conviction  of  an  innocent  man.  But  the  prosecution  was 
depending  before  an  alderman,  to  whom,  it  may  be  said,  the  plaintiff  was  bound 
to  no  such  fidelity.  Still  he  was  bound  by  those  obligations  which,  without  oaths, 
rest  upon  all  men.  The  high  and  honorable  office  of  a  counsel  would  be  degraded 
to  that  of  a  mercenary,  were  he  compellable  to  do  the  bidding  of  his  client  against 
the  dictates  of  his  conscience.     The  origin  of  the  name  proves  the  client  to  be 

[388] 


CH.  X.]      CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.      *  338 

The    Writ  of  Habeas   Corpus. 

It  still  remains  to  mention  one  of  the  principal  safe- 
guards to  personal  liberty,  *  and  the  means  by  which  ille-  [*  339] 
gal  restraints  upon  it  are  most  speedily  and  effectually 
remedied.  To  understand  this  guaranty,  and  the  instances  in  which 
the  citizen  is  entitled  to  appeal  to  the  law  for  its  enforcement, 
we  must  first  have  a  correct  idea  of  what  is  understood  by  personal 
liberty  in  the  law,  and  inquire  what  restraints,  if  any,  must  exist  to 
its  enjoyment. 

Sir  William  Blackstone  says,  personal  liberty  consists  in  the 
power  of  locomotion,  of  changing  situation,  or  moving  one's  person 
to  whatsoever  place  one's  own  inclination  may  direct,  without  im- 
prisonment or  restraint,  unless  by  due  course  of  law.1  It  appears, 
therefore,  that  this  power  of  locomotion  is  not  entirely  unrestricted, 
but  that  by  due  course  of  law  certain  qualifications  and  limitations 
may  be  imposed  upon  it  without  infringing  upon  constitutional 
liberty.  Indeed,  in  organized  society,  liberty  is  the  creature  of  law, 
and  every  man  will  possess  it  in  proportion  as  the  laws,  while 

subordinate  to  the  counsel  as  his  patron.  Besides,  had  the  plaintiff  succeeded 
in  having  Crean  held  to  answer,  it  would  have  been  his  duty  to  abandon  the 
prosecution  at  the  return  of  the  recognizance.  As  the  office  of  attorney-general 
is  a  public  trust  which  involves,  in  the  discharge  of  it,  the  exercise  of  an  almost 
boundless  discretion  by  an  officer  who  stands  as  impartial  as  a  judge,  it  might 
be  doubted  whether  counsel  retained  by  a  private  prosecutor  can  be  allowed  to 
perform  any  part  of  his  duty ;  certainly  not  unless  in  subservience  to  his  will  and 
instructions.  With  that  restriction  usage  has  sanctioned  the  practice  of  employ- 
ing professional  assistants,  to  whom  the  attorney-general  or  his  regular  substitute 
may,  if  he  please,  confide  the  direction  of  the  particular  prosecution ;  and  it  has 
been  beneficial  to  do  so  where  the  prosecuting  officer  has  been  overmatched  or 
overborne  by  numbers.  In  that  predicament  the  ends  of  justice  may  require  him 
to  accept  assistance.  But  the  professional  assistant,  like  the  regular  deputy, 
exercises  not  his  own  discretion,  but  that  of  the  attorney-general,  whose  locum 
tenens  at  sufferance  he  is ;  and  he  consequently  does  so  under  the  obligation  of 
the  official  oath." 

1  Bl.  Com.  134.  Montesquieu  says:  "In  governments,  that  is,  in  societies 
directed  by  laws,  liberty  can  consist  only  in  the  power  of  doing  what  we  ought 
to  will,  and  in  not  being  constrained  to  do  what  we  ought  not  to  will.  We  must 
have  continually  present  to  our  minds  the  difference  between  independence  and 
Uberty.  Liberty  is  a  right  of  doing  whatever  the  laws  permit,  and  if  a  citizen 
could  do  what  they  forbid,  he  would  no  longer  be  possessed  of  liberty,  because 
all  his  fellow-citizens  would  enjoy  the  same  power.11  Spirit  of  the  Laws,  Book 
11,  c.  3. 

[389] 


*  339  CONSTITUTIONAL  LIMITATIONS.  [CH.  X. 

imposing  no  unnecessary  restraints,  surround  him  and  every  other 
citizen  with  protections  against  the  lawless  acts  of  others.1 

If  we  examine  the  qualifications  and  restrictions  which  the  law 
imposes  upon  personal  liberty,  we  shall  find  that  they  range  them- 
selves in  two  classes  ;  first,  those  of  a  public,  and,  second,  those  of 
a  private  nature. 

The  first  class  are  those  which  spring  from  the  relative  duties 
and  obligations  of  the  citizen  to  society  and  to  his  fellow-citizen. 
These  may  be  arranged  into  sub-classes  as  follows  ;  1.  Those 
imposed  to  prevent  the  commission  of  crime  which  is  threatened ; 
2.  Those  in  punishment  of  crime  committed  ;  3.  Those  in  pun- 
ishment of  contempts  of  court  or  legislative  bodies,  or  to  render 
their  jurisdiction  effectual ;  4.  Those  necessary  to  enforce  the 
duty  citizens  owe  in  defence  of  the  State ; 2  5.  Those  which  may 
become  important  to  protect  the  community  against  the  acts  of 
those  who,  by  reason  of  mental  infirmity,  are  incapable  of  self- 
control.  All  these  limitations  are  well  recognized  and  generally 
understood,  but  a  particular  discussion  of  them  does  not  belong  to 
our  subject.  The  second  class  are  those  which  spring  from  the 
helpless  or  dependent  condition  of  individuals  in  the  various  rela- 
tions of  life. 

1.  The  husband,  at  the  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  to  insist  upon  its  performance.  The 
precise  nature  of  the  restraints  which  may  be  imposed  by  the  hus- 
band upon  the  wife's  actions,  it  is  not  easy,  from  the  nature  of  the 
case,  to  point  out  and  define  ;   but  at  most  they  can  only  be  such 

1  "  Liberty,"  says  Mr.  Webster,  "  is  the  creature  of  law,  essentially  differ- 
ent from  that  authorized  licentiousness  that  trespasses  on  right.  It  is  a  legal  and 
a  refined  idea,  the  offspring  of  high  civilization,  which  the  savage  never  under- 
stood and  never  can  understand.  Liberty  exists  in  proportion  to  wholesome 
restraint ;  the  more  restraint  on  others  to  keep  off  from  us,  the  more  liberty  we 
have.  It  is  an  error  to  suppose  that  liberty  consists  in  a  paucity  of  laws.  If 
one  wants  few  laws,  let  him  go  to  Turkey.  The  Turk  enjoys  that  blessing.  The 
working  of  our  complex  system,  full  of  checks  and  restraints  on  legislative,  execu- 
tive, and  judicial  power,  is  favorable  to  liberty  and  justice.  Those  checks  and 
restraints  are  so  many  safeguards  set  around  individual  rights  and  interests. 
That  man  is  free  who  is  protected  from  injury."     Works,  Vol.  II.  p.  393. 

2  In  Judson  v.  Reardon,  16  Minn.  431,  a  statute  authorizing  the  members  of 
a  municipal  council  to  arrest  and  imprison  without  warrant  persons  refusing  to 
obey  the  orders  of  fire  wardens  at  a  fire  was  held  unwarranted  and  void. 

[  390] 


CH.  X.]      CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.      *  339 

gentle  restraints  upon  her  liberty  as  improper  conduct  on  her  part 
may  appear  to  render  necessary  ; 1  and  the  general  tendency  of 
public  sentiment,  as  well  as  of  the  modern  decisions,  has  been  in  the 
direction  of  doing  away  with  the  arbitrary  power  which  the  husband 
was  formerly  supposed  to  possess,  and  of  placing  the  two 
sexes  in  the  marriage  relation  upon  *  a  footing  nearer  [*  340] 
equality.  It  is  believed  that  the  right  of  the  husband  to 
chastise  the  wife,  under  any  circumstances,  would  not  be  recog- 
nized in  this  country  ;  and  such  right  of  control  as  the  law  gives 
him  would  in  any  case  be  forfeited  by  such  conduct  towards  the 
wife  as  was  not  warranted  by  the  relation,  and  which  should  ren- 
der it  improper  for  her  to  live  and  cohabit  with  him,  or  by  such 
conduct  as,  under  the  laws  of  the  State,  would  entitle  her  to  a 
divorce.2  And  he  surrenders  his  right  of  control  also,  when  he 
consents  to  her  living  apart  under  articles  of  separation.3 

2.  The  father  of  an  infant,  being  obliged  by  law  to  support  his 
child,  has  a  corresponding  right  to  control  his  actions  and  to  em- 
ploy his  services  during  the  continuance  of  legal  infancy.  The 
child  may  be  emancipated  from  this  control  before  coming  of  age, 
either  by  the  express  assent  of  the  father,  or  by  being  turned  away 
from  his  father's  house  and  left  to  care  for  himself;4  though  in 
neither  case  would  the  father  be  released  from  an  obligation  which 
the  law  imposes  upon  him  to  prevent  the  child  becoming  a  public 
charge,  and  which  the  State  may  enforce  whenever  necessary.  The 
mother,  during  the  father's  life,  has  a  power  of  control  subordinate 
to  his ;  but  on  his  death 5  or  conviction  and  sentence  to  imprison- 

1 .2  Kent,  181.  See  Cochran's  Case,  8  Dowl.  P.  C.  630.  The  husband,  how- 
ever, is  under  no  obligation  to  support  his  wife  except  at  his  own  home ;  and  it  is 
only  when  he  wrongfully  sends  her  away,  or  so  conducts  himself  as  to  justify  her 
in  leaving  him,  that  he  is  bound  to  support  her  elsewhere.  Rumney  v.  Keyes, 
7  N.  H.  570;  Allen  v.  Aldrich,  9  Fost.  63;  Shaw  v.  Thompson,  16  Pick.  198; 
Clement  v.  Mattison,  3  Rich.  93.  In  such  a  case  his  liability  to  supply  her  with 
necessaries  cannot  be  restricted  by  giving  notice  to  particular  persons  not  to  trust 
her.     Bolton  v.  Prentice,  2  Strange,  1214 ;  Harris  v.  Morris,  4  Esp.  41. 

2  Hutcheson  v.  Peck,  5  Johns.  196 ;  Love  v.  Moynahan,  16  111.  277. 

3  Saunders  v.  Rodway,  16  Jur.  1005,  13  Eng.  L.  &  Eq.  463. 

4  Whiting  v.  Earle,  3  Pick.  201 ;  McCoy  v.  Huffman,  8  Cow.  841 ;  State  v. 
Barrett,  45  N.  H.  15 ;  Wolcott  v.  Rickey,  22  Iowa,  171 ;  Fairhurst  v.  Lewis, 
23  Ark.  435 ;  Hardwick  v.  Pawlet,  36  Vt.  320. 

5  Dedham  v.  Natick,  16  Mass.  135.     See  p.  348. 

[391] 


*  340  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

ment  for  felony,1  she  succeeds  to  the  relative  rights  which  the 
father  possessed  before. 

8.  The  guardian  has  a  power  of  control  over  his  ward,  corre- 
sponding in  the  main  to  that  which  the  father  has  over  his  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  authority  to  change  the 
domicile  of  the  ward  to  another  State  or  country.  But  the  appoint- 
ment commonly  has  reference  to  the  possession  of  property  by  the 
ward,  and  over  this  property  the  guardian  possesses  a  power  of 
control  which  is  not  possessed  by  the  father,  as  such,  over  the 
property  owned  by  his  child.2 

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 
[*  341]  the  *  master  is  to  teach  the  apprentice  some  specified  trade 

or  means  of  living,  and  the  apprentice,  either  wholly  or 
in  part  in  consideration  of  the  instruction,  is  to  perform  services 
for  the  master  while  receiving  it.  This  relation  is  also  statutory 
and  local,  and  the  power  to  control  the  apprentice  is  assimilated 
to  that  of  the  parent  by  the  statute  law.3 

5.  The  power  of  the  master  to  impose  restraints  upon  the  action 
of  the  servant  he  employs,  is  of  so  limited  a  nature  that  practically 
it  may  be  said  to  rest  upon  continuous  voluntary  assent.  If  the 
servant  misconducts  himself,  or  refuses  to  submit  to  proper  control, 
the  master  may  discharge  him,  but  cannot  resort  to  confinement 
or  personal  chastisement. 

6.  The  relation  of  teacher  and  scholar  places  the  former  more 
nearly  in  the  place  of  the  parent  than  either  of  the  two  preceding 
relations  places  the  master.  While  the  pupil  is  under  his  care,  he 
has  a  right  to  enforce  obedience  to  his  commands  lawfully  given  in 

1  Bailey's  Case,  6  Dowl.  P.  C.  311.  If,  however,  there  be  a  guardian  ap- 
pointed for  the  child  by  the  proper  court,  his  right  to  the  custody  of  the  child  is 
superior  to  that  of  the  parent.     Macready  v.  Wolcott,  83  Conn.  321. 

2  1  Cooley's  Bl.  Com.  462,  and  cases  cited. 

3  The  relation  is  one  founded  on  personal  trust  and  confidence,  and  the  master 
cannot  assign  the  articles  of  apprenticeship  except  by  consent  of  the  apprentice 
and  of  his  proper  guardian.  Haley  v.  Taylor,  3  Dana,  222  ;  Nickerson  v.  How- 
ard, 19  Johns.  113  ;  Tucker  v.  Magee,  18  Ala.  99. 

[  392] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.       *  341 

his  capacity  of  teacher,  even  to  the  extent  of  bodily  chastisement 
or  confinement.  And  in  deciding  questions  of  discipline  he  acts 
judicially,  and  is  not  to  be  made  liable,  either  civilly  or  criminally, 
unless  he  has  acted  with  express  malice,  or  been  guilty  of  such 
excess  in  punishment  that  malice  may  fairly  be  implied.  All  pre- 
sumptions favor  the  correctness  and  justice  of  his  action.1 

7.  Where  parties  bail  another,  in  legal  proceedings,  they  are 
regarded  in  law  as  his  jailers,  selected  by  himself,  and  with  the  right 
to  his  legal  custody  for  the  purpose  of  seizing  and  delivering  him 
up  to  the  officers  of  the  law  at  any  time  before  the  liability  of  the 
bail  has  become  fixed  by  a  forfeiture  being  judicially  declared  on 
his  failure  to  comply  with  the  condition  of  the  bond.2  This  is  a 
right  which  the  bail  may  exercise  in  person  or  by  agent,  and  with- 
out resort  to  judicial  process.3 

8.  The  control  of  the  creditor  over  the  person  of  his  debtor, 
through  the  process  which  the  law  gives  for  the  enforcement  of  his 
demand,  is  now  very  nearly  abolished,  thanks  to  the  humane  pro- 
visions which  have  been  made  of  late  by  statute  or  by  constitution. 
In  cases  of  torts  and  where  debts  were  fraudulently  contracted,  or 
where  there  is  an  attempt  at  a  fraudulent  disposition  of  property 
with  intent  to  delay  the  creditor,  or  to  deprive  him  of  payment, 
the  body  of  the  debtor  is  allowed  to  be  seized  and  confined  ;  but  the 
reader  must  be  referred  to  the  constitution  and  statutes  of  his  State 
for  specific  information  on  this  subject. 

*  These,  then,  are  the  legal  restraints  upon  personal  [*  342] 
liberty.      For  any  other  restraint,  or  for  any  abuse  of  the 
legal  rights  which  have  been  specified,  the  party  restrained  is  enti- 
tled to  immediate  process  from  the  courts,  and  to  speedy  relief. 

The  right  to  personal  liberty  did  not  depend  in  England  on  any 
statute,  but  it  was  the  birthright  of  every  freeman.  As  slavery 
ceased  it  became  universal,  and  the  judges  were  bound  to  protect  it 
by  proper  writ  when  infringed.    But  in  those  times  when  the  power 

1  State  v.  Pendergrass,  2  Dev.  &  Bat.  365 ;  Cooper  v.  McJunkin,  4  Ind. 
290  ;  Commonwealth  v.  Randall,  4  Gray,  38. 

2  Harp  v.  Osgood,  2  Hill,  216;  Commonwealth  v.  Brickett,  8  Pick.  -138. 
The  principle  may  be  followed,  if  necessary,  out  of  the  jurisdiction  of  the  court 
in  which  the  bail  was  taken,  and  arrested  there.  Parker  v.  Bidwell,  3  Conn.  84. 
Even  though  it  be  out  of  the  State.  Harp  v.  Osgood,  supra.  And  doors,  if 
necessary,  may  be  broken  in  order  to  make  the  arrest.  Read's  case,  4  Conn. 
166 ;  Nicolls  v.  Ingersoll,  7  Johns.  145. 

8  Parker  v.  Bidwell,  3  Conn.  84  ;  Nicolls  v.  Ingersoll,  7  Johns.  145. 

[393] 


*  342  CONSTITUTIONAL   LIMITATIONS.  [CH    X. 

of  parliament  was  undefined  and  in  dispute,  and  the  judges  held 
their  offices  only  during  the  king's  pleasure,  it  was  almost  a  matter 
of  course  that  rights  should  be  violated,  and  that  legal  redress 
should  be  impracticable,  however  clear  those  rights  might  be.  But 
in  many  cases  it  was  not  very  clear  what  the  legal  rights  of  parties 
were.  The  courts  which  proceeded  according  to  the  course  of  the 
common  law,  as  well  as  the  courts  of  chancery,  had  limits  to  their 
authority  which  could  be  understood,  and  a  definite  course  of  pro- 
ceeding was  marked  out  for  them  by  statute  or  by  custom  ;  and  if 
they  exceeded  their  jurisdiction  and  invaded  the  just  liberty  of  the 
subject,  the  illegality  of  the  process  would  generally  appear  in  the 
proceedings.  But  there  were  two  tribunals  unknown  to  the  com- 
mon law,  but  exercising  a  most  fearful  authority,  against  whose 
abuses  it  was  not  easy  for  the  most  upright  and  conscientious 
judge  in  all  cases  to  afford  relief.  These  were,  1.  The  Court  of 
Star  Chamber,  which  became  fully  recognized  and  established  in 
the  time  of  Henry  VII.,  though  originating  long  before.  Its  juris- 
diction extended  to  all  sorts  of  offences,  contempts  of  authority 
and  disorders,  the  punishment  of  which  was  not  supposed  to  be 
adequately  provided  for  by  the  common  law ;  such  as  slanders  of 
persons  in  authority,  the  propagation  of  seditious  news,  refusal  to 
lend  money  to  the  king,  disregard  of  executive  proclamations,  &c. 
It  imposed  fines  without  limit,  and  inflicted  any  punishment  in  the 
discretion  of  its  judges  short  of  death.  Even  jurors  were  punished 
in  this  court  for  verdicts  in  State  trials  not  satisfactory  to  the 
authorities.  Although  the  king's  chancellor  and  judges  were  enti- 
tled to  seats  in  this  court,  the  actual  exercise  of  its  powers  appears 
to  have  fallen  into  the  hands  of  the  king's  privy  council,  which  sat 
as  a  species  of  inquisition,  and  exercised  almost  any  authority  it 
saw  fit  to  assume.1  The  court  was  abolished  by  the  Long  Par- 
liament in  1641.  2.  The  Court  of  High  Commission, 
[*  343]  established  *  in  the  time  of  Elizabeth,  and  which  exer- 
cised a  power  in  ecclesiastical  matters  corresponding  to 
that  which  the  Star  Chamber  assumed  in  other  cases,  and  in  an 
equally  absolute  and  arbitrary  manner.     This  court  was  also  abol- 

1  See  Hallam,  Constitutional  History,  c.  1  and  8 ;  Todd,  Parliamentary  Gov- 
ernment in  England,  Vol.  II.  c.  1.  The  rise  and  extension  of  authority  of  this 
court,  and  its  arbitrary  character,  are  very  fully  set  forth  in  Brodie's  Constitu- 
tional History  of  the  British  Empire,  to  which  the  reader  is  referred  for  more 
particular  information. 

[394] 


CH.  X.]      CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.      *  343 

ished  in  1641,  but  was  afterwards  revived  for  a  short  time  in  the 
reign  of  James  II. 

It  is  evident  that  while  these  tribunals  existed  there  could  be  no 
effectual  security  to  liberty.  A  brief  reference  to  the  remarkable 
struggle  which  took  place  during  the  reign  of  Charles  I.  will  per- 
haps the  better  enable  us  to  understand  the  importance  of  those 
common-law  protections  to  personal  liberty  to  which  we  shall  have 
occasion  to  refer,  and  also  of  those  statutory  securities  which  have 
since  been  added. 

When  the  king  attempted  to  rule  without  the  parliament,  and  in 
1625  dissolved  that  body,  and  resorted  to  forced  loans,  the  grant  of 
monopolies,  and  the  levy  of  ship  moneys,  as  the  means  of  replenish- 
ing a  treasury  that  could  only  lawfully  be  supplied  by  taxes  granted 
by  the  commons,  the  privy  council  was  his  convenient  means  of 
enforcing  compliance  with  his  will.  Those  who  refused  to  contribute 
to  the  loans  demanded  were  committed  to  prison.  When  they 
petitioned  the  Court  of  the  King's  Bench  for  their  discharge,  the 
warden  of  the  fleet  made  return  to  the  writ  of  habeas  corpus,  that 
they  were  detained  by  warrant  of  the  privy  council,  informing  him  of 
no  particular  cause  of  imprisonment,  but  that  they  were  committed 
by  the  special  command  of  his  majesty.  Such  a  return  presented 
for  the  decision  of  the  court  the  question,  "  Is  such  a  warrant, 
which  does  not  specify  the  cause  of  detention,  valid  by  the  laws  of 
England  ?  "  The  court  held  that  it  was,  justifying  their  decision 
upon  supposed  precedents,  although,  as  Mr.  Hallam  says,  "  it  was 
evidently  the  consequence  of  this  decision  that  every  statute  from 
the  time  of  Magna  Charta,  designed  to  protect  the  personal  lib- 
erties of  Englishmen,  became  a  dead  letter,  since  the  insertion  of 
four  words  in  a  warrant  {per  speciale  mandatum  regis},  which 
might  become  matter  of  form,  would  control  their  remedial  effi- 
cacy. And  this  wound  was  the  more  deadly  in  that  the  notorious 
cause  of  these  gentlemen's  imprisonment  was  their  withstanding  an 
illegal  exaction  of  money.  Every  thing  that  distinguished  our 
constitutional  laws,  all  that  rendered  the  name  of  England  valuable, 
was  at  stake  in  this  issue."  1  This  decision,  among  other  violent 
acts,  led  to  the  Petition  of  Right,  one  of  the  principal  charters  of 
English  liberty,  but  which  was  not  assented  to  by  the 
king  until  the  judges   had   *  intimated   that  if  he   saw  [*  344] 

1  Hallam,  Const.  Hist.  c.  7.     See  also  Brodie,  Const.  Hist.  Vol.  n.  c.  1. 

[395  ] 


*  344  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

fit  to  violate  it  by  arbitrary  commitments,  they  would  take  care 
that  it  should  not  be  enforced  by  their  aid  against  his  will.  And 
four  years  later,  when  the  king  committed  members  of  parliament 
for  words  spoken  in  debate,  offensive  to  the  royal  prerogative,  the 
judges  evaded  the  performance  of  their  duty  on  habeas  corpus,  and 
the  members  were  only  discharged  when  the  king  gave  his  consent 
to  that  course.1 

The  Habeas  Corpus  Act  was  passed  in  1679,  mainly  to  prevent 
such  abuses  and  other  evasions  of  duty  by  judges  and  ministerial 
officers,  and  to  compel  prompt  action  in  any  case  in  which  illegal 
imprisonment  was  alleged.  That  act  gave  no  new  right  to  the 
subject,  but  it  furnished  the  means  of  enforcing  those  which 
existed  before.2  The  preamble  recited  that  "  whereas  great  delays 
have  been  used  by  sheriffs,  jailers,  and  other  officers,  to  whose 
custody  any  of  the  king's  subjects  have  been  committed  for 
criminal  or  supposed  criminal  matters,  in  making  returns  of  writs 
of  habeas  corpus,  to  them  directed,  by  standing  out  on  alias  or 
pluries  habeas  corpus,  and  sometimes  more,  and  by  other  shifts,  to 
avoid  their  yielding  obedience  to  such  writs,  contrary  to  their  duty 
and  the  known  laws  of  the  land,  whereby  many  of  the  king's  sub- 
jects have  been  and  hereafter  may  be  long  detained  in  prison  in 
such  cases,  where  by  law  they  are  bailable,  to  their  great  charge 
and  vexation.  For  the  prevention  whereof,  and  the  more  speedy 
relief  of  all  persons  imprisoned  for  any  such  criminal  or  supposed 
criminal  matters,"  the  act  proceeded  to  make  elaborate  and  care- 
ful provisions  for  the  future.  The  important  provisions  of  the  act 
may  be  summed  up  as  follows :  That  the  writ  of  habeas  corpus 
might  be  issued  by  any  court  of  record  or  judge  thereof,  either  in 
term-time  or  vacation,  on  the  application  of  any  person  confined, 
or  of  any  person  for  him  ;  the  application  to  be  in  writing  and  on 
oath,  and  with  a  copy  of  the  warrant  of  commitment  attached,  if 
procurable  ;  the  writ  to  be  returnable  either  in  court  or  at  cham- 
bers ;  the  person  detaining  the  applicant  to  make  return  to  the 
writ  by  bringing  up  the  prisoner  with  the  cause  of  his  detention, 
and  the  court  or  judge  to  discharge  him  unless  the  imprisonment 
appeared  to  be  legal,  and  in  that  case  to  take  bail  if  the  case 
was   bailable ;   and   performance   of  all   these   duties  was   made 

1  Hallam,  Const.  Hist.  c.  8 ;  Brodie,  Const.  Hist.  Vol.  I.  c.  8. 

2  Hallam,  Const.  Hist.  c.  13 ;  Beecbing's  Case,  4  B.  &  C.  136 ;  Matter  of 
Jackson,  15  Mich.  436. 

[396] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.      *  344 

compulsory,  under  heavy  penalties.  *  Thus  the  duty  which  [*  345] 
the  judge  or  other  officer  might  evade  with  impunity  before, 
he  must  now  perform  or  suffer  punishment.  The  act  also  provided 
for  punishing  severely  a  second  commitment  for  the  same  cause? 
after  a  party  had  once  been  discharged  on  habeas  corpus,  and  also 
made  the  sending  of  inhabitants  of  England,  Wales,  and  Berwick- 
upon-Tweed  abroad  for  imprisonment  illegal,  and  subject  to  penalty. 
Important  as  this  act  was  :  it  was  less  broad  in  its  scope  than  the 
remedy  had  been  before,  being  confined  to  cases  of  imprisonment 
for  criminal  or  supposed  criminal  matters;2  but  the  attempt  in 
parliament  nearly  a  century  later  to  extend  its  provisions  to  other 
cases  was  defeated  by  the  opposition  of  Lord  Mansfield,  on  the 
express  ground  that  it  was  unnecessary,  inasmuch  as  the  common- 
law  remedy  was  sufficient;3  as  perhaps  might  have  been,  had 
officers  been  always  disposed  to  perform  their  duty.  Another 
attempt  in  1816   was  successful.4 

The  Habeas  Corpus  Act  was  not  made,  in  express  terms,  to 
extend  to  the  American  colonies,  but  it  was  in  some  expressly,  and 
in  others  by  silent  acquiescence,  adopted  and  acted  upon,  and  all 
the  subsequent  legislation  in  the  American  States  has  been  based 
upon  it,  and  has  consisted  in  little  more  than  a  re-enactment  of  its 
essential  provisions. 

What  Courts  issue  the  Writ. 

The  protection  of  personal  liberty  is  for  the  most  part  confided 
to  the  State  authorities,  and  to  the  State  courts  the  party  must 
apply  for  relief  on  habeas  corpus  when  illegally  restrained.  There 
are  only  a  few  cases  in  which  the  federal  courts  can  interfere ;  and 
those  are  cases  in  which  either  the  illegal  imprisonment  is  under 
pretence  of  national  authority,  or  in  which  this  process  becomes 
important  or  convenient  in  order  to  enforce  or  vindicate  some  right, 
or  authority  under  the  Constitution  or  laws  of  the  United  States. 

1  Mr.  Hurd,  in  the  appendix  to  his  excellent  treatise  on  the  Writ  of  Habeas 
Corpus,  gives  a  complete  copy  of  the  act.  See  also  appendix  to  Lieber,  Civil 
Liberty  and  Self-Government ;  Broom,  Const.  Law,  218. 

2  See  Mayor  of  London's  Case,  3  Wils.  198;  Wilson's  Case,  7  Q.  B.  984. 

3  Life  of  Mansfield  by  Lord  Campbell,  2  Lives  of  Chief  Justices,  c.  35 ;  15 
Hansard's  Debates,  897  et  seq. 

*  By  Stat.  56  Geo.  III.  c.  100.     See  Broom,  Const,  Law.  224. 

[397] 


*  345  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

The  Judiciary  Act  of  1789  provided  that  each  of  the  several 
federal  courts  should  have  power  to  issue  writs  of  scire  facias, 
habeas  corpus,  and  all  other  writs  not  specially  provided  for  by 
statute,  which  might  be  necessary  for  the  exercise  of  their  respective 
jurisdictions  and  agreeable  to  the  principles  and  usages  of  law ; 
and  that  either  of  the  justices  of  the  Supreme  Court,  as  well  as  the 
district  judges,  should  have  power  to  grant  writs  of  habeas  corpus 
for  the  purposes  of  an  inquiry  into  the  cause  of  commitment : 
provided  that  in  no  case  should  such  writs  extend  to 
[*  346]  *  prisoners  in  jail,  unless  where  they  were  in  custody 
under  or  by  color  of  the  authority  of  the  United  States, 
or  were  committed  to  trial  before  some  court  of  the  same,  or  were 
necessary  to  be  brought  into  court  to  testify.1  Under  this  statute 
no  court  of  the  United  States  or  judge  thereof  could  issue  a  habeas 
corpus  to  bring  up  a  prisoner  in  custody  under  a  sentence  or  exe- 
cution of  a  State  court,  for  any  other  purpose  than  to  be  used  as 
a  witness.  And  this  was  so  whether  the  imprisonment  was  under 
civil  or  criminal  process.2 

During  what  were  known  as  the  nullification  troubles  in  South 
Carolina,  the  defect  of  federal  jurisdiction  in  respect  to  this  writ 
became  apparent,  and  another  act  was  passed,  having  for  its  object, 
among  other  things,  the  protection  of  persons  who  might  be  prose- 
cuted under  assumed  State  authority  for  acts  done  under  the  laws 
of  the  United  States.  This  act  provided  that  either  of  the  justices 
of  the  Supreme  Court,  or  a  judge  of  any  District  Court  of  the 
United  States,  in  addition  to  the  authority  already  conferred  by 
law,  should  have  power  to  grant  writs  of  habeas  corpus  in  all  cases 
of  a  prisoner  or  prisoners  in  jail  or  confinement,  where  he  or  they 
shall  be  committed  or  confined  on  or  by  any  authority  of  law,  for 
any  act  done  or  omitted  to  be  done,  in  pursuance  of  a  law  of  the 
United  States,  or  any  order,  process,  or  decree  of  any  judge  or 
court  thereof.3 

In  1842  further  legislation  seemed  to  have  become  a  necessity, 

1  1  Statutes  at  Large,  81. 

2  Ex  parte  Dorr,  3  How.  103. 

3  4  Stat,  at  Large,  634.  See  Ex  parte  Robinson,  6  McLean,  355  ;  s.  c.  1 
Bond,  39  ;  U.  S.  v.  Jailer  of  Fayette  Co.,  2  Abb.  U.  S.  265.  Robinson  was 
United  States  marshal,  and  was  imprisoned  under  a  warrant  issued  by  a  State 
court  for  executing  process  under  the  Fugitive  Slave  Law,  and  was  discharged 
by  a  justice  of  the  Supreme  Court  of  the  United  States  under  this  act. 

[398] 


CH.  X.]      CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.      *  346 

in  order  to  give  to  the  federal  judiciary  jurisdiction  upon  this  writ 
of  cases  in  which  questions  of  international  law  were  involved,  and 
which,  consequently,  could  only  properly  be  disposedof  by  the  juris- 
diction to  which  international  concerns  were  by  the  Constitution 
committed.     The  immediate  occasion  for  this  legislation  was  the 
arrest  of  a  subject  of  Great  Britain  by  the  authorities  of  the  State 
of  New  York,  for  an  act  which  his  government  avowed  and  took 
the  responsibility  of,  and  which  was  the  subject  of  diplomatic  cor- 
respondence between  the  two  nations.     An  act  of  Congress  was 
consequently  passed,  which  provides  that  either  of  the  justices  of 
the  Supreme  Court,  or  any  judge  of  any  District  Court  of  the 
United  States  in  which  a  prisoner  is  confined,  in  addition  to  the 
authority  previously  conferred  by  law,  shall  have  power  to  grant 
writs  of  habeas  corpus  in  all  cases  of  any  prisoner   or  prisoners 
in  jail  or  confinement,  where  he,  she,  or  they,  being  subjects  or 
citizens  of  a  foreign  State,  and  domiciled  therein,  shall  be  commit- 
ted, or  confined,  or  in  custody,  under  or  by  any  authority,  or  law, 
or  process  founded  thereon,  of  the  United  States  or  of  any  one  of 
them,  for  or  on  account  of  any  act  done  or  omitted  under  any 
alleged  right,  title,  authority,  privilege,  protection,  or  exemption, 
set  up  or  claimed  under  the  commission,  or  order,  or  sanction  of 
any  foreign  State  or  sovereignty,  the  validity  or  effect  whereof 
depends  upon  the  law  of  nations,  or  under  color  thereof.1 

In  1867  a  further  act  was  passed,  which  provided  that  the  several 
courts  of  the  United  States,  and  the  several  justices  and  judges  of 
such  courts,  within  their  respective  jurisdictions,  in  addition  to  the 
authority  already  conferred  by  law,  shall  have  power  to  grant  writs 
of  habeas  corpus  in  all  cases  where  any  person  may  be  restrained 
of  his  or  her  liberty  in  violation  of  the  Constitution,  or  of  any 
treaty  or  law  of  the  United  States.2 

These  are  the  cases  in  which  the  national  courts  and  judges 
have  jurisdiction  of  this  writ:  in  other  cases  the  party  must 
seek  his  remedy  in  the   proper  State  tribunal.3      And  although 

1  5  Stat,  at  Large,  539.  McLeoiTs  Case,  which  was  the  immediate  occasion 
of  the  passage  of  this  act,  will  be  found  reported  in  25  Wend.  482.  It  was  re- 
viewed by  Judge  Talmadge  in  26  Wend.  663,  and  a  reply  to  the  review  appears 
in  3  Hill,  635. 

2  14  Stat,  at  Large,  385. 

3  Ex  parte  Dorr,  3  How.  103 ;  Barry  v.  Mercein,  5  How.  103  ;  Dekraft  v. 
Barney,  2  Black,  704.     See  United  States  v.  French,  1  Gall.  1 ;  Ex  parte  Barry, 

2H0-65-  [399] 


*  346  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

[*  347]  the  State  courts  formerly  *  claimed  and  exercised  the 
right  to  inquire  into  the  lawfulness  of  restraint  under 
the  national  authority,1  it  is  now  settled  by  the  decision  of  the 
Supreme  Court  of  the  United  States,  that  the  question  of  the 
legality  of  the  detention  in  such  cases  is  one  for  the  determination, 
exclusively,  of  the  federal  judiciary,  so  that  although  a  State  court 
or  judge  may  issue  this  process  in  any  case  where  illegal  restraint 
upon  liberty  is  alleged,  yet  when  it  is  served  upon  any  officer  or 
person  who  detains  another  in  custody  under  the  national  author- 
ity, it  is  his  duty,  by  proper  return,  to  make  known  to  the  State 
court  or  judge  the  authority  by  which  he  holds  such  person,  but 
not  further  to  obey  the  process ;  and  that  as  the  State  judiciary 
have  no  authority  within  the  limits  of  the  sovereignty  assigned  by 
the  Constitution  to  the  United  States,  the  State  court  or  judge  can 
proceed  no  further  with  the  case.2 

The  State  constitutions  recognize  the  writ  of  habeas  corpus  as 
an  existing  remedy  in  the  cases  to  which  it  is  properly  applicable, 
and  designate  the  courts  or  officers  which  may  issue  it ;  but  they 
do  not  point  out  the  cases  in  which  it  may  be  employed.  Upon 
this  subject  the  common  law  and  the  statutes  must  be  our  guide  ; 
and  although  the  statutes  will  be  found  to  make  specific  provision 
for  particular  cases,  it  is  believed  that  in  no  instance  which  has 
fallen  under  our  observation  has  there  been  any  intention  to 
restrict  the  remedy,  and  make  it  less  broad  and  effectual  than  it 
was  at  the  common  law.3 

1  See  the  cases  collected  in  Hurd  on  Habeas  Corpus,  B.  2,  c.  1,  §  5,  and  in 
Abb.  Nat.  Dig.  609,  note. 

2  Ableman  v.  Booth,  21  How.  506.  See  Norris  v.  Newton,  5  McLean,  92; 
United  States  v.  Rector,  5  McLean,  174;  Spangler's  Case,  11  Mich.  298;  In  re 
Hopson,  40  Barb.  34  ;  Ex  parte  Hill,  5  Nev.  154.  Notwithstanding  the  decision 
of  Ableman  v.  Booth,  the  State  courts  have  frequently  since  assumed  to  pass 
definitely  upon  cases  of  alleged  illegal  restraint  under  federal  authority,  and 
this,  too,  by  the  acquiescence  of  the  federal  officers.  As  the  remedy  in  the  State 
courts  is  generally  more  expeditious  and  easy  than  can  be  afforded  in  the  national 
tribunals,  it  is  possible  that  the  federal  authorities  may  still  continue  to  acquiesce 
in  such  action  of  the  State  courts,  in  cases  where  there  can  be  no  reason  to  fear 
that  they  will  take  different  views  of  the  questions  involved  from  those  likely  to 
be  held  by  the  federal  courts.  Nevertheless,  while  tbe  case  of  Ableman  v.  Booth 
stands  unreversed,  the  law  must  be  held  to  be  as  there  declared.  It  has  recently 
been  approved  in  Tarble's  Case,  13  Wall.  397,  Chief  Justice  Chase  dissenting. 

3  See  Matter  of  Jackson,  15  Mich.  417,  where  this  whole  subject  is  fully  con- 
sidered.    The  application  for  the  writ  is  not  necessarily  made  by  the  party  in 

[400] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.      *  847 

We  have  elsewhere  referred  to  certain  rules  regarding  the 
validity  of  judicial  proceedings.1  In  the  great  anxiety  on  the 
part  of  our  legislators  to  make  the  most  ample  provision  for 
speedy  relief  from  unlawful  confinement,  authority  to  issue  the 
writ  of  habeas  corpus  has  been  conferred  upon  inferior  judicial 
officers,  who  make  use  of  it  sometimes  as  if  it  were  a  writ  of  error, 
under  which  they  might  correct  the  errors  and  irregularities  of 
other  judges  and  courts,  whatever  their  relative  jurisdiction  and 
dignity.  Any  such  employment  of  the  writ  is  an  abuse.2 
Where  a  *  party  who  is  in  confinement  under  judicial  [*  348] 
process  is  brought  up  on  habeas  corpus,  the  court  or 
judge  before  whom  he  is  returned  will  inquire :  1.  Whether  the 
court  or  officer  issuing  the  process  under  which  he  is  detained  had 
jurisdiction  of  the  case,  and  has  acted  within  that  jurisdiction  in 
issuing  such  process.3  If  so,  mere  irregularities  or  errors  of  judg- 
ment in  the  exercise  of  that  jurisdiction  must  be  disregarded  on 
this  writ,  and  must  be  corrected  either  by  the  court  issuing  the 

person,  but  may  be  made  by  any  other  person  on  his  behalf,  if  a  sufficient  reason 
is  stated  for  its  not  being  made  by  him  personally.  The  Hottentot  Venus  Case, 
13  East,  195  ;  Child's  Case,  29  Eng.  L.  &  Eq.  259.  A  wife  may  have  the  writ 
to  release  her  husband  from  unlawful  imprisonment,  and  may  herself  be  heard 
on  the  application.  Cobbett's  Case,  15  Q.  B.  181,  note;  Cobbett  v.  Hudson, 
10  Eng.  L.  &  Eq.  318 ;  s.  c.  15  Q.  B.  988.  Lord  Campbell  in  this  case  cites 
the  case  of  the  wife  of  John  Bunyan,  who  was  heard  on  his  behalf  when  in 
prison. 

1  See  post,  p.  397  et  seq. 

2  It  is  worthy  of  serious  consideration  whether,  in  those  States  where  the 
whole  judicial  power  is  by  the  constitution  vested  in  certain  specified  courts,  it 
is  competent  by  law  to  give  to  judicial  officers  not  holding  such  courts  authority 
to  review,  even  indirectly,  the  decisions  of  the  courts,  and  to  discharge  persons 
committed  under  their  judgments.  Such  officers  could  exercise  only  a  special 
statutory  authority.  Yet  its  exercise  in  such  cases  is  not  only  judicial,  but  it  is 
in  the  nature  of  appellate  judicial  power.  The  jurisdiction  of  the  Supreme  Court 
of  the  United  States  to  issue  the  writ  in  cases  of  confinement  under  the  order  of 
the  District  Courts,  was  sustained  in  Ex  parte  Bollman  and  Swartvvout,  4  Cranch, 
75,  and  Matter  of  Metzger,  5  How.  190,  on  the  ground  that  it  was  appellate. 
See  also  Ex  parte  Kearney,  7  Wheat.  38 ;  Ex  parte  Watkins,  7  Pet.  568 ;  Ex 
parte  Milburn,  9  Pet.  704;  Matter  of  Kaine,  14  How.  103;  Rowe  v.  Rowe,  27 
Mich. 

3  The  validity  of  the  appointment  or  election  of  an  officer  de  facto  cannot  be 
inquired  into  on  habeas  corpus.  Ex  parte  Strahl,  16  Iowa,  369;  Russell  v. 
Whiting,  1  Wins.  (N.  C.)  463.  Otherwise  if  a  mere  usurper  issues  process  for 
the  imprisonment  of  a  citizen.     Ex  parte  Strahl,  supra. 

26  [  401  ] 


*  348  CONSTITUTIONAL    LIMITATIONS.  [CH.  X. 

process,  or  on  regular  appellate  proceedings.1  2.  If  the  process  is 
not  void  for  want  of  jurisdiction,  the  further  inquiry  will  be  made, 
whether,  by  law,  the  case  is  bailable,  and  if  so,  bail  will  be  taken 
if  the  party  offers  it ;  otherwise  he  will  be  remanded  to  the  proper 
custody.2 

This  writ  is  also  sometimes  employed  to  enable  a  party  to  enforce 
a  right  of  control  which  by  law  he  may  have,  springing  from  some 
one  of  the  domestic  relations ;  especially  to  enable  a  parent  to 
obtain  the  custody  and  control  of  his  child,  where  it  is  detained 
from  him  by  some  other  person.  The  courts,  however,  do  not 
generally  go  farther  in  these  cases  than  to  determine  what  is  for 
the  best  interest  of  the  child ;  and  they  do  not  feel  compelled  to 
remand  him  to  any  custody  where  it  appears  not  to  be  for  the 
child's  interest.  The  theory  of  the  writ  is,  that  it  relieves  from 
improper  restraint ;  and  if  the  child  is  of  an  age  to  render  it  proper 
to  consult  his  feelings  and  wishes,  this  may  be  done  in  any  case  ; 3 
and  it  is  especially  proper  in  many  cases  where  the  parents  are 
living  in  separation  and  both  desire  his  custody.  The  right  of  the 
father,  in  these  cases,  is  generally  recognized  as  best ;  but  this 

1  x  People  v.  Cassels,  5  Hill,  164 ;  Bushnell's  Case,  9  Ohio,  n.  s.  183  ;  Ex  parte 
Watkins,  7  Pet.  568 ;  Matter  of  Metzger,  5  How.  191 ;  Petition  of  Smith,  2  Nev. 
338;  Ex  parte  Gibson,  31  Cal.  619;  Hammond  v.  People,  32  111.  472,  per 
Breese,  J.  In  State  v.  Shattnck,  45  N.  H.  211,  Bellows,  J.,  states  the  rule  very 
correctly,  as  follows:  "If  the  court  had  jurisdiction  of  the  matter  embraced  in 
these  causes,  this  court  will  not,  on  habeas  corpus,  revise  the  judgment.  State  v. 
Towle,  42  N.  H.  541 ;  Ross  and  Riley's  Case,  2  Pick.  160,  and  Riley's  Case,  ib. 
171  ;  Adams  v.  Vose,  1  Gray,  51.  If  in  such  case  the  proceedings  are  irregular 
or  erroneous,  the  judgment  is  voidable  and  not  void,  and  stands  good  until 
revised  or  annulled  in  a  proper  proceeding  instituted  for  that  purpose ;  but  when 
it  appears  that  the  magistrate  had  no  jurisdiction,  the  proceedings  are  void,  and 
the  respondent  may  be  discharged  on  habeas  corpus.  State  v:  Towle,  before 
cited  ;  Kellogg,  Ex  parte,  6  Vt.  509.  See  also  State  v.  Richmond,  6  N.  H.  232  ; 
Burnham  v.  Stevens,  33  N.  H.  247  ;  Hurst  v.  Smith,  1  Gray,  49." 

2  It  is  not  a  matter  of  course  that  the  party  is  to  be  discharged  even  where 
the  authority  under  which  he  is  held  is  adjudged  illegal.  For  it  may  appear  that 
he  should  be  lawfully  confined  in  different  custody ;  in  which  case,  the  proper 
order  may  be  made  for  the  transfer.  Matter  of  Mason,  8  Mich.  70  ;  Matter  of 
Ring,  28  Cal.  247;  Ex  parte  Gibson,  31  Cal.  619.  And  where  he  is  detained  for 
trial  on  an  imperfect  charge  of  crime,  the  court,  if  possessing  power  to  commit 
de  novo,  instead  of  discharging  him,  should  proceed  to  inquire  whether  there  is 
probable  cause  for  holding  him  for  trial,  and  if  so,  should  order  accordingly. 
Hurd  on  Habeas  Corpus,  416. 

3  Commonwealth  v.  Aves,  18  Pick.  193. 

[402] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.     *  348 

must  depend  very  much  upon  circumstances,  and  the  tender  age  of 
the  child  may  often  be  a  controlling  consideration  against  his 
claim.  The  courts  have  large  discretionary  power  in  these  cases, 
and  the  tendency  of  modern  decisions  has  been  to  extend,  rather 
than  restrict  it.1 

There  is  no  common-law  right  to  a  trial  by  jury  of  the  issues  of 
fact  joined  on  habeas  corpus  ;  but  the  issues  both  of  fact  and  of  law 
are  tried  by  the  court  or  judge  before  whom  the  proceeding  is  had  ; 2 
though  without  doubt  a  jury  trial  might  be  provided  for  by  statute, 
and  perhaps  even  ordered  by  the  court  in  some  cases.3 

*  Right  of  Discussion  and  Petition.  [*  349] 

The  right  of  the  people  peaceably  to  assemble,  and  to  petition  the 
government  for  a  redress  of  grievances,  is  one  which  "  would  seem 
unnecessary  to  be  expressly  provided  for  in  a  republican  govern- 
ment, since  it  results  from  the  very  nature  and  structure  of  its 
institutions.  It  is  impossible  that  it  could  be  practically  denied 
until  the  spirit  of  liberty  had  wholly  disappeared,  and  the  people 
had  become  so  servile  and  debased  as  to  be  unfit  to  exercise  any  of 
the  privileges  of  freemen."  4  But  it  has  not  been  thought  unim- 
portant to  protect  this  right  by  statutory  enactments  in  England  ; 
and  indeed  it  will  be  remembered  that  one  of  the  most  notable 
attempts  to  crush  the  liberties  of  the  kingdom  made  the  right  of 
petition  the  point  of  attack,  and  selected  for  its  contemplated  vic- 
tims the  chief  officers  in  the  episcopal  hierarchy.  The  trial  and 
acquittal  of  the  seven  bishops  in  the  reign  of  James  II.  constituted 
one  of  the  decisive  battles  in  English  constitutional  history  ; 5  and 

1  Barry's  Case  may  almost  be  said  to  exhaust  all  the  law  on  this  subject.  We 
refer  to  the  various  judicial  decisions  made  in  it,  so  far  as  they  are  reported  in 
the  regular  reports.  8  Paige,  47  ;  25  Wend.  64  ;  People  v.  Mercein,  3  Hill,  399  ; 
2  How.  65  ;  Barry  v.  Mercein,  5  How.  105.  See  also  the  recent  case  of  Adams 
v.  Adams,  1  Duv.  167.  For  the  former  ride,  see  The  King  v.  De  Manueville, 
5  East,  221  ;  Ex  parte  Skinner,  9  J.  B.  Moore,  278.  Where  the  court  is  satis- 
fied that  the  interest  of  the  child  would  be  subserved  by  refusing  the  custody  to 
either  of  the  parents,  it  may  be  confided  to  a  third  party.  Chetwynd  v.  Chet- 
wynd,  L.  R.  1  P.  &  D.  39 ;  In  re  Goodenough,  19  Wis.  274. 

2  See  Hurd  on  Habeas  Corpus,  297-302,  and  cases  cited;  Baker  v.  Gordon, 
23  Ind.  209. 

3  See  Matter  of  Hakewell,  22  Eng.  L.  &  Eq.  395  ;  s.  c.  12  C.  B.  223. 

4  Story  on  the  Constitution,  §  1894. 

B  See  this  case  in  12  Howell's  State  Trials,  183  ;  3  Mod.  212.    Also  in  Broom, 

[  403  ] 


*  349  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

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  infor- 
mation. It  may  right  many  a  wrong,  and  the  deprivation  of  it 
would  at  once  be  felt  by  every  freeman  as  a  degradation.  The 
right  of  petitioning  is  indeed  a  necessary  consequence  of  the  right 
of  free  speech  and  deliberation, —  a  simple,  primitive,  and  natural 
right.  As  a  privilege  it  is  not  even  denied  the  creature  in  address- 
ing the  Deity."  1  Happily  the  occasions  for  discussing  and  defending 
it  have  not  been  numerous  in  this  country,  and  have  been  confined 
to  an  exciting  subject  now  disposed  of.2 

[*  350]  *  Bight  to  bear  Arms. 

Among  the  other  safeguards  to  liberty  should  be  mentioned  the 
right  of  the  people  to  keep  and  bear  arms.3  A  standing  army  is 
peculiarly  obnoxious  in  any  free  government,  and  the  jealousy  of 
such  an  army  has  at  times  been  so  strongly  demonstrated  in 
England  as  to  lead  to  the  belief  that  even  though  recruited  from 
among  themselves,  it  wvas  more  dreaded  by  the  people  as  an  in- 
strument of  oppression  than  a  tyrannical  monarch  or  any  foreign 
power.  So  impatient  did  the  English  people  become  of  the  very 
army  that  liberated  them  from  the  tyranny  of  James  II.  that  they 
demanded  its  reduction  even  before  the  liberation  became  complete  ; 
and  to  this  day  the  British  Parliament  render  a  standing  army 
practically  impossible  by  only  passing  a  mutiny  act  from  session  to 
session.  The  alternative  to  a  standing  army  is  "  a  well-regulated 
militia  ; "  but  this  cannot  exist  unless  the  people  are  trained  to 
bearing  arms.  The  federal  and  State  constitutions  therefore  pro- 
vide that  the  right  of  the  people  to  bear  arms  shall  not  be  infringed  ; 

Const.  Law,  408.  See  also  the  valuable  note  appended  by  Mr.  Broom,  p.  493, 
in  which  the  historical  events  bearing  on  the  right  of  petition  are  noted.  Also, 
May,  Const.  Hist.  c.  7  ;  1  Bl.  Com.  143. 

1  Lieber,  Civil  Liberty  and  Self-Government,  c.  12. 

2  For  the  discussions  on  the  right  of  petition  in  Congress,  particularly  with 
reference  to  slavery,  see  1  Benton's  Abridgement  of  Debates,  397  ;  2  ib.  57-60, 
182-188,  209,  436-444;'  12  ib.  660-679,  705-743;  13  ib.  5-28,  266-290,  557- 
562.  Also  Benton's  Thirty  Years'  View,  Vol.  I.  c.  135,  Vol.  II.  c.  32,  33,  36, 
37.     Also  the  current  political  histories  and  biographies. 

3  1  Bl.  Com.  143. 

[404] 


CH.  X.]       CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY.     *  350 

but  how  far  it  may  be  in  the  power  of  the  legislature  to  regulate 
the  right  we  shall  not  undertake  to  say,  as  happily  there  neither  has 
been,  nor  perhaps  is  likely  to  be,  much  occasion  for  a  discussion  of 
that  question  by  the  courts.1 

1  In  Bliss  v.  Commonwealth,  2  Lit.  90,  the  statute  "  to  prevent  persons  wear- 
ing concealed  arms  "  was  held  unconstitutional,  as  infringing  on  the  right  of  the 
people  to  bear  arms  in  defence  of  themselves  and  the  State.  But  see  Nunn  v. 
State,  1  Kelly,  243 ;  State  v.  Jumel,  13  La  An.  399  ;  Owen  v.  State,  31  Ala.  387  ; 
Cockrum  v.  State,  24  Tex.  394;  Andrews  v.  State,  3  Heis.  165;  s.  c.  8  Am. 
Rep.  8,  and  note.  A  statute  prohibiting  the  open  wearing  of  arms  upon  the 
person  was  held  unconstitutional  in  Stockdale  v.  State,  32  Geo.  225.  And  one 
forbidding  carrying  either  publicly  or  privately,  a  dirk,  sword-cane,  Spanish 
stiletto,  belt  or  pocket  pistol,  or  revolver,  was  sustained,  except  as  to  the  last- 
mentioned  weapon ;  and  as  to  that  it  was  held  that,  if  the  weapon  was  suitable  for 
the  equipment  of  a  soldier,  the  right  of  carrying  it  could  not  be  taken  away.  As 
bearing  also  upon  the  right  of  self-defence,  see  Ely  v.  Thompson  3  A.  K.  Marsh. 
73,  where  it  was  held  that  the  statute  subjecting  free  persons  of  color  to  corporal 
punishment  for  "  lifting  their  hands  in  opposition  "  to  a  white  person  was  uncon- 
stitutional. And  see  in  general,  Bishop  on  Stat.  Crimes,  Chap.  36,  and  cases 
cited. 

[405] 


*  351  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 


[*351]  *  CHAPTER   XL 

OF  THE  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OP  THE  LAND." 

The  protection  of  the  subject  in  the  free  enjoyment  of  his  life, 
his  liberty,  and  his  property,  except  as  they  might  be  declared 
by  the  judgment  of  his  peers  or  the  law  of  the  land  to  be  forfeited, 
was  guaranteed  by  the  twenty-ninth  chapter  of  Magna  Charta, 
"  which  alone,"  says  Sir  William  Blackstone,  "  would  have  mer- 
ited the  title  that  it  bears  of  the  Great  Charter."  l  The  people  of 
the  American  States,  holding  the  sovereignty  in  their  own  hands, 
have  no  occasion  to  exact  pledges  from  any  one  for  a  due  observ- 
ance of  individual  rights ;  but  the  aggressive  tendency  of  power  is 
such,  that  they  have  deemed  it  of  no  small  importance,  that,  in 
framing  the  instruments  under  which  their  governments  are  to  be 
administered  by  their  agents,  they  should  repeat  and  re-enact  this 
guaranty,  and  thereby  adopt  it  as  a  principle  of  constitutional 
protection.     In  some  form  of  words,  it  is  to  be  found  in  each  of 

1  4  Bl.  Com.  424.  The  chapter,  as  it  stood  in  the  original  charter  of  John, 
was:  "  Ne  corpus  liberi  hominis  capiatur  nee  imprisonetur  nee  disseisietur  nee 
utlagetur  nee  exuletur,  nee  aliquo  modo  destruatur,  nee  rex  eat  vel  mittat  super 
eutn  vi,  nisi  per  judicium  parium  suorum,  vel  per  legem  terras."  No  freeman  shall 
be  taken  or  imprisoned  or  disseised  or  outlawed  or  banished,,  or  any  ways 
destroyed,  nor  will  the  king  pass  upon  him,  or  commit  him  to  prison,  unless  by 
the  judgment  of  his  peers,  or  the  law  of  the  land.  In  the  charter  of  Henry  III. 
it  was  varied  slightly,  as  follows  :  "  Nullus  liber  homo  capiatur  vel  imprisonetur, 
aut  disseisietur  de  libero  tenemento  suo  vel  libertatibus  vel  liberis  consuetudini- 
bus  suis,  aut  utlagetur  aut  exuletur,  aut  aliquo  modo  destruatur,  nee  super  eum 
ibimus,  nee  super  eum  mittemus,  nisi  per  legale  judicium  parium  suorum,  vel  per 
legem  terrse."  See  Blackstone's  Charters.  The  Petition  of  Right  —  1  Car.  I. 
c.  1  — prayed,  among  other  things,  "  that  no  man  be  compelled  to  make  or  yield 
any  gift,  loan,  benevolence,  tax,  or  such  like  charge,  without  common  consent, 
by  act  of  Parliament ;  that  none  be  called  upon  to  make  answer  for  refusal  so  to 
do ;  that  freemen  be  imprisoned  or  detained  only  by  the  law  of  the  land,  or  b*y 
due  process  of  law,  and  not  by  the  king's  special  command,  without  any  charge." 
The  Bill  of  Rights  —  1  Wm.  and  Mary,  §  2,  c.  2  —  was  confined  to  an  enu- 
meration and  condemnation  of  the  illegal  acts  of  the  preceding  reign ;  but  the 
Great  Charter  of  Henry  III.  was  then,  and  is  still,  in  force. 
[406] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  351 

the  State  constitutions  ; 1  and,  though  verbal  differences 

*  appear  in  the  different  provisions,  no  change  in  language,  [*  352] 

1  The  following  are  the  constitutional  provisions  in  the  several  States  :  — 
Alabama  :  "  that,  in  all  criminal  prosecutions,  the  accused  .  .  .  shall  not  be 
compelled  to  give  evidence  against  himself,  or  be  deprived  of  his  life,  liberty,  or 
property,  but  by  due  process  of  law."  Art.  1,  §  8.  — Arkansas  :  "  That  no  per- 
son shall  ...  be  deprived  of  his  life,  liberty,  or  property,  without  due  process 
of  law."  Art.  1,  §  9.  —  California:  Like  that  of  Alabama.  Art.  1,  §  8. — 
Connecticut:  Same  as  Alabama,  substituting  "course  of  law"  for  "process  of 
law."  Art.  1,  §  9.  —  Delaware:  Like  that  of  Alabama,  substituting  for  "process 
of  law,"  "the  judgment  of  his  peers,  or  the  law  of  the  land."  Art.  1,  §  7. — 
Florida  :  Like  that  of  Alabama.  Art.  1,  §  9.  —  Georgia:  "  No  person  shall  be 
deprived  of  life,  liberty,  or  property,  except  by  due  process  of  law."   Art.  1,  §  3. 

—  Illinois  :  "  No  person  shall  be  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law."  Art.  1,  §  2.  — Iowa,  the  same.  Art.  1,  §  9.  — Kentucky : 
"  Nor  can  he  be  deprived  of  his  life,  liberty,  or  property,  unless  by  the  judgment 
of  his  peers,  or  the  law  of  the  land."  Art.  13,  §  12.  —  Maine  :  "  Nor  be  deprived 
of  his  life,  liberty,  property,  or  privileges,  but  by  the  judgment  of  his  peers,  or 
the  law  of  the  land."  Art.  1,  §  6.  —  Maryland:  "That  no  man  ought  to  be 
taken  or  imprisoned,  or  disseised  of  his  freehold,  liberties,  or  privileges,  or  out- 
lawed, or  exiled,  or  in  any  manner  destroyed,  or  deprived  of  his  life,  libertv,  or 
property,  but  by  the  judgment  of  his  peers,  or  by  the  law  of  the  land.1-  Decla- 
ration of  Rights,  §  23.  —  Massachusetts  :  "  No  subject  shall  be  arrested,  impris- 
oned, despoiled,  or  deprived  of  his  property,  immunities,  or  privileges,  put  out  of 
the  protection  of  the  law,  exiled  or  deprived  of  his  life,  liberty,  or  estate,  but  by 
the  judgment  of  his  peers,  or  the  law  of  the  land."  Declaration  of  Rights,  Art. 
12.  —  Michigan:  "No  person  shall  ...  be  deprived  of  life,  liberty,  or  prop- 
erty, without  due  process  of  law."  Art.  6,  §  32.  —  Minnesota:  Like  that  of 
Michigan.  Art.  1,  §  7.  —  Mississippi:  The  same.  Art.  1,  §  2.  —  Missouri: 
Same  as  Delaware.  Art.  1,  §  18.  —  Nevada :  "  Nor  be  deprived  of  life,  liberty, 
or  property,  without  due  process  of  law."  Art.  1,  §  8. — New  Hampshire: 
Same  as  Massachusetts.  Bill  of  Rights,  Art.  15,  —  New  York:  Same  as  Nevada. 
Art.  1,  §  6.  —  North  Carolina  :  "  That  no  person  ought  to  be  taken,  imprisoned, 
or  disseised  of  his  freehold,  libei'ties,  or  privileges,  or  outlawed  or  exiled,  or  in 
any  manner  destroyed,  or  deprived  of  his  life,  liberty,  or  property,  but  by  the 
law  of  the  land."  Declaration  of  Rights,  §  17.  —  Pennsylvania :  Like  Delaware. 
Art.  9,  §  9.  —  Rhode  Island:  Like  Delaware.  Art.  1,  §  10.  —  South  Carolina: 
Like  that  of  Massachusetts,  substituting  "  person"  for  "  subject."     Art.  1,  §  14. 

—  Tennessee:  "That  no  man  shall  be  taken  or  imprisoned,  or  disseised  of  his 
freehold,  liberties,  or  privileges,  or  outlawed  or  exiled,  or  in  any  manner 
destroyed,  or  deprived  of  his  life,  liberty,  or  property,  but  by  the  judgment  of 
his  peers,  or  the  law  of  the  land."  Art.  1,  §  8.  —  Texas:  "No  citizen  of  this 
State  shall  be  deprived  of  life,  liberty,  property,  or  privileges,  outlawed,  exiled, 
or  in  any  manner  disfranchised,  except  by  due  course  of  the  law  of  the  land." 
Art.  1,  §  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.     Under 

[407] 


*  352  CONSTITUTIONAL   LIMITATIONS.  [CH.  XL 

it  is  thought,  has  in  any  case  been  made  with  a  view  to 
[*  853]  essential  *  change  in  legal  effect ;  and  the  differences  in 
phraseology  will  not,  therefore,  be  of  importance  in  our 
discussion.  Indeed,  the  language  employed  is  generally  nearly 
identical,  except  that  the  phrase  "  due  process  [or  course]  of  law  " 
is  sometimes  used,  sometimes  "  the  law  of  the  land,"  and  in  some 
cases  both  ;  but  the  meaning  is  the  same  in  every  case.1  And,  by 
the  fourteenth  amendment,  the  guaranty  is  now  incorporated  in  the 
Constitution  of  the  United  States.2 

If  now  we  shall  ascertain  the  sense  in  which  the  phrases  "  due 
process  of  law  "  and  "  the  law  of  the  land"  are  employed  in  the 
several  constitutional  provisions  which  we  have  referred  to,  when 
the  protection  of  rights  in  property  is  had  in  view,  we  shall  be 
able,  perhaps,  to  indicate  the  rule,  by  which  the  proper  conclusion 
may  be  reached  in  those  cases  in  which  legislative  action  is  objected 
to,  as  not  being  "  the  law  of  the  land  ;  "  or  judicial  or  ministerial 
action  is  contested  as  not  being  "  due  process  of  law,"  within  the 
meaning  of  these  terms  as  the  Constitution  employs  them. 

If  we  examine  such  definitions  of  these  terms  as  are  met  with 
in  the  reported  cases,  we  shall  find  them  so  various,  that  some 
difficulty  must  arise  in  fixing  upon  one  which  shall  be  accurate, 
complete  in  itself,  and  at  the  same  time  appropriate  in  all  the 
cases.  The  diversity  of  definition  is  certainly  not  surprising,  when 
we  consider  the  .diversity  of  cases  for  the  purposes  of  which  it  has 
been  attempted,  and  reflect  that  a  definition  that  is  sufficient  for 
one  case  and  applicable  to  its  facts  may  be  altogether  insufficient 
or  entirely  inapplicable  in  another. 

Perhaps  no  definition  is  more  often  quoted  than  that  given  by 
Mr.  Webster  in  the  Dartmouth  College  Case  :  "  By  the  law  of  the 
land  is  most  clearly  intended  the  general  law  ;  a  law  which  hears 
before  it  condemns  ;  which  proceeds  upon  inquiry,  and  renders 

each  of  the  remaining  constitutions,  equivalent  protection  to  that  which  these 
provisions  give,  is  believed  to  be  afforded  by  fundamental  principles  recognized 
and  enforced  by  the  courts. 

1  2  Inst.  50  ;  Bouv.  Law.  Die.  "  Due  process  of  Law,"  "  Law  of  the  land ;  " 
State  v.  Simons,  2  Spears,  767  ;  Vanzant  v.  Waddell,  2  Yerg.  260 ;  Wally's  Heirs 
v.  Kennedy,  ib.  554;  Greene  v.  Briggs,  1  Curt.  311;  Murray's  Lessees.  Hobo- 
ken  Land  Co.,  18  How.  276,  per  Curtis  J. ;  Parsons  v.  Russell,  11  Mich.  129, 
per  Manning,  J. ;  Ervine's  Appeal,  16  Penn.  St.  256 ;  Banning  v.  Taylor,  24 
Penn.  St.  292;  State  v.  Staten,  6  Cold.  244;  Huber  v.  Reiley,  53  Penn.  St.  112. 

2  See  ante,  p.  11. 

[408  J 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  353 

judgment  only  after  trial.     The  meaning  is  that  every  citizen  shall 
hold  his  life,  liberty,  property,  and  immunities,  under  the 
protection  of  the  *  general   rules  which  govern   society.  [*  354] 
Every  thing  which  may  pass  under  the  form  of  an  enact- 
ment is  not  therefore  to  be  considered  the  law  of  the  land."  i 

The  definition  here  given  is  apt  and  suitable  as  applied  to 
judicial  proceedings,  which  cannot  be  valid  unless  they  "  proceed 
upon  inquiry  "  and  "  render  judgment  only  after  trial."  It  is 
entirely  correct,  also,  in  assuming  that  a  legislative  enactment  is 
not  necessarily  the  law  of  the  land.  "  The  words  '  by  the  law  of  the 
land,'  as  used  in  the  Constitution,  do  not  mean  a  statute  passed 
for  the  purpose  of  working  the  wrong.  That  construction  would 
render  the  restriction  absolutely  nugatory,  and  turn  this  part  of 
the  Constitution  into  mere  nonsense.  The  people  would  be  made 
to  say  to  the  two  houses :  '  You  shall  be  vested  with  the  legislative 
power  of  the  State,  but  no  one  shall  be  disfranchised  or  deprived 
of  any  of  the  rights  or  privileges  of  a  citizen,  unless  you  pass  a 
statute  for  that  purpose.  In  other  words,  you  shall  not  do  the 
wrong  unless  you  choose  to  do  it.'  " 2  But  there  are  many  cases  in 

1  Dartmouth  College  v.  Woodward,  4  Wheat.  519  ;  Works  of  Webster,  Vol. 
V.  p.  487.  And  he  proceeds  :  "  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  estate  to  another,  legislative  judgments,  decrees  and  for- 
feitures in  all  possible  forms,  would  be  the  law  of  the  land.  Such  a  strange 
construction  would  render  constitutional  provisions  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  men  to  live  under.  The  administration  of  justice  would 
be  an  empty  form,  an  idle  ceremony.  Judges  would  sit  to  execute  legislative 
judgments  and  decrees,  not  to  declare  the  law  or  administer  the  justice  of  the 
country." 

2  Per  Bronson,  J.,  in  Taylor  v.  Porter,  4  Hill,  140.  See  also  Jones  v.  Perry, 
10  Yerg.  59 ;  Ervine's  Appeal,  16  Penn.  St.  256  ;  Arrowsmith  v.  Burliugim,  4 
McLean,  498  ;  Lane  v.  Dorman,  3  Scam.  238  ;  Reed  v.  Wright,  2  Greene  (Iowa), 
15 ;  Woodcock  v.  Bennett,  1  Cow.  710 ;  Kinney  v.  Beverley,  2  H.  &  M.  536 ; 
Commonwealth  v.  Byrne,  20  Grat.  165.  "  Those  terms,  '  law  of  the  land,'  do  not 
mean  merely  an  act  of  the  general  assembly.  If  they  did,  every  restriction  upon 
the  legislative  authority  would  be  at  once  abrogated.  For  what  more  can  the  cit- 
izen suffer  than  to  be  taken,  imprisoned,  disseised  of  his  freehold,  liberties,  and 
privileges ;  be  outlawed,  exiled,  and  destroyed,  and  be  deprived  of  his  property, 
his  liberty,  and  his  life,  without  crime  ?  Yet  all  this  he  may  suffer  if  an  act  of 
the  assembly  simply  denouncing  those  penalties  upon  particular  persons,  or  a 
particular  class  of  persons,  be  in  itself  a  law  of  the  land  within  the  sense  of  the 

[  409] 


*  354  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

which  the  title  to  property  may  pass  from  one  person  to  another, 
without  the  intervention  of  judicial  proceedings,  properly  so  called  ; 
and  we  have  already  seen  that  special  legislative  acts  designed 
to  accomplish  the  like  end  have  also  been  held  valid  in 
[*  355]  *  some  cases.  The  necessity  for  "  general  rules,"  there- 
fore, does  not  preclude  the  legislature  from  establishing 
special  rules  for  particular  cases,  provided  the  particular  cases 
range  themselves  under  some  general  rule  of  legislative  power ; 
nor  is  there  any  requirement  of  judicial  action  which  demands 
that,  in  every  case,  the  parties  interested  shall  have  a  hearing  in 
court.1 

On  the  other  hand  we  shall  find  that  general  rules  may  some- 
times be  as  obnoxious  as  special,  if  they  operate  to  deprive  indi- 
vidual citizens  of  vested  rights.  While  every  man  has  a  right  to 
require  that  his  own  controversies  shall  be  judged  by  the  same 
rules  which  are  applied  in  the  controversies  of  his  neighbors,  the 

Constitution  ;  for  what  is  in  that  sense  the  law  of  the  land  must  be  duly  observed 
by  all,  and  upheld  and  enforced  by  the  courts.  In  reference  to  the  infliction  of 
punishment  and  devesting  the  rights  of  property,  it  has  been  repeatedly  held  in 
this  State,  and  it  is  believed  in  every  other  of  the  Union,  that  there  are  limitations 
upon  the  legislative  power,  notwithstanding  these  words ;  and  that  the  clause 
itself  means  that  such  legislative  acts  as  profess  in  themselves  directly  to  punish 
persons,  or  to  deprive  the  citizen  of  his  property,  without  trial  before  the  judicial 
tribunals,  and  a  decision  upon  the  matter  of  right,  as  determined  by  the  laws 
under  which  it  vested,  according  to  the  course,  mode,  and  usages  of  the  com- 
mon law,  as  derived  from  our  forefathers,  are  not  effectually  '  laws  of  the  land' 
for  those  purposes."  Hoke  v.  Henderson,  4  Dev.  15.  Mr.  Broom  says  :  "  It  is 
indeed  an  essential  principle  of  the  law  of  England,  '  that  the  subject  hath  an 
undoubted  property  in  his  goods  and  possessions  ;  otherwise  there  shall  remain  no 
moi'e  industry,  no  more  justice,  no  more  valor  ;  for  who  will  labor  ?  who  will  haz- 
ard his  person  in  the  day  of  battle  for  that  which  is  not  his  own  ?  '  The  Banker's 
Case,  by  Tumor,  10.  And  therefore  our  customary  law  is  not  more  solicitous 
about  any  thing  than  '  to  preserve  the  property  pf  the  subject  from  the  inundation 
of  the  prerogative.1     Ibid.'1''     Broom's  Const.  Law,  p.  228. 

1  See  Wynehamer  v.  People,  13  N.  Y.  432,  per  Selden,  J.  In  James  v. 
Reynolds,  2  Texas,  251,  Chief  Justice  Hemphill  says  :  "  The  terms  'law  of  the 
land  '  .  .  .  are  now,  in  their  most  usual  acceptation,  regarded  as  general  public 
laws,  binding  upon  all  the  members  of  the  community,  under  all  circumstances, 
and  not  partial  or  private  laws,  affecting  the  rights  of  private  individuals  or 
classes  of  individuals."  And  see  Vanzant  v.  Waddell,  2  Yerg.  2G9,  per  Peck, 
J. ;  Hard  v.  Nearing,  44  Barb.  472.  Nevertheless  there  are  many  cases,  as  we 
have  shown,  ante,  pp.  97,  109,  in  which  private  laws  may  be  passed  in  entire 
accord  with  the  general  public  rules  which  govern  the  State ;  and  we  shall  refer 
to  more  cases  further  on. 

[410] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  355 

whole  community  is  also  entitled,  at  all  times,  to  demand  the  pro- 
tection of  the  ancient  principles  which  shield  private  rights  against 
arbitrary  interference,  even  though  such  interference  may  be  under 
a  rule  impartial  in  its  operation.  It  is  not  the  partial  nature  of 
the  rule,  so  much  as  its  arbitrary  and  unusual  character,  which 
condemns  it  as  unknown  to  the  law  of  the  land.  Mr.  Justice 
Edwards  has  said  in  one  case  :  "  Due  process  of  law  undoubtedly 
means,  in  the  due  course  of  legal  proceedings,  according  to  those 
rules  and  forms  which  have  been  established  for  the  protection  of 
private  rights."  1  And  we  have  met  in  no  judicial  decision  a  state- 
ment that  embodies  more  tersely  and  accurately  the  correct  view 
of  the  principle  we  are  considering,  than  the  following,  from  an 
opinion  by  Mr.  Justice  Johnson  of  the  Supreme  Court  of  the 
United  States  :  "  As  to  the  words  from  Magna  Charta  incorporated 
in  the  Constitution  of  Maryland,  after  volumes  spoken  and  written 
with  a  view  to  their  exposition,  the  good  sense  of  mankind  has  at 
length  settled  down  to  this,  —  that  they  were  intended  to  secure 
the  individual  from  the  arbitrary  exercise  of  the  powers  of  govern- 
ment, unrestrained  by  the  established  principles  of  private  rights 
and  distributive  justice."  2 

*  The  principles,  then,  upon  which  the  process  is  based  [*  356] 
are  to  determine  whether  it  is  "  due  process  "  or  not,  and 
not  any  considerations  of  mere  form.  Administrative  and  remedial 
process  may  change  from  time  to  time,  but  only  with  due  regard  to 
the  landmarks  established  for  the  protection  of  the  citizen.  When 
the  government  through  its  established  agencies  interferes  with  the 
title  to  one's  property,  or  with  his  independent  enjoyment  of  it, 

1  Westervelt  v.  Gregg,  12  N.  Y.  209.  See  also  State  v.  Staten,  6  Cold. 
233. 

2  Bank  of  Columbia  v.  Okely,  4  Wheat.  235.  "  What  is  meant  by  '  the 
law  of  the  land'?  In  this  State,  taking  as  our  guide  Zylstra's  Case,  1  Bay 
384  ;  White  v.  Kendrick,  1  Brev.  471 ;  State  v.  Coleman  and  Maxy,  1  McMull. 
502,  there  can  be  no  hesitation  in  saying  that  these  words  mean  the  common 
law  and  the  statute  law  existing  in  this  State  at  the  adoption  of  our  constitution. 
Altogether  they  constitute  a  body  of  law  prescribing  the  course  of  justice  to 
which  a  free  man  is  to  be  considered  amenable  for  all  time  to  come."  Per 
O'Neill,  J.,  in  State  v.  Simons,  2  Speers,  767.  See  also  State  v.  Doherty,  60 
Me.  509.  It  must  not  be  understood  from  this,  however,  that  it  would  not  be 
competent  to  change  either  the  common  law  or  the  statute  law,  so  long  as  the 
principles  therein  embodied,  and  which  protected  private  rights,  were  not  departed 
from. 

[4U] 


*  356  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

and  its  action  is  called  in  question  as  not  in  accordance  with  the 
law  of  the  land,  we  are  to  test  its  validity  by  those  principles  of 
civil  liberty  and  constitutional  protection  which  have  become  es- 
tablished in  our  system  of  laws,  and  not  generally  by  rules  that 
pertain  to  forms  of  procedure  merely.  In  judicial  proceedings  the 
law  of  the  land  requires  a  hearing  before  condemnation,  and  judg- 
ment before  dispossession  ; 1  but  when  property  is  appropriated  by 
the  government  to  public  uses,  or  the  legislature  interferes  to  give 
direction  to  its  title  through  remedial  statutes,  different  considera- 
tions from  those  which  regard  the  controversies  between  man  and 
man  must  prevail,  different  proceedings  are  required,  and  we  have 
only  to  see  whether  the  interference  can  be  justified  by  the  estab- 
lished rules  applicable  to  the  special  case.  Due  process  of  law  in 
each  particular  case  means,  such  an  exertion  of  the  powers  of  gov- 
ernment as  the  settled  maxims  of  law  permit  and  sanction,  and 
under  such  safeguards  for  the  protection  of  individual  rights  as 
those  maxims  prescribe  for  the  class  of  cases  to  which  the  one  in 
question  belongs.2 

Private  rights  may  be  interfered  with  by  either  the  legislative,  ex- 
ecutive, or  judicial  department  of  the  government.    The  executive 

department  in  every  instance  must  show  authority  of  law 
[*  357]  for  its  action,  and  occasion  does  not  often  arise  *  for  an 

examination  of  the  limits  which  circumscribe  its  powers. 
The  legislative  department  may  in  some  cases  constitutionally  au- 
thorize interference,  and  in  others  may  interpose  by  direct  action. 
Elsewhere  we  shall  consider  the  police  power  of  the  State,  and 
endeavor  to  show  how  completely  all  the  property,  as  well  as  all 
the  people  within  the  State,  are  subject  to  control  under  it,  within* 
certain  limits,  and  for  the  purposes  for  which  that  power  is  exer- 
cised. The  right  of  eminent  domain  and  the  right  of  taxation  will 
also  be  discussed  separately,  and  it  will  appear  that  under  each 
the  law  of  the  land  sanctions  devesting  individuals  of  their  prop- 

1  Vanzant  v.  Waddell,  2  Yerg.  260 ;  Lenz  v.  Charlton,  23  Wis.  478. 

2  See  Wynebamer  v.  People,  13  N.  Y.  432,  per  Selden,  J.  In  State  v.  Allen, 
2  McCord,  56,  the  court,  in  speaking  of  process  for  the  collection  of  taxes,  say : 
"  We  think  that  any  legal  process  which  was  originally  founded  in  necessity,  has 
been  consecrated  by  time,  and  approved  and  acquiesced  in  by  universal  consent, 
must  be  considered  an  exception  to  the  right  of  trial  by  jury,  and  is  embraced  in 
the  alternative  '  law  of  the  land.1"  And  see  Hard  v.  Nearing,  44  Barb.  472 ; 
Sears  v.  Cottrell,  5  Mich.  251 ;  Gibson  v.  Mason,  5  Nev.  302. 

[412] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  357 

erty  against  their  will,  and  by  somewhat  summary  proceedings.  In 
every  government  there  is  inherent  authority  to  appropriate  the 
property  of  the  citizen  for  the  necessities  of  the  State,  and  consti- 
tutional provisions  do  not  confer  the  power,  though  they  generally 
surround  it  with  safeguards  to  prevent  abuse.  The  restraints  are, 
that  when  specific  property  is  taken,  a  pecuniary  compensation, 
agreed  upon  or  determined  by  judicial  inquiry,  must  be  paid  ;  and 
in  other  cases  property  can  only  be  taken  for  the  support  of  the 
government,  and  each  citizen  can  only  be  required  to  contribute 
his  proportion  to  that  end.  But  there  is  no  rule  or  principle 
known  to  our  system  under  which  private  property  can  be  taken 
from  one  person  and  transferred  to  another,  for  the  private  use 
and  benefit  of  such  other  person,  whether  by  general  law  or  by- 
special  enactment.  The  purpose  must  be  public,  and  must  have 
reference  to  the  needs  or  convenience  of  the  public.  No  reason  of 
general  public  policy  will  be  sufficient,  it  seems,  to  validate  such 
transfers  when  they  operate  upon  existing  vested  rights.1 

Nevertheless,  in  many  cases  and  many  ways  remedial  legislation 
may  affect  the  control  and  disposition  of  property,  and  in  some 
cases  may  change  the  nature  of  rights,  give  remedies  where  none 
existed  before,  and  even  devest  legal  titles  in  favor  of  substantial 
equities  where  the  legal  and  equitable  rights  do  not  chance  to  con- 
cur in  the  same  persons. 

The  chief  restriction  upon  this  class  of  legislation  is, 
that  vested  rights  must  not  be  disturbed  ;  *  but  in  its  appli-  [*358] 
cation  as  a  shield  of  protection,  the  term  "  vested  rights  " 
is  not  used  in  any  narrow  or  technical  sense,  or  as  importing  a 
power  of  legal  control  merely,  but  rather  as  implying  a  vested 
interest  which  it  is  right  and  equitable  that  the  government  should 
recognize  and  protect,  and  of  which  the  individual  could  not  be 
deprived  arbitrarily  without  injustice.     The  right  to  private  prop- 

1  Taylor  v.  Porter,  4  Hill,  140 ;  Osborn  v.  Hart,  24  Wis.  91 ;  s.  c.  1  Am. 
Rep.  161.  In  matter  of  Albany  Street,  11  Wend.  149,  it  is  intimated  that  the 
clause  in  the  Constitution  of  New  York,  withholding  private  property  from  pub- 
lic use  except  upon  compensation  made,  of  itself  implies  that  it  is  not  to  be 
taken  in  invitum  for  individual  use.  And  see  matter  of  John  and  Cherry  Streets, 
19  Wend.  676.  A  different  opinion,  seems  to  have  been  held  by  the  Supreme 
Court  of  Pennsylvania,  when  they  decided  in  Harvey  v.  Thomas,  10  Watts,  63, 
that  the  legislature  might  authorize  the  laying  out  of  private  ways  over  the  lands 
of  unwilling  parties,  to  connect  the  coal-beds  with  the  works  of  public  improve- 
ment, the  constitution  not  in  terms  prohibiting  it.     See  note  to  p.  531,  post. 

[413] 


*  358  CONSTITUTIONAL  LIMITATIONS.  [CH.  XI. 

erty  is  a  sacred  right ;  not,  as  has  been  justly  said,  "  introduced  as 
the  result  of  princes'  edicts,  concessions  and  charters,  but  it  was 
the  old  fundamental  law,  springing  from  the  original  frame  and 
constitution  of  the  realm."  1 

But  as  it  is  a  right  which  rests  upon  equities,  it  has  its  reason- 
able limits  and  restrictions  ;  it  must  have  some  regard  to  the 
general  welfare  and  public  policy ;  it  cannot  be  a  right  which  is  to 
be  examined,  settled,  and  defended  on  a  distinct  and  separate  con- 
sideration of  the  individual  case,  but  rather  on  broad  and  general 
grounds,  which  embrace  the  welfare  of  the  whole  community,  and 
which  seek  the  equal  and  impartial  protection  of  the  interests  of  all.2 

And  it  may  be  well  at  this  point  to  examine  in  the  light  of  the 
reported  cases  the  question,  What  is  a  vested  right  in  the  constitu- 
tional sense?  and  when  we  have  solved  that  question,  we  may  be 
the  better  able  to  judge  under  what  circumstances  one  may  be  jus- 
tified in  resisting  a  change  in  the  general  laws  of  the  State  affecting 
his  interests,  and  how  far  special  legislation  may  control  his  rights 
without  coming  under  legal  condemnation.  In  organized  society 
every  man  holds  all  he  possesses,  and  looks  forward  to  all  he  hopes 
for,  through  the  aid  and  under  the  protection  of  the  laws  ;  but  as 
changes  of  circumstances  and  of  public  opinion,  as  well  as  other 
reasons  affecting  the  public  policy,  are  all  the  while  calling  for 
changes  in  the  laws,  and  as  these  changes  must  influence  more  or 
less  the  value  and  stability  of  private  possessions,  and  strengthen 
or  destroy  well-founded  hopes,  and  as  the  power  to  make  very 
many  of  them  could  not  be  disputed  without  denying  the  right  of 
the  political  community  to  prosper  and  advance,  it  is  obvious  that 
many  rights,  privileges,  and  exemptions  which  usually  pertain  to 
ownership  under  a  particular  state  of  the  law,  and  many  reason- 
able expectations,  cannot  be  regarded  as  vested  rights  in  any  legal 
sense.  In  many  cases  the  courts,  in  the  exercise  of  their  ordinary 
jurisdiction,  cause  the  property  vested  in  one  person  to  be  trans- 

1  Arg.  Nightingale  v.  Bridges,  Show.  138.  See  also  Case  of  Alton  Woods, 
1  Rep.  45  a;  Alcock  v.  Cook,  5  Bing.  340;  Bowman  v.  Middleton,  1  Bay,  282; 
ante,  p.  37  and  note,  p.  175  and  note. 

2  The  evidences  of  a  man's  rights  —  the  deeds,  bills  of  sale,  promissory  notes, 
and  the  like  —  are  protected  equally  with  his  lands  and  chattels,  or  rights  and 
franchises  of  any  kind ;  and  the  certificate  of  registration  and  right  to  vote  may 
be  properly  included  in  the  category.  State  v.  Staten,  6  Cold.  243.  See  Davies 
v.  McKeeby,  5  Nev.  369. 

[414] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OP  THE  LAND."  *  358 

ferred  to  another,  either  through  the  exercise  of  a  statutory  power, 
or  by  the  direct  force  of  their  judgments  or  decrees,  or  by  means 
of  compulsory  'conveyances.  If  in  these  cases  the  courts  have 
jurisdiction,  they  proceed  in  accordance  with  "  the  law  of  the 
land  ;  "  and  the  right  of  one  man  is  devested  by  way  of  enforcing  a 
higher  and  better  right  in  another.  Of  these  cases  we  do  not  pro- 
pose to  speak  :  constitutional  questions  cannot  well  arise  concern- 
ing them,  unless  they  are  attended  by  circumstances  of  irregularity 
which  are  supposed  to  take  them  out  of  the  general  rule.  All 
vested  rights  are  held  subject  to  the  laws  for  the  enforcement 
of  public  duties  and  private  contracts,  and  for  the  punishment  of 
wrongs ;  and  if  they  become  devested  through  the  operation  of 
those  laws,  it  is  only  by  way  of  enforcing  the  obligations  of  justice 
and  good  order.  What  we  desire  to  reach  in  this  connection  is 
the  true  meaning  of  the  term  "  vested  rights  "  when  employed  for 
the  purpose  of  indicating  the  interests  of  which  one  cannot  be 
deprived  by  the  mere  force  of  legislative  enactment,  or  by 
any  other  than  the  *  recognized  modes  of  transferring  title  [*  359] 
against  the  consent  of  the  owner,  to  which  we  have 
alluded. 

Interests  in  Expectancy. 

And  it  would  seem  that  a  right  cannot  be  regarded  as  a  vested 
right,  unless  it  is  something  more  than  such  a  mere  expectation 
as  may  be  based  upon  an  anticipated  continuance  of  the  present 
general  laws :  it  must  have  become  a  title,  legal  or  equitable,  to 
the  present  or  future  enjoyment  of  property,  or  to  the  present  or 
future  enforcement  of  a  demand,  or  a  legal  exemption  from  a  de- 
mand made  by  another.  Acts  of  the  legislature,  as  has  been  well 
said  by  Mr.  Justice  Woodbury,  cannot  be  regarded  as  opposed  to 
fundamental  axioms  of  legislation,  "  unless  they  impair  rights 
which  are  vested  ;  because  most  civil  rights  are  derived  from  pub- 
lic laws  ;  and  if,  before  the  rights  become  vested  in  particular  indi- 
viduals, the  convenience  of  the  State  procures  amendments  or 
repeals  of  those  laws,  those  individuals  have  no  cause  of  com- 
plaint. The  power  that  authorizes  or  proposes  to  give,  may  always 
revoke  before  an  interest  is  perfected  in  the  donee."  *  And  Chan- 
cellor Kent,  in  speaking  of  retrospective  statutes,  says  that  while 

1  Merrill  v.  Sherburne,  1  N.  H.  213.     See  Ride  v.  Flanders,  39  N.  H.  304. 

[415] 


*  359  CONSTITUTIONAL   LIMITATIONS.  [CH.  XL 

such  a  statute,  "  affecting  and  changing  vested  rights,  is  very 
generally  regarded  in  this  country  as  founded  on  unconstitutional 
principles,  and  consequently  inoperative  and  void,"  yet  that  "  this 
doctrine  is  not  understood  to  apply  to  remedial  statutes,  which 
may  be  of  a  retrospective  nature,  provided  they  do  not  impair  con- 
tracts, or  disturb  absolute  vested  rights,  and  only  go  to  confirm 
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  reason- 
able, and  conducive  to  the  general  welfare,  even  though  they  might 
operate  in  a  degree  upon  vested  rights."  1 

And  it  is  because  a  mere  expectation  of  property  in  the  future 
is  not  considered  a  vested  right,  that  the  rules  of  descent  are  held 
subject  to  change  in  their  application  to  all  estates  not  already 
passed  to  the  heir  by  the  death  of  the  owner.  No  one  is  heir  to 
the  living ;  and  the  heir  presumptive  has  no  other  reason  to  rely 
upon  succeeding  to  the  property  than  the  promise  held  out 
[*  360]  by  the  statute  of  descents.  But  this  promise  is  no  *  more 
than  a  declaration  of  the  legislature  as  to  its  present  view 
of  public  policy  as  regards  the  proper  order  of  succession,  —  a  view 
which  may  at  any  time  change,  and  then  the  promise  may  properly 
be  withdrawn,  and  a  new  course  of  descent  be  declared.  The 
expectation  is  not  property  ;  it  cannot  be  sold  or  mortgaged ;  it  is 
not  subject  to  debts  ;  and  it  is  not  in  any  manner  taken  notice  of  by 
the  law  until  the  moment  of  the  ancestor's  death,  when  the  statute 
of  descents  comes  in,  and  for  reasons  of  general  public  policy 
transfers  the  estate  to  persons  occupying  particular  relations  to  the 
deceased  in  preference  to  all  others.  It  is  not  until  that  moment 
that  there  is  any  vested  right  in  the  person  who  becomes  heir,  to 
be  protected  by  the  Constitution.  An  anticipated  interest  in  prop- 
erty cannot  be  said  to  be  vested  in  any  person  so  long  as  the  owner 
of  the  interest  in  possession  has  full  power,  by  virtue  of  his  own- 
ership, to  cut  off  the  expectant  right  by  grant  or  devise.2 

If  this  be  so,  the  nature  of  estates  must,  to  a  certain  extent,  be 

'  1  Kent,  Com.  455.  See  Briggs  v.  Hubbard,  19  Vt.  91 ;  Bridgeport  v. 
HousatonieR.  R.  Co.,  15  Com.  492 ;  Baugher  v.  Nelson,  9  Gill,  299 ;  Gilman  v. 
Cutts,-  23  N.  H.  382. 

2  la  re  Lawrence,  1  Redfield,  Sur.  Rep.  310.      But  after  property  has  once 
vested  under  the  laws  of  descent,  it  cannot  be  divested  by  any  change  in  those 
laws.     Norman  v.  Heist,  5  M.  &  S.  171.     Sue  post,  379,  and  notes. 
[416] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  360 

subject  to  legislative  control  and  modification.1  In  this  country 
estates  tail  have  been  very  generally  changed  into  estates  in  fee- 
simple,  by  statutes  the  validity  of  which  is  not  disputed.2  Such 
statutes  operate  to  increase  and  render  more  valuable  the  interest 
which  the  tenant  in  tail  possesses,  and  are  not  therefore  open  to 
objection  by  him.3  But  no  other  person  in  these  cases  has  any 
vested  right,  either  in  possession  or  expectancy,  to  be  affected  by 
such  change  ;  and  the  expectation  of  the  heir  presumptive  must  be 
subject  to  the  same  control  as  in  other  cases.4 

The  cases  of  rights  in  property  to  result  from  the  marriage 
relation  must  be  referred  to  the  same  principle.  At  the  common 
law  the  husband  immediately  on  the  marriage  succeeded  to  certain 
rights  in  the  real  and  personal  estate  which  the  wife  then  pos- 
sessed. These  rights  became  vested  rights  at  once,  and  any  sub- 
sequent alteration  in  the  law  could  not  take  them  away.5 
But  other  interests  *  were  merely  in  expectancy.  He  [*  361] 
could  have  a  right  as  tenant  by  the  courtesy  initiate  in  the 
wife's  estates  of  inheritance  the  moment  a  child  was  born  of  the 
marriage,  who  might  by  possibility  become  heir  to  such  estates. 
This  right  would  be  property,  subject  to  conveyance  and  to  be 
taken  for  debts ;  and  must  therefore  be  regarded  as  a  vested  right, 
no  more  subject  to  legislative  interference  than  other  expectant 
interests  which  have  ceased  to  be  mere  contingencies  and  become 
fixed.  But  while  this  interest  remains  in  expectancy  merely,  — 
that  is  to  say,  until  it  becomes  initiate,  —  the  legislature  must  have 

1  Smith  on  Stat,  and  Const.  Construction,  412. 

2  De  Mill  v.  Lockwood,  3  Blatch.  56. 

3  On  the  same  ground  it  has  been  held  in  Massachusetts  that  statutes  convert- 
ing existing  estates  in  joint  tenancy  into  estates  in  common  were  unobjectionable. 
They  did  not  impair  vested  rights,  but  rendered  the  tenure  more  beneficial. 
Holbrook  v.  Finney,  4  Mass.  567  ;  Miller  v.  Miller,  16  Mass.  59 ;  Anable  v. 
Patch,  3  Pick.  363 ;  Burghardt  v.  Turner,  12  Pick.  534.  Moreover,  such  stat- 
utes do  no  more  than  either  tenant  at  the  common  law  has  a  right  to  do,  by  con- 
veying his  interest  to  a  stranger.  See  Bombaugh  v.  Bombaugh,  11  S.  &  R.  192 ; 
Wildes  v.  Vanvoorhis,  16  Gray,  147. 

4  See  1  Washb.  Real  Pr.  81-84  and  notes.  The  exception  to  this  statement, 
if  any,  must  be  the  case  of  tenant  in  tail  after  possibility  of  issue  extinct ;  where 
the  estate  of  the  tenant  has  ceased  to  be  an  inheritance,  and  a  reversionary  right 
has  become  vested. 

5  Westervelt  v.  Gregg,  12  N.  Y.  208. 

27  [  417  ] 


*  361  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

full  right  to  modify  or  even  to  abolish  it.1  And  the  same  rule  will 
apply  to  the  case  of  dower  ;  though  the  difference  in  the  requisites 
of  the  two  estates  are  such  that  the  inchoate  right  to  dower  does 
not  become  property,  or  any  tiling  more  than  a  mere  expectancy  at 
any  time  before  it  is  consummated  by  the  husband's  death.2  In 
neither  of  these  cases  does  the  marriage  alone  give  a  vested  right. 
It  gives  only  a  capacity  to  acquire  a  right.  The  same  remark 
may  be  made  regarding  the  husband's  expectant  interest  in  the 
after-acquired  personalty  of  the  wife :  it  is  subject  to  any  changes 
in  the  law  made  before  his  right  becomes  vested  by  the  acqui- 
sition.3 

Change  of  Remedies. 

Again  :  the  right  to  a  particular  remedy  is  not  a  vested  right.  This 
is  the  general  rule  ;  and  the  exceptions  are  of  those  peculiar  cases 
in  which  the  remedy  is  part  of  the  right  itself.4  As  a  general  rule 
every  State  has  complete  control  over  the  remedies  which  it  offers 
to  suitors  in  its  courts.5  It  may  abolish  one  class  of  courts  and 
create  another.     It  may  give  a  new  and  additional  remedy  for  a 

1  Hathorn  v.  Lyon,  2  Mich.  93 ;  Tong  v.  Marvin,  15  Mich.  60.  And  see  the 
cases  cited  in  the  next  note. 

2  Barbour  v.  Barbour,  46  Me.  9 ;  Lucas  v.  Sawyer,  17  Iowa,  517 ;  Noel  v. 
Ewing,  9  Ind.  57;  Moore  v.  Mayor,  &c,  of  New  York,  4  Sandf.  456,  and  8 
N.  Y.  110;  Pratt  v.  Tefft,  14  Mich.  191;  Reeve,  Dona.  Bel.  103,  note.  A 
doubt  as  to  this  doctrine  is  intimated  in  Dunn  v.  Sargeant,  101  Mass.  340. 

3  Westervelt  v.  Gregg,  12  N.  Y.  208 ;  Norris  v.  Beyea,  13  N.  Y.  273 ;  Kelly 
v.  McCarthy,  3  Bradf.  7.  And  see  Plumb  v.  Sawyer,  21  Conn.  351;  Clark  v. 
McCreary,  12  S.  &  M.  347  ;  Jackson  v.  Lyon,  9  Cow.  664 ;  ante,  287-292.  If 
however,  the  wife  has  a  right  to  personal  property  subject  to  a  contingency,  the 
husband's  contingent  interest  therein  cannot  be  taken  away  by  subsequent  legis- 
lation. Dunn  v.  Sargeant,  101  Mass.  336.  In  Sutton  v.  Asker,  66  N.  C.  172,  it 
was  decided  that  where  by  the  statute  the  woman's  right  of  dower  was  subject  to 
be  defeated  by  the  husband's  conveyance,  a  subsequent  statute  restoring  her 
common-law  rights  was  inoperative  as  to  all  existing  marriages. 

4  See  ante,  p.  290,  and  cases  cited.  The  giving  of  a  lien  by  statute  does  not 
confer  a  vested  right,  and  it  may  be  taken  away  by  a  repeal  of  the  statute. 
Watson  v.  N.  Y.  Central  R.  R.  Co.,  47  N.  Y.  157;  Woodbury  v.  Grimes,  1 
Col.  100. 

5  Rosier  v.  Hale,  10  Iowa,  470;  Smith  v.  Bryan,  34  111.  377;  Lord  v.  Chad- 
bourne,  42  Me.  429;  Rockwell  v.  Hubbell's  Adm'rs,  2  Doug.  (Mich.)  197; 
Cusic  v.  Douglas,  3  Kansas,  123 ;  Holloway  v.  Sherman,  12  Iowa,  282 ;  McCor- 
mick  v.  Rusch,  15  Iowa,  127. 

[418] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  861 

right  already  in  existence.1  And  it  may  abolish  old  reme- 
dies and  *  substitute  new.  If  a  statute  providing  a  remedy  [*  362] 
is  repealed  while  proceedings  are  pending,  such  proceed- 
ings will  be  thereby  determined,  unless  the  legislature  shall  other- 
wise provide  ; 2  and  if  it  be  amended  instead  of  repealed,  the 
judgment  pronounced  in  such  proceedings  must  be  according  to 
the  law  as  it  then  stands.3  And  any  rule  or  regulation  in  regard 
to  the  remedy  which  does  not,  under  pretence  of  modifying  or  regu- 
lating it,  take  away  or  impair  the  right  itself,  cannot  be  regarded 
as  beyond  the  proper  province  of  legislation.4 

But  a  vested  right  of  action  is  property  in  the  same  sense  in 
which  tangible  things  are  property,  and  is  equally  protected  against 
arbitrary  interference.  Where  it  springs  from  contract,  or  from 
the  principles  of  the  common  law,  it  is  not  competent  for  the  leg- 
islature to  take  it  away.5     And  every  man  is  entitled  to  a  certain 

1  Hope  v.  Jackson,  2  Yerg.  125.;  Foster  v.  Essex  Bank,  16  Mass.  245;  Pas- 
cball  e.  Whitsett,  11  Ala.  472;  Commonwealth  v.  Commissioners,  &c.,  6  Pick. 
508  ;  Whipple  v.  Farrar,  3  Mich.  436 ;  United  States  v.  Samperyac,  1  Hemp. 
118 ;  Sutherland  v.  De  Leon,  1  Texas,  250 ;  Anonymous,  2  Stew.  228.  See 
also  Lewis  v.  McElvain,  16  Ohio,  347 ;  Trustees,  &c.  v.  McCaughey,  2  Ohio, 
N.  s.  152;  Hepburn  v.  Curts,  7  Watts,  300;  Schenley  v.  Commonwealth,  36 
Penn.  St.  29 ;  Bacon  v.  Callender,  6  Mass.  303 ;  Brackett  v.  Norcross,  1  Greenl. 
92 ;  Ralston  v.  Lothain,  18  Ind.  303 ;  White  School  House  v.  Post,  31  Conn. 
241. 

2  Bank  of  Hamilton  v.  Dudley,  2  Pet.  492  ;  Ludlow  v.  Jackson,  3  Ohio,  553 ; 
Eaton  v.  United  States,  5  Cranch,  281 ;  Schooner  Rachel  v.  United  States,  6 
Cranch,  329. 

3  See  cases  cited  in  last  note.  Also,  Commonwealth  v.  Duane,  1  Binney, 
601 ;  United  States  v.  Passmore,  4  Dall.  372 ;  Patterson  v.  Philbrook,  9  Mass. 
151;  Commonwealth  v.  Marshall,  11  Pick.  350;  Commonwealth  v.  Kimball, 
21  Pick.  373;  Hartung  v.  People,  21  N.  Y.  99;  State  v.  Daley,  29  Conn.  272; 
Rathbun  v.  Wheeler,  29  Ind.  601 ;  State  v.  Norwood,  12  Md.  195 ;  Bristol  v. 
Supervisors,  &c,  20  Mich.  95;  Sumner  v.  Miller,  64  N.  C.  688. 

4  See  ante,  pp.  287-292. 

5  Dash  v.  Van  Kleek,  7  Johns.  477  ;  Streubel  v.  Milwaukee  and  M.  R.  R.  Co., 
12  Wis.  67  ;  Clark  v.  Clark,  10  N.  H.  386 ;  Westervelt  v.  Gregg,  12  N.  Y.  211 ; 
Thornton  v.  Turner,  11  Minn.  339;  Ward  v.  Brainerd,  1  Aik.  421;  Keith  v. 
Ware,  2  Vt.  174;  Lyman  v.  Mower,  ib.  517;  Kendall  v.  Dodge,  3  Vt.  360; 
State  v.  Auditor,  &c,  33  Mo.  287;  Griffin  v.  Wilcox,  21  Ind.  370;  Norris  v. 
Doniphan,  4  Met.  (Ky.)  385 ;  Terrill  v.  Rankin,  3  Bush,  453.  An  equitable 
title  to  lands,  of  which  the  legal  title  is  in  the  State,  is  under  the  same  constitu- 
tional protection  that  the  legal  title  would  be.  Wright  v.  Hawkins,  28  Texas, 
452.  Where  an  individual  is  allowed  to  recover  a  sum  as  a  penalty,  the  right 
may  be  taken  away  at  any  time  before  judgment.     Oriental  Bank  v.  Freeze, 

[419] 


*  362  CONSTITUTIONAL    LIMITATIONS.  [CH.  XI. 

remedy  in  the  law  for  all  wrongs  against  his  person  or  his  property, 
and  cannot  be  compelled  to  buy  justice,  or  to  submit  to  conditions 
not  imposed  upon  his  fellows  as  a  means  of  obtaining  it.1  Nor  can 
a  party  by  his  misconduct  so  forfeit  aright  that  it  may  be  taken 
from  him  without  judicial  proceedings  in  which  the  forfeiture  shall 
be  declared  in  due  form.  Forfeitures  of  rights  and  property  can- 
not be  adjudged  by  legislative  act,  and  confiscations  without  a 
judicial  hearing  after  due  notice  would  be  void  as  not  being  due 
process  of  law.2  Even  Congress,  it  has  been  held,  has  no  power  to 
protect  parties  assuming  to  act  under  the  authority  of  the  general 
government,   during  the  existence   of  a  civil  war,  by  depriving 

persons  illegally  arrested  by  them  of  all  redress  in  the 
[*  363]  courts.3   *  And  if  the  legislature  cannot  confiscate  property 

or  rights,  neither  can  it  authorize  individuals  to  assume  at 

6  Shep.  109  ;  Engle  v.  Schurtz,  1  Mich.  150 ;  Confiscation  Cases,  7  Wall.  454 ; 
Washburn  v.  Franklin,  35  Barb.  599;  Welch  v.  Wadsworth,  30  Conn.  149; 
O'Kelly  v.  Athens  Manuf.  Co.,  36  Geo.  51  ;  United  States  v.  Tynen,  11  Wall. 
88 ;  Chicago  &  Alton  R.R.  Co.  v.  Adler,  56  111.  350 ;  post,  383.  See  also 
Curtis  v.  Leavitt,  17  Barb.  309,  and  15  N.  Y.  9 ;  Coles  v.  Madison  County, 
Breese,  115;  Parmelee  v.  Lawrence,  48  111.  331;  jwst,  375-376. 

1  Thus,  a  person  cannot  be  precluded  by  test  oaths  from  maintaining  suits. 
McFarland  v.  Butler,  8  Minn.  116  ;  ante,  289,. note.     See  post,  368,  369,  note. 

2  Griffin  v.  Mixon,  38  Miss.  434.  See  next  note.  Also  Rison  v.  Farr,  24 
Ark.  161  ;  Hodgson  v.  Millward,  3  Grant's  Cas.  406.  But  no  constitutional 
principle  is  violated  by  a  statute  which  allows  judgment  to  be  entered  up  against 
a  defendant  who  has  been  served  with  process,  unless  within  a  certain  number  of 
days  he  files  an  affidavit  of  merits.     Hunt  v.  Lucas,  97  Mass.  404. 

3  Griffin  v.  Wilcox,  21  Ind.  370.  In  this  case  the  act  of  Congress  of  March 
3,  1863,  which  provided  "  that  any  order  of  the  president  or  under  his  authority, 
made  at  any  time  during  the  existence  of  the  present  rebellion,  shall  he  a  defence 
in  all  courts,  to  any  action  or  prosecution,  civil  or  criminal,  pending  or  to  be 
commenced,  for  any  search,  seizure,  arrest,  or  imprisonment,  made,  done,  or 
committed,  or  acts  omitted  to  be  done,  under  and  by  virtue  of  such  order,  or 
under  color  of  any  law  of  Congress,"- was  held  to  be  unconstitutional.  The  same 
decision  was  made  in  Johnson  v,  Jones,  44  III.  142.  It  was  said  in  the  first  of 
these  cases  that  "  this  act  was  passed  to  deprive  the  citizens  of  all  redress  for 
illegal  arrests  and  imprisonments  ;  it  was  not  needed  as  a  protection  for  making 
such  as  are  legal,  because  the  common  law  gives  ample  protection  for  making 
legal  arrests  and  imprisonments."  And  it  may  be  added  that  those  acts  which 
are  justified  by  military  or  martial  law  are  equally  legal  with  those  justified  by 
the  common  law.  So  in  Hubbard  v.  Brainerd,  35  Conn.  563,  it  was  decided  that 
Congress  could  not  take  away  a  vested  right  to  sue  for  and  recover  back  an 
illegal  tax  which  had  been  paid  under  protest  to  a  collector  of  the  national 
revenue.     See  also  Bryan  v.  Walker,  64  N.  C.  146.     Nor  can  the  right  to  have 

[420] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  363 

their  option  powers  of  police,  which  they  may  exercise  in  the  con- 
demnation and  sale  of  property  offending  against  their  regulations, 
or  for  the  satisfaction  of  their  charges  and  expenses  in  its  manage- 
ment and  control,  rendered  or  incurred  without  the  con- 
sent of  its  owners.1  And  a  statute  *  which  authorizes  a  [*  364] 
party  to  seize  the  property  of  another,  without  process  or 

a  void  tax  sale  set  aside  be  made  conditional  on  the  payment  of  the  illegal  tax. 
Wilson  v.  McKenna,  52  111.  44 ;  and  other  cases  cited,  jwst,  368,  369,  note. 
The  case  of  Norris  v.  Doniphan,  4  Met.  (Ky.)  385,  may  properly  be  cited 
in  this  connection.  It  was  there  held  that  the  act  of  Congress  of  July  17, 
1862,  "to  suppress  insurrection,  to  punish  treason  and  rebellion,  to  seize 
and  confiscate  the  property  of  rebels,  and  for  other  purposes,"  in  so  far  as 
it  undertook  to  authorize  the  confiscation  of  the  property  of  citizens  as  a  pun- 
ishment for  treason  and  other  crimes,  by  proceedings  in  rem  in  any  district  in 
which  the  property  might  be,  without  presentment  and  indictment  by  a  grand 
jury,  without  arrest  or  summons  of  the  owner,  and  upon  such  evidence  of  his 
guilt  only  as  would  be  proof  of  any  fact  in  admiralty  or  revenue  cases,  was 
unconstitutional  and  void,  and  therefore  that  Congress  had  no  power  to  prohibit 
the  State  Courts  from  giving  the  owners  of  property  seized  the  relief  they  would 
be  entitled  to  under  the  State  laws.  A  statute  which  makes  a  constitutional 
right  to  vote  depend  upon  an  impossible  condition  is  void.  Davies  v.  McKeeby, 
5  JSTev.  369.  See  further  State  v.  Staten,  6  Cold.  243 ;  Rison  v.  Farr,  24  Ark. 
161 ;  Hodgson  v.  Millward,  3  Grant,  406.  Where  no  express  power  of  removal 
is  conferred  on  the  executive,  he  cannot  declare  an  office  forfeited  for  mis- 
behavior; but  the  forfeiture  must  be  declared  in  judicial  proceedings.  Page  v. 
Hardin,  8  B.  Monr.  648;  State  v.  Pritchard,  Law  Reg.  Aug.  1873,  p.  514. 

1  The  log-driving  and  booming  corporations,  which  were  authorized  to  be 
formed  under  a  general  law  in  Michigan,  were  empowered,  whenever  logs  or  lum- 
ber were  put  into  navigable  streams  without  adequate  force  and  means  provided 
for  preventing  obstructions,  to  take  charge  of  the  same,  and  cause  it  to  be  run, 
driven,  boomed,  &c,  at  the  owner's  expense  ;  and  it  gave  them  a  lien  on  the  same 
to  satisfy  all  just  and  reasonable  charges,  with  power  to  sell  the  property  for 
those  charges  and  for  the  expenses  of  sale,  on  notice,  either  served  personally  on 
the  owner,  or  posted  as  therein  provided.  In  Ames  v.  Port  Huron  Log-Driving 
and  Booming  Co.,  11  Mich.  147,  it  was  held  that  the  power  which  this  law 
assumed  to  confer  was  in  the  nature  of  a  public  office;  and  Campbell,  J.,  says  : 
"It  is  difficult  to  perceive  by  what  process  a  public  office  can  be  obtained  or 
exercised  without  either  election  or  appointment.  The  powers  of  government  are 
parcelled  out  by  the  Constitution,  which  certainly  contemplates  some  official 
responsibility.  Every  officer  not  expressly  exempted  is  required  to  take  an  oath 
of  office  as  a  preliminary  to  discharging  his  duties.  It  is  absurd  to  suppose  that 
any  official  power  can  exist  in  any  person  by  his  own  assumption,  or  by  the 
employment  of  some  other  private  person  ;  and  still  more  so  to  recognize  in  such 
an  assumption  a  power  of  depriving  individuals  of  their  property.  And  it  is 
plain  that  the  exercise  of  such  a  power  is  an  act  in  its  nature  public,  and  not 
private.     The  case,  however,  involves  more  than  the  assumption  of  control.   The 

[421] 


*  364  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

warrant,  and  to  sell  it  without  notification  to  the  owner,  for  the 
punishment  of  a  private  trespass,  and  in  order  to  enforce  a  penalty 
against  the  owner,  can  find  no  justification  in  the  Constitution.1 

corporation,  or  rather  its  various  agents,  must  of  necessity  determine  when  the 
ease  arises  justifying  interference  ;  and  having  assumed  possession,  it  assesses  its 
own  charges ;  and  having  assessed  them,  proceeds  to  sell  the  property  seized  to 
pay  them,  with  the  added  expense  of  such  sale.  These  proceedings  are  all  ex 
parte,  and  are  all  proceedings  in  invitum.  Their  validity  must  therefore  be 
determined  by  the  rules  applicable  to  such  cases.  Except  in  those  cases  where 
proceedings  to  collect  the  public  revenue  may  stand  upon  a  peculiar  footing  of 
their  own,  it  is  an  inflexible  principle  of  constitutional  right  that  no  person  can 
legally  be  devested  of  his  property  without  remuneration,  or  against  his  will, 
unless  he  is  allowed  a  hearing  before  an  impartial  tribunal,  where  he  may  contest 
the  claim  set  up  against  him,  and  be  allowed  to  meet  it  on  the  law  and  the  facts. 
When  his  property  is  wanted  in  specie,  for  public  purposes,  there  are  methods 
assured  to  him  whereby  its  value  can  be  ascertained.  Where  a  debt  or  penalty 
or  forfeiture  may  be  6et  up  against  him,  the  determination  of  his  liability  becomes 
a  judicial  question ;  and  all  judicial  functions  are  required  by  the  Constitution  to 
be  exercised  by  courts  of  justice,  or  judicial  officers  regularly  chosen.  He  can 
only  be  reached  through  the  forms  of  law  upon  a  regular  hearing,  unless  he  has 
by  contract  referred  the  matter  to  another  mode  of  determination." 

1  A  statute  of  New  York  authorized  any  person  to  take  into  his  custody  and 
possession  any  animal  which  might  be  trespassing  upon  his  lands,  and  give  notice 
of  the  seizure  to  a  justice  or  commissioner  of  highways  of  the  town,  who  should 
proceed  to  sell  the  animal  after  posting  notice.  From  the  proceeds  of  the  sale, 
the  officer  was  to  retain  his  fees,  pay  the  person  taking  up  the  animal  fifty  cents, 
and  also  compensation  for  keeping  it,  and  the  balance  to  the  owner,  if  he  should 
claim  it  within  a  year.  In  Rockwell  v.  Nearing,  So  N.  Y.  307,  808,  Porter,  J., 
says  of  this  statute :  "  The  legislature  has  no  authority  either  to  deprive  the  cit- 
izen of  his  property  for  other  than  public  purposes,  or  to  authorize  its  seizure 
without  process  or  warrant,  by  persons  other  than  the  owner,  for  the  mere  pun- 
ishment of  a  private  trespass.  So  far  as  the  act  in  question  relates  to  animals 
trespassing  on  the  premises  of  the  captor,  the  proceedings  it  authorizes  have  not 
even  the  mocking  semblance  of  due  process  of  law.  The  seizure  may  be  pri- 
vately made  ;  the  party  making  it  is  permitted  to  conceal  the  property  on  his  own 
premises ;  he  is  protected,  though  the  trespass  was  due  to  his  own  connivance  or 
neglect;  he  is  permitted  to  take  what  does  not  belong  to  him  without  notice  to 
the  owner,  though  that  owner  is  near  and  known  ;  he  is  allowed  to  sell,  through 
the  intervention  of  an  officer,  and  without  even  the  form  of  judicial  proceedings, 
an  animal  in  which  he  has  no  interest  by  way  either  of  title,  mortgage,  pledge,  or 
lien ;  and  all  to  the  end  that  he  may  receive  compensation  for  detaining  it  with- 
out the  consent  of  the  owner,  and  a  fee  of  fifty  cents  for  his  services  as  an 
informer.  He  levies  without  process,  condemns  without  proof,  and  sells  without 
execution."  And  he  distinguishes  these  proceedings  from  those  in  distraining 
cattle,  damage  feasant,  which  are  always  remedial,  and  under  which  the  party  was 
authorized  to  detain  the  property  in  pledge  for  the  payment  of  his  damages.    See 

[422] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  364 


Limitation  Laivs. 

Notwithstanding  the  protection  which  the  law  gives  to  vested 
rights,  it  is  possible  for  a  party  to  debar  himself  of  the  right  to 
assert  the  same  in  the  courts,  by  his  own  negligence  or 
laches.  *If  one  who  is  dispossessed  "be  negligent  for  a  [*365] 
long  and  unreasonable  time,  the  law  refuses  afterwards  to 
lend  him  any  assistance  to  recover  the  possession  merely,  both  to 
punish  his  neglect  (nam  leges  vigilantibus,  non  dormientibus  sub- 
veniunf),  and  also  because  it  is  presumed  that  the  supposed 
wrong-doer  has  in  such  a  length  of  time  procured  a  legal  title, 
otherwise  he  would  sooner  have  been  sued."  x  Statutes  of  limita- 
tion are  passed  which  fix  upon  a  reasonable  time  within  which  a 
party  is  permitted  to  bring  suit  for  the  recovery  of  his  rights,  and 
which,  on  failure  to  do  so,  establish  a  legal  presumption  against 
him  that  he  has  no  rights  in  the  premises.  Such  a  statute  is  a 
statute  of  repose.2  Every  government  is  under  obligation  to  its 
citizens  to  afford  them  all  needful  legal  remedies  ; 3  but  it  is  not 
bound  to  keep  its  courts  open  indefinitely  for  one  who  neglects  or 
refuses  to  apply  for  redress  until  it  may  fairly  be  presumed  that 
the  means  by  which  the  other  party  might  disprove  his  claim  are 
lost  in  the  lapse  of  time.4 

When  the  period  prescribed  by  statute  has  once  run,  so  as  to  cut 

also  opinion  by  Morgan,  J.,  in  the  same  case,  pp.  314-317,  and  the  opinions  of 
the  several  judges  in  Wynehamer  v.  People,  13  N.  Y.  395,  419,  434,  and  468. 
Compare  Campbell  v.  Evans,  45  N.  Y.  356 ;  Cook  v.  Gregg,  46  N.  Y.  439. 

1  3  Bl.  Com.  188;  Broom,  Legal  Maxims,  857. 

2  Such  a  statute  was  formerly  construed  with  strictness,  and  the  defence  under 
it  was  looked  upon  as  unconscionable,  and  not  favored ;  but  Mr.  Justice  Story 
has  well  said,  it  has  often  been  matter  of  regret  in  modern  times  that  the  deci- 
sions had  not  proceeded  upon  principles  better  adapted  to  carry  into  effect  the 
real  objects  of  the  statute ;  that  instead  of  being  viewed  in  an  unfavorable  light 
as  an  unjust  and  discreditable  defence,  it  had  not  received  such  support  as  would 
have  made  it  what  it  was  intended  to  be,  emphatically  a  statute  of  repose.  It  is 
a  wise  and  beneficial  law,  not  designed  merely  to  raise  a  presumption  of  pay- 
ment of  a  just  debt  from  lapse  of  time,  but  to  afford  security  against  State 
demands  after  the  true  state  of  the  transaction  may  have  been  forgotten,  or  be 
incapable  of  explanation  by  reason  of  the  death  or  removal  of  witnesses.  Bell 
v.  Morrison,  1  Pet.  360.     See  Leffingwell  v.  Warren,^  Black,  599. 

3  Call  v.  Hagger,  8  Mass.  430. 

*  Beal  v.  Nason,  2  Shep.  344;  Bell  v.  Morrison,  1  Pet.  360;  Stearns  v.  Git- 
tings,  23  111.  387 ;  State  v.  Jones,  21  Md.  437. 

[423] 


*  365  CONSTITUTIONAL   LIMITATIONS.  [CH.  XL 

off  the  remedy  which  one  might  have  had  for  the  recovery  of 
property  in  the  possession  of  another,  the  title  to  the  property, 
irrespective  of  the  original  right,  is  regarded  in  the  law  as  vested 
in  the  possessor,  who  is  entitled  to  the  same  protection  in  respect 
to  it  which  the  owner  is  entitled  to  in  other  cases.  A  subsequent 
repeal  of  the  limitation  law  could  not  be  given  a  retroactive  effect, 
so  as  to  disturb  this  title.1  It  is  vested  as  completely  and  per- 
fectly, and  is  as  safe  from  legislative  interference  as  it  would  have 
been  if  it  had  been  perfected  in  the  owner  by  grant,  or  any  species 
of  assurance.2 

All  limitation  laws,  however,  must  proceed  on  the  theory  that 
the  party,  by  lapse  of  time  and  omissions  on  his  part,  has  forfeited 
his  right  to  assert  his  title  in  the  law.3  Where  they  relate 
[*  366]  to  *  property,  it  seems  not  to  be  essential  that  the  adverse 
claimant  should  be  in  actual  possession  ; 4  but  one  who  is 
himself  in  the  legal  enjoyment  of  his  property  cannot  have  his 
rights  therein  forfeited  to  another,  for  failure  to  bring  suit  against 
that  other  within  a  time  specified  to  test  the  validity  of  a  claim 
which  the  latter  asserts,  but  takes  no  steps  to  enforce.  It  has 
consequently  been  held  that  a  statute  which,  after  a  lapse  of  five 
years,  makes  a  recorded  deed  purporting  to  be  executed  under  a 
statutory  power  conclusive  evidence  of  a  good  title,  could  not  be 

1  Brent  v.  Chapman,  5  Cranch,  358 ;  Newby's  AdinYs  v.  Blakey,  3  H.  &  M. 
57  ;  Parish  v.  Eager,  15  Wis.  532 ;  Baggs's  Appeal,  43  Pemi.  St.  512;  Leffing- 
well  v.  Warren,  2  Black,  599.     See  cases  cited  in  next  note. 

2  See  Knox  v.  Cleveland,  13  Wis.  249 ;  Sprecker  v.  Wakelee,  11  Wis.  432 ; 
Pleasants  v.  Rohrer,  17  Wis.  557  ;  Moor  v.  Lisce,  29  Penn.  St.  262  ;  Morton  v. 
Sharkey,  McCahon  (Kan.),  113;  McKinney  v.  Springer,  8Blackf.  506;  Stippw. 
Brown,  2  Ind.  647  ;  Wires  v.  Farr,  25  Vt.  41 ;  Davis  v.  Minor,  1  How.  (Miss.) 
183;  Holden  v.  James,  11  Mass.  396;  Lewis  v.  Webb,  3  Greenl.  326;  Woart  v. 
Winnick,  3N.  H.  473  ;  Martin  v.  Martin,  35  Ala.  560  ;  Briggs  v.  Hubbard,  19  Vt. 
86 ;  Thompson  v.  Caldwell,  3  Lit.  137;  Wright  v.  Oakley,  5  Met.  400;  Couch  v. 
McKee,  1  Eng.  495;  Atkinson  v.  Dunlap,  50  Me.  Ill;  Girdner  v.  Stephens,  1 
Heis.  280 ;  s.  c.  2  Am.  Rep.  700  ;  Bradford  v.  Shine's  Adm'r,  13  Fla.  393 ;  s.  c. 
7  Am.  Rep.  239.  But  the  statute  of  limitations  may  be  suspended  for  a  period 
as  to  demands  not  already  barred.  Wardlavv  v.  Buzzard,  15  Rich.  158;  Caper- 
ton  v.  Martin,  4  W.  Va.  138;  s.  c.  6  Am.  Rep.  270;  Bender  v.  Crawford,  33 
Tex.  745 ;  s.  c.  7  Am.  Rep.  270: 

3  Stearns  v.  Gittings,  23  111.  389;  per  Walker,  J.,  Sturgis  v.  Crowninshield, 
4  Wheat.  207,  per  Marshall,  Ch.  J. ;  Pearce  v.  Patton,  7  B.  Monr.  162;  Griffin 
v.  McKenzie,  7  Geo.  163;  Coleman  v.  Holmes,  44  Ala.  125. 

*  Stearns  v.  Gittings,  23  111.  389 ;  Hill  v.  Kricke,  11  Wis.  442. 

[424] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OP  THE  LAND."  *  366 

valid  as  a  limitation  law  against  the  original  owner  in  possession  of 
the  land.  Limitation  laws  cannot  compel  a  resort  to  legal  pro- 
ceedings by  one  who  is  already  in  the  complete  enjoyment  of  all 
he  claims.1 

All  statutes  of  limitation,  also,  must  proceed  on  the  idea  that 
the  party  has  full  opportunity  afforded  him  to  try  his  right  in  the 
courts.  A  statute  could  not  bar  the  existing  right  of  claimants 
without  affording  this  opportunity  :  if  it  should  attempt  to  do  so,  it 
would  be  not  a  statute  of  limitations,  but  an  unlawful  attempt  to 
extinguish  rights  arbitrarily,  whatever  might  be  the  purport  of  its 
provisions.  It  is  essential  that  such  statutes  allow  a  reasonable 
time  after  they  take  effect  for  the  commencement  of  suits  upon 
existing  causes  of  action  ; 2   though  what  shall  be  considered  a 

1  Groesbeck  v.  Seeley,  13  Mich.  329.  In  Case  v.  Dean,  16  Mich.  12,  it  was 
held  that  this  statute  could  not  be  enforced  as  a  limitation  law  in  favor  of  the 
party  in  possession,  inasmuch  as  it  did  not  proceed  on  the  idea  of  limiting  the 
time  for  bringing  suit,  but  by  a  conclusive  rule  of  evidence  sought  to  pass  over 
the  property  to  the  claimant  under  the  statutory  sale  in  all  cases,  irrespective 
of  possession.  See  also  Baker  v.  Kelly,  11  Minn.  480.  The  case  of  Leffingwell 
v.  Warren,  2  Black,  599,  is  contra.  That  case  follows  Wisconsin  decisions.  In  the 
leading  case  of  Hill  v.  Kricke,  11  Wis.  412,  the  holder  of  the  original  title  was  not 
in  possession ;  and  what  was  decided  was  that  it  was  not  necessary  for  the  holder 
of  the  tax  title  to  be  in  possession  in  order  to  claim  the  benefit  of  the  statute ; 
ejectment  against  a  claimant  being  permitted  by  law  when  the  lands  were  unoc- 
cupied. This  circumstance  of  possession  or  want  of  possession  in  the  person 
whose  right  is  to  be  extinguished  seems  to  us  of  vital  importance.  How  can  a 
man  justly  be  held  guilty  of  laches  in  not  asserting  claims  to  property,  when  he 
already  possesses  and  enjoys  the  property  ?  The  old  maxim  is,  "  That  which  was 
originally  void  cannot  by  mere  lapse  of  time  be  made  valid  ; "  and  if  a  void  claim 
by  force  of  an  act  of  limitation  can  ripen  into  a  conclusive  title  as  against  the 
owner  in  possession,  the  policy  underlying  that  species  of  legislation  must  be 
something  beyond  what  has  been  generally  supposed. 

2  So  held  of  a  statute  which  took  effect  some  months  after  its  passage,  and 
which,  in  its  operation  upon  certain  classes  of  cases,  would  have  extinguished 
adverse  claims  unless  asserted  by  suit  before  the  act  took  effect.  Price  v.  Hop- 
kin,  13  Mich.  318.  See  also  Call  v.  Hagger,  8  Mass.  423;  Proprietors,  &c.  v. 
Laboree,  2  Greenl.  294  ;  Society,  &c.  v.  Wheeler,  2  Gall.  141 ;  Blackford  v. 
Peltier,  1  Blackf.  36  ;  Thornton  v.  Turner,  11  Minn.  339  ;  Osborn  v.  Jaines,  17 
Wis.  573;  Morton  v.  Sharkey,  McCahon  (Kan.),  113;  Berry  v.  Ramsdell,  4 
Met.  (Ky.)  296.  In  the  last  case  cited  it  was  held  that  a  statute  which  only 
allowed  thirty  days  in  which  to  bring  action  on  an  existing  demand  was  unreason- 
able and  void.  And  see  what  is  said  in  Auld  v.  Butcher,  2  Kansas,  135.  But  a 
statute  giving  a  new  remedy  against  a  railroad  company  for  an  injury,  may  limit 
to  a  short  time,  e.g.,  six  months,  the  time  for  bringing  suit.  O'Bannon  v.  Louis- 
ville, &c,  R.  R.  Co.,  8  Bush,  348. 

[425] 


*  366  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

reasonable  time  must  be  settled  by  the  judgment  of  the 
[*  367]    legislature,  into  the  wisdom  of  *  whose  decision  in  estab- 
lishing the  period  of  legal  bar  it  does  not  pertain  to  the 
jurisdiction  of  the  courts  to  inquire.1 

Alterations  in  the  Rules  of  Evidence. 

It  must  also  be  evident  that  a  right  to  have  one's  controversies 
determined  by  existing  rules  of  evidence  is  not  a  vested  right.  These 
rules  pertain  to  the  remedies  which  the  State  provides  for  its 
citizens  ;  and  generally  in  legal  contemplation  they  neither  enter 
into  and  constitute  a  part  of  any  contract,  nor  can  be  regarded  as 
being  of  the  essence  of  any  right  which  a  party  may  seek  to 
enforce.  Like  other  rules  affecting  the  remedy,  they  must  there- 
fore at  all  times  be  subject  to  modification  and  control  by  the 
legislature ; 2  and  the  changes  which  are  enacted  may  lawfully  be 
made  applicable  to  existing  causes  of  action,  even  in  those  States 
in  which  retrospective  laws  are  forbidden.  For  the  law  as  changed 
would  only  prescribe  rules  for  presenting  the  evidence  in  legal 
controversies  in  the  future  ;  and  it  could  not  therefore  be  called 
retrospective  even  though  some  of  the  controversies  upon  which  it 
may  act  were  in  progress  before.  It  has  accordingly  been  held  in 
New  Hampshire  that  a  statute  which  removed  the  discmalification 
of  interest,  and  allowed  parties  to  suits  to  testify,  might  lawfully 
apply  to  existing  causes  of  action.3     So  may  a  statute  which  mod- 

1  Stearns  v.  Gittings,  23  111.  387  ;  Call  v.  Hagger,  8  Mass.  430  ;  Smith  v. 
Morrison,  22  Pick.  430  ;  Price  v.  Hopkin,  13  Mich.  318  ;  De  Moss  v.  Newton, 
31  Ind.  219.     But  see  Berry  v.  Ramsdell,  cited  in  preceding  note. 

It  may  be  remarked  here,  that  statutes  of  limitation  do  not  apply  to  the  State 
unless  they  so  provide  expressly.  Gibson  v.  Choteau,  13  Wall.  92.  And  State 
limitation  laws  do  not  apply  to  the  United  States.  United  States  v.  Hoar,  2 
Mas.  311  ;  People  v.  Gilbert,  18  Johns.  228.  And  it  has  been  held  that  the 
right  to  maintain  a  nuisance  cannot  be  acquired  under  the  statute.  State  v. 
Franklin  Falls  Co.,  49  N.  H.  240. 

2  Kendall  v.  Kingston,  5  Mass.  533  ;  Ogden  v.  Saunders,  12  Wheat.  349,  per 
Marshall,  Ch.  J.  ;  Fales  v.  Wadsworth,  23  Me.  533  ;  Karney  v.  Paisley,  13  Iowa, 
89  ;  Commonwealth  v.  Williams,  6  Gray,  1  ;  Hickox  v.  Tallman,  38  Barb.  G08  ; 
Webb  v.  Den,  17  How.  576  ;  Pratt  v.  Jones,  25  Vt.  303.  See  ante,  p.  288  and 
note. 

3  Rich  v.  Flanders,  39  N.  H.  323.  A  very  full  and  satisfactory  examination  of 
the  whole  subject  will  be  found  in  this  case.  To  the  same  effect  is  Southwick  v. 
Southwick,  49  N.  Y.  510. 

[426] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  367 

ifies  the  common-law  rule  excluding  parol  evidence  to  vary  the 
terms  of  a  written  contract ; 1  and  a  statute  making  the  protest  of 
a  promissory  note  evidence  of  the  facts  therein  stated.2  These  and 
the  like  cases  will  sufficiently  illustrate  the  general  rule,  that  the 
whole  subject  is  under  the  control  of  the  legislature,  which  pre- 
scribes such  rules  for  the  trial  and  determination  as  well  of  exist- 
ing as  of  future  rights  and  controversies  as  in  its  judgment  will 
most  completely  subserve  the  ends  of  justice.3 

*  A  strong  instance  in  illustration  of  legislative  control  [*  368] 
over  evidence  will  be  found  in  the  laws  of  some  of  the  States 
in  regard  to  conveyances  of  lands  upon  sales  to  satisfy  delinquent 
taxes.  Independent  of  special  statutory  rule  on  the  subject,  such 
conveyances  would  not  be  evidence  of  title.  They  are  executed 
under  a  statutory  power;  and  it  devolves  upon  the  claimant  under 
them  to  show  that  the  successive  steps  which  under  the  statute  lead 
to  such  conveyance  have  been  taken.  But  it  cannot  be  doubted  that 
this  rule  may  be  so  changed  as  to  make  a  tax  deed  prima  facie 
evidence  that  all  the  proceedings  have  been  regular,  and  that  the 
purchaser  has  acquired  under  them  a  complete  title.4  The  burden 
of  proof  is  thereby  changed  from  one  party  to  the  other  ;  the  legal 
presumption  which  the  statute  creates  in  favor  of  the  purchaser 
being  sufficient,  in  connection  with  the  deed,  to  establish  his  case, 
unless  it  is  overcome  by  countervailing  testimony.  Statutes  making 
defective  records  evidence  of  valid  conveyances  are  of  a  similar 
nature  ;  and  these  usually,  perhaps  always,  have  reference  to 
records  before  made,  and  provide  for  making  them  competent 
evidence  where  before  they  were  merely  void.5  But  they  devest  no 
title,  and  are  not  even  retrospective  in  character.  They  merely 
establish  what  the  legislature  regards  as  a  reasonable  and  just  rule 

1  Gibbs  v.  Gale,  7  Md.  76. 

2  Fales  v.  Wadsworth,  23  Me.  553. 

3  Per  Marshall,  Ch.  J.,  in  Ogden  v.  Saunders,  12  Wheat.  249  ;  Webb  v. 
Den,  17  How.  577  ;  Delaplaine  v.  Cook,  7  Wis.  54  ;  Kendall  v.  Kingston,  5 
Mass.  534  ;  Fowler  v.  Chatterton,  6  Bing.  258. 

4  Hand  v.  Ballon,  12  N.Y.  543;  Forbes  v.  Halsey,  26  N.  Y.  53;  Delaplaine 
v.  Cook,  7  Wis.  54 ;  Allen  v.  Armstrong,  16  Iowa,  508 ;  Adams  v.  Beale,  19 
Iowa,  61  ;  Amberg  v.  Rogers,  9  Mich.  332  ;  Lumsden  v.  Cross,  10  Wis.  289  ; 
Lacey  v.  Davis,  4  Mich.  140;  Wright  v.  Dunham,  13  Michigan,  414;  Abbott  v. 
Lindenbower,  42  Mo.  162  ;  8.C.  46  Mo.  291.  The  rule  once  established  may  be 
abolished,  even  as  to  existing  deeds.     Hickox  v.  Tallman,  38  Barb.  608. 

5  See  Webb  v.  Den,  17  How.  577. 

[427] 


*  368  CONSTITUTIONAL   LIMITATIONS.  [CH.  XL 

for  the  presentation  by  the  parties  of  their  rights  before  the  courts 
in  the  future. 

But  there  are  fixed  bounds  to  the  power  of  the  legislature  over 
this  subject  which  cannot  be  exceeded.  As  to  what  shall  be  evi- 
dence, and  which  party  shall  assume  the  burden  of  proof  in  civil 
cases,  its  authority  is  practically  unrestricted,  so  long  as  its  regu- 
lations are  impartial  and  uniform  ;  but  it  has  no  power  to  establish 
rules  which,  under  pretence  of  regulating  the  presentation  of  evi- 
dence, go  so  far  as  altogether  to  preclude  a  party  from  exhibiting 
his  rights.  Except  in  those  cases  which  fall  within  the  familiar 
doctrine  of  estoppel  at  the  common  law,  or  other  cases  resting 
upon  the  like  reasons,  it  would  not,  we  apprehend,  be  in  the  power 
of  the  legislature  to  declare  that  a  particular  item  of  evidence 
should  preclude  a  party  from  establishing  his  rights  in  opposition 

to  it.  In  judicial  investigations  the  law  of  the  land 
[*  369 J  requires  an  opportunity  for  a  trial ; 1  and  there  *  can  be  no 

trial  if  only  one  party  is  suffered  to  produce  his  proofs. 
The  most  formal  conveyance  may  be  a  fraud  or  a  forgery  ;  public 
officers  may  connive  with  rogues  to  rob  the  citizen  of  his  property  ; 
witnesses  may  testify  or  officers  certify  falsely,  and  records  may  be 
collusively  manufactured  for  dishonest  purposes  ;  and  that  legisla- 
tion which  would  preclude  the  fraud  or  wrong  being  shown,  and 
deprive  the  party  wronged  of  all  remedy,  lias  no  justification  in 
the  principles  of  natural  justice  or  of  constitutional  law.  A  statute, 
therefore,  which  should  make  a  tax-deed  conclusive  evidence  of  a 
complete  title,  and  preclude  the  owner  of  the  original  title  from 
showing  its  invalidity,  would  be  void,  because  being  not  a  law  reg- 
ulating evidence,  but  an  unconstitutional  confiscation  of  property.2 

1  Tift  v.  Griffin,  5  Geo.  185 ;  Lenz  v.  Charlton,  23  Wis  482 ;  Conway  v. 
Cable,  37  111.  89 ;  ante,  362,  note ;  post,  382-83  and  notes. 

2  Groesbeck  v.  Seeley,  13  Mich.  329 ;  Case  v.  Dean,  16  Mich.  13 ;  White  v. 
Flynn,  23  Ind.  40  ;  Corbin  v.  Hill,  21  Iowa,  70 ;  Abbott  v.  Lindenbower,  42  Mo. 
162  ;  s.  c.  46  Mo.  291.  And  see  the  well-reasoned  case  of  MeCready  v.  Sexton, 
29  Iowa,  356.  Also,  Wright  v.  Cradlebaugh,  3  Nev.  849.  As  to  how  far  the 
legislature  may  make  the  tax  deed  conclusive  evidence  that  mere  irregularities 
have  not  intervened  in  the  proceedings,  see  Smith  v.  Cleveland,  17  Wis.  556; 
Allen  v.  Armstrong,  16  Iowa,  508.  Undoubtedly  the  legislature  may  dispense 
with  mere  matters  of  form  in  the  proceedings  as  well  after  tbey  have  taken  place 
as  before ;  but  this  is  quite  a  different  thing  from  making  tax  deeds  conclusive 
on  points  material  to  the  interest  of  the  property  owner.  See,  further,  Wantlan 
v.  White,  19  Ind.  470 ;  People  v.  Mitchell,  45  Barb.  212 ;  MeCready  v.  Sexton, 

[428] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  369 

And  a  statute  which  should  make  the  certificate  or  opinion  of  an 
officer  conclusive  evidence  of  the  illegality  of  an  existing  contract 
would  be  equally  nugatory  ; 1  though  perhaps  if  parties  should 
enter  into  a  contract  in  view  of  such  a  statute  then  existing,  its 
provisions  might  properly  be  regarded  as  assented  to  and  incorpo- 
rated in  their  contract,  and  therefore  binding  upon  them.2 

Retrospective  Laws. 

Regarding  the  circumstances  under  which  a  man  may  be  said  to 
have  a  vested  right  to  a  defence  against  a  demand  made  by  another, 
it  is  somewhat  difficult  to  lay  down  a  comprehensive  rule  which 
the  authorities  wiH  justify.  It  is  certain  that  he  who  has  satisfied 
a  demand  cannot  have  it  revived  against  him,  and  he  who  has 
become  released  from  a  demand  by  the  operation  of  the  statute, 
of  limitations  is  equally  protected.3     In  both  cases  the  demand  is 

supra.  It  is  not  competent  for  the  legislature  to  compel  an  owner  of  land  to 
redeem  it  from  a  void  tax  sale  as  a  condition  on  which  he  shall  be  allowed  to 
assert  his  title  against  it.  Conway  v.  Cable,  37  111.  82 ;  Hart  v.  Henderson,  17 
Mich.  218;  Wilson  v.  McKenna,  52  111.  44;  Reed  v.  Tyler,  56  111.  292;  Dean  v. 
Borchsenius,  30  Wis.  236.  But  it  seems  that  if  the  tax  purchaser  has  paid  taxes 
and  made  improvements,  the  payment  for  these  may  be  made  a  condition  prece- 
dent to  a  suit  in  ejectment  against  him.  Pope  v.  Macon,  23  Ark.  644.  The  case 
of  Wright  v.  Cradlebaugh,  3  Nev.  349,  is  valuable  in  this  connection.  "  We 
apprehend,"  says  Beatty,  Ch.  J.,  "  that  it  is  beyond  the  power  of  the  legislature 
to  restrain  a  defendant  in  any  suit  from  setting  up  a  good  defence  to  an  action 
against  him.  The  legislature  could  not  directly  take  the  property  of  A.  to  pay 
the  taxes  of  B.  Neither  can  it  indirectly  do  so  by  depriving  A.  of  the  right  of 
setting  up  in  his  answer  that  his  separate  property  has  been  jointly  assessed  with 
that  of  B.,  and  asserting  his  right  to  pay  his  own  taxes  without  being  encumbered 
with  those  of  B.  .  .  .  Due  process  of  law  not  only  requires  that  a  party  shall 
be  properly  brought  into  court,  but  that  he  shall  have  the  opportunity  when  in 
court  to  establish  any  fact  which,  according  to  the  usages  of  the  common  law 
or  the  provisions  of  the  Constitution,  would  be  a  protection  to  him  or  his  prop- 
erty."    See  Taylor  v.  Miles,  5  Kansas,  498 ;  s.  c.  7  Am.  Rep.  558. 

1  Young  v.  Beardsley,  11  Paige,  93.  An  act  to  authorize  persons  whose  sheep 
are  killed  by  dogs,  to  present  their  claim  to  the  selectmen  of  the,  town  for  allowance 
and  payment  by  the  town,  and  giving  the  town  after  payment  an  action  against 
the  owner  of  the  dog  for  the  amount  so  paid,  is  void,  as  taking  away  trial  by 
jury,  and  as  authorizing  the  selectmen  to  pass  upon  one's  rights  without  giving 
him  an  opportunity  to  be  heard.  East  Kingston  v.  Towle,  48  N.  H.  57 ;  s.  c. 
2  Am.  Rep.  174. 

2  See  post,  p.  403,  note. 

3  Ante,  p.  365,  note  5,  and  cases  cited. 

[429] 


*  869  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

gone,  and  to  restore  it  would  be  to  create  a  new  contract  for  the 
parties,  —  a  thing  quite  beyond  the  power  of  legislation.  So  he 
who  was  never  bound,  either  legally  or  equitably,  cannot  have  a 
demand  created  against  him  by  mere  legislative  enactment.1  But 
there  are  many  cases  in  which,  by  existing  laws,  defences  based 
upon  mere  informalities  are  allowed  in  suits  upon  contracts,  or  in 
respect  to  legal  proceedings,  in  some  of  which  a  regard  to  sub- 
stantial justice  would  warrant  the  legislature  in  interfering  to  take 

away  the  defence  if  it  possesses  the  power  to  do  so. 
[*  370]  *  In  regard  to  these  cases,  we  think  investigation  of  the 
authorities  will  show  that  a  party  has  no  vested  right 
in  a  defence  based  upon  an  informality  not  affecting  his  substantial 
equities.  And  this  brings  us  to  a  particular  examination  of  a  class 
of  statutes  which  is  constantly  coming  under  the  consideration  of 
the  courts,  and  which  are  known  as  retrospective  laws,  by  reason 
of  their  reaching  back  to  and  giving  some  different  legal  effect  to 
some  previous  transaction  to  that  which  it  had  under  the  law  when 
it  took  place. 

There  are  numerous  cases  which  hold  that  retrospective  laws  are 
not  obnoxious  to  constitutional  objection,  while  in  others  they  have 
been  held  to  be  void.  The  different  decisions  have  been  based 
upon  diversities  in  the  facts  which  make  different  principles  appli- 
cable. There  is  no  doubt  of  the  right  of  the  legislature  to  pass 
statutes  which  reach  back  to  and  change  or  modify  the  effect  of 
prior  transactions,  provided  retrospective  laws  are  not  forbidden, 
eo  nomine  by  the  State  constitution,  and  provided  further  that  no 
other  objection  exists  to  them  than  their  retrospective  character.2 
Nevertheless  legislation  of  this  character  is  exceedingly  liable  to 
abuse  ;  and  it  is  a  sound  rule  of  construction  that  a  statute  should 
have  a  prospective  operation  only,  unless  its  terms  show  clearly  a 
legislative  intention  that  it  should  operate  retrospectively.3     And 

1  In  Medford  v.  Learned,  16  Mass.  215,  it  was  held  that  where  a  pauper  had 
received  support  from  the  parish,  to  which  by  law  he  was  entitled,  a  subsequent 
legislative  act  could  not  make  him  liable  by  suit  to  refund  the  cost  of  the  sup- 
port. This  case  was  approved  and  followed  in  People  v.  Supervisors  of  Columbia, 
43  N.  Y.  135.     See  ante,  p.  362,  and  note. 

*  Thornton  v.  McGrath,  1  Duvall,  349  ;  State  v.  Squires,  26  Iowa,  340 ;  Beach 
v.  Walker,  6  Conn.  197 ;  Scheuley  v.  Commonwealth,  36  Penn.  St.  57. 

3  Dash  v.  Vankleek,  7  Johns.  477  ;  Norris  v.  Beyea,  13  N.  Y.  273  ;  Plumb  v. 
Sawyer,  21  Conn.  351 ;  Whitman  v.  Hapgood,  13  Mass.  464 ;  Medford  v.  Learned, 
16  Mass.  215;  Ray  v.  Gage,  36  Barb.  447;  Watkins  v.  Haight,  18  Johns.  138; 
[430] 


CH.  XI.]    PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OP  THE  LAND."    *  370 

some  of  the  States  have  deemed  it  just  and  wise  to  forbid  such 
laws  altogether  by  their  constitutions.1 

*  A  retrospective  statute  curing  defects  in  legal  pro-  [*  371] 
ceedings  where  they  are  in  their  nature  irregularities  only, 
and  do  not  extend  to  matters  of  jurisdiction,  is  not  void  on  consti- 
tutional grounds,  unless  expressly  forbidden.  Of  this  class  are 
the  statutes  to  cure  irregularities  in  the  assessment  of  property 
for  taxation  and  the  levy  of  taxes  thereon ; 2  irregularities  in  the 

Garrett  v.  Beaumont,  24  Miss.  377 ;  Briggs  v.  Hubbard,  19  Vt.  86 ;  Perkins  v. 
Perkins,  7  Conn.  558 ;  Hastings  v.  Lane,  3  Shep.  131 ;  Guard  v .  Rowan,  2  Scam. 
499  ;  Sayre  v.  Wisner,  8  Wend.  661 ;  Quackenbos  v.  Danks,  1  Denio,  128 ;  Gar- 
rett v.  Doe,  1  Scam.  335 ;  Thompson  v.  Alexander,  11  111.  54;  State  v.  Barbee, 
3  Ind.  258  ;  Allbyer  v.  State,  10  Ohio,  n.  s.  588  ;  State  v.  Atwood,  11  Wis.  422; 
Bartruff  v.  Remey,  15  Iowa,  257 ;  Tyson  v.  School  Directors,  51  Penn.  St.  9 ; 
Colony  v.  Dublin,  32  N.  H.  432  ;  Torrey  v.  Corliss,  32  Me.  33  ;  Atkinson  v.  Dun- 
lop,  50  Me.  Ill;  Ex  parte  Graham,  13  Rich.  277;  Hubbard  v.  Brainerd,  35 
Conn.  576 ;  Conway  v.  Cable,  37  111.  82 ;  Clark  v.  Baltimore,  29  Md.  277 ; 
Williams  v.  Johnson,  30  Md.  500;  State  v.  The  Auditor,  41  Mo.  25;  Merwin  v. 
Bullard,  66  N.  C.  398 ;  Haley  v.  Philadelphia,  68  Penn.  St.  137 ;  s.  c.  8  Am. 
Rep.  153 ;  Bennett  v.  Fisher,  26  Iowa,  497. 

1  See  the  provision  in  the  Constitution  of  New  Hampshire,  considered  in 
Woart  v.  Winnick,  3  N.  H.  481 ;  Clark  v.  Clark,  10  N.  H.  386  ;  Willard  v.  Har- 
vey, 24  N.  II.  351  ;  and  Rich  v.  Flanders,  39  N.  H.  304 ;  and  that  in  the  Consti- 
tution of  Texas,  in  De  Cordova  v.  Galveston,  4  Texas,  470.  The  Constitution 
of  Ohio  provides  that  "  the  General  Assembly  shall  have  no  power  to  pass  retro- 
active laws,  or  laws  impairing  the  obligation  of  contracts ;  provided,  however, 
that  the  General  Assembly  may,  by  general  laws,  authorize  the  courts  to  carry 
into  effect  the  manifest  intention  of  parties  and  officers,  by  curing  omissions, 
defects,  and  errors  in  instruments  and  proceedings,  arising  out  of  their  want  of 
conformity  with  the  laws  of  this  State,  and  upon  such  terms  as  shall  be  just  and 
equitable."  Under  this  clause  it  was  held  competent  for  the  General  Assembly 
to  pass  an  act  authorizing  the  courts  to  correct  mistakes  in  deeds  of  married 
women  previously  executed,  whereby  they  were  rendered  ineflfectual.  Goshorn 
v.  Purcell,  11  Ohio,  N.  s.  641.  Under  a  provision  in  the  Constitution  of  Ten- 
nessee that  no  retrospective  law  shall  be  passed,  it  has  been  held  that  a  law 
authorizing  a  bill  to  be  filed  by  slaves,  by  their  next  friend,  to  emancipate  them, 
although  it  applied  to  cases  which  arose  before  its  passage,  was  not  a  retrospective 
law  within  the  meaning  of  this  clause.  Fisher's  Negroes  v.  Dobbs,  6  Yerg.  119. 
An  act  for  the  payment  of  bounties  for  past  services  was  held  not  retrospective  in 
State  v.  Richland,  20  Ohio,  N.  s.  369.  See  further,  Society  v.  Wheeler,  2  Gall. 
105 ;  Officer  v.  Young,  5  Yerg.  320. 

That  the  legislature  cannot  retrospectively  construe  statutes  and  bind  parties 
thereby,  see  ante  p.  93  et  seq. 

2  Butler  v.  Toledo,  5  Ohio,  N.  s.  225 ;  Strauch  v.  Shoemaker,  1  W.  &  S.  175  ; 
McCoy  v.  Michew,  7  W.  &  S.  390 ;  Montgomery  v.  Meredith,  17  Penn.  St.  42 ; 

[431] 


*  371  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

organization  or  elections  of  corporations ; 1  irregularities  in  the 
votes  or  other  action  by  municipal  corporations,  or  the  like,  where 
a  statutory  power  has  failed  of  due  and  regular  execution  through 
the  carelessness  of  officers,  or  other  cause  ; 2  irregular  proceedings 
in  courts,  &c. 

The  rule  applicable  to  cases  of  this  description  is  substantially 
the  following:  If  the  thing  wanting,  or  which  failed  to  be  done, 
and  which  constitutes  the  defect  in  the  proceedings,  is  something 
the  necessity  for  which  the  legislature  might  have  dispensed  with 
by  prior  statute,  then  it  is  not  beyond  the  power  of  the  legislature 
to  dispense  with  it  by  subsequent  statute.  And  if  the  irregularity 
consists  in  doing  some  act,  or  in  the  mode  or  manner  of  doing 
some  act  which  the  legislature  might  have  made  immaterial  by 
prior  law,  it  is  equally  competent  to  make  the  same  immaterial  by 
a  subsequent  law. 

A  few  of  the  decided  cases  will  illustrate  this  principle.  In 
Kearney  v.  Taylor3  a  sale  of  real  estate  belonging  to  infant  tenants 
in  common  had  been  made  by  order  of  court  in  a  partition  suit, 
and  the  land  bid  off  by  a  company  of  persons,  who  proposed  subdi- 
viding and  selling  it  in  parcels.  The  sale  was  confirmed  in  their 
names,  but  by  mutual  arrangement  the  deed  was  made  to  one  only, 
for  convenience  in  selling  and  conveying.  This  deed  failed  to 
convey  the  title,  because  not  following  the  sale.  The  legislature 
afterwards  passed  an  act  providing  that,  on  proof  being  made  to 
the  satisfaction  of  the  court  or  jury  before  which  such  deed  was 
offered  in  evidence  that  the  land  was  sold  fairly  and  with- 
[*372]  out  fraud,  *and  the  deed  executed  in  good  faith  and  for 
a  sufficient  consideration,  and   with  the  consent  of  the 

Dunden  v.  Snodgrass,  18  Penn.  St.  151;  Williston  v.  Colkett,  9  Penn.  St.  38; 
Boardman  v.  Beckwith,  18  Iowa,  292.  And  see  Walter  v.  Bacon,  8  Mass.  472 ; 
Locke  v.  Dane,  9  Mass.  360 ;  Patterson  v.  Philbrook,  9  Mass.  153 ;  Trustees  v. 
McCaughy,  2  Ohio,  N.  s.  152.  The  right  to  provide  for  a  reassessment  of  taxes 
irregularly  levied  is  undoubted.  See  Brevoot  v.  Detroit,  23  Mich.  322  ;  State 
v.  Newark,  34  N.  J.  237  ;  Musselman  v.  Logansport,  29  Ind.  533.  But,  of  course, 
if  the  vice  is  in  the  nature  of  the  tax  itself,  it  will  continue  and  be  fatal,  however 
often  the  process  of  assessment  may  be  repeated.     See  post,  382. 

1  Syracuse  Bank  v.  Davis,  16  Barb.  188;  Mitchell  v.  Deeds,  49  111.  416. 

2  See  Menges  v.  Wertman,  1  Penn.  St.  218  ;  Yost's  Report,  17  Penn.  St.  524  ; 
Bennett  t>.  Fisher,  26  Iowa,  497 ;  Allen  v.  Archer,  49  Me.  346  ;  Commonwealth 
v.  Marshall,  69  Penn.  St.  328 ;  State  v.  Union,  4  Vroom,  250. 

3  15  How.  494.     And  see  Boyce  v.  Siuclair,  3  Bush,  261. 

[432] 


CH.  XI.]    PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OP  THE  LAND."    *  372 

persons  reported  as  purchasers,  the  deed  should  have  the  same 
effect  as  though  it  had  been  made  to  the  purchasers.  That  this 
act  was  unobjectionable  in  principle  was  not  denied ;  and  it  cannot 
be  doubted  that  a  prior  statute,  authorizing  the  deed  to  be  made  to 
one  for  the  benefit  of  all  and  with  their  assent,  would  have  been 
open  to  no  valid  objection.1 

In  certain  Connecticut  cases  it  was  insisted  that  sales  made  of 
real  estate  on  execution  were  void,  because  the  officer  had  included 
in  the  amount  due  several  small  items  of  fees  not  allowed  by  law. 
It  appeared,  however,  that,  after  the  sales  were  made,  the  legislat- 
ure had  passed  an  act  providing  that  no  levy  should  be  deemed 
void  by  reason  of  the  officer  having  included  greater  fees  than 
were  by  law  allowable,  but  that  all  such  levies,  not  in  other  respects 
defective,  should  be  valid  and  effectual  to  transmit  the  title  of  the 
real  estate  levied  upon.  The  liability  of  the  officer  for  receiving 
more  than  his  legal  fees  was  at  the  same  time  left  unaffected.  In 
the  leading  case  the  court  say :  "  The  law,  undoubtedly,  is  retro- 
spective ;  but  is  it  unjust  ?  All  the  charges  of  the  officer  on  the 
execution  in  question  are  perfectly  reasonable,  and  for  necessary 
services  in  the  performance  of  his  duty ;  of  consequence  they 
are  eminently  just ;  and  so  is  the  act  confirming  the  levies.  A 
law,  although  it  be  retrospective,  if  conformable  to  entire  jus- 
tice, this  court  has  repeatedly  decided  is  to  be  recognized  and 
enforced."  2 

In  another  Connecticut  case  it  appeared  that  certain  marriages 
had  been  celebrated  by  persons  in  the  ministry  who  were  not 
empowered  to  perform  that  ceremony  by  the  State  law,  and  that 
the  marriages  were  therefore  invalid.  The  legislature  had  after- 
wards passed  an  act  declaring  all  such  marriages  valid,  and  the 
court  sustained  the  act.     It  was  assailed  as  an  exercise  of  the 

1  See  Davis  v.  State  Bank,  7  Ind.  316,  and  Lucas  v.  Tucker,  17  Ind.  41,  for 
decisions  under  statutes  curing  irregular  sales  by  guardians  and  executors.  In 
many  of  the  States  general  laws  will  be  found  providing  that  such  sales  shall  not 
be  defeated  by  certain  specified  defects  and  irregularities. 

2  Beach  v.  Walker,  6  Conn.  197  ;  Booth  v.  Booth,  7  Conn.  350.  And  see 
Mather  v.  Chapman,  6  Conn.  54;  Norton  v.  Pettibone,  7  Conn.  319;  Welch  v. 
Wadsworth,  30  Conn.  149;  Smith  v.  Merchants  Ex'rs,  7  S.  &  R.  260;  Under- 
wood v.  Lilly,  10  S.  &  R.  97  ;  Bleakney  v.  Bank  of  Greencastle,  17  S.  &  R.  64; 
Menges  v.  Wertman,  1  Penn.  St.  218;  Weister  v.  Hade,  52  Penn.  St.  474;  Ahl 
v.  Gleim,  52  Penn.  St.  432 ;  Selsby  v.  Redlon,  19  Wis.  17 ;  Parmelee  v.  Law- 
rence, 48  111.  331. 

28  [  433  ] 


*  372  CONSTITUTIONAL    LIMITATIONS.  [CH.  XL 

i ' 

judicial  power  ;  but  this  it  clearly  was  not,  as  it  purported  to  settle 
no  controversies,  and  merely  sought  to  give  effect  to  the  desire  of 
the  parties,  which  they  had  ineffectually  attempted  to  carry  out  by 
means  of  the  ceremony  which  proved  insufficient.  And  while  it 
was  not  claimed  that  the  act  was  void  in  so  far  as  it  made 
[*  373]  effectual  the  legal  relation  *  of  matrimony  between  the  par- 
ties, it  was  nevertheless  insisted  that  rights  of  property 
dependent  upon  that  relation  could  not  be  affected  by  it,  inasmuch 
as,  in  order  to  give  such  rights,  it  must  operate  retrospectively. 
The  court  in  disposing  of  the  case  are  understood  to  express  the 
opinion  that,  if  the  legislature  possesses  the  power  to  validate  an 
imperfect  marriage,  still  more  clearly  does  it  have  power  to  affect 
incidental  rights.  "  The  man  and  the  woman  were  unmarried, 
notwithstanding  the  formal  ceremony  which  passed  between  them, 
and  free  in  point  of  law  to  live  in  celibacy,  or  contract  marriage 
with  any  other  persons  at  pleasure.  It  is  a  strong  exercise  of 
power  to  compel  two  persons  to  marry  without  their  consent,  and 
a  palpable  perversion  of  strict  legal  right.  At  the  same  time  the 
retrospective  law  thus  far  directly  operating  on  vested  rights  is 
admitted  to  be  unquestionably  valid,  because  manifestly  just."  * 

It  is  not  to  be  inferred  from  this  language  that  the  court  under- 
stood the  legislature  to  possess  power  to  select  individual  mem- 
bers of  the  community,  and  force  them  into  a  relation  of  marriage 
with  each  other  against  their  will.  That  complete  control  which 
the  legislature  is  supposed  to  possess  over  the  domestic  relations 
can  hardly  extend  so  far.  The  legislature  may  perhaps  divorce 
parties,  with  or  without  cause,  according  to  its  own  view  of  jus- 
tice or  public  policy  ;  but  for  the  legislature  to  marry  parties 
against  their  consent,  we  conceive  to  be  decidedly  against  "  the 
law  of  the  land."  The  learned  court  must  be  understood  as 
speaking  here  with  exclusive  reference  to  the  case  at  bar,  in  which 
the  legislature,  by  the  retrospective  act,  were  merely  removing  a 
formal  impediment  to  that  marriage  which  the  parties  had  assented 
to,  and  which  they  had  attempted  to  form.  Such  an  act,  unless 
special  circumstances  conspired  to  make  it  otherwise,  would  cer- 
tainly be  "  manifestly  just,"   and  therefore  might  well  be  held 

1  Goshen  v.  Stonington,  4  Conn.  224,  per  Hosmer,  J.     The  power  to  validate 
void  marriages  held  not  to  exist  in  the  legislature  where,  by  the  constitution,  the 
whole  subject  was  referred  to  the  courts.     White  v.  White,  105  Mass.  325. 
[434] 


CH.  XI.]  PEOTECTION  TO  PROPERTY  BY  "  THE  LAW  OP  THE  LAND."  *  373 

"  unquestionably  valid."    And  if  the  marriage  was  rendered  valid, 
the  legal  incidents  would  follow  of  course.     In  a  Pennsylvania 
case  the  validity  of  certain  grading  and  paving  assessments  was 
involved,  and  it  was  argued  that  they  were  invalid  for  the  reason 
that  the  city  ordinance  under  which  they  had  been  made  was  inop- 
erative, because  not  recorded  as  required  by  law.    But  the  legislat- 
ure had  passed  an  act  to  validate  this  ordinance,  and  had  declared 
therein  that  the  omission  to  record  the  ordinance  should  not  affect 
or  impair  the  lien  of  the  assessments  against  the  lot  owners.     In 
passing  upon  the  validity  of  this  act,  the  court  express  the  following 
views :  "  Whenever  there  is  a  right,  though  imperfect,  the  consti- 
tution does  not  prohibit  the  legislature  from  giving  a  remedy.     In 
Hepburn  v.  Curts,1  it  was  said,  '  The  legislature,  provided  it  does 
not  violate  the  constitutional  provisions,  may  pass  retro- 
spective laws,  *  such  as  in  their  operation  may  affect  suits  [*  374] 
pending,  and  give  to  a  party  a  remedy  which  he  did  not 
previously  possess,  or  modify  an  existing  remedy,  or  remove  an 
impediment  in  the  way  of  legal  proceedings.'     What  more  has 
been  done  in  this  case  ?  .  .  .  While  (the  ordinance)  was  in  force, 
contracts  to  do  the  work  were  made  in  pursuance  of  it,  and  the 
liability  of  the  city  was  incurred.     But  it  was  suffered  to  become 
of  no  effect  by  the  failure  to  record  it.     Notwithstanding  this,  the 
grading  and  paving  were  done,  and  the  lots  of  the  defendants 
received  the  benefit  at  the  public  expense.     Now  can  the  omission 
to  record  the  ordinance  diminish  the  equitable  right  of  the  public 
to  reimbursement  ?    It  is  at  most  but  a  formal  defect  in  the  remedy 
provided, —  an  oversight.     That  such  defects  may  be  cured    by 
retroactive  legislation  need  not  be  argued."  2 

On  the  same  principle  legislative  acts  validating  invalid  contracts 
have  been  sustained.  When  these  acts  go  no  farther  than  to  bind 
a  party  by  a  contract  which  he  has  attempted  to  enter  into,  but 
which  was  invalid  by  reason  of  some  personal  inability  on  his  part 
to  make  it,  or  through  neglect  of  some  legal  formality,  or  in  con- 

1  7  Watts,  300. 

2  Schenley  v.  Commonwealth,  36  Penn.  St.  29,  57.  See  also  State  v.  Newark, 
3  Dutch.  185;  Den  v.  Downam,  1  Green  (N.J.),  135;  People  v.  Seymour,  16 
Cal.  332  ;  Grim  v.  Weisenburg  School  District,  57  Penn.  St.  433  ;  State  v.  Union, 
33  N.  J.  355.  The  legislature  has  the  same  power  to  ratify  and  confirm  an  ille- 
gally appointed  corporate  body  that  it  has  to  create  a  new  one.  Mitchell  v. 
Deeds,  49  111.  416. 

[435] 


*  374  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

sequence  of  some  ingredient  in  the  contract  forbidden  by  law,  the 
question  which  they  suggest  is  one  of  policy,  and  not  of  constitu- 
tional power. 

By  statute  of  Ohio,  all  bonds,  notes,  bills,  or  contracts  negotiable 
or  payable  at  any  unauthorized  bank,  or  made  for  the  purpose  of 
being  discounted  at  any  such  bank,  were  declared  to  be  void. 
While  this  statute  was  in  force  a  note  was  made  for  the  purpose  of 
being  discounted  at- one  of  these  institutions,  and  was  actually  dis- 
counted by  it.  Afterwards  the  legislature  passed  an  act,  reciting 
that  many  persons  were  indebted  to  such  bank,  by  bonds,  bills, 
notes,  &c,  and  that  owing,  among  other  things,  to  doubts  of  its 
right  to  recover  its  debts,  it  was  unable  to  meet  its  own  obligations, 
and  had  ceased  business,  and  for  the  purpose  of  winding  up  its 
affairs  had  made  an  assignment  to  a  trustee  ;  therefore  the  said  act 
authorized  the  said  trustee  to  bring  suits  on  the  said  bonds,  bills, 
notes,  &c,  and  declared  it  should  not  be  lawful  for  the  defendants 
in  such  suits  "  to  plead,  set  up,  or  insist  upon,  in  defence,  that  the 
notes,  bonds,  bills,  or  other  written  evidences  of  such  indebtedness 

are  void  on  account  of  being  contracts  against  or  in  viola- 
[*  375]  tion  of  any  statute  *  law  of  this  State,  or  on  account  of 

their  being  contrary  to  public  policy."  This  law  was  sus- 
tained as  a  law  "  that  contracts  may  be  enforced,"  and  as  in  further- 
ance of  equity  and  good  morals.1  The  original  invalidity  was  only 
because  of  the  statute,  and  that  statute  was  founded  upon  reasons 
of  public  policy  which  had  either  ceased  to  be  of  force,  or  which 
the  legislature  regarded  as  overborne  by  countervailing  reasons. 
Under  these  circumstances  it  was  reasonable  and  just  that  the 
makers  of  such  paper  should  be  precluded  from  relying  upon  such 
invalidity.2 

1  Lewis  v.  McElvain,  16  Ohio,  347. 

2  Trustees  v.  McCaughy,  2  Ohio,  n.  s.  155;  Johnson  v.  Bentley,  16  Ohio,  97. 
See  also  Syracuse  Bank  v.  Davis,  16  Barb.  188.  By  statute,  notes  issued  by 
unincorporated  banking  associations  were  declared  void.  This  statute  was  after- 
wards repealed,  and  action  was  brought  against  bankers  on  notes  previously 
issued.  Objection  being  taken  that  the  legislature  could  not  validate  the  void 
contracts,  the  judge  says  :  "I  will  consider  this  case  on  the  broad  ground  of  the 
contract  having  been  void  when  made,  and  of  no  new  contract  having  arisen  since 
the  repealing  act.  But  by  rendering  the  contract  void  it  was  not  annihilated. 
The  object  of  the  [original]  act  was  not  to  vest  any  right  in  any  unlawful  banking 
association,  but  directly  the  reverse.  The  motive  was  not  to  create  a  privilege, 
or  shield  them  from  the  payment  of  their  just  debts,  but  to  restrain  them  from 

[  436  ] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  375 

By  a  statute  of  Connecticut,  where  loans  of  money  were  made, 
and  a  bonus  was  paid  by  the  borrower  over  and  beyond  the  interest 
and  bonus  permitted  by  law,  the  demand  was  subject  to  a  deduc- 
tion from  the  principal  of  all  the  interest  and  bonus  paid.  A 
construction  appears  to  have  been  put  upon  this  statute  by  business 
men  which  was  different  from  that  afterwards  given  by  the  courts  ; 
and  a  large  number  of  contracts  of  loan  were  in  consequence 
subject  to  the  deduction.  The  legislature  then  passed  a  "  healing 
act,"  which  provided  that  such  loans  theretofore  made  should  not 
be  held,  by  reason  of  the  taking  of  such  bonus,  to  be  usurious, 
illegal,  or  in  any  respect  void ;  but  that,  if  otherwise  legal,  they 
were  thereby  confirmed,  and  declared  to  be  valid,  as  to 
principal,  interest,  and  *  bonus.  The  case  of  Goshen  v.  [*  376] 
Stonington1  was  regarded  as  sufficient  authority  in  sup- 
port of  this  act ;  and  the  principle  to  be  derived  from  that  case 
was  stated  to  be  "  that  where  a  statute  is  expressly  retroactive, 
and  the  object  and  effect  of  it  is  to  correct  an  innocent  mistake, 
remedy  a  mischief,  execute  the  intention  of  the  parties,  and  pro- 
mote justice,  then,  both  as  a  matter  of  right  and  of  public  policy 
affecting  the  peace  and  welfare  of  the  community,  the  law  should 
be  sustained."  2 

violating  the  law  by  destroying  the  credit  of  their  paper,  and  punishing  those 
who  received  it.  How  then  can  the  defendants  complain  ?  As  unauthorized 
bankers  they  were  violators  of  the  law,  and  objects  not  of  protection  but  of  pun- 
ishment. The  repealing  act  was  a  statutory  pardon  of  the  crime  committed  by 
the  receivers  of  this  illegal  medium.  Might  not  the  legislature  pardon  the  crime, 
without  consulting  those  who  committed  it  ?  .  .  .  How  can  the  defendants  say 
there  was  no  contract,  when  the  plaintiff  produces  their  written  engagement  for 
the  performance  of  a  duty,  binding  in  conscience  if  not  in  law  ?  Although  the 
contract,  for  reasons  of  policy,  was  so  far  void  tbat  an  action  could  not  be  sus- 
tained on  it,  yet  a  moral  obligation  to  perform  it,  whenever  those  reasons  ceased, 
remained  ;  and  it  would  be  going  very  far  to  say  that  the  legislature  may  not  add 
a  legal  sanction  to  that  obligation,  on  account  of  some  fancied  constitutional 
restriction."  Hess  v.  Werts,  4  S.  &  R.  361.  See  also  Bleakney  v.  Bank  of 
Greencastle,  17  S.  &  R.  64;  Menges  v.  Wertman,  1  Penn.  St.  218  ;  Boyce  v. 
Sinclair,  3  Bush,  264. 

1  4  Conn.  224.     See  ante,  p.  272-3. 

2  Savings  Bank  v.  Allen,  28  Conn.  97.  See  also  Savings  Bank  v.  Bates, 
8  Conn.  505  ;  Andrews  v.  Russell,  7  Blackf.  474  ;  Grimes  v.  Doe,  8  Blackf.  371 ; 
Thompson  U.Morgan,  6  Minn.  292;  Parmelee  v.  Lawrence,  48  111.  331.  In 
Curtis  v.  Leavitt,  17  Barb.  309,  and  15  N.  Y.  9,  a  statute  forbidding  the  inter- 
position of  the  defence  of  usury  was  treated  as  a  statute  repealing  a  penalty. 
See,  further,  Wilson  v.  Hardesty,  1  Md.  Ch.  66 ;  Welch  v.  Wadsworth,  30  Conn. 

[437] 


*  376  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

After  the  courts  of  the  State  of  Pennsylvania  had  decided  that 
the  relation  of  landlord  and  tenant  could  not  exist  in  that  State 
under  a  Connecticut  title,  a  statute  was  passed  which  provided  that 
the  relation  of  landlord  and  tenant  "  shall  exist  and  be  held  as 
fully  and  effectually  between  Connecticut  settlers  and  Pennsylva- 
nia claimants  as  between  other  citizens  of  this  commonwealth,  on 
the  trial  of  any  case  now  pending  or  hereafter  to  be  brought  within 
this  commonwealth,  any  law  or  usage  to  the  contrary  notwithstand- 
ing." In  a  suit  which  was  pending  and  had  been  once  tried  before 
the  statute  was  passed,  the  statute  was  sustained  by  the  Supreme 
Court  of  that  State,  and  afterwards  by  the  Supreme  Court  of  the 
United  States,  into  which  last-mentioned  court  it  had  been  removed 
on  the  allegation  that  it  violated  the  obligation  of  contracts.  As  its 
purpose  and  effect  was  to  remove  from  contracts  which  the  parties 
had  made  a  legal  impediment  to  their  enforcement,  there  would 
seem  to  be  no  doubt,  in  the  light  of  the  other  authorities  we  have 
referred  to,  that  the  conclusion  reached  was  the  only  just  and  proper 
one.1 

In  the  State  of  Ohio,  certain  deeds  made  by  married  women  were 
ineffectual  for  the  purposes  of  record  and  evidence,  by  reason  of 
the  omission  on  the  part  of  the  officer  taking  the  acknowledgment 
to  state  in  his  certificate  that,  before  and  at  the  time  of  the  grantor 
making  the  acknowledgment,  he  made  the  contents  known  to  her 
by  reading  or  otherwise.  An  act  was  afterwards  passed  which 
provided  that  "  any  deed  heretofore  executed  pursuant  to 
[*  377]  *  law,  by  husband  and  wife,  shall  be  received  in  evidence 
in  any  of  the  courts  of  this  State,  as  conveying  the  estate 
of  the  wife,  although  the  magistrate  taking  the  acknowledgment  of 
such  deed  shall  not  have  certified  that  he  read  or  made  known  the 
contents  of  such  deed  before  or  at  the  time  she  acknowledged  the 
execution  thereof."  This  statute,  though  with  some  hesitation  at 
first,  was  held  to  be  unobjectionable.  The  deeds  with  the  defective 
acknowledgments  were  regarded  by  the  legislature  and  by  the  court 

149  ;  Wood  v.  Kennedy,  19  Ind.  68  ;  Washburn  v.  Franklin,  35  Barb.  599  ;  Par- 
melee  v.  Lawrence,  48  111.  331.  The  case  of  Gilliland  v.  Phillips,  1  S.  C.  N.  s. 
152,  is  contra;  but  it  discusses  the  point  but  little,  and  makes  no  reference  to 
these  cases. 

1  Satterlee  v.  Mathewson,  16  S.  &  R.  169,  and  2  Pet.  380.     And  see  Watson 
v.  Mercer,  8  Pet.  88 ;  Lessee  of  Dulany  v.  Tilghman,  6  G.  &  J.  461 ;  Payne  v. 
Treadwell,  16  Cal.  220;  Maxey  v.  Wise,  25  Ind.  1. 
[438] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OP  THE  LAND."  *  377 

as  being  sufficient  for  the  purpose  of  conveying  at  least  the  grantor's 
equitable  estate  ;  and  if  sufficient  for  this  purpose,  no  vested  rights 
would  be  disturbed,  or  wrong  be  done,  by  making  them  receivable 
in  evidence  as  conveyances.1 

Other  cases  go  much  farther  than  this,  and  hold  that,  although 
the  deed  was  originally  ineffectual  for  the  purpose  of  conveying  the 
title,  the  healing  statute  may  accomplish  the  intent  of  the  parties  by 
giving  it  effect.2  At  first  sight  these  cases  might  seem  to  go  beyond 
the  mere  confirmation  of  a  contract,  and  to  be  at  least  techni- 
cally objectionable,  as  depriving  a  party  of  property  *  with-  [*  378] 
out  an  opportunity  for  trial,  inasmuch  as  they  proceeded 
upon  the  assumption  that  the  title  still  remained  in  the  grantor,  and 
that  the  healing  act  was  required  for  the  purpose  of  divesting  him  of 

1  Chestnut  v.  Shane's  Lessee,  16  Ohio,  599,  overruling  Connell  v.  Connell, 
6  Ohio,  358;  Good  v.  Zercher,  12  Ohio,  364;  Meddock  v.  Williams,  12  Ohio, 
377;  and  Silliman  v.  Cummins,  13  Ohio,  116.  Of  the  dissenting  opinion  in  the 
last  case,  which  the  court  approve  in  16  Ohio,  609-10,  they  say:  "  That  opinion 
stands  upon  the  ground  that  the  act  operates  only  upon  that  class  of  deeds  where 
enough  had  been  done  to  show  that  a  court  of  chancery  ought,  in  each  case,  to 
render  a  decree  for  a  conveyance,  assuming  that  the  certificate  was  not  such  as 
the  law  required.  And  where  the  title  in  equity  was  such  that  a  court  of  chan- 
cery ought  to  interfere  and  decree  a  good  legal  title,  it  was  within  the  power  of 
the  legislature  to  confirm  the  deed,  without  subjecting  an  indefinite  number  to 
the  useless  expense  of  unnecessary  litigation."  See  also  Lessee  of  Dulany  v. 
Tilghman,  6  G.  &  J.  461 ;  Journeay  v.  Gibson,  56  Penn.  St.  57.  But  the  legis- 
lature, it  has  been  declared,  has  no  power  to  legalize  and  make  valid  the  deed  of 
an  insane  person.     Routsong  v.  Wolf,  35  Mo.  171. 

2  Lessee  of  Walton  v.  Bailey,  1  Binn.  477  ;  Underwood  v.  Lilly,  10  S.  &  R. 
101;  Barnet  v.  Barnet,  15  S.  &  R.  72;  Tate  v.  Stooltzfoos,  16  S.  &  R.  35; 
Watson  v.  Mercer,  8  Pet.  88  ;  Carpenter  v.  Pennsylvania,  17  How.  456  ;  Davis 
v.  State  Bank,  7  Ind.  316;  Dentzel  o.  Waldie,  30  Cal.  138;  Estate  of  Stiek- 
noth,  7  Nev.  227  ;  Goshorn  v.  Purcell,  11  Ohio,  n.  s.  611.  In  the  last  case  the 
court  say :  "  The  act  of  the  married  woman  may,  under  the  law,  have  been  void 
and  inoperative ;  but  in  justice  and  equity  it  did  not  leave  her  right  to  the  prop- 
erty untouched.  She  had  capacity  to  do  the  act  in  a  form  prescribed  by  law  for 
her  protection.  She  intended  to  do  the  act  in  the  prescribed  form.  She  at- 
tempted to  do  it,  and  her  attempt  was  received  and  acted  on  in  good  faith.  A 
mistake  subsequently  discovered  invalidates  the  act;  justice  and  equity  require 
that  she  should  not  take  advantage  of  the  mistake ;  and  she  has  therefore  no  just 
right  to  the  property.  She  has  no  right  to  complain  if  the  law  which  prescribed 
forms  for  her  protection  shall  interfere  to  prevent  her  reliance  upon  them  to 
resist  the  demands  of  justice."  Similar  language  is  employed  in  the  Pennsyl- 
vania cases.     See,  further,  Dentzel  v.  Waldie,  30  Cal.  138. 

[439] 


*  378  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

it,  and  passing  it  over  to  the  grantee.1  Apparently,  therefore,  there 
would  seem  to  be  some  force  to  the  objection  that  such  a  statute 
deprives  a  party  of  vested  rights.  But  the  objection  is  more  specious 
than  sound.  If  all  that  is  wanting  to  a  valid  contract  or  convey- 
ance is  the  observance  of  some  legal  formality,  the  party  may  have 
a  legal  right  to  avoid  it :  but  this  right  is  coupled  with  no  equity, 
even  though  the  case  be  such  that  no  remedy  could  be  afforded  the 
other  party  in  the  courts.  The  right  which  the  healing  act  takes 
away  in  such  a  case  is  the  right  in  the  party  to  avoid  his  contract, — 
a  naked  legal  right  which  it  is  usually  unjust  to  insist  upon,  and 
which  no  constitutional  provision  was  ever  designed  to  protect.2 
As  the  point  is  put  by  Chief  Justice  Parker  of  Massachusetts,  a 
party  cannot  have  a  vested  right  to  do  wrong ; 3  or,  as  stated  by 
the  Supreme  Court  of  New  Jersey,  "  Laws  curing  defects  which 
would  otherwise  operate  to  frustrate  what  must  be  presumed  to  be 
the  desire  of  the  party  affected,  cannot  be  considered  as  taking 
away  vested  rights.  Courts  do  not  regard  rights  as  vested  contrary 
to  the  justice  and  equity  of  the  case." 4 

The  operation  of  these  cases,  however,  must  be  carefully  restricted 
to  the  parties  to  the  original  contract,  and  to  such  other  persons 
as  may  have  succeeded  to  their  rights  with  no  greater  equities. 
A  subsequent  bona  fide  purchaser  cannot  be  deprived  of  the  prop- 
erty which  he  has  acquired,  by  an  act  which  retrospectively  deprives 
his  grantor  of  the  title  which  he  had  when  the  purchase  was  made. 
Conceding  that  the  invalid  deed  may  be  made  good  as  between  the 
parties,  yet  if,  while  it  remained  invalid,  and  the  grantor  still 
retained  the  legal  title  to  the  land,  a  third  person  has  purchased 
and  received  a  conveyance,  with  no  notice  of  any  fact 
[*  379]  which  should  *  preclude  his    acquiring  an  equitable   as 

1  This  view  has  been  taken  in  some  similar  cases.  See  Russell  v.  Rumsey, 
35  111.  362;  Alabama,  &c.,  Ins.  Co.  v.  Boykin,  38  Ala.  510;  Orton  v.  Noonan, 
23  Wis.  102;  Dade  v.  Medcalf,  9  Penn.  St.  108. 

2  In  Gibson  v.  Hibbard,  13  Mich.  215,  a  check,  void  at  the  time  it  was  given, 
for  want  of  a  revenue  stamp,  was  held  valid  after  being  stamped  as  permitted  by 
a  subsequent  act  of  Congress.  A  similar  ruling  was  made  in  Harris  v.  Rutledge, 
19  Iowa,  389.  The  case  of  State  v.  Norwood,  12  Md.  195,  is  still  stronger. 
The  curative  statute  was  passed  after  judgment  had  been  rendered  against  the 
right  claimed  under  the  defective  instrument,  and  it  was  held  that  it  must  be 
applied  by  the  appellate  court.     See  post,  381. 

3  Foster  v.  Essex  Bank,  16  Mass.  245. 

4  State  v.  Newark,  3  Dutch.  197. 

[440] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  379 

well  as  a  legal  title  thereby,  it  would  not  be  in  the  power  of  the 
legislature  to  so  confirm  the  original  deed  as  to  divest  him  of  the 
title  he  has  acquired.  The  position  of  the  case  is  altogether 
changed  by  this  purchase.  The  legal  title  is  no  longer  separated 
from  equities,  but  in  the  hands  of  the  second  purchaser  is  united 
with  an  equity  as  strong  as  that  which  exists  in  favor  of  him  who 
purchased  first.  Under  such  circumstances  even  the  courts  of 
equity  must  recognize  the  right  of  the  second  purchaser  as  best, 
and  as  entitled  to  the  usual  protection  which  the  law  accords  to 
vested  interests.1 

If,  however,  a  grantor  undertakes  to  convey  more  than  he  pos- 
sesses, or  contrary  to  the  conditions  or  qualifications  which,  for  the 
benefit  of  others,  are  imposed  upon  his  title,  or  in  fraud  of 
the  rights  of  others  whose  representative  or  agent  he  is,  so  that  the 
defect  in  his  conveyance  consists  not  in  any  want  of  due  formality, 
nor  in  any  disability  imposed  by  law,  it  is  not  in  the  power  of  the 
legislature  to  validate  it  retrospectively ;  and  we  may  add,  also,  that 
it  would  not  have  been  competent  to  authorize  it  in  advance.  In 
such  case  the  rights  of  others  intervene,  and  they  are  entitled  to 
protection  on  the  same  grounds,  though  for  still  stronger  rea- 
sons, which  exist  in  the  case  of  the  bona  fide  purchasers  above  re- 
ferred to.2 

1  Brinton  v.  Seevers,  12  Iowa,  389;  Southard  v.  Central  R.R.  Co.,2  Dutch. 
22  ;  Thompson  v.  Morgan,  6  Minn.  292  ;  Meighen  v.  Strong,  6  Minn.  177  ;  Nor- 
man v.  Heist,  5  W.  &  S.  171;  Greenough  e.  Greenough,  11  Penn.  St.  494; 
Le  Bois  v.  Bramel,  4  How.  449;  McCarthy  v.  Hoffman,  23  Penn.  St.  508. 
Sherwood  v.  Fleming,  25  Texas,  408 ;  Wright  v.  Hawkins,  28  Texas,  452.  The 
legislature  cannot  validate  an  invalid  trust  in  a  will,  by  act  passed  after  the  death 
of  the  testator,  and  after  title  vested  in  the  heirs.  Hilliard  v.  Miller,  10  Penn. 
St.  338.  See  Snyder  v.  Bull,  17  Penn.  St.  58;  McCarthy  v.  Hoffman,  23  Penn. 
St.  507  ;  Bolton  v.  Johns,  5  Penn.  St.  145  ;  State  v.  Warren,  28  Md.  338.  The 
cases  here  cited  must  not  be  understood  as  establishing  any  different  principle 
from  that  laid  down  in  Goshen  v.  Stonington,  4  Conn.  209,  where  it  was  held 
competent  to  validate  a  marriage,  notwithstanding  the  rights  of  third  parties 
would  be  incidentally  affected.  Rights  of  third  parties  are  liable  to  be  incident- 
ally affected  more  or  less  in  any  case  in  which  a  defective  contract  is  made  good  ; 
but  this  is  no  more  than  might  happen  in  enforcing  a  contract  or  decreeing  a 
divorce.     See  post,  p.  384.     Also,  Tallman  o.  Janesville,  17  Wis.  71. 

2  In  Shouk  v.  Brown,  61  Penn.  St.  327,  the  facts  were  that  a  married  woman 
held  property  under  a  devise,  with  an  express  restraint  upon  her  power  to 
alienate.  She  nevertheless  gave  a  deed  of  the  same,  and  a  legislative  act  was 
afterwards  obtained  to  validate  this  deed.  Held  void.  Agnew,  J.:  "Many 
cases  have  been  cited  to  prove  that  this  legislation  is  merely  confirmatory  and 

[441] 


*  379  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

We  have  already  referred  to  the  case  of  contracts  by  municipal 
corporations  which,  when  made,  were  in  excess  of  their  authority, 
but  subsequently  have  been  confirmed  by  legislative  action.  If  the 
contract  is  one  which  the  legislature  might  originally  have  author- 
ized, the  case  falls  within  the  principle  above  laid  down,  and  the 
right  of  the  legislature  to  confirm  it  must  be  recognized.1     This 

valid,  beginning  with  Barnet  v.  Barnet,  15  S.  &R.  72,  and  ending  with  Journeay 
v.  Gibson,  56  Penn.  St.  57.     The  most  of  them  are  cases  of  the  defective  ac- 
knowledgments of  deeds  of  married  women.     But  there  is  a  marked  difference 
between  them  and  this.     In  all  of  them  there  was  a  power  to  convey,  and  only 
a  defect  in  the  mode  of  its  exercise.     Here  there  is  an  absolute  want  of  power  to 
convey  in  any  mode.     In  ordinary  cases  a  married  woman  has  both  the  title  and 
the  power  to  convey  or  to  mortgage  her  estate,  but  is  restricted  merely  in  the 
manner  of  its  exercise.     This  is  a  restriction  it  is  competent  for  the  legislature 
to  remove,  for  the  defect  arises  merely  in  the  form  of  the  proceeding,  and  not  in 
any  want  of  authority.     Those  to  whom  her  estate  descends,  because  of  the 
omission  of  a  prescribed  form,  are  really  not  injured  by  the  validation.     It  was 
in  her  power  to  cut  them  off,  and  in  truth  and  conscience  she  did  so,  though  she 
failed  at  law.     They  cannot  complain,  therefore,  that  the  legislature  interferes 
to  do  justice.     But  the  case  before  us  is  different.      [The  grantor]   had  neither 
the  right  nor  the  power   during  coverture  to  cut  off  her  heirs.     She  was  for- 
bidden by  the  law  of  the  gift,  which  the  donor  imposed  upon  it  to  suit  his  own 
purposes.     Her  title  was  qualified  to  this  extent.     Having  done  an  act  she  had 
no  right  to  do,  there  was  no  moral  obligation  for  the  legislature  to  enforce.    Her 
heirs  have  a  right  to  say  .  .  .   '  the  legislature  cannot  take  our  estate  and  vest  it 
in  another  who  bought  it  with  notice  on  the  face  of  his  title  that  our  mother 
could  not  convey  to  him.'     The  true  principle  on  which  retrospective  laws  are 
supported  was  stated  long  ago  by  Duncan,  J.,  in  Underwood  v.  Lilly,  10  S.  &  R. 
101  ;   to  wit,  where  they  impair  no  contract,  or  disturb  no  vested  right,  but  only 
vary  remedies,  cure   defects  in  proceedings  otherwise  fair,  which  do  not  vary 
existing  obligations  contrary  to  their  situation  when  entered  into  and  when  pros- 
ecuted."  In  White  Mountains  R.R.  Co.  v.  White  Mountains  R.R.  Co.  of  N.  H., 
50  N.  H.  50,  it  was  decided  that  the  legislature  had  no  power,  as  against  non- 
assenting  parties,  to  validate  a  fraudulent  sale  of  corporate  property.     In  Alter's 
Appeal,  67  Penn.  St.  341 ;   s.  c.  5  Am.  Rep.  433  ;  the  Supreme  Court  of  Penn- 
sylvania declared  it  incompetent  for  the  legislature,  after  the  death  of  a  party,  to 
empower  the  courts  to  correct  a  mistake  in  his  will  which  rendered  it  inoperative  — 
the  title  having  already  passed  to  his  heirs.     But  where  it  was  not  known  that 
the  decedent  left   heirs,  it  was  held   competent,  as  against  the   State,  to  cure 
defects   in  a  will  after  the   death,  and   thus   prevent   an   escheat.      Estate  of 
Sticknoth,  7  Nev.  229. 

1  See  Shaw  v.  Norfolk  R.R.  Corp.,  5  Gray,  179,  in  which  it  was  held  that  the 
legislature  might  validate  an  unauthorized  assignment  of  a  franchise.  Also,  May 
v.  Holdridge,  23  Wis.  93,  and  cases  cited,  in  which  statutes  authorizing  the 
reassessment  of  irregular  taxes  were  sustained.  In  this  case,  Paine,  J.,  says : 
"  This  rule  must  of  course  be  understood  with  its  proper  restrictions.     The  work 

[442] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  379 

principle  is  one  which  has  very  often  been  acted  npon  in  the  case 
of  municipal  subscriptions  to  works  of  internal  improvement, 
where  the  original  undertaking  was  without  authority  of  law,  and 
the  authority  given  was  conferred  by  statute  retrospectively.1 

It  has  not  usually  been  regarded  as  a  circumstance  of  importance 
in  these  cases,  whether  the  enabling  act  was  before  or  after  the  cor- 
poration had  entered  into  the  contract  in  question  ;  and  if  the  leg- 
islature possesses  that  complete  control  over  the  subject  of  taxation 
by  municipal  corporations  which  has  been  declared  in  many  cases, 
it  is  difficult  to  perceive  how  such  a  corporation  can  successfully 
contest  the  validity  of  a  special  statute,  which  only  sanc- 
tions a  contract  previously  made  by  the  *  corporation,  and  [*  380] 
which,  though  at  the  time  ultra  vires,  was  nevertheless 
for  a  public  and  local  object,  and  compels  its  performance  through 
an  exercise  of  the  power  of  taxation.2 

for  which  the  tax  is  sought  to  be  assessed  must  be  of  such  a  character  that  the 
legislature  is  authorized  to  provide  for  it  by  taxation.  The  method  adopted  must 
be  one  liable  to  no  constitutional  objection.  It  must  be  such  as  the  legislature 
might  originally  have  authorized  had  it  seen  fit.  With  these  restrictions,  where 
work  of  this  character  has  been  done,  I  think  it  competent  for  the  legislature  to 
supply  a  defect  of  authority  in  the  original  proceedings,  to  adopt  and  ratify  the 
improvement  and  provide  for  a  reassessment  of  the  tax  to  pay  for  it."  And  see 
Brewster  v.  Syracuse,  19  N.  Y.  116  ;  Kunkle  v.  Franklin,  13  Minn.  127  ;  Boyce 
v.  Sinclair,  3  Busb,  264;  Dean  v.  Borchsenius,  30  Wis.  236  ;  Stuart  v.  Warren, 
37  Conn.  225. 

1  See,  among  other  cases,  McMillan  v.  Boyles,  6  Iowa,  330 ;  Gould  v.  Ster- 
ling, 23  N.  Y.  457 ;  Thompson  v.  Lee  County,  3  Wall.  327  ;  Bridgeport  v.  Hou- 
satonic  R.R.  Co.,  15  Conn.  475;  Board  of  Commissioners  v.  Bright,  18  Ind.  93; 
Gibbons  v.  Mobile,  &c,  R.R.  Co.,  36  Ala.  410. 

2  In  Hasbrouck  v.  Milwaukee,  13  Wis.  37,  it  appeared  that  the  city  of  Mil- 
waukee had  been  authorized  to  contract  for  the  construction  of  a  harbor,  at  an 
expense  not  to  exceed  $100,000.  A  contract  was  entered  into  by  the  city  pro- 
viding for  a  larger  expenditure  ;  and  a  special  legislative  act  was  afterwards 
obtained  to  ratify  it.  The  court  held  that  the  subsequent  legislative  ratification 
was  not  sufficient,  proprio  vigore,  and  without  evidence  that  such  ratification  was 
procured  with  the  assent  of  the  city,  or  had  been  subsequently  acted  upon  or 
confirmed  by  it,  to  make  the  contract  obligatory  upon  the  city.  The  court  say, 
per  Dixon,  Ch.  J.:  "The  question  is,  can  the  legislature,  by  recognizing  the 
existence  of  a  previously  void  contract,  and  authorizing  its  discharge  by  the  city, 
or  in  any  other  way,  coerce  the  city  against  its  will  into  a  performance  of  it,  or 
does  the  law  require  the  assent  of  the  city,  as  well  as  of  the  legislature,  in  order  to 
make  the  obligation  binding  and  efficacious?  I  must  say  that,  in  my  opinion,  the 
latter  act,  as  well  as  the  former,  is  necessary  for  that  purpose,  and  that  without 
it  the  obligation  cannot  be  enforced.    A  contract  void  for  want  of  capacity  in  one 

[443] 


*  381  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

[*  381]       *  Nor  is  it  important  in  any  of  the  cases  to  which  we 
have  referred,   that  the  legislative  act  which  cures   the 

or  both  of  the  contracting  parties  to  enter  into  it  is  as  no  contract ;  it  is  as  if 
no  attempt  at  an  agreement  had  ever  been  made.  And  to  admit  that  the  legis- 
lature, of  its  own  choice,  and  against  the  wishes  of  either  or  both  of  the  contract- 
ing parties,  can  give  it  life  and  vigor,  is  to  admit  that  it  is  within  the  scope  of 
legislative  authority  to  devest  settled  rights  of  property,  and  to  take  the  property 
of  one  individual  or  corporation  and  transfer  it  to  another."  This  reasoning  is  of 
course  to  be  understood  in  the  light  of  the  particular  case  before  the  court;  that 
is  to  say,  a  case  in  which  the  contract  was  to  do  something  not  within  the  ordi- 
nary functions  of  local  government.  See  the  case  explained  and  defended  by  the 
same  eminent  judge  in  Mills  v.  Charlton,  29  Wis.  418.  The  cases  of  Guilford  v. 
Supervisors  of  Chenango,  18  Barb.  615,  and  13  N.  Y.  143  ;  Brewster  v.  Syracuse, 
19  N.  Y.  116  ;  and  Thomas  v.  Leland,  24  Wend.  65,  especially  go  much  further 
than  is  necessary  to  sustain  the  text.  See  also  Bartholomew  v.  Harwinton,  33 
Conn.  408  ;  People  v.  Mitchell,  35  N.  Y.  551 ;  Barbour  v.  Camden,  51  Me.  608; 
Weister  v.  Hade,  52  Penn.  St.  474 ;  State  v.  Sullivan,  43  111.  413  ;  Johnson  v. 
Campbell,  49  111.  316.  In  Brewster  v.  Syracuse,  parties  had  constructed  a  sewer 
for  the  city  at  a  stipulated  price,  which  had  been  fully  paid  to  them.  The  charter 
of  the  city  forbade  the  payment  of  extra  compensation  to  contractors  in  any  case. 
The  legislature  afterwards  passed  an  act  empowering  the  Common  Council  of 
Syracuse  to  assess,  collect,  and  pay  over  the  further  sum  of  $600  in  addition  to 
the  contract  price  ;  and  this  act  was  held  constitutional.  In  Thomas  v.  Leland, 
certain  parties  had  given  bond  to  the  State,  conditioned  to  pay  into  the  treasury 
a  certain  sum  of  money  as  an  inducement  to  the  State  to  connect  the  Chenango 
Canal  with  the  Erie  at  Utica,  instead  of  at  Whitestown  as  originally  contem- 
plated, —  the  sum  mentioned  being  the  increased  expense  in  consequence  of  the 
change.  Afterwards  the  legislature,  deeming  the  debt  thus  contracted  by  indi- 
viduals unreasonably  partial  and  onerous,  passed  an  act,  the  object  of  which  was 
to  levy  the  amount  on  the  owners  of  real  estate  in  Utica.  This  act  seemed  to 
the  court  unobjectionable.  "  The  general  purpose  of  raising  the  money  by  tax 
was  to  construct  a  canal,  a  public  highway,  which  the  legislature  believed  would 
be  a  benefit  to  the  city  of  Utica  as  such;  and  independently  of  the  bond,  the  case 
is  the  ordinary  one  of  local  taxation  to  mate  or  improve  a  highway.  If  such  an 
act  be  otherwise  constitutional,  we  do  not  see  how  the  circumstance  that  a  bond 
had  before  been  given  securing  the  same  money  can  detract  from  its  validity. 
Should  an  individual  volunteer  to  secure  a  sum  of  money,  in  itself  properly 
leviable  by  way  of  tax  on  a  town  or  county,  there  would  be  nothing  in  the  nature 
of  such  an  arrangement  which  would  preclude  the  legislature  from  resorting,  by 
way  of  tax,  to  those  who  are  primarily  and  more  justly  liable.  Even  should  he 
pay  the  money,  what  is  there  in  the  constitution  to  preclude  his  being  reimbursed 
by  a  tax  ?  "  Here,  it  will  be  perceived,  the  corporation  was  compelled  to  assume 
an  obligation  which  it  had  not  even  attempted  to  incur,  but  which  private  persons, 
for  considerations  which  seemed  to  them  sufficient,  had  taken  upon  their  own 
shoulders.  We  have  expressed  doubts  of  the  correctness  of  this  decision,  ante, 
230-31,  note,  where  a  number  of  cases  are  cited,  bearing  upon  the  point. 

[444] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  381 

irregularity,  defect,  or  want  of  original  authority,  was  passed  after 
suit  brought,  in  which  such  irregularity  or  defect  became  matter  of 
importance.  The  bringing  of  suit  vests  in  a  party  no  right  to  a 
particular  decision  ; x  and  his  case  must  be  determined  on  the  law 
as  it  stands,  not  when  the  suit  was  brought,  but  when  the  judgment 
is  rendered.2  It  has  been  held  that  a  statute  allowing  amendments 
to  indictments  in  criminal  cases  might  constitutionally  be  applied 
to  pending  suits ; 3  and  even  in  those  States  in  which  retrospective 
laws  are  forbidden,  a  cause  must  be  tried  under  the  rules  of  evi- 
dence existing  at  the  time  of  the  trial,  though  different  from  those 
in  force  when  the  suit  was  commenced.4  And  if  a  case  is  appealed, 
and  pending  the  appeal  the  law  is  changed,  the  appellate  court 
must  dispose  of  the  case  under  the  law  in  force  when  their  deci- 
sion is  rendered.5 

1  Bacon  v.  Callender,  6  Mass.  309 ;  Butler  v.  Palmer,  1  Hill,  324 ;  Cowgill  v. 
Long,  15  111.  203 ;  Miller  v.  Graham,  17  Ohio,  N.  s.  1 ;  State  v.  Squires,  26  Iowa, 
340  ;  Patterson  v.  Philbrook,  9  Mass.  151. 

2  Watson  v.  Mercer,  8  Pet.  88;  Mather  v.  Chapman,  6  Conn.  54;  Bristol  v. 
Supervisors,  &c,  20  Mich.  93;  Satterlee  v.  Mathewson,  16  S.  &  R.  169,  and 
2  Pet.  380. 

3  State  v.  Manning,  11  Texas,  402. 

4  Rich  v.  Flanders,  39  N.  H.  304. 

5  State  v.  Norwood,  12  Md.  195.  In  Eaton  v.  United  States,  5  Cranch, 
281,  a  vessel  had  been  condemned  in  admiralty,  and  pending  an  appeal  the  act 
under  which  the  condemnation  was  declared  was  repealed.  The  court  held  that 
the  cause  must  be  considered  as  if  no  sentence  had  been  pronounced ;  and  if  no 
sentence  had  been  pronounced,  then,  after  the  expiration  or  repeal  of  the  law, 
no  penalty  could  be  enforced  or  punishment  inflicted  for  a  violation  of  the  law 
committed  while  it- was  in  force,  unless  some  special  provision  of  statute  was 
made  for  that  purpose.  See  also  Schooner  Rachel  v.  United  States,  6  Cranch, 
329 ;  Commonwealth  v.  Duane,  1  Binney,  601 ;  United  States  ».  Passmore,  4 
Dall.  372;  Commonwealth  v.  Marshall,  11  Pick.  350;  Commonwealth  v.  Kim- 
ball, 21  Pick.  373;  Hartung  v.  People,  22  N.  Y.  100;  Norris  v.  Crocker,  13 
How.  129  ;  Insurance  Co.  v.  Ritchie,  5  Wall.  541 ;  Ex  parte  McCardle,  7  Wall. 
506;  United  States  v.  Tyner,  11  Wall.  88;  Engle  v.  Shurtz,  1  Mich.  150.  In 
the  McCardle  case  the  appellate  jurisdiction  of  the  United  States  Supreme  Court 
in  certain  cases  was  taken  away  while  a  case  was  pending.  Per  Chase,  Ch.  J. : 
"  Jurisdiction  is  power  to  declare  the  law  ;  and  when  it  ceases  to  exist,  the  only 
function  remaining  to  the  court  is  that  of  announcing  the  fact  and  dismissing 
the  cause.  This  is  not  less  clear  upon  authority  than  upon  principle."  But  where 
a  State  has  jurisdiction  of  a  subject,  e.  g.  pilotage,  until  Congress  establishes 
regulations,  and  penalties  are  incurred  under  a  State  act,  and  afterwards  Congress 
legislates  on  the  subject,  this  does  not  repeal,  but  only  suspends  the  State  law ; 

[445] 


*  381  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

But  the  healing  statute  must  in  all  cases  be  confined  to  validating 
acts  which  the  legislature  might  previously  have  author- 
[*  382]  ized.  *It  cannot  make  good  retrospectively  acts  or  con- 
tracts which  it  had  no  power  to  permit  or  sanction  in 
advance.1  There  lies  before  us  at  this  time  a  volume  of  statutes 
of  one  of  the  States,  in  which  are  contained  acts  declaring  certain 
tax-rolls  valid  and  effectual,  notwithstanding  the  following  irregu- 
larities and  imperfections  :  a  failure  in  the  supervisor  to  carry  out 
separately,  opposite  each  parcel  of  land  on  the  roll,  the  taxes 
charged  upon  such  parcel,  as  required  by  law ;  a  failure  in  the 
supervisor  to  sign  the  certificate  attached  to  the  roll ;  a  failure  in 
the  voters  of  the  township  to  designate,  as  required  by  law,  in  a 
certain  vote  by  which  they  had  assumed  the  payment  of  bounty 
moneys,  whether  they  should  be  raised  by  tax  or  loan ;  corrections 
made  in  the  roll  by  the  supervisor  after  it  had  been  delivered  to 
the  collector  ;  the  including  by  the  supervisor  of  a  sum  to  be  raise.d 
for  township  purposes  without  the  previous  vote  of  the  township, 
as  required  by  law ;  adding  to  the  roll  a  sum  to  be  raised  which 
could  not  lawfully  be  levied  by  taxation  without  legislative  author- 
ity ;  the  failure  of  the  supervisor  to  make  out  the  roll  within  the 
time  required  by  law ;  and  the  accidental  omission  of  a  parcel  of 
land  which  should  have  been  embraced  by  the  roll.  In  each  of 
these  cases,  except  the  last,  the  act  required  by  law,  and  which 
failed  to  be  performed,  might  by  previous  legislation  have  been 
dispensed  with.;  and  perhaps  in  the  last  case  there  might  be  ques- 
tion whether  the  roll  was  rendered  invalid  by  the  omission  referred 
to,  and,  if  it  was,  whether  the  subsequent  act  couldtlegalize  it.2  But 
if  township  officers  should  assume  to  do  acts  under  the  power  of 
taxation  which  could  not  lawfully  be  justified  as  an  exercise  of  that 
power,  no  subsequent  legislation  could  make  them  good.  If,  for 
instance,  a  part  of  the  property  in  a  taxing  district  should  be  assessed 
at  one  rate,  and  a  part  at  another,  for  a  burden  resting  equally  upon 
all,  there  would  be  no  such  apportionment  as  is  essential  to  tax- 
ation, and  the  roll  would  be  beyond  the  reach  of  curative  legisla- 

and  a  penalty  previously  incurred  may  still  be  collected.  Sturgis  v.  Spofford,  45 
N.  Y.  446. 

!  See  ante,  379,  and  note  1. 

2  See  Weeks  v.  Milwaukee,  10  Wis.  242 ;  Dean  v.  Gleason,  16  Wis.  1 ;  post 
515,  note. 

[446] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  382 

tion.1  And  if  persons  or  property  should  be  assessed  for 
taxation  *  in  a  district  which  did  not  include  them,  the  [*  383] 
assessment  would  not  only  be  invalid,  but  a  healing  stat- 
ute would  be  ineffectual  to  charge  them  with  the  burden.  In  such 
a  case  there  would  be  a  fatal  want  of  jurisdiction  ;  and  even  in 
judicial  proceedings,  if  there  was  originally  a  failure  of  jurisdiction, 
no  subsequent  law  can  confer  it.3 

Statutory  Privileges  and  Exemptions. 

The  citizen  has  no  vested  right  in  statutory  privileges  and  exemp- 
tions. Among  these  may  be  mentioned,  —  exemptions  from  the  per- 
formance of  public  duty  upon  juries,  or  in  the  militia,  and  the 
like  ;  exemptions  of  property  or  person  from  assessment  for  the 

'  •  See  Billings  ».  Detten,  15  111.  218  ;  Conway  v.  Cable,  37  I11..82  ;  and  Thames 
Manufacturing  Co.  v.  Lathrop,  7  Conn.  550,  for  cases  where  curative  statutes 
were  held  not  effectual  to  reach  defects  in  tax  proceedings.  As  to  what  defects 
may  or  may  not  be  cured  by  subsequent  legislation,  see  Allen  v.  Armstrong, 
16  Iowa,  508,  Smith  v.  Cleveland,  17  Wis.  556,  and  Abbott  v.  Lindenbower, 
42  Mo.  162.  In  Tallman  v.  Janesville,  17  Wis.  71,  the  constitutional  authority 
of  the  legislature  to  cause  an  irregular  tax  to  be  reassessed  in  a  subsequent  year, 
where  the  rights  of  bona  fide  purchasers  had  intervened,  was  disputed ;  but  the 
court  sustained  the  authority  as  "  a  salutary  and  highly  beneficial  feature  of  our 
systems  of  taxation,"  and  "  not  to  be  abandoned  because  in  some  instances  it 
produces  individual  hardships."  Certainly  bona  fide  purchasers,  as  between 
themselves  and  the  State,  must  take  their  purchases  subject  to  all  public  burdens 
justly  resting  upon  them.  The  case  of  Conway  v.  Cable  is  instructive.  It 
was  there  held  among  other  things,  —  and  very  justly  as  we  think, — that  the 
legislature  could  not  make  good  a  tax  sale  effected  by  fraudulent  combination 
between  the  officers  and  the  purchasers.  In  Miller  v.  Graham,  17  Ohio,  N.  8.  1, 
a  statute  validating  certain  ditch  assessments  was  sustained,  notwithstanding  the 
defects  covered  by  it  were  not  mere  irregularities  ;  but  that  statute  gave  the  par- 
ties an  opportunity  to  be  heard  as  to  these  defects. 

2  See  Wells  v.  Weston,  22  Mo.  385 ;  People  v.  Supervisors  of  Chenango, 
11  N.  Y.  563 ;  Hughey's  Lessee  v.  Howell,  2  Ohio,  231 ;  Covington  v.  South- 
gate,  15  B.  Monr.  491 ;  Morford  v.  Unger,  8  Iowa,  82  ;  post,  499,  500. 

3  So  held  in  McDaniel  v.  Correll,  19  111.  228,  where  a  statute  came  under 
consideration  which  assumed  to  make  valid  certain  proceedings  in  court  which 
were  void  for  want  of  jurisdiction  of  the  persons  concerned.  See  also  Denny  v. 
Mattoon,  2  Allen,  361  ;  Nelson  v.  Rountree,  23  Wis.  367 ;  Griffin's  Ex'r  v. 
Cunningham,  20  Grat.  109,  per  Joynes,  J.  ;  Richards  v.  Rote,  68  Penn.  St. 
248 ;  State  v.  Doherty,  60  Me.  504.  Walpole  v.  Elliott,  18  Ind.  259,  is  distin- 
guishable from  these  cases.  In  that  case  there  was  not  a  failure  of  jurisdiction, 
but  an  irregular  exercise  of  it. 

[447] 


*  383  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

purposes  of  taxation  ;  exemptions  of  property  from  being  seized 
on  attachment,  or  execution,  or  for  the  payment  of  taxes  ;  exemp- 
tion from  highway  labor,  and  the  like.  All  these  rest  upon  reasons 
of  public  policy,  and  the  laws  are  changed  as  the  varying  circum- 
stances seem  to  require.  The  State  demands  the  performance  of 
military  duty  by  those  persons  only  who  are  within  certain  speci- 
fied ages  ;  but  if,  in  the  opinion  of  the  legislature,  the  public  exi- 
gencies should  demand  military  service  from  all  other  persons 
capable  of  bearing  arms,  the  privilege  of  exemption  might  be 
recalled,  without  violation  of  any  constitutional  principle.  The 
fact  that  a  party  had  passed  the  legal  age  under  an  existing  law, 
and  performed  the  service  demanded  by  it,  could  not  protect  him 
against  further  calls,  when  public  policy  or  public  necessity  was 
thought  to  require  them.1  In  like  manner,  exemptions  from  tax- 
ation are  always  subject  to  recall,  when  they  have  been  granted 
merely  as  a  privilege,  and  not  for  a  consideration  received  by  the 
public ;  as  in  the  case  of  exemption  of  buildings  for  religious  or 
educational  purposes,  and  the  like.2  So,  also,  are  exemptions  of 
property  from  execution.3  So,  a  license  to  carry  On  a  particular 
trade  for  a  specified  period,  may  be  recalled  before  the  period  has 
elapsed.4  So,  as  before  stated,  a  penalty  given  by  statute  may  be 
taken  away  by  statute  at  any  time  before  judgment  is  recovered.5 

1  Commonwealth  v.  Bird,  12  Mass.  443;  Swindle  v.  Brooks,  34  Geo.  67; 
Mayer,  Ex  parte,  27  Texas,  715.     And  see  Dale  v.  The  Governor,  3  Stew.  387. 

2  See  ante,  280,  281,  and  notes.  All  the  cases  concede  the  right  in  the  legis- 
lature to  recall  an  exemption  from  taxation,  when  not  resting  upon  contract. 
The  subject  was  considered  in  People  v.  Roper,  35  N.  Y.  629,  in  which  it  was 
decided  that  a  limited  immunity  from  taxation,  tendered  to  the  members  of 
voluntary  military  companies,  might  be  recalled  at  any  time.  It  was  held  not  to 
be  a  contract,  but  "  only  an  expression  of  the  legislative  will  for  the  time  being, 
in  a  matter  of  mere  municipal  regulation."  And  see  Christ  Church  v.  Philadel- 
phia, 24  How.  300;  Lord  v.  Litchfield,  36  Conn.  116. 

3  Bull  v.  Conroe,  13  Wis.  238. 

4  Of  this  there  can  be  no  question  unless  a  fee  was  paid  for  the  license ;  and 
well-considered  cases  hold  that  it  may  be  even  then.  See  Adams  v.  Hackett, 
5  Gray,  597 ;  Metropolitan  Board  of  Excise  v.  Barrie,  34  N.  Y.  657  ;  ante, 
p.  283,  note. 

5  Oriental  Bank  v.  Freeze,  6  Shep.  109.  The  statute  authorized  the  plaintiff, 
suing  for  a  breach  of  a  prison  bond,  to  recover  the  amount  of  his  judgment  and 
costs.  This  was  regarded  by  the  court  as  in  the  nature  of  the  penalty ;  and  it 
was  therefore  held  competent  for  the  legislature,  even  after  breach,  to  so  modify 
the  law  as  to  limit  the  plaintiff's  "recovery  to  his  actual  damages.  See  ante, 
p.  362,  note  5,  and  cases  cited. 

[448] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  383 

So  an  offered  bounty  may  be  recalled,  except  as  to  so  much  as 
was  actually  earned  while  the  offer  was  a  continuing  one ; 
*  and  the  fact  that  a  party  has  purchased  property  or  [*  384] 
incurred  expenses  in  preparation  for  earning  the  bounty 
cannot  preclude  the  recall.1  A  franchise  granted  by  the  State  with 
a  reservation  of  a  right  of  repeal  must  be  regarded  as  a  mere  priv- 
ilege while  it  is  suffered  to  continue,  but  the  legislature  may  take 
it  away  at  any  time,  and  the  grantees  must  rely  for  the  perpetuity 
and  integrity  of  the  franchises  granted  to  them  solely  upon  the 
faith  of  the  sovereign  grantor.2  A  statutory  right  to  have  cases 
reviewed  on  appeal  may  be  taken  away,  by  a  repeal  of  the  statute, 
even  as  to  causes  which  had  been  previously  appealed.3  A  mill- 
dam  act  which  confers  upon  the  person  erecting  a  dam  the  right 
to  maintain  it,  and  flow  the  lands  of  private  owners  on  paying  such 
compensation  as  should  be  assessed  for  the  injury  done,  may  be 
repealed  even  as  to  dams  previously  erected.4  These  illustrations 
must  suffice  under  the  present  head. 

Consequential  Injuries. 

It  is  a  general  rule  that  no  one  has  a  vested  right  to  be  pro- 
tected against  consequential  injuries  arising  from  a  proper  exercise 
of  rights  by  others.5  This  rule  is  peculiarly  applicable  to  injuries 
resulting  from  the  exercise  of  public  powers.  Under  the  police 
power  the  State  sometimes  destroys,  for  the  time  being,  and  per- 
haps permanently,  the  value  to  the  owner  of  his  property,  without 
affording  him  any  redress.  The  construction  of  a  new  way  or 
the  discontinuance  of  an  old  one  may  very  seriously  affect  the 

1  East  Saginaw  Salt  Manuf.  Co.  v.  East  Saginaw  City,  19  Mich.  271 ;  s.  c. 
2  Am.  Rep.  82,  and  13  Wall.  373.  But  as  to  so  much  of  the  bounty  as  was 
actually  earned  before  the  change  in  the  law,  the  party  earning  it  has  a  vested 
right  which  cannot  be  taken  away.  People  v.  State  Auditors,  9  Mich.  327.  And 
it  has  been  held  competent  in  changing  a  county  seat  to  provide  by  law  for  com- 
pensation, through  taxation  to  the  residents  of  the  old  site.  Wilkinson  v. 
Cheatham,  43  Geo.  258. 

2  Per  Smith,  J.,  in  Pratt  v.  Brown,  3  Wis.  611. 

3  Ex  parte  McCardle,  7  Wall. -506. 

4  Pratt  v.  Brown,  3  Wis.  603.  But  if  the  party  maintaining  the  dam  had 
paid  to  the  other  party  a  compensation  assessed  under  the  statute,  it  might  be 
otherwise. 

5  For  the  doctrine  damnum  absque  injuria,  see  Broom's  Maxims,  185  ;  Sedg- 
wick on  Damages,  30,  112. 

29  [  449  ] 


*  384  CONSTITUTIONAL    LIMITATIONS.  [CH.  XI. 

value  of  adjacent  property  ;  the  removal  of  a  county  or  State  cap- 
ital will  often  reduce  very  largely  the  value  of  all  the  real  estate  of 
the  place  from  whence  it  was  removed:  but  in  neither  case  can  the 
parties,  whose  interests  would  be  injuriously  affected,  enjoin  the 
act,  or  claim  compensation  from  the  public.1  The  general  laws  of 
the  State  may  be  so  changed  as  to  transfer,  from  one  town  to 
another,  the  obligation  to  support  certain  individuals,  who  may 
become  entitled  to  support  as  paupers,  and  the  Constitution  will 
present  no  impediment.2  The  granting  of  a  charter  to  a  new 
corporation  may  sometimes  render  valueless  the  franchise  of  an 
existing  corporation  ;  but  unless  the  State  by  contract  has  pre- 
cluded itself  from  such  new  grant,  the  incidental  injury 
[*  385]  *  can  constitute  no  obstacle.3  But  indeed  it  seems  idle  to 
specify  instances,  inasmuch  as  all  changes  in  the  laws  of 
the  State  are  liable  to  inflict  incidental  injury  upon  individuals, 
and,  if  every  citizen  was  entitled  to  remuneration  for  such  injury, 
the  most  beneficial  and  necessary  changes  in  the  law  might  be 
found  impracticable  of  accomplishment. 

We  have  now  endeavored  to  indicate  what  are  and  what  are  not 
to  be  regarded  as  vested  rights,  and  to  classify  the  cases  in  which 
individual  interests,  in   possession    or    expectancy,  are  protected 

1  See  ante,  p.  208,  and  cases  cited  in  note  2.  Also,  Wilkinson  v.  Cheatham, 
43  Geo.  258. 

4  Goshen  v.  Richmond,  4  Allen,  460 ;  Bridgewater  v.  Plymouth,  97  Mass. 
390. 

3  The  State  of  Massachusetts  granted  to  a  corporation  the  right  to  construct 
a  toll-bridge  across  the  Charles  River,  under  a  charter  which  was  to  continue  for 
forty  years,  afterwards  extended  to  seventy,  at  the  end  of  which  period  the  bridge 
•was  to  become  the  property  of  the  commonwealth.  During  the  term  the  cor- 
poration was  to  pay  2001.  annually  to  Harvard  College.  Forty-two  years  after 
the  bridge  was  opened  for  passengers,  the  State  incorporated  a  company  for  the 
purpose  of  erecting  another  bridge  over  the  same  river,  a  short  distance  only 
from  the  first,  and  which  would  accommodate  the  same  passengers.  The  neces- 
sary effect  would  be  to  decrease  greatly  the  value  of  the  first  franchise,  if  not  to 
render  it  altogether  worthless.  But  the  first  charter  was  not  exclusive  in  its 
terms  ;  no  contract  was  violated  in  granting  the  second  ;  the  resulting  injury  was 
incidental  to  the  exercise  of  an  undoubted  right  by  the  State,  and  as  all  the 
vested  rights  of  the  first  corporation  still  remained,  though  reduced  in  value  by 
the  new  grant,  the  case  was  one  of  damage  without  legal  injury.  Charles  River 
Bridge  ».  Warren  Bridge,  7  Pick.  344,  and  11  Pet.  420.  See  also  Turnpike  Co. 
v.  State,  3  Wall.  210  ;  Piscataqua  Bridge  v.  New  Hampshire  Bridge,  7  N.  H.  35  ; 
English  v.  New  Haven,  &c,  Co.  32  Conn.  240;  Binghampton  Bridge  Case,  27 
N.Y.  87,  and  3  Wall.  51. 
[450] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  385 

against  being  devested  by  the  direct  interposition  of  legislative 
authority.  Some  other  cases  may  now  be  considered,  in  which 
legislation  has  endeavored  to  control  parties  as  to  the  manner  in 
which  they  should  make  use  of  their  property,  or  has  permitted 
claims  to  be  created  against  it  through  the  action  of  other  parties 
against  the  will  of  the  owners.  We  do  not  allude  now  to  the 
control  which  the  State  may  possess  through  an  exercise  of  the 
police  power,  —  a  power  which  is  merely  one  of  regulation  with  a 
view  to  the  best  interests  and  the  most  complete  enjoyment  of 
rights  by  all,  —  but  to  that  which,  under  a  claim  of  State  policy, 
and  without  any  reference  to  wrongful  act  or  omission  by  the  owner, 
would  exercise  a  supervision  over  his  enjoyment  of  undoubted 
rights,  or  which,  in  some  cases,  would  compel  him  to  recognize  and 
satisfy  demands  upon  his  property  which  have  been  created  without 
his  assent. 

In  former  times  sumptuary  laws  were  sometimes  passed,  and 
they  were  even  deemed  essential  in  republics  to  restrain  the  lux- 
ury so  fatal  to  that  species  of  government.1  But  the  ideas  which 
suggested  such  laws  are  now  exploded  utterly,  and  no  one  would 
seriously  attempt  to  justify  them  in  the  present  age.  The  right  of 
every  man  to  do  what  he  will  with  his  own,  not  interfering  with  the 
reciprocal  right  of  others,  is  accepted  among  the  fundamentals  of 
our  law.  The  instances  of  attempt  to  interfere  with  it  have  not 
been  numerous  since  the  early  colonial  days.  A  notable  instance 
of  an  attempt  to  substitute  the  legislative  judgment  for  that  of  the 
proprietor,  regarding  the  manner  in  which  he  should  use  and 
employ  his  property,  may  be  mentioned.  In  the  State  of  Kentucky 
an  act  was  at  one  time  passed  to  compel  the  owners  of  wild  lands 
to  make  certain  improvements  upon  them  within  a  specified  time, 
and  declared  them  forfeited  to  the  State  in  case  the  statute  was  not 

1  Montesq.  Sp.  of  the  Laws,  B.  7.  Such  Laws,  though  common  in  some  coun- 
tries, have  never  been  numeixms  in  England.  See  references  to  the  legislation 
of  this  character,  4  Bl.  Com.  170.  Some  of  these  statutes  prescribed  the  num- 
ber of  courses  permissable  at  dinner  or  other  meal,  while  others  were  directed  to 
restraining  extravagance  in  dress.  See  Hallam,  Mid.  Ages,  c.  9,  pt.  II.  ;  and  as 
to  Roman  sumptuary  laws,  Encyc.  Metrop.  Vol.  X.  p.  110.  Adam  Smith  said  of 
such  laws,  "It  is  the  highest  impertinence  and  presumption  in  kings  and  min- 
isters to  pretend  to  watch  over  the  economy  of  private  people,  and  to  restrain 
their  expense,  either  by  sumptuary  laws,  or  by  prohibiting  the  importation  of 
foreign  luxuries."  Wealth  of  Nations,  B.  2,  c.  3.  As  to  prohibitory  liquor  laws, 
see  post,  581-584. 

[  451  ] 


*  385  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

complied  with.  It  would  be  difficult  to  frame,  consistently  with 
the  general  principles  of  free  government,  a  plausible  argument  in 
support  of  such  a  statute.  It  was  not  an  exercise  of  the  right  of 
eminent  domain,  for  that  appropriates  property  to  some  specific 
public  use  on  making  compensation.  It  was  not  taxation,  for  that 
is  simply  an  apportionment  of  the  burden  of  supporting  the  govern- 
ment. It  was  not  a  police  regulation,  for  that  could  not  go  beyond 
preventing  an  improper  use  of  the  land  with  reference  to 
[*  386]  *  the  due  exercise  of  rights  and  enjoyment  of  legal  priv- 
ileges by  others.  It  was  purely  and  simply  a  law  to  forfeit 
a  man's  property,  if  he  failed  to  improve  it  according  to  a  stand- 
ard which  the  legislature  had  prescribed.  To  such  a  power,  if 
possessed  by  the  government,  there  could  be  no  limit  but  the  legis- 
lative discretion  ;  and  if  defensible  on  principle,  then  a  law  which 
should  authorize  the  officer  to  enter  a  man's  dwelling  and  seize 
and  confiscate  his  furniture  if  it  fell  below,  or  his  food  if  it  ex- 
ceeded, an  established  legal  standard,  would  be  equally  so.  But 
in  a  free  country  such  laws  when  mentioned  are  condemned 
instinctively.1 

But  cases  may  sometimes  present  themselves  in  which  improve- 
ments actually  made  by  one  man  upon  the  land  of  another,  even 
though  against  the  will  of  the  owner,  ought  on  grounds  of  strict 
equity  to  constitute  a  charge  upon  the  land  improved.  If  they 
have  been  made  in  good  faith,  and  under  a  reasonable  expectation 
on  the  part  of  the  person  making  them,  that  he  was  to  reap  the 
benefit  of  them,  and  if  the  owner  has  stood  by  and  suffered  them 
to  be  made,  but  afterwards  has  recovered  the  land  and  appropriated 
the  improvements,  it  would  seem  that  there  must  exist  against  him 
at  least  a  strong  equitable  claim  for  reimbursement  of  the  expend- 
itures made,  and  perhaps  no  sufficient  reason  why  provision  should 
not  be  made  by  law  for  their  recovery. 

Accordingly  in  the  several  States  statutes  will  be  found  which 
undertake  to  provide  for  these  equitable  claims.  These  statutes  are 
commonly  known  as  betterment  laws ;  and  as  an  illustration  of  the 
whole  class,  we  give  the  substance  of  that  adopted  in  Vermont.  It 
provided  that  after  recovery  in  ejectment,  where  he  or  those  through 
whom  he  claimed  had  purchased  or  taken  a  lease  of  the  land,  sup- 

1  The  Kentucky  statute  referred  to  was  declared  unconstitutional  in  Gaines  v. 
Buford,  1  Dana,  499.     See  also  Violett  v.  Violett,  2  Dana,  326. 

[  452  ] 


CH.  XL]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  386 

posing  at  the  time  that  the  title  purchased  was  good,  or  the  lease 
valid  to  convey  and  secure  the  title  and  interest  therein  expressed, 
the  defendant  should  be  entitled  to  recover  of  the  plaintiff  the  full 
value  of  the  improvements  made  by  him  or  by  those  through  whom 
he  claimed,  to  be  assessed  by  jury,  and  to  be  enforced  against  the 
land,  and  not  otherwise.  The  value  was  ascertained  by  estimating 
the  increased  value  of  the  land  in  consequence  of  the  improve- 
ments but  the  plaintiff  at  his  election  might  have  the  value  of  the 
land  without  the  improvements  assessed,  and  the  defendant  should 
purchase  the  same  at  that  price  within  four  years,  or  lose  the  ben- 
efit of  his  claim  for  improvements.  But  the  benefit  of  the 
law  was  not  given  to  one  who  had  entered  on  land  *  by  [*  887] 
virtue  of  a  contract  with  the  owner,  unless  it  should 
appear  that  the  owner  had  failed  to  fulfil  such  contract  on  his 
part.1 

This  statute,  and  similar  ones  which  preceded  it,  have  been 
adjudged  constitutional  by  the  Supreme  Court  of  Vermont,  and 
have  frequently  been  enforced.  In  an  early  case  the  court  explained 
the  principle  of  these  statutes  as  follows :  "  The  action  for  better- 
ments, as  they  are  now  termed  in  the  statute,  is  given  on  the 
supposition  that  the  legal  title  is  found  to  be  in  the  plaintiff  in 
ejectment,  and  is  intended  to  secure  to  the  defendant  the  fruit  of 
his  labor,  and  to  the  plaintiff  all  that  he  is  justly  entitled  to,  which 
is  his  land  in  as  good  a  situation  as  it  would  have  been  had  no 
labor  been  bestowed  thereon.  The  statute  is  highly  equitable  in 
all  its  provisions,  and  would  do  exact  justice  if  the  value  either  of 
the  improvements  or  of  the  land  was  always  correctly  estimated. 
The  principles  upon  which  it  is  founded  are  taken  from  the  civil 
law,  where  ample  provision  was  made  for  reimbursing  the  bona  fide 
possessor  the  expense  of  his  improvements,  if  he  was  removed  from 
his  possession  by  the  legal  owner.  It  gives  to  the  possessor  not 
the  expense  which  he  has  laid  out  on  the  land,  but  the  amount 
which  he  has  increased  the  value  of  the  land  by  his  betterments 
thereon  ;  or,  in  other  words,  the  difference  between  the  value  of  the 
land  as  it  is  when  the  owner  recovers  it,  and  the  value  if  no  improve- 
ment had  been  made.  If  the  owner  takes  the  land  together  with 
the  improvements,  at  the  advanced  value  which  it  has  from  the 
labor  of  the  possessor,  what  can  be  more  just  than  that  he  should 

1  Revised  Statutes  of  Vermont  of  1839,  p.  216. 

[453] 


*  387  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

pay  the  difference  ?  But  if  he  is  unwilling  to  pay  this  difference, 
by  giving  a  deed  as  the  statue  provides,  he  receives  the  value  as  it 
would  have  been  if  nothing  had  been  done  thereon.  The  only 
objection  which  can  be  made  is,  that  it  is  sometimes  compelling 
the  owner  to  sell  when  he  may  have  been  content  with  the  property 
in  its  natural  state.  But  this,  when  weighed  against  the  loss  to 
the  bona  fide  possessor,  and  against  the  injustice  of  depriving  him 
of  the  fruits  of  his  labor,  and  giving  it  to  another,  who,  by  his 
negligence  in  not  sooner  enforcing  his  claim,  has  in  some  measure 
contributed  to  the  mistake  under  which  he  has  labored,  is  not 

entitled  to  very  great  consideration."  1 
[*388]       *The  last   circumstance    stated  in  this  opinion — the 

negligence  of  the  owner  in  asserting  his  claim— is  evi- 
dently deemed  important  in  some  States,  whose  statutes  only  allow 
a  recovery  for  improvements  by  one  who  has  been  in  possession  a 
certain  number  of  years.  But  a  later  Vermont  case  dismisses  it 
from  consideration  as  a  necessary  ground  on  which  to  base  the 
right  of  recovery.  "  The  right  of  the  occupant  to  recover  the  value 
of  his  improvements,"  say  the  court,  "  does  not  depend  upon  the 
question  whether  the  real  owner  has  been  vigilant  or  negligent  in 
the  assertion  of  his  rights.  It  stands  upon  a  principle  of  natural 
justice  and  equity;  viz.,  that  the  occupant  in  good  faith,  believing 
himself  to  be  the  owner,  has  added  to  the  permanent  value  of  the 
land  by  his  labor  and  his  money  ;  is  in  equity  entitled  to  such 
added  value  ;  and  that  it  would  be  unjust  that  the  owner  of  the  land 
should  be  enriched  by  acquiring  the  value  of  such  improvements, 
without  compensation  to  him  who  made  them.  This  principle  of 
natural  justice  has  been  very  widely,  we  may  say  universally  rec- 
ognized." 2 

1  Brown  v.  Storm,  4  Vt.  37.  This  class  of  legislation  was  also  elaborately 
examined  and  defended  by  Trumbull,  J.,  in  Ross  v.  Irving,  14  111.  171,  and  in 
some  of  the  other  cases  referred  to  in  the  succeeding  note.  See  also  Bright  v. 
Boyd,  1  Story,  478 ;  s.  c.  2  Story,  607. 

2  Whitney  v.  Richardson,  31  Vt.  306.  For  other  cases  in  which  similar  laws 
have  been  held  constitutional,  see  Armstrong  v.  Jackson,  1  Blackf.  374;  Fowler 
v.  Halbert,  4  Bibb,  54  ;  Witkington  v.  Corey,  2  N.  H.  115  ;  Bacon  v.  Callender, 
6  Mass.  303 ;  Pacquette  v.  Pickness,  19  Wis.  219 ;  Childs  v.  Shower,  18  Iowa, 
261;  Scott  v.  Mather,  14  Texas,  235;  Saunders  v.  Wilson,  19  Texas,  194; 
Brackett  v.  Noreross,  1  Greenl.  92;  Hunt's  Lessee  v.  McMahan,  5  Ohio,  132; 
Longwovth  v  Worthington,  6  Ohio,  10.  See  further,  Jones  v.  Carter,  12  Mass. 
314;  Dothage  v.  Stuart,  35  Mo.  251 ;  Fenwick  v.  Gill,  38  Mo.  510 ;  Howard  v. 

[454  ] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OP  THE  LAND."  *  389 

*  Betterment  laws,  then,  recognize  the  existence  of  an  [*  389] 
equitable  right,  and  give  a  remedy  for  its  enforcement  where 
none  had  existed  before.  It  is  true  that  they  make  a  man  pay  for 
improvements  which  he  has  not  directed  to  be  made ;  but  this  leg- 
islation presents  no  feature  of  officious  interference  by  the  govern- 
ment with  private  property.  The  improvements  have  been  made 
by  one  person  in  good  faith,  and  are  now  to  be  appropriated  by 
another.  The  parties  cannot  be  placed  in  statu  quo,  and  the  stat- 
ute accomplishes  justice  as  near  as  the  circumstances  of  the  case 
will  admit,  when  it  compels  the  owner  of  the  land,  who,  if  he 
declines  to  sell,  must  necessarily  appropriate  the  betterments  made 
by  another,  to  pay  the  value  to  the  person  at  whose  expense  they 
have  been  made.  The  case  is  peculiar  ;  but  a  statute  cannot  be 
void  as  an  unconstitutional  interference  with  private  property  which 
adjusts  the  equities  of  the  parties  as  near  as  possible  according  to 
natural  justice.1 

Zeyer,  18  La.  An.  407  ;  Pope  v.  Macon,  23  Ark.  644  ;  Marlow  v.  Adams,  24  Ark. 
109;  Orinond  v.  Martin,  37  Ala.  598;  Love  v.  Shartzer,  31  Cal.  487.  For  a 
contrary  ruling,  see  Nelson  v.  Allen,  1  Yerg.  376.  Mr.  Justice  Story  held  in 
Society,  &c.  v.  Wheeler,  2  Gall.  105,  that  such  a  law  could  not  constitutionally 
be  made  to  apply  to  improvements  made  before  its  passage ;  but  this  decision 
was  made  under  the  New  Hampshire  Constitution,  which  forbade  retrospective 
laws.  The  principles  of  equity  upon  which  such  legislation  is  sustained  would 
seem  not  to  depend  upon  the  time  when  the  improvements  were  made.  See 
Davis's  Lessee  v.  Powell,  13  Ohio,  308.  In  Childs  v.  Shower,  18  Iowa,  261,  it 
was  held  that  the  legislature  could  not  constitutionally  make  the  value  of  the 
improvements  a  personal  charge  against  the  owner  of  the  land,  and  authorize  a 
personal  judgment  against  him.  The  same  ruling  was  had  in  McCoy  v.  Grandy, 
3  Ohio,  N.  s.  463.  A  statute  had  been  passed  authorizing  the  occupying  claimant 
at  his  option,  after  judgment  rendered  against  him  for  the  recovery  of  the  land, 
to  demand  payment  from  the  successful  claimant  of  the  full  value  of  his  lasting 
and  valuable  improvements,  or  to  pay  to  the  successful  claimant  the  value  of  the 
land  without  the  improvements,  and  retain  it.  The  court  say  :  "  The  occupying 
claimant  act,  in  securing  to  the  occupant  a  compensation  for  his  improvements 
as  a  condition  precedent  to  the  restitution  of  the  lands  to  the  owner,  goes  to  the 
utmost  stretch  of  the  legislative  power  touching  this  subject.  And  the  statute 
.  .  .  providing  for  the  transfer  of  the  fee  in  the  land  to  the  occupying  claimant, 
without  the  consent  of  the  owner,  is  a  palpable  invasion  of  the  right  of  private 
property,  and  clearly  in  conflict  with  the  Constitution." 

1  In  Harris  v.  Inhabitants  of  Marblehead,  10  Gray,  44,  it  was  held  that  the 
betterment  law  did  not  apply  to  a  town  which  had  appropriated  private  property 
for  the  purposes  of  a  school-house,  and  erected  the  house  thereon.  The  law,  it 
was  said,  did  not  apply  "  where  a  party  is  taking  land  by  force  of  the  statute, 

[455  ] 


389  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 


Unequal  and  Partial  Legislation. 

In  the  course  of  our  discussion  of  this  subject  it  has  been  seen 
that  some  statutes  are  void  though  general  in  their  scope,  while 
others  are  valid  though  establishing  rules  for  single  cases  only. 
An  enactment  may  therefore  be  the  law  of  the  land  without  being 
a  general  law.  And  this  being  so,  it  may  be  important  to  consider 
in  what  cases  constitutional  principles  will  require  a  statute  to  be 
general  in  its  operation,  and  in  what  cases,  on  the  other  hand,  it 
may  be  valid  without  being  general.  We  speak  now  in  reference 
to  general  constitutional  principles,  and  not  to  any  peculiar  rules 
which  may  have  become  established  by  special  provisions  in  the 
constitutions  of  individual  States. 

The  cases  relating  to  municipal  corporations  stand  upon  pecul- 
iar grounds  from  the  fact  that  those  corporations  are  agencies  of 
government,  and  as  such  are  subject  to  complete  legislative  control. 
Statutes  authorizing  the  sale  of  property  of  minors  and  other  per- 
sons under  disability  are  also  exceptional,  in  that  they  are  applied 
for  by  the  parties  representing  the  interests  of  the  owners,  and  are 
remedial  in  their  character.  Such  statutes  are  supported  by  the 
presumption  that  the  parties  in  interest  would  consent  if  capable  of 
doing  so  ;  and  in  law  they  are  to  be  considered  as  assenting 
[*  390]  in  *  the  person  of  the  guardians  or  trustees  of  their  rights. 
And  perhaps  in  any  other  case,  if  a  party  petitions  for 
legislation  and  avails  himself  of  it,  he  may  justly  be  held  estopped 
from  disputing  its  validity ; 1  so  that  the  great  bulk  of  private 
legislation  which  is  adopted  from  year  to  year,  may  at  once  be 
dismissed  from  this  discussion. 

Laws  public  in  their  objects  may,  unless  express  constitutional 
provision  forbids,2  be  either  general  or  local  in  their  application ; 

and  is  bound  to  see  that  all  the  steps  are  regular.  If  it  did,  the  party  taking 
the  land  might  in  fact  compel  a  sale  of  the  land,  or  compel  the  party  to  buy  the 
school-house,  or  any  other  building  erected  upon  it."  But  as  a  matter  of  con- 
stitutional authority,  we  see  no  reason  to  doubt  that  the  legislature  might  extend 
such  a  law  even  to  the  cases  of  this  description. 

1  This  doctrine  was  applied  in  Ferguson  v.  Landram,  5  Bush,  230,  to  parties 
who  had  obtained  a  statute  for  the  levy  of  a  tax  to  refund  bounty  moneys,  which 
statute  was  held  void  as  to  other  persons. 

*  See  ante,  p.  128,  note  1,  and  cases  cited.  To  make  a  statute  a  public  law 
of  general  obligation,  it  is  not  necessary  that  it  should  be  equally  applicable  to 

[456  ] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OP  THE  LAND."  *  390 

they  may  embrace  many  subjects  or  one,  and  they  may  extend  to 
all  citizens,  or  be  confined  to  particular  classes,  as  minors  or  mar- 
ried women,  bankers  or  traders,  and  the  like.  The  authority  that 
legislates  for  the  State  at  large  must  determine  whether  particular 
rules  shall  extend  to  the  whole  State  and  all  its  citizens,  or,  on  the 
other  hand,  to  a  subdivision  of  the  State  or  a  single  class  of  its 
citizens  only.  The  circumstances  of  a  particular  locality,  or  the 
prevailing  public  sentiment  in  that  section  of  the  State,  may 
require  or  make  acceptable  different  police  regulations  from  those 
demanded  in  another,  or  call  for  different  taxation,  and  a  differ- 
ent application  of  the  public  moneys.  The  legislature  may  there- 
fore prescribe  or  authorize  different  laws  of  police,  allow  the  right 
of  eminent  domain  to  be  exercised  in  different  cases  and  through 
different  agencies,  and  prescribe  peculiar  restrictions  upon  taxation 
in  each  distinct  municipality,  provided  the  State  constitution  does 
not  forbid.  These  discriminations  are  made  constantly  ;  and  the 
fact  that  the  laws  are  of  local  or  special  operation  only  is  not 
supposed  to  render  them  obnoxious  in  principle.  The  legislature 
may  also  deem  it  desirable  to  prescribe  peculiar  rules  for  the 
several  occupations,  and  to  establish  distinctions  in  the  rights, 
obligations,  duties,  and  capacities  of  citizens.  The  business  of 
common  carriers,  for  instance,  or  of  bankers,  may  require  special 
statutory  regulations  for  the  general  benefit,  and  it  may  be  matter 
of  public  policy  to  give  laborers  in  one  business  a  specific  lien  for 
their  wages,  when  it  would  be  impracticable  or  impolitic  to  do 
the  same  by  persons  engaged  in  some  other  employments.  If 
the  laws  be  otherwise  unobjectionable,  all  that  can  be  required 
in  these  cases  is,  that  they  be  general  in  their  application  to  the 
class  or  locality  to  which  they  apply ;  and  they  are  then  public  in 
character,  and  of  their  propriety  and  policy  the  legislature  must 
judge. 

But  a  statute  would  not  be  constitutional  which  should  proscribe 
a  class  or  a  party  for  opinion's  sake,1  or  which  should  select 
particular  *  individuals  from  a  class  or  locality,  and  sub-  [*  391] 
ject  them  to  peculiar  rules,  or  impose  upon  them  special 

all  parts  of  the  State ;  all  that  is  required  is  that  it  shall  apply  equally  to  all 
persons  within  the  territorial  limits  described  in  the  act.  State  v.  County  Com- 
missioners of  Baltimore,  29  Md.  516. 

1  The  sixth  section  of  the  Metropolitan  Police  Law  of  Baltimore  (1859)  pro- 
vided that  "  no  Black  Republican,  or  indorser  or  supporter  of  the  Helper  book, 

[457] 


*  391  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

obligations  or  burdens  from  which  others  in  the  same  locality  or 
class  are  exempt.1 

The  legislature  may  suspend  the  operation  of  the  general  laws 
of  the  State ;  but  when  it  does  so  the  suspension  must  be  general, 
and  cannot  be  made  for  individual  cases  or  for  particular  localities.2 

shall  be  appointed  to  any  office"  under  the  Board  of  Police  which  it  established. 
This  was  claimed  to  be  unconstitutional,  as  introducing  into  legislation  the  prin- 
ciple of  proscription  for  the  sake  of  political  opinion,  which  was  directly  opposed 
to  the  cardinal  principles  on  which  the  Constitution  was  founded.  The  court 
dismissed  the  objection  in  the  following  words :  "  That  portion  of  the  sixth  sec- 
tion which  relates  to  Black  Republicans,  &c,  is  obnoxious  to  the  objection  urged 
against  it,  if  we  are  to  consider  that  class  of  persons  as  proscribed  on  account  of 
their  political  or  religious  opinions.  But  we  cannot  understand,  officially,  who 
are  meant  to  be  affected  by  the  proviso,  and  therefore  cannot  express  a  judicial 
opinion  on  the  question."  Baltimore  v.  State,  15  Md.  468.  See  also  p.  484. 
This  does  not  seem  to  be  a  very  satisfactory  disposition  of  so  grave  a  constitu- 
tional objection  to  a  legislative  act.  That  courts  may  take  judicial  notice  of  the 
fact  that  the  electors  of  the  country  are  divided  into  parties  with  well-known 
designations  cannot  be  doubted ;  and  when  one  of  these  is  proscribed  by  a  name 
familiarly  applied  to  it  by  its  opponents,  the  inference  that  it  is  done  because  of 
political  opinion  seems  to  be  too  conclusive  to  need  further  support  than  that 
which  is  found  in  the  act  itself.  And  we  know  no  reason  why  courts  should 
decline  to  take  notice  of  those  facts  of  general  notoriety,  which,  like  the  names 
of  political  parties,  are  a  part  of  the  public  history  of  the  times. 

It  has  been  decided  that  State  laws  forbidding  the  intermarriage  of  whites  and 
blacks  are  such  police  regulations  as  are  entirely  within  the  power  of  the  States, 
notwithstanding  the  provisions  of  the  new  amendments  to  the  federal  Constitu- 
tion. State  v.  Gibson,  36  Ind.  389.  Compare  State  v.  Hairston,  63  N.  C.  451 ; 
Ellis  v.  State,  42  Ala.  525.  It  is  also  said  colored  children  may  be  required  to 
attend  separate  schools,  if  impartial  provision  is  made  for  their  instruction.  State 
v.  Duffy,  7  Xev.  342 ;  s.  c.  8  Am.  Rep.  713.  But  some  States  forbid  this.  People 
v.  Board  of  Education,  18  Mich.  400.  And  when  separate  schools  are  not  estab- 
lished for  colored  children,  they  are  entitled  to  admission  to  the  other  public 
schools.     State  v.  Duffy,  supra. 

1  Lin  Sing  v.  Washburn,  20  Cal.  534.  There  is  no  reason,  however,  why 
the  law  should  not  take  notice  of  peculiar  views  held  by  some  classes  of  people, 
which  unfit  them  for  certain  public  duties,  and  excuse  them  from  the  performance 
of  such  duties ;  as  Quakers  are  excused  from  military  duty,  and  persons  denying 
the  right  to  inflict  capital  punishment  are  excluded  from  juries  in  capital  cases. 
These,  however,  are  in  the  nature  of  exemptions,  and  they  rest  upon  considera- 
tions of  obvious  necessity. 

2  The  statute  of  limitations  cannot  be  suspended  in  particular  cases  while 
allowed  to  remain  in  force  generally.  Holden  v.  James,  11  Mass.  396  ;  Davison 
v.  Johonnot,  7  Met.  393.  See  ante,  365,  note.  The  general  exemption  laws 
cannot  be  varied  for  particular  cases  or  localities.  Bull  v.  Conroe,  13  Wis.  238, 
244.     The  legislature,  when  forbidden  to  grant  divorces,  cannot  pass  special  acts 

[458  ] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  391 

Privileges  may  be  granted  to  particular  individuals  when  by  so 
doing  the  rights  of  others  are  not  interfered  with  ;  disabilities  may 
be  removed  ;  the  legislature  as  parens  patrice,  when  not  forbidden, 
may  grant  authority  to  the  guardians  or  trustees  of  incompetent 
persons  to  exercise  a  statutory  control  over  their  estates  for  their 
assistance,,  comfort,  or  support,  or  for  the  discharge  of  legal  or 
equitable  liens  upon  their  property  ;  but  every  one  has  a  right  to 
demand  that  he  be  governed  by  general  rules,  and  a  special  statute 
which,  without  his  consent,  singles  his  case  out  as  one  to  be 
regulated  by  a  different  law  from  that  which  is  applied 
*in  all  similar  cases,  would  not  be  legitimate  legislation,  [*  392] 
but  would  be  such  an  arbitrary  mandate  as  is- not  within 
the  province  of  free  governments.  Those  "who  make  the  laws 
"  are  to  govern  by  promulgated,  established  laws,  not  to  be  varied 
in  particular  cases,  but  to  have  one  rule  for  rich  and  poor,  for  the 
favorite  at  court  and  the  countryman  at  plough."1  This  is  a 
maxim  in  constitutional  law,  and  by  it  we  may  test  the  authority 
and  binding  force  of  legislative  enactments.2 

authorizing  the  courts  to  grant  divorces  in  particular  cases  for  causes  not  recog- 
nized in  the  general  law.  Teft  v.  Teft,  3  Mich.  G71 ;  Simonds  v.  Siraonds,  103 
Mass.  572.  See,  for  the  same  principle,  Altei-'s  Appeal,  67  Penn.  St.  341.  The 
authority  in  emergencies  to  suspend  the  civil  laws  in  a  part  of  the  State  only,  by 
a  declaration  of  martial  law,  we  do  not  call  in  question  by  any  thing  here  stated. 
Nor  in  what  we  bave  here  said  do  we  have  any  reference  to  suspensions  of  the 
laws  generally,  or  of  any  particular  law,  under  the  extraordinary  circumstances 
of  rebellion  or  war. 

1  Locke  on  Civil  Government,  §  142 ;   State  v.  Duffy,  7  Nev.  349. 

2  In  Lewis  v.  Webb,  3  Greenl.  326,  the  validity  of  a  statute  granting  an 
appeal  from  a  decree  of  the  Probate  Court  in  a  particular  case  came  under 
review.  The  court  say:  "On  principle  it  can  never  be  within  the  bounds  of 
legitimate  legislation  to  enact  a  special  law,  or  pass  a  resolve  dispensing  with  the 
general  law  in  a  particular  case,  and  granting  a  privilege  and  indulgence  to  one 
man,  by  way  of  exemption  from  the  operation  and  effect  of  such  general  law, 
leaving  all  other  persons  under  its  operation.  Such  a  law  is  neither  just  nor 
reasonable  in  its  consequences.  It  is  our  boast  that  we  live  under  a  government 
of  laws,  and  not  of  men ;  but  this  can  hardly  be  deemed  a  blessing,  unless  those 
laws  have  for  their  immovable  basis  the  great  principles  of  constitutional  equality. 
Can  it  be  supposed  for  a  moment  that,  if  the  legislature  should  pass  a  general 
law,  and  add  a  section  by  way  of  proviso,  that  it  never  should  be  construed  to 
have  any  operation  or  effect  upon  the  persons,  rights,  or  property  of  Archelaus 
Lewis  or  John  Gordon,  such  a  proviso  would  receive  the  sanction  or  even  the 
countenance  of  a  court  of  law  ?  And  how  does  the  supposed  case  differ  from 
the  present  ?      A  resolve  passed  after  the  general  law  can  produce  only  the  same 

[  459  ] 


*  392  CONSTITUTIONAL  LIMITATIONS.  [CH.   XI. 

Special  courts  cannot  be  created  for  the  trial  of  the  rights 
and  obligations  of  particular  parties  ; 1  and  those  cases  in  which 
legislative  acts  granting  new  trials  or  other  special  relief  in  judi- 
cial proceedings,  while  they  have  been  regarded  as  usurpations  of 
judicial  authority,  have  also  been  considered  obnoxious  to  the 
objection  tbat  they  undertook  to  suspend  general  laws  in 
[*  393]  special  *  cases.  The  doubt  might  also  arise  whether  a 
regulation  made  for  any  one  class  of  citizens,  entirely 
arbitrary  in  its  character,  and  restricting  their  rights,  privileges, 
or  legal  capacities  in  a  manner  before  unknown  to  the  law,  could 
be  sustained,  notwithstanding  its  generality.  Distinctions  in  these 
respects  must  rest  upon  some  reason  upon  which  they  can  be 
defended,  —  like  the  want  of  capacity  in  infants  and  insane  per- 
sons ;  and  if  the  legislature  should  undertake  to  provide  that  per- 
sons following  some  specified  lawful  trade  or  employment  should  not 
have  capacity  to  make  contracts,  or  to  receive  conveyances,  or  to 
build  such  houses  as  others  were  allowed  to  erect,  or  in  any  other 
way  to  make  such  use  of  their  property  as  was  permissible  to  others, 
it  can  scarcely  be  doubted  that  the  act  would  transcend  the  due 
bounds  of  legislative  power,  even  though  no  express  constitutional 
provision  could  be  pointed  out  with  which  it  would  come  in  conflict. 
To  forbid  to  an  individual  or  a  class  the  right  to  the  acquisition  or 
enjoyment  of  property  in  such  manner  as  should  be  permitted  to 
the  community  at  large,  would  be  to  deprive  them  of  liberty  in 

effect  as  such  proviso.  In  fact,  neither  can  have  any  legal  operation."  See  also 
Durham  v.  Lewiston,  4  Greenl.  140 ;  Hoklen  v.  James,  11  Mass.  396;  Piquet, 
Appellant,  5  Pick.  64 ;  Budd  v.  State,  3  Humph.  483  ;  Wally's  Heirs  v.  Kennedy, 
2  Yerg.  554.  In  the  last  case  it  is  said :  "  The  rights  of  every  individual  must 
stand  or  fall  by  the  same  rule  or  law  that  governs  every  other  member  of  the 
body  politic,  or  land,  under  similar  circumstances ;  and  every  partial  or  private 
law,  which  directly  proposes  to  destroy  or  affect  individual  rights,  or  does  the 
same  thing  by  affording  remedies  leading  to  similar  consequences,  is  unconstitu- 
tional and  void.  Were  it  otherwise,  odious  individuals  and  corporations  would 
be  governed  by  one  law ;  the  mass  of  the  community  and  those  who  made  the 
law  by  another  ;  whereas  the  like  general  law  affecting  the  whole  community 
equally  could  not  have  been  passed.1'  See  further,  Officer  v.  Young,  5  Yerg.  320 ; 
Griffin  v.  Cunningham,  20  Grat.  31  (an  instructive  case)  ;  Arnolds.  Kelley,  5  W. 
Va.  446. 

1  As,  for  instance,  the  debtors  of  a  particular  bank.  Bank  of  the  State  v. 
Cooper,  2  Yerg.  599.  Compare  Durkee  v.  Janesville,  28  Wis.  464,  in  which  it 
was  declared  that  a  special  exemption  of  the  city  of  Janesville  from  the  payment 
of  costs  in  anv  proceeding  against  it  to  set  aside  a  tax  or  tax  sale  was  void. 

[460] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  393 

particulars  of  primary  importance  to  their  "  pursuit  of  happiness  ;  "  1 
and  those  who  should  claim  a  right  do  so  ought  to  be  able  to 
show  a  specific  authority  therefor,  instead  of  calling  upon  others 
to  show  how  and  where  the  authority  is  negatived. 

Equality  of  rights,  privileges,  and  capacities  unquestionably 
should  be  the  aim  of  the  law  ;  and  if  special  privileges  are  granted, 
or  special  burdens  or  restrictions  imposed  in  any  case,  it  must  be 
presumed  that  the  legislature  designed  to  depart  as  little  as  possible 
from  this  fundamental  maxim  of  government.2  The  State,  it  is 
to  be  presumed,  has  no  favors  to  bestow,  and  designs  to  inflict 
no  arbitrary  deprivation  of  rights.  Special  privileges  are  always 
obnoxious,  and  discriminations  against  persons  or  classes  are  still 
more  so,  and,  as  a  rule  of  construction,  are  always  to  be  leaned 
against  as  probably  not  contemplated  or  designed.  It  has  been 
held  that  a  statute  requiring  attorneys  to  render  services  in  suits 
for  poor  persons  without  fee  or  reward,  was  to  be  confined  strictly 
to  the  cases  therein  prescribed  ;  and  if  by  its  terms  it 
*  expressly  covered  civil  cases  only,  it  could  not  be  ex-  [*  394] 

1  Burlamaqui  (Politic  Law,  c.  3,  §  15)  defines  natural  liberty  as  the  right  which 
nature  gives  to  all  mankind  of  disposing  of  their  persons  and  property  after  the 
manner  they  judge  most  consonant  to  their  happiness,  on  condition  of  their  acting 
within  the  limits  of  the  law  of  nature,  and  so  as  not  to  interfere  with  an  equal  exer- 
cise of  the  same  rights  by  other  men.  See  1  Bl.  Com.  125.  Lieber  says  :  "  Lib- 
erty of  social  man  consists  in  the  protection  of  unrestrained  action  in  as  high  a 
degree  as  the  same  claim  of  protection  of  each  individual  admits  of,  or  in  the  most 
efficient  protection  of  his  rights,  claims,  interests,  as  a  man  or  citizen,  or  of  his 
humanity  manifested  as  a  social  being."      Civil  Liberty  and  Self-Government. 

2  In  the  Case  of  Monopolies,  Darcy  v.  Allain,  11  Rep.  84,  the  grant  of  an 
exclusive  privilege  of  making  playing  cards  was  adjudged  void,  inasmuch  as  "  the 
sole  trade  of  any  mechanical  artifice,  or  any  other  monopoly,  is  not  only  a  dam- 
age and  prejudice  to  those  who  exercise  the  same  trade,  but  also  to  all  other  sub- 
jects ;  for  the  end  of  all  these  monopolies  is  for  the  private  gain  of  the  patentees." 
And  see  Norwich  Gas  Light  Co.  v.  Norwich  City  Gas  Co.,  25  Conn.  19 ;  State  v. 
Cincinnati,  &c,  Gas  Co.,  18  Ohio,  N.  S.  262.  Compare  with  these,  State  v. 
Milwaukie  Gas  Light  Co.  29  Wis.  454.  On  this  ground  it  has  been  denied  that 
that  the  State  can  exercise  the  power  of  taxation  on  behalf  of  corporations  who 
undertake  to  make  or  to  improve  the  thoroughfares  of  trade  and  travel  for  their 
own  benefit.  The  State,  it  is  said,  can  no  more  tax  the  community  to  set  one  class 
of  men  up  in  business  than  another ;  can  no  more  subsidize  one  occupation  than 
another ;  can  no  more  make  donations  to  the  men  who  build  and  own  railroads  in 
consideration  of  expected  incidental  benefits,  than  it  can  make  them  to  the  men 
who  build  stores  or  manufactories  in  consideration  of  similar  expected  benefits. 
People  v.  Township  Board  of  Salem,  20  Mich.  452. 

[  461] 


*  394  CONSTITUTIONAL   LIMITATIONS.  [CH.  XL 

tended  to  embrace  defences  of  criminal  prosecutions.1  So  where 
a  constitutional  provision  confined  the  elective  franchise  to  "  white 
male  citizens,"  and  it  appeared  that  the  legislation  of  the  State 
had  always  treated  of  negroes,  mulattoes,  and  other  colored 
persons  in  contradistinction  to  white,  it  was  held  that  although 
quadroons,  being  a  recognized  class  of  colored  persons,  must  be 
excluded,  yet  that  the  rule  of  exclusion  would  not  be  carried 
further.2  So  a  statute  making  parties  witnesses  against  themselves 
cannot  be  construed  to  compel  them  to  disclose  facts  which  would 
subject  them  to  criminal  punishment.3  And  a  statute  which  author- 
izes summary  process  in  favor  of  a  bank  against  debtors  who  have 
by  express  contract  made  their  obligations  payable  at  such  bank, 
being  in  derogation  of  the  ordinary  principles  of  private  right, 
must  be  subject  to  strict  construction.4  These  cases  are  only  illus- 
trations of  a  rule  of  general  acceptance.5 

There  are  unquestionably  cases  in  which  the  State  may  grant 
privileges  to  specified  individuals  without  violating  any  constitu- 
tional principle,  because,  from  the  nature  of  the  case,  it  is  impos- 
sible they  should  be  possessed  and  enjoyed  by  all ;  and  if  it  is 
important  that  they  should  exist,  the  proper  State  authority  must 
be  left  to  select  the  grantees.  Of  this  class  are  grants  of  the 
franchise  to  be  a  corporation.  Such  grants,  however,  which  con- 
fer upon  a  few  persons  what  cannot  be  shared  by  the  many,  and 
which,  though  supposed  to.be  made  on  public  grounds,  are  never- 
theless frequently  of  great  value  to  the  corporators,  and  therefore 
sought  with  avidity,  are  never  to  be  extended  by  construction 
beyond  the  plain  terms  in  which  they  are  conferred.     No  rule  is 

1  AVebb  v.  Baird,  6  Ind.  13. 

2  People  v.  Dean,  14  Mich.  406.  See  Bailey  v.  Fiske,  34  Me.  77;  Monroe 
v.  Collins,  17  Ohio,  N.  s.  665.  The  decisions  in  Ohio  were  still  more  liberal,  and 
ranked  as  white  persons  all  who  had  a  preponderance  of  white  blood.  Gray  v. 
State,  4  Ohio,  354 ;  Jeffres  v.  Ankeny,  11  Ohio,  372 ;  Thacker  v.  Hawk,  ib.  376 ; 
Anderson  v.  Millikin,  9  Ohio,  X.  s.  406.  But  see  Van  Camp  v.  Board  of  Educa- 
tion, 9  Ohio,  n.  s.  406.  Happily  all  such  questions  are  now  disposed  of  by  con- 
stitutional amendments.  It  seems,  however,  in  the  opinion  of  the  Supreme 
Court  of  California,  that  these  amendments  do  not  preclude  a  State  denying  to  a 
race,  e.  g.,  the  Chinese,  the  right  to  testify  against  other  persons.  People  v. 
Brady,  40  Cal.  198 ;  s.  c.  6  Am.  Rep.  604. 

3  Broadbent  v.  State,  7  Md.  416.    See  Knowles  v.  People,  15  Mich.  408. 

4  Bank  of  Columbia  v.  Okely,  4  Wheat.  241. 
6  See  1  Bl.  Com.  89,  and  note. 

[  462  ] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  394 

better  settled  than  that  charters  of  incorporation  are  to  be  con- 
strued strictly  against   the  corporators.1     The  just  pre- 
sumption  in  *  every  such   case   is,   that   the    State  has  [*  395] 
granted  in  express  terms  all  that  it  designed  to  grant 
at  all.    "  When  a  State,"  says  the  Supreme  Court  of  Pennsylvania, 
"  means  to  clothe  a  corporate  body  with  a  portion   of  her  own 
sovereignty,  and  to  disarm  herself  to  that  extent  of  the  power 
that  belongs   to  her,  it  is  so  easy  to  say  so,  that  we  will  never 
believe  it  to  be  meant  when  it  is  not  said.  ...  In  the  construction 
of  a  charter,  to  be  in  doubt  is  to  be  resolved  ;  and  every  resolution 
which  springs  from  doubt  is  against  the  corporation.    If  the  useful- 
ness of  the  company  would  be  increased  by  extending  [its  privi- 
leges], let  the  legislature  see  to  it,  but  remember  that  nothing  but 
plain  English  words  will  do  it."2 

1  Providence  Bank  V.  Billings,  4  Pet.  514 ;  Charles  River  Bridge  v.  Warren 
Bridge,  11  Pet.  544;  Perrine  v.  Chesapeake  and  Delaware  Canal  Co,  9  How.  172  ; 
Richmond,  &c,  R.R.  Co.  v.  Louisa  R.R.  Co.,  13  How.  71 ;  Bradley  v.  N.  Y.  & 
N.  H.  R.R.  Co.,  21  Conn.  294;  Parker  v.  Sunbury  &  Erie  R.R.  Co.,  19  Penn; 
St.  211 ;  Wales  v.  Stetson,  2  Mass.  143;  Chenango  Bridge  Co.  v.  Binghampton 
Bridge  Co.,  27  N.  Y.  87,  and  3  Wall.  51 ;  State  v.  Krebs,  64  N.  C.  C04. 

2  Pennsylvania  R.R.  Co.  v.  Canal  Commissioners,  21  Penn.  St.  22.  And  see 
Commonwealth  v.  Pittsburg,  &c,  R.R.  Co.,  24  Penn.  St.  159  ;  Chenango  Bridge 
Co.  v.  Binghampton  Bridge  Co.,  27  N.  Y.  93,  per  Wright,  J.  ;  Baltimore  v.  Bal- 
timore, &c,  R.R.  Co.,  21  Aid.  50  ;  Richmond  v.  Richmond  &  Danville  R.R.  Co., 
21  Grat.  614.  We  quote  from  the  Supreme  Court  of  Connecticut  in  Bradley  v. 
N.  Y.&  N.  H.R.R.  Co.,  21  Conn.  306:  "The  rules  of  construction  which 
apply  to  general  legislation,  in  regard  to  those  subjects  in  which  the  public  at 
large  are  interested,  are  essentially  different  from  those  which  apply  to  private 
grants  to  individuals,  of  powers  or  privileges  designed  to  be  exercised  with 
special  reference  to  their  own  advantage,  although  involving  in  their  exercise 
incidental  benefits  to  the  community  generally.  The  former  are  to  be  expounded 
largely  and  beneficially  for  the  purposes  for  which  they  were  enacted ;  the  latter 
liberally,  in  favor  of  the  public,  and  strictly  as  against  the  grantees.  The  power 
in  the  one  case  is  original  and  inherent  in  the  State  or  sovereign  power,  and  is 
exercised  solely  for  the  general  good  of  the  community ;  in  the  other  it  is  merely 
derivative,  is  special  if  not  exclusive  in  its  character,  and  is  in  derogation  of 
common  right,  in  the  sense  that  it  confers  privileges  to  which  the  members  of  the 
community  at  large  are  not  entitled.  Acts  of  the  former  kind,  being  dictated 
solely  by  a  regard  to  the  benefit  of  the  public  generally,  attract  none  of  that 
prejudice  or  jealousy  towards  them  which  naturally  would  arise  towards  those  of 
the  other  description,  from  the  consideration  that  the  latter  were  obtained  with  a 
view  to  the  benefit  of  particular  individuals,  and  the  apprehension  that  their  inter- 
ests might  be  promoted  at  the  sacrifice  or  to  the  injury  of  those  of  others  whose 
interests  should  be  equally  regarded.     It  is  universally  understood'  to  be  one  of 

[463] 


*  396  CONSTITUTIONAL    LIMITATIONS.  [CH.  XI. 

[*  396]  *  And  this  rule  is  not  confined  to  the  grant  of  a  corpo- 
rate franchise,  but  it  extends  to  all  grants  of  franchises  or 
privileges  by  the  State  to  individuals,  in  the  benefits  of  which 
the  people  at  large  cannot  participate.  "  Private  statutes,"  says 
Parsons,  Ch.  J.,  "  made  for  the  accommodation  of  particular 
citizens  or  corporations,  ought  not  to  be  construed  to  affect  the 
rights  or  privileges  of  others,  unless  such  construction  results 
from  express  words  or  from  necessary  implication."1  And  the 
grant  of  ferry  rights,  or  the  right  to  erect  a  toll-bridge,  and  the 

the  implied  and  necessary  conditions  upon,  which  men  enter  into  society  and  form 
governments,  that  sacrifices  must  sometimes  be  required  of  individuals  for  the 
general  benefit  of  the  community,  for  which  they  have  no  rightful  claim  to  spe- 
cific compensation ;  but,  as  between  the  several  individuals  composing  the  com- 
munity, it  is  the  duty  of  the  State  to  protect  them  in  the  enjoyment  of  just  and 
equal  rights.  A  law,  therefore,  enacted  for  the  common  good,  and  which  there 
would  ordinarily  be  no  inducement  to  pervert  from  that  purpose,  is  entitled  to  be 
viewed  with  less  jealousy  and  distrust  than  one  enacted  to  promote  the  interests 
of  particular  persons,  and  which  would  constantly  present  a  motive  for  encroach- 
ing on  the  rights  of  others." 

1  Coolidge  v.  Williams,  4  Mass.  140.  See  also  Dyer  v.  Tuscaloosa  Bridge 
Co.,  2  Port.  (Ala.)  296 ;  Grant  v.  Leach,  20  La.  An.  329.  In  Sprague  v.  Bird- 
sail,  2  Cow.  419,  it  was  held  that  one  embarking  upon  the  Cayuga  Lake  six  miles 
from  the  bridge  of  the  Cayuga  Bridge  Co.,  and  crossing  the  lake  in  an  oblique 
direction  so  as  to  land  within  sixty  rods  of  the  bridge,  was  not  liable  to  pay  toll 
under  a  provision  in  the  charter  of  said  company  which  made  it  unlawful  for  any 
person  to  cross  within  three  miles  of  the  bridge  without  paying  toll.  In-  another 
case  arising  under  the  same  charter,  which  authorized  the  company  to  build  a 
bridge  across  the  lake  or  the  outlet  thereof,  and  to  rebuild  in  case  it  should  be 
destroyed  or  carried  away  by  the  ice,  and  prohibited  all  other  persons  from  erect- 
ing a  bridge  within  three  miles  of  the  place  where  a  bridge  should  be  erected  by 
the  company,  it  was  held,  after  the  company  had  erected  a  bridge  across  the  lake 
and  it  had  been  carried  away  by  the  ice,  that  they  had  no  authority  afterwards  to 
rebuild  across  the  outlet  of  the  lake,  two  miles  from  the  place  where  the  first 
bridge  was  built,  and  that  the  restricted  limits  were  to  be  measured  from  the 
place  Avhere  the  first  bridge  was  erected.  Cayuga  Bridge  Co.  v.  Magee,  2  Paige, 
116  ;  s.  c.  6  Wend.  85.  In  Chapin  v.  The  Paper  Works,  30  Conn.  461,  it  was 
held  that  statutes  giving  a  preference  to  certain  creditors  over  others  should  be 
construed  with  reasonable  strictness,  as  the  law  favored  equality.  In  People  v. 
Lambier,  5  Denio,  9,  it  appeared  that  an  act  of  the  legislature  had  authorized  a 
proprietor  of  lands  lying  in  the  East  River,  which  is  an  arm  of  the  sea,  to  con- 
struct wharves  and  bulkheads  in  the  river,  in  front  of  his  land,  and  there  was  at 
the  time  a  public  highway  through  the  land,  terminating  at  the  river.  Held,  that 
the  proprietor  could  not,  by  filling  up  the  land  between  the  shore  and  the  bulk- 
head, obstruct  the  public  right  of  passage  from  the  land  to  the  water,  but  that 
the  street  was,  by  operation  of  law,  extended  from  the  former  terminus  over  the 

[464] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  396 

like,  is  not  only  to  be  construed  strictly  against  the  grantees,  but 
it  will  not  be  held  to  exclude  the  grant  of  a  similar  and  competing 
privilege  to  others,  unless  the  terms  of  the  grant  render  such  con- 
struction imperative.1 

*  The  Constitution  of  the  United  States  contains  pro-  [*  397] 
visions  which  are  important  in  this  connection.     One  of 
these  is,  that  the  citizens  of  each  State  shall  be  entitled  to  all  the 
privileges  and  immunities  of  citizens  of  the  several  States,2  and 
all  persons  born  or  naturalized  in  the  United  States,  and  subject 
to  its  jurisdiction,  are   declared   to  be  citizens   thereof,  and   of 
the    State  wherein  they  reside.3     The  States  are  also  forbidden 
to  make  or  enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  the  citizens  of  the  United  States,  or  to  deprive  any 
person  of  life,  liberty,  or  property,  without  due  process  of  law, 
or   to    deny  to   any  person  within    their  jurisdiction    the   equal 
protection  of  the  laws.4     Although  the  precise  meaning  of  "  privi- 
leges and  immunities"  is   not  very  definitely  settled   as  yet,  it 
appears  to  be  conceded  that  the  Constitution  secures  in  each  State 
to  the  citizens  of  all  other  States  the  right  to  remove  to,  and  carry 
on  business  therein ;  the  right  by  the  usual  modes  to  acquire  and 
hold  property,  and  to  protect  and  defend  the  same  in   the  law  ; 
the  right  to  the  usual  remedies  for  the  collection  of  debts  and  the 
enforcement  of  other  personal  rights,  and  the  right  to  be  exempt, 
in  property  and  person,  from  taxes  or  burdens  which  the  property, 
or  persons,  of  citizens  of  the  same  State  are  not  subject  to.5     To 
this  extent,  at  least,  discriminations  could  not  be  made  by  State 
laws  against  them.     But  it  is  unquestionable  that  many  other 
rights  and  privileges  may  be   made  —  as  they  usually  are  —  to 
depend  upon  actual  residence :   such  as  the  right  to  vote,  to  have 
the  benefit  of  exemption  laws,  to  take  fish  in  the  waters  of  the 
State,  and  the  like.     And  the  constitutional  provisions  are  not 

newly  made  land  to  the  water.     Compare  Commissioners  of  Inland  Fisheries  v. 
Holyoke  Water  Power  Co.,  104  Mass.  446  ;  s.  c.  6  Am.  Rep.  247. 

'Mills  v.  St.  Clair  County,  8  How.  569 ;  Mohawk  Bridge  Co.  v.  Utica  &  S. 
R.R.  Co.,  6  Paige,  554;  Chenango  Bridge  Co.  v.  Binghamton  Bridge  Co.,  27 
N.  Y.  87;  s.  c.  3  Wall.  51. 

2  Const,  of  United  States,  art.  4,  §  2.     See  ante,  pp.  15,  16. 

3  Const,  of  United  States,  14th  Amendment. 

4  Const,  of  United  States,  14th  Amendment. 

5  Corfield  v.  Coryell,  4  Wash.  380 ;  Campbell  v.  Morris,  3  H.  &  McH.  554 ; 
Crandall  v.  State,  10  Conn.  343;  Oliver  v.  Washington  Mills,  11  Allen,  281. 

30  [  465  ] 


*  397  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

violated  by  a  statute  which  allows  process  by  attachment  against 
a  debtor  not  a  resident  of  the  State,  notwithstanding  such  process 
is  not  admissible  against  a  resident.1  The  protection  by  due 
process  of  law  has  already  been  considered.  It  was  not  within 
the  power  of  the  States  before  the  adoption  of  the  fourteenth 
amendment,  to  deprive  citizens  of  the  equal  protection  of  the  laws  ; 
but  there  were  servile  classes  not  thus  shielded,  and  when  these 
were  made  freemen,  there  were  some  who  disputed  their  claim  to 
citizenship,  and  some  State  laws  were  in  force  which  established 
discriminations  against  them. '  To  settle  doubts  and  preclude  all 
such  laws,  the  fourteenth  amendment  was  adopted  ;  and  the  same 
securities  which  one  citizen  may  demand,  all  others  are  now 
entitled  to. 

Judicial  Proceedings. 

Individual  citizens  require  protection  against  judicial  action  as 
well  as  against  legislative ;  and  perhaps  the  question,  what  consti- 
tutes due  process  of  law,  is  as  often  made  in  regard  to  judicial 
proceedings  as  in  any  other  cases.  But  it  is  not  so  difficult  here  to 
arrive  at  satisfactory  conclusions,  since  the  bounds  of  the  judicial 
authority  are  much  better  defined  than  those  of  the  legislative,  and 
each  case  can  generally  be  brought  to  a  definite  and  well-settled 
test. 

The  proceedings  in  any  court  are  void  if  it  wants  jurisdiction  of 
the  case  in  which  it  has  assumed  to  act.  Jurisdiction  is, 
[*  398]  first,  of  *  the  subject-matter  ;  and,  second,  of  the  persons 
whose  rights  are  to  be  passed  upon.2 

A  court  has  jurisdiction  of  any  subject-matter,  if,  by  the  law  of 
its  organization,  it  has  authority  to  take  cognizance  of,  try,  and 
determine  cases  of  that  description.  If  it  assumes  to  act  in  a 
case  over  which  the  law  does  not  give  it  authority,  the  proceeding 
and  judgment  will  be  altogether  void,  and  rights  of  property  can- 
not be  devested  by  means  of  them. 

1  Campbell  v.  Morris,  3  H.  &  McH.  554 ;  State  v.  Medbury,  3  R.  I.  141. 
And  see  generally  the  cases  cited,  ante,  p.  16,  note. 

2  Bouvier  defines  jurisdiction  thus  :  "  Jurisdiction  is  a  power  constitutionally 
conferred  upon  a  court,  a  single  judge,  or  a  magistrate,  to  take  cognizance  and 
decide  causes  according  to  law,  and  to  carry  their  sentence  into  execution.  The 
tract  of  land  within  which  a  court,  judge,  or  magistrate  has  jurisdiction  is  called 
his  territory ;  and  his  power  in  relation  to  his  territory  is  called  his  territorial 
jurisdiction.'1''     3  Bouv.  Inst.  71. 

[466] 


CH.  XI.]  PEOTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND. 


398 


And  on  this  point  there  is  an  important  maxim  of  the  law,  that 
is  to  say,  that  consent  will  not  confer  jurisdiction : ]  by  which  is 
meant  that  the  consent  of  parties  cannot  empower  a  court  to  act 
upon  subjects  which  are  not  submitted  to  its  judgment  by  the  law- 
The  law  creates  courts,  and  with  reference  to  considerations  of 
general  public  policy  defines  and  limits  their  jurisdiction  ;  and 
this  can  neither  be  enlarged  nor  restricted  by  the  act  of  the 
parties. 

Accordingly,  where  a  court  by  law  has  no  jurisdiction  of  the 
subject-matter  of  a  controversy,  a  party  whose  rights  are  sought 
to  be  affected  by  it  is  at  liberty  to  repudiate  its  proceedings  and 
refuse  to  be  bound  by  them,  notwithstanding  he  may  once  have 
consented  to  its  action,  either  by  voluntarily  commencing  the  pro- 
ceeding as  plaintiff,  or  as  defendant  by  appearing  and  pleading  to 
the  merits,  or  by  any  other  formal  or  informal  action.  This  right 
he  may  avail  himself  of  at  any  stage  of  the  case ;  and  the  maxim 
that  requires  one  to  move  promptly  who  would  take  advantage  of 
an .  irregularity  does  not  apply  here,  since  this  is  not  mere  irregu- 
lar action,  but  a  total  want  of  power  to  act  at  all.  Consent  is 
sometimes  implied  from  failure  to  object ;  but  there  can 
be  no  *  waiver  of  rights  by  laches  in  a  case  where  consent  [*  399] 
would  be  altogether  nugatory.2 

In  regard  to  private  controversies,  the  law  always  encourages 
arrangements ; 3  and  the  settlements  which  the  parties  may  make 
for  themselves,  it  allows  to  be  made  for  them  by  arbitrators  mutu- 
ally chosen.  But  the  courts  of  a  country  cannot  have  those  con- 
troversies referred  to  them  by  the  parties  which  the  law-making 
power  has  seen  fit  to  exclude  from  their  cognizance.    If  the  judges 

1  Coffin  v.  Tracy,  3  Caines,  129 ;  Blin  v.  Campbell,  14  Johns.  432;  Cuylerc. 
Rochester,  12  Wend.  165  ;  Dudley  v.  Mayhew,  3  N.  Y.  9 ;  Preston  v.  Boston, 
12  Pick.  7;  Chapman  v.  Morgan,  2  Greene  (Iowa),  374;  Thompson  v.  Steam- 
boat Morton,  2  Ohio,  n.  s.  26  ;  Gilliland  v.  Administrator  of  Sellers,  ib.  223 ; 
Dicks  v.  Hatch,  10  Iowa,  380 ;  Overstreet  v.  Brown,  4  McCord,  79  ;  Green  v. 
Collins,  6  Ired.  139  ;  Bostwick  v.  Perkins,  4  Geo.  47  ;  Georgia  R.R.  &c.  v.  Har- 
ris, 5  Geo.  527  ;  State  v.  Bonney,  34  Me.  223 ;  Little  v.  Fitts,  33  Ala.  343  ;  Ginn 
v.  Rogers,  4  Gilm.  131 ;  Neill  v.  Keese,  5  Texas,  23 ;  Ames  v.  Boland,  1  Minn. 
365 ;  Brady  v.  Richardson,  18  Ind.  1  ;  White  v.  Buchanan,  6  Cold.  32. 

2  Bostwick  v.  Perkins,  4  Geo.  47 ;  Hill  v.  People,  16  Mich.  351 ;  White  v. 
Buchanan,  6  Cold.  32. 

3  Moore  v.  Detroit  Locomotive  Works,  14  Mich.  266  ;  Coyner  v.  Lynde, 
10  Ind.  282. 

[467] 


*  399  CONSTITUTIONAL   LIMITATIONS.  [CH.  XL 

should  sit  to  hear  such  controversies,  they  would  not  sit  as  a  court ; 
at  the  most  they  would  he  arbitrators  only,  and  their  action  could 
not  be  sustained  on  that  theory,  unless  it  appeared  that  the  parties 
had  designed  to  make  the  judges  their  arbitrators,  instead  of 
expecting  from  them  valid  judicial  action  as  an  organized  court. 
Even  then  the  decision  could  not  be  binding  as  a  judgment,  but 
only  as  an  award  ;  and  a  mere  neglect  by  either  party  to  object  the 
want  of  jurisdiction  could  not  make  the  decision  binding  upon  him 
either  as  a  judgment  or  as  an  award.  Still  less  could  consent  in  a 
criminal  case  bind  the  defendant ;  since  criminal  charges  are  not 
the  subject  of  arbitration,  and  any  infliction  of  criminal  punish- _ 
ment  upon  an  individual,  except  in  pursuance  of  the  law  of  the 
land,  is  a  wrong  done  to  the  State,  whether  the  individual  assented 
or  not.  Those  cases  in  which  it  has  been  held  that  the  constitu- 
tional right  of  trial  by  jury  cannot  be  waived  are  strongly  illustrative 
of  the  legal  view  of  this  subject.1 

If  the  parties  cannot  confer  jurisdiction  upon  a  court  by  consent, 
neither  can  they  by  consent  empower  any  individual  other  than  the 
judge  of  the  court  to  exercise  its  powers.  Judges  are  chosen  in 
such  manner  as  shall  be  provided  by  law  ;  and  a  stipulation  by 
parties  that  any  other  person  than  the  judge  shall  exercise  his 
functions  in  their  case  would  be  nugatory,  even  though  the  judge 
should  vacate  his  seat  for  the  purposes  of  the  hearing.2 

Sometimes  jurisdiction  of  the  subject-matter  will  depend  upon 
considerations  of  locality,  either  of  the  thing  in  dispute  or  of  the 
parties.  At  law  certain  actions  are  local,  and  others  are 
[*^400]  transitory.  *  The  first  can  only  be  tried  where  the  prop- 
erty is  which  is  the  subject  of  the  controversy,  or  in  re- 
spect to  which  the  controversy  has  arisen.  The  United  States 
courts  take  cognizance  of  certain  causes  by  reason  only  of  the  fact 
that  the  parties  are  residents  of  different  States  or  countries.3 

1  Brown  v.  State,  8  Blackf.  561 ;  Work  v.  Ohio,  2  Ohio,  N.  s.  296  ;  Cancemi 
v.  People,  18  N.  Y.  128  ;  Smith  v.  People,  9  Mich.  193  ;  Hill  v.  People,  16  Mich. 
351.     See  also  State  v.  Turner,  1  Wright,  20. 

2  Winchester  v.  Ayres,  4  Greene  (Iowa),  104. 

3  See  a  case  where  a  judgment  of  a  United  States  court  was  treated  as  of  no 
force,  because  the  court  had  not  jurisdiction  in  respect  to  the  plaintiff.  Vose  v. 
Morton,  4  Cush.  27.  As  to  third  persons,  a  judgment  against  an  individual  may 
sometimes  be  treated  as  void,  when  he  was  not  suable  in  that  court  or  in  that 
manner,  notwithstanding  he  may  have  so  submitted  himself  to  the  jurisdiction  as 

[468] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  400 

The  question  of  jurisdiction  in  these  cases  is  sometimes  deter- 
mined by  the  common  law,  and  sometimes  is  matter  of  statutory 
regulation.  But  there  is  a  class  of  cases  in  respect  to  which  the 
courts  of  the  several  States  of  the  Union  are  constantly  being 
called  upon  to  exercise  authority,  and  in  which,  while  the  jurisdic- 
tion is  conceded  to  rest  on  considerations  of  locality,  there  has  not, 
unfortunately,  at  all  times  been  entire  harmony  of  decision  as  to 
what  shall  confer  jurisdiction.  We  refer  now  to  suits  for  divorce 
from  the  bonds  of  matrimony. 

The  courts  of  one  State  or  country  have  no  general  authority  to 
grant  divorce,  unless  for  some  reason  they  have  control  over  the 
particular  marriage  contract  which  is  sought  to  be  annulled.  But 
what  circumstance  gives  such  control  ?  Is  it  the  fact  that  the 
marriage  was  entered  into  in  such  country  or  State  ?  Or  that  the 
alleged  breach  of  the  marriage  bond  was  within  that  jurisdiction  ? 
Or  that  the  parties  resided  within  it  either  at  the  time  of  the 
marriage  or  at  the  time  of  the  offence  ?  Or  that  the  parties  now 
reside  in  such  State  or  country,  though  both  marriage  and  offence 
may  have  taken  place  elsewhere  ?  Or  must  marriage,  offence,  and 
residence,  all  or  any  two  of  them,  combine  to  confer  the  authority  ? 
These  are  questions  which  have  frequently  demanded  the  thought- 
ful attention  of  the  courts,  who  have  sought  to  establish  a  rule 
at  once  sound  in  principle,  and  that  shall  protect  as  far  as  possible 
the  rights  of  the  parties,  one  or  the  other  of  whom,  unfortunately, 
under  the  operation  of  any  rule  which  can  be  established,  it  will 
frequently  be  found  has  been  the  victim  of  gross  injustice. 

We  conceive  the  true  rule  to  be  that  the  actual,  bona  fide  res- 
idence of  either  husband  or  wife  within  a  State  will  give 
to  that  *  State  authority  to  determine  the  status  of  such  [*  401] 
party,  and  to  pass  upon  any  questions  affecting  his  or  her 
continuance  in  the  marriage  relation,  irrespective  of  the  locality  of 
the  marriage,  or  of  any  alleged  offence ;  and  that  any  such  court 
in  that  State  as  the  legislature  may  have  authorized  to  take  cogni- 
zance of  the  subject  may  lawfully  pass  upon  such  questions,  and 
annul  the  marriage  for  any  cause  allowed  by  the  local  law.  But 
if  a  party  goes  to  a  jurisdiction  other  than  that  of  his  domicile  for 
the  purpose  of  procuring  a  divorce,  and  has  residence  there  for 

to  be  personally  bound.     See  Georgia  R.R.  &c.  v.  Harris,  5  Geo.  527 ;  Hinch- 
man  v.  Town,  10  Mich.  508. 

[469] 


*  401  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

that  purpose  only,  such  residence  is  not  bona  fide,  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.1 

1  There  are  a  number  of  cases  in  which  this  subject  has  been  considered.     In 
Inhabitants  of  Hanover  v.  Turner,  1-4  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  it  ever  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  as  fraudulently  obtained,  and  that  it. 
could  not  operate  so  as  to  dissolve  the  marriage  between  the  parties.     See  also 
Vischer  v.  Vischer,  12  Barb.  640;  and  McGiffert  v.  McGiffert,  31  Barb.  09.    In 
Chase  v.  Chase,   6  Gray,  157,  the  same  ruling  was  had  as  to  a  foreign  divorce, 
notwithstanding  the  wife  appeared  in  and  defended  the  foreign  suit.     In  Clark 
v.  Clark,  8  N.  H.  21,  the  court  refused  a  divorce  on  the  ground  that  the  alleged 
cause  of  divorce  (adultery),  though  committed  within  the  State,  was  so  commit- 
ted while  the  parties  had  their  domicile  abroad.     This  decision  was  followed  in 
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  jurisdiction.     If  at  the  time 
of  the  [alleged  offence]  the  domicile  of  the  parties  was  in  Maine,  and-  the  facts 
furnished  no  cause  for  a  divorce  there,  she  could  not  come  here  and  allege  those 
matters  which  had  already  occurred,  as  a  ground  for  a  divorce  under  the  laws  of 
this  State.     Should  she  under  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.  II.  380 ;    Payson  v. 
Payson,  34  N.  H.  518 ;  Hopkins  v.  Hopkins,  35  N.  H.  474.     In  Wilcox  v.  Wil- 
cox, 10  Ind.  436,  it  was  held  that  the  residence  of  the  libellant  at  the  time  of 
the  application  for  a  divorce  was  sufficient  to  confer  jurisdiction,  and  a  decree 
dismissing  the  bill  because  the  cause  for  divorce  arose  out  of  the  State  was  re- 
versed.    And  see  Tolen  v.  Tolen,  2  Blackf.  407.     See  also  Jackson  v.  Jackson, 
1  Johns.  424;  Barber  v.  Root,  10  Mass.  263;  Borden  v.  Fitch,  15  Johns.  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  proceedings  is  in  due  form,  and  contains  the  affidavit  of  residence 
required  by  the  practice.     Leith  v.  Leith,  39  N.  H.  20.     And  see  McGiffert  v. 
McGiffert,  31  Barb.  69;  Todd  v.  Kerr,  42  Barb.  317  ;  Hoffman  v.  Hoffman,  46 
N.  Y.  30  ;  People  v.  Dawell,  25  Mich.  247.    The  Pennsylvania  cases  agree  with 
those  of  New  Hampshire,  in  holding  that  a  divorce  should  not  be  granted  unless 
the  cause  alleged  occurred  while  the  complainant  had  domicile  within  the  State. 

[470] 


CH.  XI.]  PEOTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  402 

*  But  to  render  the  jurisdiction  of  a  court  effectual  in   [*  402] 
any  case,  it  is  necessary  that  the  thing  in  controversy,  or 

Dorsey  v.  Dorsey,  7  Watts,  349;  Hollister  v.  Hollister,  6  Penn.  St.  449; 
McDermott's  Appeal,  8  W.  &  S.  251.  And  they  hold  also  that  the  injured  party 
in  the  marriage  relation  must  seek  redress  in  the  forum  of  the  defendant,  unless 
where  such  defendant  has  removed  from  what  was  before  the  common  domicile  of 
both.     Calvin  v.  Reed,  35  Penn.  St.  375  ;  Elder  v.  Reel,  62  Penn.  St.  308  ;  s.  c. 

1  Am.  Rep.  414.  For  cases  supporting  to  a  greater  or  less  extent  the  doctrine 
stated  in  the  text,  see  Harding  v.  Alden,  9  Greenl.  140 ;  Ditson  v.  Ditson,  4  R.  I. 
87  ;  Pawling  v.  Bird's  ExVs,  13  Johns.  192 ;  Kerr  v.  Kerr,  41  N.  Y.  272 ; 
Harrison  v.  Harrison,  19  Ala.  499;  Thompson  v.  State,  28  Ala.  12;  Cooper  v. 

,  Cooper,  7  Ohio,  594 ;  Mansfield  v.  Melntyre,  10  Ohio,  28 ;  Smith  v.  Smith,  4 
Greene  (Iowa) ,  266 ;  Yates  v.  Yates,  2  Beasley,  280 ;  Maguire  v.  Maguire, 
7  Dana,  181  ;  Waltz  v.  Waltz,  18  Ind.  449;  Hull  v.  Hull,  2  Strob.  Eq.  174; 
Manley  v.  Manley,  4  Chand.  97;  Hubbell  v.  Hubbell,  3  Wis.  662;  Gleason  v. 
Gleason,  4  Wis.  64;  Hare  v.  Hare,  15  Texas,  355.  And  see  Story,  Conn. 
Laws,  §  230  a;  Bishop  on  Mar.  and  Div.  727  et  seq. ;  ib.  (4th  ed.)  Vol.  II.  §  155 
et  seq.  The  recent  cases  of  Hoffman  v.  Hoffman,  46  N".  Y.  30 ;  s.  c.  7  Am.  Rep. 
299;  Elder  v.  Reel,  62  Penn.  St.  308;  s.  c.  1  Am.  Rep.  414;  and  People  v. 
Dawell,  25  Mich.  247,  are  very  explicit  in  declaring  that  where  neither  party  is 
domiciled  within  a  particular  State,  its  courts  can  have  no  jurisdiction  in  respect 
to  their  marital  status,  and  any  decree  of  divorce  made  therein  must  be  nugatory. 
A  number  of  the  cases  cited  hold  that  the  wife  may  have  a  domicile  separate  from 
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  that  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  jurisdic- 
tional domicile  of  her  own.  Ditson  v.  Ditson,  4  R.  I.  87 ;  Harding  v.  Alden, 
9  Greenl.  140 ;  Maguire  v.  Maguire,  7  Dana,  181 ;  Hollister  v.  Hollister,  6  Penn. 
St.  449.  The  doctrine  in  New  York  seems  to  be,  that  a  divorce  obtained  in 
another  State,  without  personal  service  of  process  or  appearance  of  the  defend- 
ant, is  absolutely  void.  Vischer  v.  Vischer,  12  Barb.  640;  McGiffert  v.  Mc- 
Giffert,  31  Barb.  69;  Todd  v.  Kerr,  42  Barb.  317.  See  Cox  v.  Cox,  19  Ohio, 
N.  s.  502 ;  s.  c.  2  Am.  Rep.  415.  An  appearance  by  defendant  afterwards  for 
the  purposes  of  a  motion  to  set  aside  the  decree,  which  motion  was  defeated  on 
technical  grounds,  will  not  affect  the  question.  Hoffman  v.  HotFman,  46  N.  Y. 
30  ;  s.  c.  7  Am.  Rep.  299. 

Upon  the  whole  subject  of  jurisdiction  in  divorce  suits,  no  case  in  the  books 
is  more  full  and  satisfactory  than  that  of  Ditson  v.  Ditson,  supra,  which  reviews 
and  comments  upon  a  number  of  the  cases  cited,  and  particularly  upon  the 
Massachusetts  cases  of  Barber  v.  Root,  10  Mass.  265;  Inhabitants  of  Hanover 
v.  Turner,  14  Mass.  227  ;  Harteau  v.  Harteau,  14  Pick.  181 ;  and  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  expressly  forbids    the  guilty  party  from  contracting  a 

[471] 


*  402  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

the  parties  interested,  be  subjected  to  the  process  of  the  court. 
Certain  cases  are  said  to  proceed  in  rem,  because  they  take  notice 
rather  of  the  thing  in  controversy  than  of  the  persons  concerned ; 
and  the  process  is  served  upon  that  which  is  the  object  of 
[*  403]  the  suit,  without  *  specially  noticing  the  interested  parties  ; 
while  in  other  cases  the  parties  themselves  are  brought 
before  the  court  by  process.  Of  the  first  class  admiralty  proceed- 
ings are  an  illustration  ;  the  court  acquiring  jurisdiction  by  seizing 
the  vessel  or  other  thing  to  which  the  controversy  relates.  In  cases 
within  this  class,  notice  to  all  concerned  is  required  to  be  given, 
either  personally  or  by  some  species  of  publication  or  proclamation  ; 
and  if  not  given,  "the  court  which  had  jurisdiction  of  the  property 
will  have  none  to  render  judgment.1  Suits  at  the  common  law, 
however,  proceed  against  the  parties  whose  interests  are  sought  to 
be  affected  ;  and  only  those  persons  are  concluded  by  the  adjudica- 
tion who  are  served  with  process,  or  who  voluntarily  appear.2  Some 
cases  also  partake  of  the  nature  both  of  proceedings  in  rem  and  of 
personal  actions,  since,  although  they  proceed  by  seizing  property, 
they  also  contemplate  the  service  of  process  on  defendant  parties. 
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  judg- 
ment that  may  be  recovered  against  him,  but  at  the  same  time  pro- 
second  marriage.  See  Commonwealth  v.  Putnam,  1  Pick.  136  ;  Baker  v.  People, 
2  Hill,  325. 

1  Doughty  v.  Hope,  3  Denio,  594.  See  Matter  of  Empire  City  Bank,  18  N.  Y. 
199;  Nations  v.  Johnson,  24  How.  204,  205  ;  Blackwell  on  Tax  Titles,  213. 

-  Jack  v.  Thompson,  41  Miss.  49.  As  to  the  right  of  an  attorney  to  notice  of 
proceedings  to  disbar  him,  see  notes  to  pp.  337  and  404.  "  Notice  of  some  kind 
is  the  vital  breath  that  animates  judicial  jurisdiction  over  the  person.  It  is  the 
primary  element  of  the  application  of  the  judicatory  power.  It  is  of  the  essence 
of  a  cause.  Without  it  there  cannot  be  parties,  and  without  parties  there  may 
be  the  form  of  a  sentence,  but  no  judgment  obligating  the  person."  See  Little- 
ton v.  Richardson,  34  N.  II.  179 ;  Black  v.  Black,  4  Bradf.  Sur.  Rep.  205. 
Where,  however,  a  statute  provides  for  the  taking  of  a  certain  security,  and 
authorizes  judgment  to  be  rendered  upon  it  on  motion,  without  process,  the  party 
entering  into  the  security  must  be  understood  to  assent  to  the  condition,  and  to 
waive  process  and  consent  to  judgment.  Lewis  v.  Garrett's  AdmV,  6  Miss.  434  ; 
People  v.  Van  Eps,  4  Wend.  390  ;  Chappee  v.  Thomas,  5  Mich.  53  ;  Gildersleeve 
v.  People,  10  Barb.  35 ;  People  v.  Lott,  21  Barb.  130 ;  Pratt  v.  Donovan,  10 
Wis.  378  ;  Murray  v.  Hoboken  Land  Co.,  18  How.  272;  Philadelphia  v.  Com- 
monwealth, 52  Penn.  St.  451 ;  W'hitehurst  v.  Coleen,  53  111.  247. 

[472] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  403 

cess  is  issued  to  be  served  upon  the  defendant,  and  which  must  be 
served,  or  some  substitute  for  service  had  before  judgment  can  be 
rendered. 

In  such  cases,  as  well  as  in  divorce  suits,  it  will  often  happen 
that  the  party  proceeded  against  cannot  be  found  in  the  State,  and 
personal  service  upon  him  is  therefore  .impossible,  unless  it  is 
allowable  to  make  it  wherever  he  may  be  found  abroad.  But  any 
such  service  would  be  ineffectual.  No  State  has  authority  to 
invade  the  jurisdiction  of  another,  and  by  service  of  process  com- 
pel parties  there  resident  or  being  to  submit  their  controversies  to 
the  determination  of  its  courts  ;  and  those  courts  will  consequently 
be  sometimes  unable  to  enforce  a  jurisdiction  which  the  State 
possesses  in  respect  to  the  subjects  within  its  limits,  unless 
*  a  substituted  service  is  admissible.  A  substituted  service  [*  404] 
is  provided  by  statute  for  many  such  cases  ;  generally  in 
the  form  of  a  notice,  published  in  the  public  journals,  or  posted,  as 
the  statute  may  direct ;  the  mode  being  chosen  with  a  view  to  bring 
it  home,  if  possible,  to  the  knowledge  of  the  party  to  be  affected, 
and  to  give  him  an  opportunity  to  appear  and  defend.  The  right 
of  the  legislature  to  prescribe  such  notice,  and  to  give  it  effect  as 
process,  rests  upon  the  necessity  of  the  case,  and  has  been  long 
recognized  and  acted  upon.1 

But  such  notice  is  restricted  in  its  legal  effect,  and  cannot  be 
made  available  for  all  purposes.  It  will  enable  the  court  to  give 
effect  to  the  proceeding  so  far  as  it  is  one  in  rein,  but  when  the  res 
is  disposed  of,  the  authority  of  the  court  ceases.  The  statute  may 
give  it  effect  so  as  far  as  the  subject-matter  of  the  proceeding  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 

1  "It  may  be  admitted  that  a  statute  which  authorized  any  debt  or  damages  to 
be  adjudged  against  a  person  upon  purely  ex  parte  proceedings,  without  pretence 
of  notice,  or  any  provision  for  defending,  would  be  a  violation  of  the  constitu- 
tion, and  void ;  but  when  the  legislature  has  provided  a  kind  of  notice  by  which 
it  is  reasonably  pi-obable  that  the  party  proceeded  against  will  be  apprised  of 
what  is  going  on  against  him,  and  an  opportunity  is  afforded  him«to  defend,  I 
am  of  opinion  that  the  courts  have  not  the  power  to  pronounce  the  proceedings 
illegal."  Denio,  J.,  in  Matter  of  Empire  City  Bank,  18  N.  Y.  200.  See,  also, 
per  Morgan,  J.,  in  Rockwell  v.  Nearing,  35  N.  Y.  314;  Nations  v.  Johnson, 
24  How.  195  ;  Beard  v.  Beard,  21  Ind.  321 ;  Mason  v.  Messenger,  17  Iowa,  261 ; 
Cupp  v.  Commissioners  of  Seneca  Co.,  19  Ohio,  n.  s.  173;  Campbell  v.  Evans, 
45  N.  Y.  356;  Happy  v.  Mosher,  48  N.  Y.  317. 

[473] 


*  404  CONSTITUTIONAL    LIMITATIONS.  [CH.  XI. 

subject  the  defendant  to  a  valid  judgment  against  him  personally. 
In  attachment  proceedings,  the  published  notice  may  be  sufficient 
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  would  be  ineffectual.  The  defendant  could  not  be 
followed  into  another  State  or  country,  and  there  have  recovery 
against  him  upon  the  judgment  as  an  established  demand.  The 
fact  that  process  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  attachment  proceedings.1 
[*  405]  Where  a  party  has  property  in  a  State,  and  *  resides  else- 
where, his  property  is  justly  subject  to  all  valid  claims  that 
may  exist  against  him  there  ;  but  beyond  this,  due  process  of  law 
would  require  appearance  or  personal  service  before  the  defendant 
could  be  personally  bound  by  any  judgment  rendered. 

The  same  rule  applies  in  divorce  cases.  The  courts  of  the  State 
where  the  complaining  party  resides  have  jurisdiction  of  the  subject- 
matter  ;  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;2  and  it  might  be 

1  Pawling  v.  Willson,  13  Johns.  192;  Heirs  of  Holman  v.  Bank  of  Norfolk, 
12  Ala.  369 ;  Curtis  v.  Gibbs,  1  Penn.  399  ;  Miller's  Ex'r  v.  Miller,  1  Bailey, 
242;  Cone  v.  Cotton,  2  Blackf.  82;  Kilburn  v.  Woodworth,  5  Johns.  37;  Rob- 
inson v.  Ward's  Ex'r,  8  Johns.  86;  Hall  v.  Williams,  6  Pick.  232;  Bartlet  v. 
Knight,  1  Mass.  401 ;  St.  Albans  v.  Bush,  4  Vt.  58 ;  Fenton  v.  Garlick,  8  Johns. 
194;  Bissell  v.  Briggs,  9  Mass.  462;  Denison  v.  Hyde,  6  Conn.  508;  Aldrich  v. 
Kinney,  4  Conn.  380 ;  Hoxie  v.  Wright,  2  Vt.  263 ;  Newell  v.  Newton,  10  Pick. 
470;  Starbuck  v.  Murray,  5  Wend.  161;  Armstrong  v.  Harshaw,  1  Dev.  188; 
Bradshaw  v.  Heath,  13  Wend.  407 ;  Bates  v.  Delavan,  5  Paige,  299 ;  Webster 
v.  Reid,  11  How.  460;  Gleason  v.  Uodd,  4  Met.  333;  Green  v.  Custard,  23  How. 
486.  In  Ex  parte  Heyfron,  7  How.  (Miss.)  127,  it  was  held  that  an  attorney 
could  not  be  stricken  from  the  rolls  without  notice  of  the  proceeding,  and  oppor- 
tunity to  be  heard.  And  see  ante,  p.  337  n.  Leaving  notice  with  one's  family  is 
not  equival*it  to  personal  service.  Rape  v.  Heaton,  9  Wis.  329.  And  see 
Bimeler  v.  Dawson,  4  Scam.  536. 

2  Hull  v.  Hull,  2  Strob.  Eq.  174;  Manley  v.  Manley,  4  Chand.  97;  Hubbell 
v.  Hubbell,  3  Wis.  662 ;  Mansfield  v.  Mclntyre,  10  Ohio,  28 ;  Ditson  v.  Ditson, 
4  R.  I.  97  ;  Harrison  v.  Harrison,  19  Ala.  499  ;  Thompson  v  State,  28  Ala.  12 ; 
Harding  v.  Alden,  9  Greenl.  140;  Maguire  v.  Maguire,  7  Dana,  181;  Todd  v. 
Kerr,  42  Barb.  317.     It  is  immaterial  in  these  cases  whether  notice  was  actually 

[474] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  405 

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 
then  within  its  jurisdiction.  But  a  decree  on  this  subject  could 
only  be  absolutely  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.1 

*  But  in  divorce  cases,  no  more  than  in  any  other,  can  [*  406] 
the  court  make  a  decree  for  the  payment  of  money  by  a 
defendant  not  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  valid 
decree  for  alimony,  nor  a  valid  judgment  for  costs.  If  the  defend- 
ant had  property  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  of 
the  complainant  must  generally,  in  these  cases,  be  confined  to  a 
dissolution  of  the  marriage,  with  the  incidental  benefits  springing 
therefrom,  and  to  an  order  for  the  custody  of  the  children,  if  within 
the  State.2 

When  the  question  is  raised  whether  the  proceedings  of  a  court 
may  not  be  void  for  want  of  jurisdiction,  it  will  sometimes  be 

brought  home  to  the  defendant  or  not.     And  see  heirs  of  Holman  ?>.  Bank  of 
Norfolk,  12  Ala.  369. 

1  This  must  be  so  on  general  principles,  as  the  appointment  of  guardian  for 
minors  is  of  local  force  only.  See  Monell  v.  Dickey,  1  Johns.  Ch.  150  ;  Wood- 
worth  v.  Spring,  4  Allen,  321 ;  Potter  v.  Hiscox,  30  Conn.  508  ;  Kraft  v.  Wickoy, 
4  G.  &  J.  322.  The  case  of  Townsend  v.  Kendall,  4  Minn.  412,  appears  to  be 
contra,  but  some  reliance  is  placed  by  the  court  on  the  statute  of  the  State  which 
allows  the  foreign  appointment  to  be  recognized  for  the  purposes  of  a  sale  of  the 
real  estate  of  a  ward. 

2  See  Jackson  v.  Jackson,  1  Johns.  424;  Harding  v.  Alden,  9  Greenl.  140; 
Holmes  v.  Holmes,  4  Barb.  295;  Crane  v.  Meginnis,  1  Gill  &  J.  463;  Maguire 
v.  Maguire,  7  Dana,  181 ;  Townsend  v.  Griffin,  4  Harr.  440.  In  Beard  v.  Beard, 
21  Ind.  321,  Perkins,  J.,  after  a  learned  and  somewhat  elaborate  examination  of 
the  subject,  expresses  the  opinion  that  the  State  may  permit  a  personal  judgment 
for  alimony  in  the  case  of  a  resident  defendant,  on  service  by  publication 
only,  though  he  conceded  that  there  would  be  no  such  power  in  the  case  of  non- 
residents. 

[475] 


*  406  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

important  to  note  the  grade  of  the  court  and  the  extent  of  its 
authority.  Some  courts  are  of  general  jurisdiction,  by  which  is 
meant  that  their  authority  extends  to  a  great  variety  of  matters ; 
while  others  are  only  of  special  and  limited  jurisdiction,  by  which 
it  is  understood  that  they  have  authority  extending  only  to  certain 
specified  cases.  The  want  of  jurisdiction  is  equally  fatal  in  the 
proceedings  of  each  ;  but  different  rules  prevail  in  showing  it.  It 
is  not  to  be  assumed  that  a  court  of  general  jurisdiction  has  in 
any  case  proceeded  to  adjudge  upon  matters  over  which  it  had  no 
authority ;  and  its  jurisdiction  is  to  be  presumed,  whether  there 
are  recitals  in  its  records  to  show  it  or  not.  On  the  other  hand, 
no  such  intendment  is  made  in  favor  of  the  judgment  of  a  court  of 
limited  jurisdiction,  but  the  recitals  contained  in  the  minutes  of  pro- 
ceedings must  be  sufficient  to  show  that  the  case  was  one  which  the 
law  permitted  the  court  to  take  cognizance  of,  and  that  the  par- 
ties were  subjected  to  its  jurisdiction  by  proper  process.1 
[*  407]  *  There  is  also  another  difference  between  these  two 
classes  of  tribunals  in  this,  that  the  jurisdiction  of  the  one 
may  be  disproved  under  circumstances  where  it  would  not  be 
allowed  in  the  case  of  the  other.  A  record  is  not  commonly  suf- 
fered to  be  contradicted  by  parol  evidence ;  but  wherever  a  fact 
showing  want  of  jurisdiction  in  a  court  of  general  jurisdiction  can 
be  proved  without  contradicting  its  recitals,  it  is  allowable  to  do  so, 
and  thus  defeat  its  effect.2  Bat  in  the  case  of  a  court  of  special 
and  limited  authority,  it  is  permitted  to  go  still  further,  and  to  show 
a  want  of  jurisdiction  even  in  opposition  to  the  recitals  contained 
in  the  record.3     This  we  conceive  to  be  the  general  rule,  though 

1  See  Dakin  v.  Hudson,  6  Cow.  221 ;  Cleveland  v.  Rogers,  6  Wend.  438 ; 
People  v.  Koeber,  7  Hill,  39 ;  Sheldon  v.  Wright,  1  Seld.  511 ;  Clark  v.  Holmes, 
1  Doug.  (Mich.)  390;  Cooper  v.  Sunderland,  3  Iowa,  114;  Wall  v.  Trumbull, 
1G  Mich.  228 ;  Denning  v.  Corwin,  11  Wend.  647  ;  Bridge  v.  Ford,  6  Mass.  641 ; 
Smith  v.  Rice,  11  Mass.  511;  Barrett  v.  Crane,  16  Vt.  246  ;  Teft  v.  Griffin, 
5  Geo.  185 ;  Jennings  v.  Stafford,  1  Ired.  404 ;  Hershaw  v.  Taylor,  3  Jones,  513 ; 
Perrine  v.  Farr,  2  Zab.  356;  State  v.  Metzger,  26  Mo.  65. 

2  See  this  subject  considered  at  some  length  in  Wilcox  v.  Kassick,  2  Mich. 
165.  And  see  Rape  v.  Heaton,  9  Wis.  329  ;  Bimelar  v.  Dawson,  4  Scam.  536 ; 
Webster  v.  Reid,  11  How.  437. 

3  Sheldon  v.  Wright,  5  N.  Y.  497  ;  Dyckman  v.  Mayor,  &c,  of  N.  Y.,  5  N.  Y. 
434 ;  Clark  v.  Holmes,  1  Doug.  (Mich.)  390  ;  Cooper  v.  Sunderland,  3  Iowa, 
114;  Sears  v.  Terry,  26  Conn.  273;  Brown  v.  Foster,  6  R.  I.  564;  Fawcett  v. 
Fowliss,  1  Man.  &  R.  102.    But  see  Facey  v.  Fuller,  13  Mich.  527,  where  it  was 

[476] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  407 

there  are  apparent  exceptions  of  those  cases  where  the  jurisdiction 
may  be  said  to  depend  upon  the  existence  of  a  certain  state  of 
facts,  which  must  be  passed  upon  by  the  courts  themselves,  and  in 
respect  to  which  the  decision  of  the  court  once  rendered,  if  there 
was  any  evidence  whatever  on  which  to  base  it,  must  be  held  final 
and  conclusive  in  all  collateral  inquiries,  notwithstanding  it  may 
have  erred  in  its  conclusions.1 


held  that  the  entry  in  the  docket  of  a  justice  that  the  parties  appeared  and  pro- 
ceeded to  trial  was  conclusive.     And  see  Selin  v.  Snyder,  7  S.  &  R.  72. 

1  Britain  v.  Kinnard,  1  B.  &  B.  432.     Conviction  under  the  Bumboat  Act. 
The  record  was  fair  on  its  face,  but  it  was  insisted  that  the  vessel  in  question  was 
not  a  "  boat  "  within  the  intent  of  the  act.     Dallas,  Ch.  J. :   "  The  general  prin- 
ciple applicable  to  cases  of  this  description  is  perfectly  clear :  it  is  established  by 
all  the  ancient,  and  recognized  by  all  the  modern  decisions ;  and  the  principle  is, 
that  a  conviction  by  a  magistrate,  who  has  jurisdiction  over  the  subject-matter, 
is,  if  no  defects  appear  on  the  face  of  it,  conclusive  evidence  of  the  facts  stated 
in  it.     Such  being  the  principle,  what  are  the  facts  of  the  present  case  ?     If  the 
subject-matter  in  the  present  case  were  a  boat,  it  is  agreed  that  the  boat  would  be 
forfeited ;  and  the  conviction  stated  it  to  be  a  boat.     But  it  is  said  that,  in  order 
to  give  the  magistrate  jurisdiction,  the  subject-matter  of  his  conviction  must  be  a 
boat ;  and  that  it  is  competent  to  the  party  to  impeach  the  conviction  by  showing 
that  it  was  not  a  boat.     I  agree,  that  if  he  had  not  jurisdiction,  the  conviction 
signifies  nothing.     Had  he  then  jurisdiction  in  this  case  ?     By  the  act  of  Par- 
liament he  is  empowered  to  search  for  and  seize  gunpowder  in  any  boat  on  the 
river  Thames.     Now,  allowing,  for  the  sake  of  argument,  that  '  boat1  is  a  word 
of  technical  meaning,  and  somewhat  different  from  a  vessel,  still,  it  was  a  matter 
of  fact  to  be  made  out  before  the  magistrate,  and  on  which  he  was  to  draw  his 
own  conclusion.     But  it  is  said  that  a  jurisdiction  limited  as  to  person,  place, 
and  subject-matter  is  stinted  in  its  nature,  and  cannot  be  lawfully  exceeded.     I 
agree :  but  upon  the  inquiry  before  the  magistrate,  does  not  the  person  form  a 
question  to  be  decided  upon  the  evidence  ?     Does  not  the  place,  does  not  the 
subject-matter,  form  such  a  question  ?     The  possession  of  a  boat,  therefore,  with 
gunpowder  on  board,  is  part  of  the  offence  charged ;  and  how  could  the  magis- 
trate decide,  but  by  examining  evidence  in  proof  of  what  was  alleged?     The 
magistrate,  it  is  urged,  could  not  give  himself  jurisdiction  by  finding  that  to  be  a 
fact  which  did  not  exist.    But  he  is  bound  to  inquire  as  to  the  fact,  and  when  he 
has  inquired  his  conviction  is  conclusive  of  it.    The  magistrates  have  inquired  in 
the  present  instance,  and  they  find  the  subject  of  conviction  to  be  a  boat.     Much 
has  been  said  about  the  danger  of  magistrates  giving  themselves  jurisdiction  ;  and 
extreme  cases  have  been  put,  as  of  a  magistrate  seizing  a  ship  of  seventy-four 
guns,  and  calling  it  a  boat.     Suppose  such  a  thing  done,  the  conviction  is  still 
conclusive,  and  we  cannot  look  out  of  it.     It  is  urged  that  the  party  is  without 
remedy ;  and  so  he  is,  without  civil  remedy,  in  this  and  many  other  cases ;  his 
remedy  is  by  proceeding  criminally ;  and  if  the  decision  were  so  gross  as  to  call 
a  ship  of  seventy-four  guns  a  boat,  it  would  be  good  ground  for  a  criminal  pro- 

[477] 


*  408  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

[*  408]  *  When  it  is  once  made  to  appear  that  a  court  has  juris- 
diction both  of  the  subject-matter  and  of  the  parties,  the 
[*  409]  judgment  which  *  it  pronounces  must  be  held  conclusive 
and  binding  upon  the  parties  thereto  and  their  privies,  not- 
withstanding the  court  may  have  proceeded  irregularly,  or  erred  in 
its  application  of  the  law  to  the  case  before  it.  It  is  a  general  rule 
that  irregularities  in  the  course  of  judicial  proceedings  do  not 
render  them  void.1  An  irregularity  may  be  defined  as  the  failure 
to  observe  that  particular  course  of  proceeding  which,  conformably 
with  the  practice  of  the  court,  ought  to  have  been  observed  in  the 
case  ;2  and  if  a  party  claims  to  be  aggrieved  by  this,  he  must  apply 

ceeding.  Formerly  the  rule  was  to  intend  every  thing  against  a  stinted  jurisdic- 
tion :  that  is  not  the  rule  now  ;  and  nothing  is  to  be  intended  but  what  is  fair 
and  reasonable,  and  it  is  reasonable  to  intend  that  magistrates  will  do  what  is 
right."  Richardson,  J.,  in  the  same  case,  states  the  real  point  very  clearly : 
"  Whether  the  vessel  in  question  were  a  boat  or  no  was  a  fact  on  which  the 
magistrate  was  to  decide ;  and  the  fallacy  lies  in  assuming  that  the  fact  which  the 
magistrate  has  to  decide  is  that  which  constitutes  his  jurisdiction.  If  a  fact 
decided  as  this  has  been  might  be  questioned  in  a  civil  suit,  the  magistrate  would 
never  be  safe  in  his  jurisdiction.  Suppose  the  case  for  a  conviction  under  the 
game  laws  of  having  partridges  in  possession :  could  the  magistrate,  in  an  action 
of  trespass,  be  called  on  to  show  that  the  bird  in  question  was  really  a  partridge  ? 
and  yet  it  might  as  well  be  urged,  in  that  case,  that  the  magistrate  had  no  juris- 
diction unless  the  bird  were  a  partridge,  as  it  may  be  urged  in  the  present  case 
that  he  has  none  unless  the  machine  be  a  boat.  So  in  the  case  of  a  conviction  for 
keeping  dogs  for  the  destruction  of  game  without  being  duly  qualified  to  do  so : 
after  the  conviction  had  found  that  the  offender  kept  a  dog  of  that  description, 
could  he,  in  a  civil  action,  be  allowed  to  dispute  the  truth  of  the  conviction  ?  In 
a  question  like  the  present  we  are  not  to  look  at  the  inconvenience,  but  at  the 
law ;  but  surely  if  the  magistrate  acts  bona  fide,  and  comes  to  his  conclusion  as 
to  matters  of  fact  according  to  the  best  of  his  judgment,  it  would  be  highly 
unjust  if  he  were  to  have  to  defend  himself  in  a  civil  action ;  and  the  more  so,  as 
he  might  have  been  compelled  by  a  mandamus  to  proceed  on  the  investigation. 
Upon  the  general  principle,  therefore,  that  where  the  magistrate  has  jurisdiction 
his  conviction  is  conclusive  evidence  of  the  facts  stated  in  it,  I  think  this  rule 
must  be  discharged."  See  also  Mather  v.  Hodd,  8  Johns.  44;  Mackaboy  v. 
Commonwealth,  2  Virg.  Cas.  268;  Ex  parte  Kellogg,  6  Vt.  509;  State  v.  Scott, 
1  Bailey,  294 ;  Facey  v.  Fuller,  13  Mich.  527  ;  Wall  v.  Trumbull,  16  Mich.  228 ; 
Sheldon  v.  Wright,  5  N.  Y.  512;  Freeman  on  Judgments,  §  523,  and  cases  cited. 

1  Ex  parte  Kellogg,  6  Vt.  509 ;  Edgerton  v.  Hart,  8  Vt.  208 ;  Carter  v. 
Walker,  2  Ohio,  N.  s.  339 ;  Freeman  on  Judgments,  §  135. 

2  "  The  doing  or  not  doing  that  in  the  conduct  of  a  suit  at  law,  which,  con- 
formably to  the  practice  of  the  court,  ought  or  ought  not  to  be  done."  Bouv. 
Law  Die.     See  Dick  v.  McLaurin,  63  N.  C.  185. 

[478] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  409 

to  the  court  in  which  the  suit  is  pending  to  set  aside  the  pro- 
ceedings, or  to  give  him  such  other  redress  as  he  thinks  himself 
entitled  to ;  or  he  must  take  steps  to  have  the  judgment  reversed 
by  removing  the  case  for  review  to  an  appellate  court,  if  any  such 
there  be.  Wherever  the  question  of  the  validity  of  the  proceedings 
arises  in  any  collateral  suit,  he  will  be  held  bound  by  them  to  the 
same  extent  as  if  in  all  respects  the  court  had  proceeded  according 
to  law.  An  irregularity  cannot  be  taken  advantage  of  collaterally  ; 
that  is  to  say,  in  any  other  suit  than  that  in  which  the  irregularity 
occurs,  or  on  appeal  or  process  in  error  therefrom.  And  even  in 
the  same  proceeding  an  irregularity  may  be  waived,  and  will  com- 
monly be  held  to  be  waived  if  the  party  entitled  to  complain  of  it 
shall  take  any  subsequent  step  in  the  case  inconsistent  with  an 
intent  on  his  part  to  take  advantage  of  it.1 

We  have  thus  briefly  indicated  the  cases  in  which  judicial  action 
may  be  treated  as  void  because  not  in  accordance  with  the 
*  law  of  the  land.  The  design  of  the  present  work  does  [*  410] 
not  permit  an  enlarged  discussion  of  the  topics  which  sug- 
gest themselves  in  this  connection,  and  which,  however  interesting 
and  important,  do  not  specially  pertain  to  the  subject  of  constitu- 
tional law. 

But  a  party  in  any  case  has  a  right  to  demand  that  the  judg- 
ment of  the  court  be  given  upon  his  suit,  and  he  cannot  be  bound 
by  a  delegated  exercise  of  judicial  power,  whether  the  delegation 
be  by  the  courts  or  by  legislative  act  devolving  judicial  duties  on 
ministerial  officers.2  Proceedings  in  any  such  case  would  be  void  ; 
but  they  must  be  carefully  distinguished  from  those  cases  in  which 
the  court  has  itself  acted,  though  irregularly.     Even  the  denial  of 

1  Robinson  v.  West,  1  Sandf.  19 ;  Malone  v.  Clark,  2  Hill,  657  ;  Wood  v. 
Randall,  5  IIill,  285  ;  Baker  v.  Kerr,  13  Iowa,  384  ;  Looinis  v.  Wadhams,  8  Gray, 
557  ;  Warren  v.  Glynn,  37  N.  H.  340.  A  strong  instance  of  waiver  is  where, 
on  appeal  from  a  court  having  no  jurisdiction  of  the  subject-matter  to  a  court 
having  general  jurisdiction,  the  parties  going  to  trial  without  objection  are  held 
bound  by  the  judgment.  Randolph  Co.  v.  Ralls,  18  111.  29  ;  Wells  v.  Scott, 
4  Mich.  347  ;  Tower  v.  Lamb,  6  Mich.  362.  In  Hoffman  v.  Locke,  19  Penn.  St. 
57,  objection  was  taken  on  constitutional  grounds  to  a  statute  which  allowed 
judgment  to  be  entered  up  for  the  plaintiff  in  certain  cases,  if  the  defendant 
failed  to  make  and  file  an  affidavit  of  merits ;  but  the  court  sustained  it. 

2  Hall  v.  Marks,  34  111.  363 ;  Chandler  v.  Nash,  5  Mich.  409.  For  the  dis- 
tinction between  judicial  and  ministerial  acts,  see  Flournoy  v.  Jeffersonville,  17 
Ind.  173. 

[479  ] 


*  410  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

jury  trial,  in  cases  where  that  privilege  is  reserved  by  the  Consti- 
tution, does  not  render  the  proceedings  void,  but  only  makes  them 
liable  to  be  reversed  for  the  error.1 

There  is  also  a  maxim  of  law  regarding  judicial  action  which 
may  have  an  important  bearing  upon  the  constitutional  validity  of 
judgments  in  some  cases.  No  one  ought  to  be  a  judge  in  his  own 
cause ;  and  so  inflexible  and  so  manifestly  just  is  this  rule,  that 
Lord  Coke  has  laid  it  down  that  "even  an  act  of  Parliament  made 
against  natural  equity,  as  to  make  a  man  a  judge  in  his  own  case, 
is  void  in  itself;  for  jura  natures  sunt  immutabilia,  and  they  are 
leges  legum."  2 

1  The  several  State  constitutions  preserve  the  right  of  trial  by  jury,  with  per- 
mission in  some  for  the  parties  to  waive  the  right  in  civil  cases.  Those  cases 
which  before  the  constitution  were  not  triable  by  jury  need  not  be  made  so  now. 
Dane  Co.  v.  Dunning,  20  Wis.  210;  Crandall  v.  James,  G  R.  I.  104;  Lake 
Erie,  &c,  R.  R.  Co.  v.  Heath,  9  Ind.  558;  Backus  v.  Lebanon,  11  N.  H.  19; 
Opinions  of  Judges,  41  N.  H.  551;  Tabor  v.  Cook,  15  Mich.  322;  Stilwell  v. 
Kellogg,  14  Wis.  461 ;  Mead  v.  Walker,  17  Wis.  189  ;  Byers  v.  Commonwealth, 
42  Penn.  St.  89;  State  v.  Peterson,  41  Vt.  504;  Buffalo,  &c.  R.R.  Co.  v. 
Burket,  26  Texas,  588 ;  Sands  v.  Kimbark,  27  N.  Y.  147 ;  Howell  v.  Fry,  19 
Ohio,  n.  s.  556 ;  Stockbridge  Iron  Co.  v.  Hudson  Iron  Co.,  102  Mass.  45 ;  Guile 
v.  Brown,  88  Conn.  243.  And  where  a  new  tribunal  is  created  without  common- 
law  powers,  jury  trial  need  not  be  given.  Rhines  v.  Clark,  51  Penn.  St.  96  ;  Haines 
v.  Levin,  ib.  412.  But  the  legislature  cannot  deprive  a  party  of  a  common-law 
right,  —  e.  g.,  a  right  of  navigation,  —  and  compel  him  to  abide  the  estimate 
of  commissioners  upon  his  damages.  Haines  v.  Levin,  51  Penn.  St.  412.  Where 
the  constitution  gives  the  right,  it  cannot  be  made  by  statute  to  depend  upon 
any  condition.  Greene  v.  Briggs,  1  Curt.  C.  C.  311 ;  Lincoln  v.  Smith,  27  Vt. 
328  ;  Norristown,  &c.,  Co.  v.  Burket,  26  Ind.  53.  Though  it  has  been  held  that, 
if  a  trial  is  given  in  one  court  without  a  jury,  with  a  right  to  appeal  and  to  have 
a  trial  by  jury  in  the  appellate  court,  that  is  sufficient.  Beers  v.  Beers,  4  Conn. 
535;  Stewart  v.  Mayor,  &c,  7  Md.  500;  Morford  v.  Barnes,  8  Yerg.  444; 
Jones  v.  Robbins,  8  Gray,  329.  But  we  concur  in  the  views  of  Judge  Blatch- 
ford,  declared  by  him  in  the  recent  unreported  case  of  Matter  of  Dana,  that  an 
unconditional  guaranty  of  jury  trial  cannot  be  satisfied,  at  least  in  criminal  cases, 
with  the  mere  privilege  to  have  a  trial  by  jury  on  condition  of  first  submitting  to 
a  trial  without  it,  and  then,  in  case  of  conviction,  taking  an  appeal.  The  guaranty 
clearly  intends  a  trial  by  jury  in  the  first  instance. 

In  Randall  v.  Kehlor,  60  Me.  37,  objection  was  taken  that  the  requirement  of 
the  payment  of  a  jury  fee  was  in  violation  of  the  right  of  jury  trial,  but  the 
court  held  otherwise. 

2  Co.  Lit.  §  212.  See  Day  v.  Savadge,  Hobart,  85.  We  should  not  venture 
to  predict,  however,  that  even  in  a  case  of  this  kind,  if  one  could  be  imagined  to 
exist,  the   courts  would  declare  the  act  of  Parliament  void  ;  though  they  would 

[480] 


CH.  XI.]  PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."  *  411 

*  This  maxim  applies  in  all  cases  where  judicial  functions  [*411] 
are  to  be  exercised,  and  excludes  all  who  are  interested, 
however  remotely,  from  taking  part  in  their  exercise.  It  is  not 
left  to  the  discretion  of  a  judge,  or  to  his  sense  of  decency,  to 
decide  whether  he  shall  act  or  not ;  all  his  powers  are  subject  to 
this  absolute  limitation ;  and  when  his  own  rights  are  in  question, 
he  has  no  authority  to  determine  the  cause.1  Nor  is  it  essential 
that  the  judge  be  a  party  named  in  the  record  ;  if  the  suit  is 
brought  or  defended  in  his  interest,  or  if  he  is  a  corporator  in  a 
corporation  which  is  a  party,  or  which  will  be  benefited  or  damni- 
fied by  the  judgment,  he  is  equally  excluded  as  if  he  were  the  party 
named.2  Accordingly,  where  the  Lord  Chancellor,  who  was  a 
shareholder  in  a  company  in  whose  favor  the  Vice-Chancellor  had 
rendered  a  decree,  affirmed  this  decree,  the  House  of  Lords  re- 
versed the  decree  on  this  ground,  Lord  Campbell  observing :  "  It 
is  of  the  last  importance  that  the  maxim  that  '  no  man  is  to  be  a 
judge  in  his  own  cause'  should  be  held  sacred.  And  that  is  not 
to  be  confined  to  a  cause  in  which  he  is  a  party,  but  applies  to  a 
cause  in  which  he  has  an  interest."  "  We  have  again  and  again 
set  aside  proceedings  in  inferior  tribunals,  because  an  individual 
who  had  an  interest  in  a  cause  took  a  part  in  the  decision.  And 
it  will  have  a  most  salutory  effect  on  these  tribunals,  when  it  is 
known  that  this  high  court  of  last  resort,  in  a  case  in  which  the 
Lord  Chancellor  of  England  had  an  interest,  considered  that  his 
decree  was  on  that  account  a  decree  not  according  to  law,  and 
should  be  set  aside.  This  will  be  a  lesson  to  all  inferior  tribunals 
to  take  care,  not  only  that  in  their  decrees  they  are  not  influenced 
by  their  personal  interest,  but  to  avoid  the  appearance  of  laboring 
under  such  an  influence."  3 

It  is  matter  of  some  interest  to  know  whether  the  legislatures 
of  the  American  States  can  set  aside  this  maxim  of  the  common 

never  find  such  an  intent  in  the  statute,  if  any  other  could  possibly  be  made 
consistent  with  the  words. 

1  Washington  Insurance  Co.  v.  Price,  Hopk.  Ch.  2 ;  Sigourney  v.  Sibley,  21 
Pick.  191 ;  Freeman  on  Judgments,  §  144:. 

2  Washington  Insurance  Co.  v.  Price,  Hopk.  Ch.  2 ;  Dimes  v.  Proprietors  of 
Grand  Junction  Canal,  3  House  of  Lords  Cases,  759 ;  Pearce  v.  Atwood,  13 
Mass.  340;  Peck  v.  Freeholders  of  Essex,  Spencer,  457;  Commonwealth  v. 
McLane,  4  Gray,  427 ;  Dively  v.  Cedar  Rapids,  21  Iowa,  565. 

3  Dimes  v.  Proprietors  of  Grand  Junction  Canal,  3  House  of  Lords  Cases, 

759. 

31  [  481  J 


*  411  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

law,  and  by  express  enactment  permit  one  to  act  judicially 
[*412]   when  *  interested  in  the  controversy.     The  maxim  itself, 

it  is  said,  in  some  cases,  does  not  apply  where,  from  neces- 
sity, the  judge  must  proceed  in  the  case,  there  being  no  other 
tribunal  authorized  to  act ; l  but  we  prefer  the  opinion  of  Chan- 
cellor Sandford  of  New  York,  that  in  such  a  case  it  belongs  to  the 
power  which  created  such  a  court  to  provide  another  in  which  this 
judge  may  be  a  party  ;  and  whether  another  tribunal  is  established 
or  not,  he  at  least  is  not  intrusted  with  authority  to  determine  his 
own  rights,  or  his  own  wrongs.2 

It  has  been  held  that  where  the  interest  was  that  of  corporator 
in  a  municipal  corporation,  the  legislature  might  provide  that  it 
should  constitute  no  disqualification  where  the  corporation  was  a 
party.  But  the  ground  of  this  ruling  appears  to  be,  that  the 
interest  is  so  remote,  trifling,  and  insignificant,  that  it  may  fairly 
be  supposed  to  be  incapable  of  affecting  the  judgment  or  of  influ- 
encing the  conduct  of  an  individual.3  And  where  penalties  are 
imposed,  to  be  recovered  only  in  a  municipal  court,  the  judges  or 
iurors  in  which  would  be  interested  as  corporators  in  the  recovery, 
the  law  providing  for  such  recovery  must  be  regarded  as  preclud- 
ing the  objection  of  interest.4  And  it  is  very  common,  in  a  certain 
class  of  cases,  for  the  law  to  provide  that  certain  township  and 
county  officers  shall  audit  their  own  accounts  for  services  rendered 
the  public  ;  but  in  such  case  there  is  no  adversary  party,  unless  the 
State,  which  passes  the  law,  or  the  municipalities  which  are  its 
component  parts  and  subject  to  its  control,  can  be  regarded  as 
such. 

But  except  in  cases  resting  upon  such  reasons,  we  do  not  see 
how  the  legislature  can  have  any  power  to  abolish  a  maxim  which 
is  among  the  fundamentals  of  judicial  authority.  The  people, 
indeed,  when  framing  their  constitution,  may  establish  so  great  an 

1  Ranger  v.  Great  Western  R.,  5  House  of  Lords  Cases,  88;  Stewart  v. 
Mechanics  and  Farmers  Bank,  19  Johns.  501. 

2  Washington  Insurance  Co.  v.  Price,  Hopk.  Ch.  2.  This  subject  was  con- 
sidered in  Hall  v.  Thayer,  105  Mass.  221,  and  an  appointment  by  a  judge  of  pro- 
bate of  his  wife's  brother  as  administrator  of  an  estate  of  which  her  father  was 
a  principal  creditor  was  held  void.     And  see  People  v.  Gies,  25  Mich.  83. 

3  Commonwealth  v.  Reed,  I  Gray,  475. 

4  Commonwealth  v.  Ryan,  5  Mass.  90 ;  Hill  v.  Wells,  6  Pick.  104  ;  Common- 
wealth v.  Emery,  11  Cush.  406. 

[482] 


CH.  XI.]    PROTECTION  TO  PROPERTY  BY  "  THE  LAW  OF  THE  LAND."    *  412 

anomaly,  if  they  see  fit ; 1  but  if  the  legislature  is  intrusted  with 
apportioning  and  providing  for  the  exercise  of  the  judicial  power, 
we  cannot  understand  it  to  be  authorized,  in  the  execution  of 
this  trust,  to  do  that  which  has  never  been  recognized 
as  *  being  within  the  province  of  the  judicial  authority.  [*  413] 
To  empower  one  party  to  a  controversy  to  decide  it  for 
himself  is  not  within  the  legislative  authority,  because  it  is  not  the 
establishment  of  any  rule  of  action  or  decision,  but  is  a  placing  of 
the  other  party,  so  far  as  that  controversy  is  concerned,  out  of  the 
protection  of  the  law,  and  submitting  him  to  the  control  of  one 
whose  interest  it  will  be  to  decide  arbitrarily  and  unjustly.2 

Nor  do  we  see  how  the  objection  of  interest  can  be  waived  by 
the  other  party.  If  not  taken  before  the  decision  is  rendered,  it 
will  avail  in  an  appellate  court ;  and  the  suit  may  there  be  dis- 
missed on  that  ground.3  The  judge  acting  in  such  a  case  is  not 
simply  proceeding  irregularly,  but  he  is  acting  without  jurisdic- 
tion. And  if  one  of  the  judges  constituting  a  court  is  disquali- 
fied on  this  ground,  the  judgment  will  be  void,  even  though  the 
proper  number  may  have  concurred  in  the  result,  not  reckoning 
the  interested  party.4 

Mere  formal  acts  necessary  to  enable  the  case  to  be  brought 
before  a  proper  tribunal  for  adjudication,  an  interested  judge  may 
do ; 5  but  that  is  the  extent  of  his  power. 

1  Matter  of  Leefe,  2  Barb.  Ch.  39. 

2  See  Ames  v.  Port  Huron  Log-Driving  and  Booming  Co.,  11  Mich.  139; 
Hall  v.  Thayer,   105  Mass.  325. 

3  Richardson  v.  Welcome,  6  Cush.  332;  Dimes  v.  Proprietors  of  Grand 
Junction  Canal,  3  House  of  Lords  Cases,  787.  And  see  Sigourney  v.  Sibley,  21 
Pick.  106 ;  Oakley  v.  Aspinwall,  3  N.  Y.  547. 

4  In  Queen  v.  Justices  of  Hertfordshire,  6  Queen's  Bench,  753,  it  was  decided 
that,  if  any  one  of  the  magistrates  hearing  a  case  at  sessions  was  interested,  the 
court  was  improperly  constituted,  and  an  order  made  in  the  case  should  be 
quashed.  It  was  also  decided  that  it  was  no  answer  to  the  objection,  that  there 
was  a  majority  in  favor  of  the  decision  without  reckoning  the  interested  party, 
nor  that  the  interested  party  withdrew  before  the  decision,  if  he  appeared  to  have 
joined  in  discussing  the  matter  with  the  other  magistrates.  See  also  the  Queen 
v.  Justices  of  Suffolk,  18  Q.  B.  416 ;  The  Queen  v.  Justices  of  London,  ib.  421  ; 
Peninsula  R.R.  Co.  v.  Howard,  20  Mich.  26. 

6  Richardson  v.  Boston,  1  Curtis,  C.  C.  251 ;  Washington  Insurance  Co.  v. 
Price,  Hopk.  Ch.  1;  Buckingham  v.  Davis,  9  Md.  324;  Heydenfeldt  v.  Towns, 
27  Ala.  430.  If  the  judge  who  renders  judgment  in  a  cause  had  previously  been 
attorney  in  it,  the  judgment  is  a  nullity.     Reams  v.  Kearns,  5  Cold.  217. 

[483] 


414  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 


[*414]  *CHAPTER    XII. 

LIBERTY    OF    SPEECH    AND    OF    THE    PRESS. 

The  first  amendment  to  the  Constitution  of  the  United  States 
provides,  among  other  things,  that  Congress  shall  make  no  law- 
abridging  the  freedom  of  speech  or  of  the  press.  With  jealous 
care  of  what  is  almost  universally  regarded  a  sacred  right,  essen- 
tial to  the  existence  and  perpetuity  of  free  government,  a  provision 
of  similar  import  has  been  embodied  in  each  of  the  State  constitu- 
tions, and  a  constitutional  principle  is  thereby  established  which  is 
supposed  to  form  a  shield  of  protection  to  the  free  expression  of 
opinion  in  every  part  of  our  land.1 

1  The  following  are  the  constitutional  provisions  :  Maine  :  Every  citizen  may 
freely  speak,  write,  and  publish  Lis  sentiments  on  any  subject,  being  responsible 
for  tbe  abuse  of  this  liberty.  jSTo  law  shall  be  passed  regulating  or  restraining 
the  freedom  of  the  press;  and,  in  prosecutions  for  any  publication  respecting 
the  official  conduct  of  men  in  public  capacity,  or  the  qualifications  of  those  who 
are  candidates  for  the  suffrages  of  the  people,  or  where  the  matter  published  is 
proper  for  public  information,  the  truth  thereof  may  be  given  in  evidence ;  and 
in  all  indictments  for  libel,  the  jury,  after  having  received  the  direction  of  the 
court,  shall  have  a  right  to  determine,  at  their  discretion,  the  law  and  the  fact. 
Declaration  of  Rights,  §  4, — New  Hampshire:  The  liberty  of  the  press  is 
essential  to  the  security  of  freedom  in  a  State ;  it  ought,  therefore,  to  be  inviola- 
bly preserved.  Bill  of  Rights,  §  22. —  Vermont:  That  the  people  have  a  right 
to  freedom  of  speech,  and  of  writing  and  publishing  their  sentiments  concerning 
the  transactions  of  government;  therefore  the  freedom  of  the  press  ought  not  to 
be  restrained.  Declaration  of  Rights,  Art.  13.  —  Massachusetts:  The  liberty 
of  the  press  is  essential  to  the  security  of  freedom  in  a  State ;  it  ought  not, 
therefore,  to  be  restrained  in  this  Commonwealth.  Declaration  of  Rights,  Art. 
16,  —  Rhode  Island:  The  liberty  of  the  press  being  essential  to  the  security  of 
freedom  in  a  State,  any  person  may  publish  his  sentiments  on  any  subject,  being 
responsible  for  the  abuse  of  that  liberty ;  and  in  all  trials  for  libel,  both  civil  and 
criminal,  the  truth,  unless  published  from  malicious  motives,  shall  be  sufficient 
defence  to  the  person  charged.  Art.  1,  §  20,  —  Connecticut:  No  law  shall  ever 
be  passed  to  curtail  or  restrain  the  liberty  of  speech  or  of  the  press.  In  all 
prosecutions  or  indictments  for  libel,  the  truth  may  be  given  in  evidence,  and  the 
jury  shall  have  the  right  to  determine  the  law  and  the  facts,  under  the  direction 
of  the  court.     Art.  1,  §§  6  and  7.  —  New  York:  Every  person  may  freely  speak, 

[484] 


CH.  XII.]  LIBERTY   OF   SPEECH   AND    OF   THE   PRESS.  *  415 

*It  is  to  be  observed  of  these  several  provisions,  that  [*415] 
they  recognize  certain  rights  as  now  existing,  and  seek  to 

write,  and  publish  bis  sentiments  on  all  subjects,  being  responsible  for  the  abuse 
of  that  right ;  and  no  law  shall  be  passed  to  restrain  or  abridge  the  liberty  of 
speech  or  the  press.  In  all  criminal  prosecutions  or  indictments  for  libels,  the 
truth  may  be  given  in  evidence  to  the  jury,  and  if  it  shall  appear  to  the  jury  that 
the  matter  charged  as  libellous  is  true,  and  was  published  with  good  motives  and 
for  justifiable  ends,  the  party  shall  be  acquitted,  and  the  jury  shall  have  the  right 
to  determine  the  law  and  the  fact.  Art.  1,  §8. — New  Jersey:  Every  person 
may  freely  speak,  write,  and  publish  his  sentiments  on  all  subjects,  being  respon- 
sible for  the  abuse  of  that  right.  No  law  shall  be  passed  to  restrain  or  abridge 
the  liberty  of  speech  or  of  the  press.  In  all  prosecutions  or  indictments  for 
libel,  the  truth  may  be  given  in  evidence  to  the  jury ;  and  if  it  shall  appear  to 
the  jury  that  the  matter  charged  as  libellous  is  true,  and  was  published  with 
good  motives,  and  for  justifiable  ends,  the  party  shall  be  acquitted  ;  and  the 
jury  shall  have  the  right  to  determine  the  law  and  the  fact.  Art.  1,  §  5.  — 
Pennsylvania :  That  the  printing-presses  shall  be  free  to  every  person  who 
undertakes  to  examine  the  proceedings  of  the  legislature,  or  any  branch  of  gov- 
ernment, and  no  law  shall  ever  be  made  to  restrain  the  right  thereof.  The  free 
communication  of  thoughts  and  opinions  is  one  of  the  invaluable  rights  of  man, 
and  every  citizen  may  freely  speak,  write,  and  print  on  any  subject,  being  re- 
sponsible for  the  abuse  of  the  liberty.  In  prosecutions  for  the  publication  of 
papers,  investigating  the  official  conduct  of  officers  or  men  in  public  capacity, 
or  where  the  matter  published  is  proper  for  public  information,  the  truth  thereof 
may  be  given  in  evidence ;  and  in  all  indictments  for  libels,  the  jury  shall  have  a 
right  to  determine  the  law  and  the  facts,  under  the  direction  of  the  court,  as  in 
other  cases.  Art.  9,  §  7,  —  Delaware  :  The  press  shall  be  free  to  every  citizen 
who  undertakes  to  examine  the  official  conduct  of  men  acting  in  public  capacity, 
and  any  citizen  may  print  on  any  such  subject,  being  responsible  for  the  abuse  of 
that  liberty.  In  prosecutions  for  publications  investigating  the  proceedings  of 
officers,  or  where  the  matter  published  is  proper  for  public  information,  the  truth 
thereof  may  be  given  in  evidence;  and  in  all  indictments  for  libels,  the  jury  may 
determine  the  facts  and  the  law,  as  in  other  cases.  Art.  1,  §  5.  —  Maryland: 
That  the  liberty  of  the  press  ought  to  be  inviolably  preserved  ;  that  every  citizen 
of  the  State  ought  to  be  allowed  to  speak,  write,  and  publish  his  sentiments  on 
all  subjects,  being  responsible  for  the  abuse  of  that  privilege.  Declaration  of 
Rights,  Art.  40.  —  West  Virginia:  No  law  abridging  the  freedom  of  sjjeech  or 
of  the  press  shall  be  passed ;  but  the  legislature  may  provide  for  the  restraint 
and  punishment  of  the  publishing  and  vending  of  obscene  books,  papers,  and 
pictures,  and  of  libel  and  defamation  of  character,  and  for  the  recovery  in  civil 
action,  by  the  aggrieved  party,  of  suitable  damages  for  such  libel  or  defamation. 
Attempts  to  justify  and  uphold  an  armed  invasion  of  the  State,  or  an  organized 
insurrection  therein  during  the  continuance  of  such  invasion  or  insurrection,  by 
publicly  speaking,  writing,  or  printing,  or  by  publishing  or  circulating  such 
writing  or  printing,  may  be  by  law  declared  a  misdemeanor,  and  punished 
accordingly.     In  prosecutions  and  civil  suits  for  libel,  the  truth  may  be  given  in 

[485] 


*  415  CONSTITUTIONAL    LIMITATIONS.  [CH.  XII. 

[*  416]  protect  and  perpetuate  *  them,  by  declaring  that  they  shall 
not  be  abridged,  or  that  they  shall  remain  inviolate.    They 

evidence ;  and  if  it  shall  appear  to  the  jury  that  the  matter  charged  as  libellous 
is  true,  and  was  published  with  good  motives,  and  for  justifiable  ends,  the  verdict 
shall  be  for  the  defendant.  Art.  2,  §§  4  and  5.  —  Kentucky  :  That  printing- 
presses  shall  be  free  to  every  person  who  undertakes  to  examine  the  proceedings 
of  the  General  Assembly,  or  any  branch  of  the  government,  and  no  law  shall 
ever  be  made  to  restrain  the  right  thereof.  The  free  communication  of  thoughts 
and  opinions  is  one  of  the  invaluable  rights  of  man,  and  every  citizen  may  freely 
speak,  write,  and  print,  on  any  subject,  being  responsible  for  the  abuse  of  that 
liberty.  In  all  prosecutions  for  the  publication  of  papers  investigating  the  offi- 
cial conduct  of  officers  or  men  in  a  public  capacity,  or  where  the  matter  pub- 
lished is  proper  for  public  information,  the  truth  thereof  may  be  given  in  evidence  ; 
and  in  all  indictments  for  libels,  the  jury  shall  have  a  right  to  determine  the 
law  and  the  facts,  under  the  direction  of  the  court,  as  in  other  cases.  Art.  13,  §§  9 
and  10.  —  Tennessee:  Nearly  the  same  as  Pennsylvania.  Art.  1,  §  19.  —  Ohio: 
Every  citizen  may  freely  speak,  write,  and  publish  his  sentiments  on  all  sub- 
jects, being  responsible  for  the  abuse  of  the  right ;  and  no  law  shall  be  passed 
to  restrain  or  abridge  liberty  of  speech  or  of  the  press.  In  all  criminal  pros- 
ecutions for  libel,  the  truth  may  be  given  in  evidence  to  the  jury ;  and  if  it 
shall  appear  to  the  jury  that  the  matter  charged  as  libellous  is  true,  and  was 
published  with  good  motives  and  for  justifiable  ends,  the  party  shall  be  acquitted. 
Art.  1,  §  11.  — Iowa,  Art.  1,  §  7,  and  Nevada,  Art.  1,  §  9.  Substantially  same  as 
Ohio.  —  Illinois:  Every  person  may  freely  speak,  write,  and  publish  on  all  sub- 
jects, being  responsible  for  the  abuse  of  that  liberty ;  and  in  all  trials  for  libel, 
both  civil  and  criminal,  the  truth,  when  published  with  good  motives  and  for 
justifiable  ends,  shall  be  a  sufficient  defence.  Art.  2,  §  4.  —  Indiana :  No  law 
shall  be  passed  restraining  the  free  interchange  of  thought  and  opinion,  or  restrict- 
ing the  right  to  speak,  write,  or  print  freely  on  any  subject  whatever ;  but  for 
the  abuse  of  that  right  every  person  shall  be  responsible.  In  all  prosecutions 
for  libel,  the  truth  of  the  matters  alleged  to  be  libellous  may  be  given  in  jus- 
tification. Art.  1,  §§  9  and  10.  —  Michigan:  In  all  prosecutions  for  libels,  the 
truth  may  be  given  in  evidence  to  the  jury ;  and  if  it  shall  appear  to  the  jury 
that  the  matter  charged  as  libellous  is  true,  and  was  published  with  good  motives 
and  for  justifiable  ends,  the  party  shall  be  acquitted.  The  jury  shall  have  the 
right  to  determine  the  law  and  the  fact.  Art.  6,  §  25.  —  Wisconsin :  Same  as 
New  York.  Art.  1,  §  3.  —  Minnesota:  The  liberty  of  the  pi-ess  shall  for  ever 
remain  inviolate,  and  all  persons  may  freely  speak,  write,  and  publish  their  sen- 
timents on  all  subjects,  being  responsible  for  the  abuse  of  such  right.  Art.  1, 
§  3.  —  Oregon  :  No  law  shall  be  passed  restraining  the  free  expression  of  opin- 
ion, or  restricting  the  right  to  speak,  write,  or  print  freely  on  any  subject  what- 
ever;  but  every  person  shall  be  responsible  for  the  abuse  of  this  right.  Art.  1, 
§  8.  —  California  :  Same  as  New  York.  Art.  1,  §  9.  —  Kansas  :  The  liberty  of 
the  press  shall  be  inviolate,  and  all  persons  may  freely  speak,  write,  or  publish 
their  sentiments  on  all  subjects,  being  responsible  for  the  abuse  of  such  right ; 
and  in  all  civil  or  criminal  actions  for  libel,  the  truth  may  be  given  in  evidence  to 

[486  ] 


CH.  XII.]  LIBERTY    OF   SPEECH    AND    OP    THE    PRESS.  *  416 

do  not  assume  to  create  new  rights,  but  *  their  purpose  is  [*  417] 
to  protect  the  citizen  in  the  enjoyment  of  those  already 

the  jury ;  and  if  it  shall  appear  that  the  alleged  libellous  matter  was  published 
for  justifiable  ends,  the  accused  party  shall  be  acquitted.  Bill  of  Rights,  §  11. 
—  Missouri:  That  the  free  communication  of  thoughts  and  opinions  is  one  of  the 
invaluable  rights  of  man ;  and  that  every  person  may  freely  speak,  write,  and 
print  on  any  subject,  being  responsible  for  the  abuse  of  that  liberty  ;  that  in  all 
prosecutions  for  libel,  the  truth  thereof  may  be  given  in  evidence,  and  the  jury 
may  determine  the  law  and  the  facts,  under  the  direction  of  the  court.  Art.  1, 
§27.  —  Nebraska:  Same  as  New  York.  Art.  1,  §  3.  —  Arkansas:  The  liberty 
of  the  press  shall  for  ever  remain  inviolate.  The  free  communication  of  thoughts 
and  opinions  is  one  of  the  invaluable  rights  of  man,  and  all  persons  may  freely 
speak,  write,  and  publish  their  sentiments  on  all  subjects,  being  responsible  for 
the  abuse  of  such  right.  In  all  criminal  prosecutions  for  libel,  the  truth  may  be 
given  in  evidence  to  the  jury;  and  if  it  shall  appear  to  the  jury  that  the  matter 
charged  as  libellous  is  true,  and  was  published  with  good  motives  and  for  justifi- 
able ends,  the  party  shall  be  acquitted.  Art.  1,  §2. — Florida:  Every  person 
may  freely  speak  and  write  his  sentiments  on  all  subjects,  being  responsible  for 
the  abuse  of  that  right,  and  no  law  shall  be  passed  to  restrain  or  abridge  the 
liberty  of  speech  or  the  press.  In  all  criminal  prosecutions  and  civil  actions  for 
libel,  the  truth  may  be  given  in  evidence  to  the  jury;  and  if  it  appear  that  the 
matter  charged  as  libellous  is  true,  and  was  published  with  good  motives,  the 
party  shall  be  acquitted  or  exonerated.  Declaration  of  Rights,  §  10.  —  Georgia: 
Freedom  of  speech,  and  freedom  of  the  press,  are  inherent  elements  of  political 
liberty.  But  while  every  citizen  may  freely  speak  or  write  or  print  on  any 
subject,  he  shall  be  responsible  for  the  abuse  of  the  liberty.  Art.  1,  §  9. — 
Louisiana :  The  press  shall  be  free ;  every  citizen  may  freely  speak,  write,  and 
publish  his  sentiments  on  all  subjects,  being  responsible  for  the  abuse  of  this 
liberty.  Title  1,  Art.  4.  — North  Carolina:  The  freedom  of  the  pi"ess  is  one  of 
the  great  bulwarks  of  liberty,  and  therefore  ought  never  to  be  restrained ;  but 
every  individual  shall  be  held  responsible  for  the  abuse  of  the  same.  Declaration 
of  Rights,  §  20.  —  South  Carolina :  All  persons  may  freely  speak,  write,  and 
publish  their  sentiments  on  any  subject,  being  responsible  for  the  abuse  of  that 
right;  and  no  laws  shall  be  enacted  to  restrain  or  abridge  the  liberty  of  speech 
or  of  the  press.  In  prosecutions  for  the  publication  of  papers  investigating  the 
official  conduct  of  officers  or  men  in  public  capacity,  or  when  the  matter  pub- 
lished is  proper  for  public  information,  the  truth  thereof  may  be  given  in  evi- 
dence; and  in  all  indictments  for  libel  the  jury  shall  be  judges  of  the  law  and  the 
facts.  Art.  1,  §§  7  and  8. — Alabama:  That  any  citizen  may  speak,  write,  and 
publish  his  sentiments  on  all  subjects,  being  responsible  for  the  abuse  of  that 
liberty.  That  in  prosecutions  for  the  publication  of  papers  investigating  the 
official  conduct  of  officers  or  men  in  public  capacity,  or  when  the  matter  published 
is  proper  for  public  information,  the  truth  thereof  may  be  given  in  evidence; 
and  that  in  all  indictments  for  libels,  the  jury  shall  have  the  right  to  determine 
the  law  and  the  facts,  under  the  direction  of  the  court.  Art.  1,  §§  6  and  13. : — 
Mississippi :  The  freedom  of  speech  and  of  the  press  shall  be  held  sacred ;  and 

[487] 


*  417  CONSTITUTIONAL  LIMITATIONS.  [CH.  XII. 

possessed.  We  are  at  once,  therefore,  turned  back  from  these  pro- 
visions to  the  pre-existing  law,  in  order  that  we  may  ascertain  what 
the  rights  are  which  are  thus  protected,  and  what  is  the  extent  of 
the  privileges  they  undertake  to  assure. 

At  the  common  law,  however,  it  will  be  found  that  liberty  of  the 
press  was  neither  well  protected  nor  well  defined.  The  art  of  print- 
ing, in  the  hands  of  private  persons,  has,  until  within  a  compar- 
atively recent  period,  been  regarded  rather  as  an  instrument  of 
mischief,  which  required  the  restraining  hand  of  the  government, 
than  as  a  power  for  good,  to  be  fostered  and  encouraged.  Like  a 
vicious  beast  it  might  be  made  useful  if  properly  harnessed  and 
restrained.  The  government  assumed  to  itself  the  right  to  deter- 
mine what  might  or  might  not  be  published ;  and  censors 
[*  418]  were  appointed  *  without  whose  permission  it  was  criminal 
to  publish  a  book  or  paper  upon  any  subject.  Through  all 
the  changes  of  government,  this  censorship  was  continued  until 
after  the  Revolution  of  1688,  and  there  are  no  instances  in  English 
history  of  more  cruel  and  relentless  persecution  than  for  the  pub- 
lication of  books  which  now  would  pass  unnoticed  by  the  author- 
ities. To  a  much  later  day  the  press  was  not  free  to  publish  even 
the  current  news  of  the  day  where  the  government  could  suppose 
itself  to  be  interested  in  its  suppression.  Many  matters,  the  pub- 
lication of  which  now  seems  important  to  the  just,  discreet,  and 
harmonious  working  of  free  institutions,  and  to  the  proper  obser- 
vation of  public  officers  by  those  interested  in  the  discharge  of 
their  duties,  were  treated  by  the  public  authorities  as  offences 
against  good  order,  and  contempts  of  their  authority.  By  a  fiction 
not  very  far  removed  from  the  truth,  the  Parliament  was  supposed 

in  all  indictments  for  libel,  tbe  jury  shall  determine  the  law  and  the  facts,  under 
the  direction  of  the  court.  Art.  1 ,  §4.  —  Texas :  Every  citizen  shall  be  at  lib- 
erty to  speak,  write,  or  publish  his  opinions  on  any  subject,  being  responsible  for 
the  abuse  of  that  privilege  ;  and  no  law  shall  ever  be  passed  curtailing  the  lib- 
erty of  speech  or  of  the  press.  In  prosecutions  for  the  publication  of  papers, 
investigating  the  official  conduct  of  officers  or  men  in  a  public  capacity,  or  when 
the  matter  published  is  proper  for  public  information,  the  truth  thereof  may  be 
given  in  evidence ;  and  in  all  indictments  for  libels,  the  jury  shall  have  the 
right  to  determine  the  law  and  the  facts,  under  the  direction  of  the  court,  as  in 
other  cases.  Art.  1,  §§  5  and  6.  —  Virginia:  That  the  freedom  of  the  press  is 
one  of  the  great  bulwarks  of  liberty,  and  can  never  be  restrained  but  by  despotic 
governments,  and  any  citizen  may  speak,  write,  and  publish  his  sentiments  on  all 
subjects,  being  responsible  for  the  abuse  of  that  liberty.     Art.  1,  §  14. 

[488] 


CH.  XII.]  LIBERTY   OP   SPEECH   AND   OP   THE   PRESS.  *  418 

to  sit  with  closed  doors.  No  official  publication  of  its  debates  was 
provided  for,  and  no  other  was  allowed.1  The  brief  sketches  which 
found  their  way  into  print  were  usually  disguised  under  the  garb 
of  discussions  in  a  fictitious  parliament,  held  in  a  foreign  country. 
Several  times  the  Parliament  resolved  that  any  such  publication, 
or  any  intermeddling  by  letter-writers,  was  a  breach  of  their  priv- 
ileges, and  should  be  punished  accordingly  on  discovery  of  the 
offenders.  For  such  a  publication  in  1747  the  editor  of  the  "  Gen- 
tleman's Magazine"  was  brought  to  the  bar  of  the  House  of 
Commons  for  reprimand,  and  only  discharged  on  expressing  his 
contrition.  The  general  publication  of  Parliamentary  debates 
dates  only  from  the  American  Revolution,  and  even  then  was  still 
considered  a  technical  breach  of  privilege.2 

The  American  Colonies  followed  the  practice  of  the.  parent  coun- 
try.3 Even  the  laws  were  not  at  first  published  for  general  circu- 
lation, and  it  seemed  to  be  thought  desirable  by  the  magistrates 
to  keep  the  people  in  ignorance  of  the  precise  boundary 
*  between  that  which  was  lawful  and  that  which  was  pro-  [*  419] 
hibited,  as  more  likely  to  make  them  avoid  all  doubtful 
actions.  The  magistrates  of  Massachusetts,  when  compelled  by 
public  opinion  to  suffer  the  publication  of  general  laws  in  1649, 

1  In  1641,  Sir  Edward  Deering  was  expelled  and  imprisoned  for  publishing  a 
collection  of  Lis  own  speeches,  and  the  book  was  ordered  to  be  burned  by  the 
common  hangman.     See  May's  Const.  Hist.  c.  7. 

2  See  May's  Constitutional  History,  c.  7,  9,  and  10,  for  a  complete  account 
of  the  struggle  between  the  government  and  the  press,  resulting  at  last  in  the 
complete  enfranchisement  and  protection  of  the  latter  in  the  publication  of  all 
matters  of  public  interest,  and  in  the  discussion  of  public  affairs.  Freedom  to 
report  proceedings  and  debates  was  due  at  last  to  Wilkes,  who,  worthless  as  he 
was,  proved  a  great  public  benefactor  in  his  obstinate  defence  of  liberty  of  the 
press  and  security  from  arbitrary  search  and  arrest.  A  fair  publication  of  a 
debate  is  now  held  to  be  privileged ;  and  comments  on  public  legislative  proceed- 
ings are  not  actionable,  so  long  as  a  jury  shall  think  them  honest  and  made  in  a 
fair  spirit,  and  such  as  are  justified  by  the  circumstances.  Wason  v.  Walter, 
Law  Rep.  4  Q.  B.  73. 

3  The  General  Court  of  Massachusetts  "appointed  two  persons,  in  October, 
1662,  licensers  of  the  press,  and  prohibited  the  publishing  any  books  or  papers 
which  should  not  be  supervised  by  them,  and  in  1668  the  supervisors  having 
allowed  of  the  printing  '  Thomas  a  Kempis  de  imitatione  Christi,'  the  court  inter- 
posed, «  it  being  wrote  by  a  popish  minister,  and  containing  some  things  less  safe 
to  be  infused  among  the  people,'  and  therefore  they  commended  to  the  licensers 
a  more  full  revisal,  and  ordered  the  press  to  stop  in  the  mean  time."  1  Hutchin- 
son's Mass.  257,  2d  ed. 

[489] 


*  419  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

permitted  it  under  protest,  as  a  hazardous  experiment.  For  pub- 
lishing the  laws  of  one  session  in  Virginia,  in  1682,  the  printer 
was  arrested  and  put  under  bonds  until  the  king's  pleasure  could 
be  known,  and  the  king's  pleasure  was  declared  that  no  printing 
should  be  allowed  in  the  Colony.1  There  were  not  wanting  in- 
stances of  the  public  burning  of  books,  as  offenders  against  good 
order.  Such  was  the  fate  of  Elliot's  book  in  defence  of  unmixed 
principles  of  popular  freedom,2  and  Calef's  book  against  Cotton 
Mather,  which  was  given  to  the  flames  at  Cambridge.3  A  single 
printing-press  was  introduced  into  the  Colony  so  early  as  1640  ; 
but  the  publication  even  of  State  documents  did  not  become  free 
until  1719,  when,  after  a  quarrel  between  Governor  Shute  and  the 
House,  he  directed  that  body  not  to  print  one  of  their  remon- 
strances, and,  on  their  disobeying,  sought  in  vain  to  procure  the 
punishment  of  their  printer.4  When  Dongan  was  sent  out  as 
Governor  of  New  York  in  1683,  he  was  expressly  instructed  to 
suffer  no  printing,5  and  that  Colony  obtained  its  first  press  in  1692, 
through  a  Philadelphia  printer  being  driven  thence  for  publishing 
an  address  from  a  Quaker,  in  which  he  accused  his  brethren  in 
office  of  being  inconsistent  with  their  principles  in  exercising  polit- 
ical authority.6  So  late  as  1671,  Governor  Berkley  of  Virginia 
expressed  his  thankfulness  that  neither  free  schools  nor  printing 
were  introduced  in  the  Colony,  and  his  trust  that  these  breeders 
of  disobedience,  heresy,  and  sects,  would  long  be  unknown.7 

The  public  bodies  of  the  united  nation  did  not  at  once  invite 
publicity  to  their  deliberations.  The  Constitutional  Convention  of 
1787  sat  with  closed  doors,  and  although  imperfect  reports  of  the 
debates  have  since  been  published,  the  injunction  of  secrecy  upon 
its  members  was  never  removed. 

The  Senate  for  a  time  followed  this  example,  and  the 

[*420]   first  open  *  debate  was  had  in  1793,  on  the  occasion  of  the 

controversy  over  the  right  of  Mr.  Gallatin  to  a  seat  in  that 

1  1  Hildreth,  History  of  the  United  States,  561. 

2  1  Hutchinson's  Mass.  (2d  ed.)  211;  2  Bancroft,  73;  1  Hildreth,  452;  2 
Palfrey's  New  England,  511,  512. 

3  1  Bancroft,  97  ;  2  Hildreth,  166. 

4  2  Hildreth,  298. 

5  2  Hildreth,  77. 

6  2  Hildreth,  171. 

7  1  Hildreth,  526 ;  2  Hen.  Stat.  517 ;  Wise's  Seven  Decades  of  the  Union, 
310. 

[490] 


CH.  XII.]  LIBERTY   OF   SPEECH   AND   OF   THE   PRESS. 


420 


body.1  The  House  of  Representatives  sat  with  open  doors  from 
the  first,  tolerating  the  presence  of  reporters,  —  over  whose  admis- 
sion, however,  the  Speaker  assumed  control,  —  and  refusing  in 
1796  the  pittance  of  two  thousand  dollars  for  full  publication  of 
debates. 

It  must  be  evident  from  these  brief  references  that  liberty  of  the 
press,  as  now  understood  and  enjoyed,  is  of  very  recent  origin  ; 3 
and  commentators  seem  to  be  agreed  in  the  opinion  that  the  term 
itself  means  only  that  liberty  of  publication  without  the  previous 
permission  of  the  government,  which  was  obtained  by  the  abolition 
of  the  censorship.  In  a  strict  sense,  Mr.  Hallam  says,  it  consists 
merely  in  exemption  from  a  licenser.3  A  similar  view  is  expressed 
by  De  Lolme.  "  Liberty  of  the  press,"  he  says,  "  consists  in  this  : 
that  neither  courts  of  justice,  nor  any  other  judges  whatever,  are 
authorized  to  take  notice  of  writings  intended  for  the  press,  but 
are  confined  to  those  which  are  actually  printed."4  Blackstone 
also  adopts  the  same  opinion,5  and  it  has  been  followed  by  Ameri- 
can commentators  of  standard  authority  as  embodying  correctly 
the  idea  incorporated  in  the  constitutional  law  of  the  country  by 
the  provisions  in  the  American  Bills  of  Rights.6 

It  is  conceded  on  all  sides  that  the  common-law  rules  that  sub- 
jected the  libeller  to  responsibility  for  the  private  injury,  or  the 
public  scandal  or  disorder  occasioned  by  his  conduct,  are  not 
abolished  by  the  protection  extended  to  the  press  in  our  constitu- 
tions. The  words  of  Ch.  J.  Parker  of  Massachusetts  on  this  sub- 
ject have  been  frequently  quoted,  generally  recognized  as  sound 

1  "  This  broke  the  spell  of  deliberations  in  secret  conclave  ;  and  a  few  days 
afterwards,  on  the  20th  of  the  same  month,  a  general  resolution  was  adopted  by 
the  Senate,  that,  after  the  end  of  the  present  annual  session,  its  proceedings  in 
its  legislative  capacity  should  be  with  open  doors,  unless  in  special  cases  which, 
in  the  judgment  of  the  body,  should  recpaire  secrecy."  Life  of  Madison,  by 
Rives,  Vol.  3,  p.  371. 

The  first  legislative  body  in  America  to  throw  open  its  debates  to  the  public 
was  the  General  Court  of  Massachusetts,  in  1766,  on  the  motion  of  Otis.  Tudor's 
Life  of  Otis,  252. 

2  It  is  mentioned  neither  in  the  English  Petition  of  Rights  nor  in  the  Bill  of 
Rio-hts  ;  of  so  little  importance  did  it  seem  to  those  who  were  seeking  to  redress 
grievances  in  those  days. 

3  HallanVs  Const.  Hist,  of  England,  c.  15. 

4  De  Lolme,  Const,  of  England,  254. 
6  4  Bl.  Com.  151. 

6  Story  on  Const.  §  1889;  2  Kent,  17  et  seq. ;  Rawle  on  Const,  c.  10. 

[491] 


*  420  CONSTITUTIONAL    LIMITATIONS.  [CH.  XII. 

in  principle,  and  accepted  as  authority.  "  Nor  does  our  constitu- 
tion or  declaration  of  rights,"  he  says,  speaking  of  his  own  State, 
"  abrogate  the  common  law  in  this  respect,  as  some  have  insisted. 
The  sixteenth  article  declares  that  '  liberty  of  the  press  is  essential 
to  the  security  of  freedom  in  a  State ;  it  ought  not  therefore  to  be 
restrained  in  this  Commonwealth.'  The  liberty  of  the 
[*  421]  press,  not  its  licentiousness :  *  this  is  the  construction 
which  a  just  regard  to  the  other  parts  of  that  instrument, 
and  to  the  wisdom  of  those  who  founded  it,  requires.  In  the 
eleventh  article  it  is  declared  that  every  subject  of  the  Common- 
wealth ought  to  find  a  certain  remedy,  by  having  recourse  to  the 
laws,  for  all  injuries  or  wrongs  which  he  may  receive  in  his  person, 
property,  or  character  ;  and  thus  the  general  declaration  in  the 
sixteenth  article  is  qualified.  Besides,  it  is  well  understood  and 
received  as  a  commentary  on  this  provision  for  the  liberty  of  the 
press,  that  it  was  intended  to  prevent  all  such  previous  restraints 
upon  publications  as  had  been  practised  by  other  governments,  and 
in  early  times  here,  to  stifle  the  efforts  of  patriots  towards  enlight- 
ening their  fellow-subjects  upon  their  rights  and  the  duties  of 
rulers.  The  liberty  of  the  press  was  to  be  unrestrained,  but  he 
who  used  it  was  to  be  responsible  in  case  of  its  abuse  ;  like  the 
right  to  keep  fire-arms,  which  does  not  protect  him  who  uses  them 
for  annoyance  or  destruction."  l 

But  while  we  concede  that  liberty  of  speech  and  of  the  press  does 
not  imply  complete  exemption  from  responsibility  for  every  thing 
a  citizen  may  say  or  publish,  and  complete  immunity  to  ruin  the 
reputation  or  business  of  others  so  far  as  falsehood  and  detraction 
may  be  able  to  accomplish  that  end,  it  is  nevertheless  believed  that 
the  mere  exemption  from  previous  restraints  cannot  be  all  that  is 
secured  by  the  constitutional  provisions,  inasmuch  as  of  words  to 
be  uttered  orally  there  can  be  no  previous  censorship,  and  the 
liberty  of  the  press  might  be  rendered  a  mockery  and  a  delusion, 
and  the  phrase  itself  a  byword  if,  while  every  man  was  at  liberty 
to  publish  what  he  pleased,  the  public  authorities  might  neverthe- 
less punish  him  for  harmless  publications. 

An  examination  of  the  controversies  which  have  grown  out  of 

1  Commonwealth  v.  Blanding,   3   Pick.  313.     See   charge  of  Chief  Justice 
McKean  of  Perm.,  5  Hildreth,  166  ;  Wharton's  State  Trials,  323  ;  State  v.  Lehre, 
2  Rep.  Const.  Court,  809  ;  Respublica  v.  Deunie,  4  Yeates,  267. 
[492] 


CH.  XII.]  LIBERTY    OF    SPEECH    AND    OF    THE    PRESS.  *  421 

the  repressive  measures  resorted  to  for  the  purpose  of  restraining 
the  free  expression  of  opinion  will  sufficiently  indicate  the  purpose 
of  the  guaranties  which  have  since  been  secured  against  such 
restraints  in  the  future.  Except  so  far  as  those  guaranties  relate 
to  the  mode  of  trial,  and  are  designed  to  secure  to  every  accused 
person  the  right  to  be  judged  by  the  opinion  of  a  jury  upon  the 
criminality  of  his  act,  their  purpose  has  evidently  been  to  protect 
parties  in  the  free  publication  of  matters  of  public  con- 
cern, to  *  secure  their  right  to  a  free  discussion  of  public  [*  422] 
events  and  public  measures,  and  to  enable  every  citizen  at 
any  time  to  bring  the  government  and  any  person  in  authority  to 
the  bar  of  public  opinion  by  any  just  criticism  upon  their  conduct 
in  the  exercise  of  the  authority  which  the  people  have  conferred 
upon  them.  To  guard  against  repressive  measures  by  the  several 
departments  of  the  government,  by  means  of  which  persons  iu 
power  might  secure  themselves  and  their  favorites  from  just  scru- 
tiny and  condemnation,  was  the  general  purpose ;  and  there  was 
no  design  or  desire  to  modify  the  rules  of  the  common  law  which 
protected  private  character  from  detraction  and  abuse,  except  so 
far  as  seemed  necessary  to  secure  to  accused  parties  a  fair  trial. 
The  evils  to  be  guarded  against  were  not  the  censorship  of  the 
press  merely,  but  any  action  of  the  government  by  means  of  which 
it  might  prevent  such  free  and  general  discussion  of  public  matters 
as  seems  absolutely  essential  to  prepare  the  people  for  an  intelli- 
gent exercise  of  their  rights  as  citizens. 

The  constitutional  liberty  of  speech  and  of  the  press,  as  we  un- 
derstand it,  implies  a  right  to  freely  utter  and  publish  whatever 
the  citizen  may  please,  and  to  be  protected  against  any  respon- 
sibility for  so  doing,  except  so  far  as  such  publications,  from  their 
blasphemy,  obscenity,  or  scandalous  character,  may  be  a  public 
offence,  or  as  by  their  falsehood  and  malice  they  may  injuriously 
affect  the  standing,  reputation,  or  pecuniary  interests  of  individuals. 
Or,  to  state  the  same  thing  in  somewhat  different  words,  we  under- 
stand liberty  of  speech  and  of  the  press  to  imply  not  only  liberty  to 
publish,  but  complete  immunity  from  legal  censure  and  punishment 
for  the  publication,  so  long  as  it  is  not  harmful  in  its  character, 
when  tested  by  such  standards  as  the  law  affords.  For  these  stand- 
ards we  must  look  to  the  common-law  rules  which  were  in  force 
when  the  constitutional  guaranties  were  established,  and  in  refer- 
ence to  which  they  have  been  adopted. 

[493] 


*  422  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

At  ihe  common  law  an  action  would  lie  against  any  person  pub- 
lishing a  false  and  malicious  communication  tending  to  disgrace  or 
iirjurd  another.  Falsehood,  malice,  and  injury  were  the  elements 
of  the  action  ;  but  as  the  law  presumed  innocence  of  crime  or  mis- 
conduct until  the  contrary  was  proved,  the  falsity  of  an  injurious 
publication  was  presumed  until  its  truth  was  averred  and  substan- 
tiated by  the  defendant ;  and  if  false,  malice  in  the  publication  was 
also  presumed  unless  the  publication  was  privileged  under  rules  to 
be  hereafter  stated.  There  were  many  cases,  also,  where 
[*  423]  the  law  presumed  injury,  and  did  not  call  upon  the  *  com- 
plaining party  to  make  any  other  showing  that  he  was 
damnified  than  such  implication  as  arose  from  the  character  of  the 
communication  itself.  If  it  accused  him  of  a  criminal  offence, 
involving  moral  turpitude,  and  such  as  would  subject  a  party 
proved  guilty  of  it  to  punishment  by  imprisonment ; x  if  it  charged 
him  with  an  infectious  disease,  the  effect  of  the  charge,  if  believed, 
being  to  exclude  him  from  the  society  of  his  fellows  ;2  if  the  charge 
affected  the  party  in  his  business,  office,  or  means  of  livelihood,  like 

1  Alexander  v.  Alexander,  9  Wend.  141 ;  Wagaman  v.  Byers,  17  Md.  183 ; 
Castlebery  v.  Kelly,  26  Geo.  606  ;  Redway  v.  Gray,  31  Vt.  292  ;  Hoag  v.  Hatch, 
23  Conn.  585;  Burton  v.  Burton,  3  Greene  (Iowa),  316;  Wright  v.  Paige,  36 
Barb.  438 ;  Simmons  v.  Holster,  13  Minn.  219.  But  the  charge  must  be  unequiv- 
ocal. Van  Rensselaer  v.  Dole,  1  Johns.  Cas.  279  ;  Dexter  v.  Taber,  12  Johns. 
239 ;  Hopkins  v.  Beedle,  1  Caines,  317  ;  Butterfield  v.  Buffam,  9  N.  H.  156 ; 
Holt  v.  Scolefield,  6  T.  R.  691 ;  Jacobs  v.  Fyler,  3  Hill,  572 ;  Crone  v.  Angell, 
14  Mich.  310;  Bonner  v.  McPhail,  31  Barb.  106 ;  Mower  v.  Watson,  11  Vt.  536  ; 
Wilson  v.  Noonan,  23  Wis.  105  ;  Simmons  v.  Holster,  13  Min.  249.  Though  it 
is  not  necessary  tbat  technical  words  be  employed  ;  if  the  necessary  inference, 
taking  the  words  together,  is  a  charge  of  crime,  it  is  sufficient.  Morgan  v.  Liv- 
ingston, 2  Rich.  573 ;  True  v.  Plumley,  36  Me.  466 ;  Curtis  v.  Curtis,  10  Bing. 
477.  It  is  not  essential  that  the  charge  should  be  such  as,  if  true,  to  subject  the 
party  now  to  punishment.  It  is  the  disgrace  attending  the  charge  that  gives  the 
right  of  action,  and  therefore  to  say  that  the  person  is  a  returned  convict  is 
actionable.  Baum  v.  Clause,  5  Hill,  196;  Smith  v.  Stewart,  5  Penn.  St.  372; 
TJtley  v.  Campbell,  5  T.  B.  Monr.  396 ;  Holley  v.  Burgess,  9  Ala.  728.  Or  to 
accuse  him  of  a  crime  for  which  prosecution  would  be  barred  by  statute  of  limi- 
tations would  be  actionable.  Van  Ankin  v.  Westfall,  14  Johns.  233 ;  Poe  v. 
Grever,  3  Sneed,  664;  Stewart  v.  Howe,  17  111.  71.  It  has  been  held  that  to 
charge  a  man  with  a  purely  military  offence,  e.  g.,  desertion,  is  not  actionable 
per  se.     Hollingsworth  v.  Shaw,  19  Ohio,  N.  s.  430;  s.  c.  2  Am.  Rep.  411. 

2  Carlslake  v.  Mapledorum,  2  T.  R.  473  ;  Bloodworth  v.  Gray,  7  M.  &  G.  334 ; 
Nichols  v.  Guy,  2  Ind.  82 ;  Watson  v.  McCarthy,  2  Kelly,  57. 

[  494  ] 


CH.  XII.]  LIBERTY   OF   SPEECH   AND    OP   THE   PRESS.  *  423 

charging  a  trader  with  insolvency,  and  the  like  ; ]  or  if  any  injuri- 
ous charge  holding  a  party  up  to  public  contempt,  scorn,  or  ridicule 
was  propagated  by  printing,  writing,  signs,  burlesques,  &c.,2 — the 
law  presumed  injury,  and  the  charge  was  said  to  be  actionable  per 
se.  And  although  it  was  formerly  held  that  to  charge  a  female 
verbally  with  want  of  chastity  was  not  actionable  without  proof  of 
special  damage,"  yet  of  late  a  disposition  has  been  exhibited 
to  *  break  away  from  this  rule  in  favor  of  one  more  just  [*  424] 
and  sensible,4  and  the  statutes  of  several  of  the  States 
have  either  made  adultery  and  incontinence  punishable  as  crimes, 
whereby  to  charge  them  becomes  actionable  per  se  under  the  com- 
mon-law rule,  or  else  in  express  terms  have  declared  such  a  charge 
actionable  without  proof  of  special  damage.5 

1  Lindsey  v.  Smith,  7  Johns.  360;  Thomas  v.  Croswell,  7  Johns.  264;  Riggs 
v.  Denniston,  3  Johns.  Cas.  198;  Fonvard  v.  Adams,  7  Wend.  204;  Sanderson 
v.  Caldwell,  45  N.  Y.  398 ;  s.  c.  6  Am.  Rep.  105. 

2  Janson  v.  Stuart,  1  T.  R.  748 ;  Van  Ness  v.  Hamilton,  19  Johns.  367  ;  Clegg 
v.  Laffer,  10  Bing.  250;  Steele  v.  Southwick,  9  Johns.  214. 

3  Gascoign  v.  Ambler,  2  Ld.  Raym.  1004;  Graves  v.  Blanchet,  2  Salk.  696; 
Wilby  v.  El^ton,  8  C.  B.  142 ;  Buys  v.  Gillespie,  2  Johns.  115 ;  Brooker  v.  Coffin, 
5  Johns.  188;  Bradt  v.  Towsley,  13  Wend.  253;  Dyer  v.  Morris,  4  Mo.  214; 
Stanfield  v.  Boyer,  6  H.  &  J.  248 ;  Woodbury  v.  Thompson,  3  N.  H.  194 ;  Berry 
v.  Carter,  4  Stew.  &  Port.  387;  Elliot  v.  Ailsbury,  2  Bibb,  473;  Linney  v. 
Malton,  13  Texas,  449;  Underbill  v.  Welton,  32  Vt.  40. 

4  See  the  cases  of  Sexton  v.  Todd,  Wright,  317;  Wilson  v.  Runyan,  ib.  671; 
Malone  v.  Stewart,  15  Ohio,  319 ;  Moberly  v.  Preston,  8  Mo.  462  ;  Sidgreaves 
v.  Myatt,  22  Ala.  617;  Terry  v.  Bright,  4  Md.  430;  Spencer  v.  McMasters, 
16  111.  405. 

5  See  Frisbie  v.  Fowler,  2  Conn.  707  ;  Miller  v.  Parish,  8  Pick.  384;  Robbins 
v.  Fletcher,  101  Mass.  115;  Pledger  v.  Hitchcock,  1  Kelley,  550;  Smally  v. 
Anderson,  2  T.  B.  Monr.  56  ;  Williams  v.  Bryant,  4  Ala.  44;  Dailey  v.  Reynolds, 
4  Greene  (Iowa),  354;  Symonds  v.  Carter,  32  N.  H.  458;  McBrayer  v.  Hill, 
4  Ired.  136;  Morris  v.  Barkley,  1  Lit  64;  Phi  lips  v.  Wiley,  2  Lit.  153;  Watts 
v.  Greenlee,  2  Dev.  115;  Drummond  v.  Leslie,  5  Blackf.  453;  Worth  v.  Butler, 
7  Blackf.  251  ;  Richardson  v.  Roberts,  23  Geo.  215;  Buford  v.  Wible,  32  Penn. 
St.  95;  Freeman  v.  Price,  2  Bailey,  115;  Regnier  v.  Cabot,  2  Gil.  34;  Ranger 
v.  Goodrich,  17  Wis.  78 ;  Adams  v.  Rankin,  1  Duvall,  58  ;  Downing  v.  Wilson, 
36  Ala.  717  ;  Cox  v.  Bunker,  Morris,  269 ;  Smith  v.  Silence,  4  Iowa,  321 ;  Tru- 
man v.  Taylor,  ib.  424 ;  Beardsley  v.  Bridgeman,  17  Iowa,  242  ;  Patterson  v. 
Wilkinson,  55  Me.  45.  The  injustice  of  the  common-law  rule  is  made  prominent 
in  those  cases  where  it  has  been  held  that  an  allegation  that,  in  conse  pence  of 
the  charge,  the  plaintiff  had  fallen  into  disgrace,  contempt,  and  infamy,  and  lost 
her  credit,  reputation,  and  peace  of  mind  (Woodbury  v.  Thompson,  3  N.  H. 
191),  and  that  she  is  shunned  by  her  neighbors  (Beach  v.  Ranney,  2  Hill,  310), 
was  not  a  sufficient  allegation  of  special  damage  to  support  the  action. 

[495] 


*  424  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

But  in  any  other  case  a  party  complaining  of  a  false,  malicious, 
and  disparaging  communication  might  maintain  an  action  therefor, 
on  averment  and  proof  of  special  damage  ; *  though  the  truth  of  the 
charge,  if  pleaded  and  established,  was  generally  a  complete  de- 
fence.2 

In  those  cases  in  which  the  injurious  charge  was  propagated  by 
printing,  writing,  signs,  burlesques,  &c,  there  might  also  be  a 
criminal  prosecution,  as  well  as  a  suit  for  private  damages.  The 
criminal  prosecution  was  based  upon  the  idea  that  the  tendency  of 
such  publications  was  to  excite  to  a  breach  of  the  public  peace;3 
and  it  might  be  supported  in  cases  where  the  injurious  publication 
related  to  whole  classes  or  communities  of  people,  without  singling 
out  any  single  individual  so  as  to  entitle  him  to  a  private  remedy.4 

1  Kelley  v.  Partington,  3  Nev.  &  M.  116 ;  Steele  v.  Southwick,  9  Johns.  214 ; 
Hallock  v.  Miller,  2  Barb.  630;  Powers  v.  Dubois,  17  Wend.  63  ;  Weed  v.  Foster, 
11  Barb.  203  ;  Cooper  v.  Greeley,  1  Denio,  317  ;  Stone  v.  Cooper,  2  Denio,  293. 
The  damage,  however,  must  be  of  a  pecuniary  character.  Beach  v.  Ranney,  2  Hill, 
309.  But  very  slight  damage  has  been  held  sufficient  to  support  considerable 
recoveries.  Williams  v.  Hill,  19  Wend.  305  ;  Bradt  v.  Towsley,  13  Wend.  253 ; 
Olmsted  v.  Miller,  1  Wend.  506 ;  Moore  v.  Meagher,  1  Taunt.  39 ;  Knight  v. 
Gibbs,  1  Ad.  &  El.  43. 

2  See  1  Hilliard  on  Torts,  410 ;  Heai-d  on  Libel  and  Slander,  §  151 ;  Towns- 
end  on  Libel  and  Slander,  §  73. 

3  Commonwealth  v.  Clap,  4  Mass.  168. 

4  In  Palmer  v.  Concord,  48  N.  H.  214,  suit  was  brought  against  a  town  for 
the  destruction  of  a  printing  press  by  a  mob.  The  defence  was,  that  plaintiff 
had  caused  the  mob  by  libellous  articles  published  in  his  paper  reflecting  upon  the 
army.  Smith,  J.,  says:  "The  first  of  these  articles  charges  the  United  States' 
forces  in  Virginia  with  cowardice,  and  holds  them  up  as  objects  of  ridicule  there- 
for. The  fourth  article  calls  the  army  a  '  mob  ; '  and  although  the  charges  of  mur- 
der and  robbery  may  perhaps  be  considered  as  limited  in  their  application,  the 
charge  of  cowardice  against  the  whole  army  is  repeated.  The  fifth  article  in 
effect  charges  those  bodies  of  soldiers  who  passed  through,  or  occupied,  Hampton, 
Martinsburg,  Fairfax,  or  Germantown,  with  improper  treatment  of  persons  of  all 
ages  and  sexes,  in  each  of  those  places.  If  such  charges  had  been  made  against 
a  single  soldier  named  in  the  articles,  they  would  prima  facie  have  constituted  a 
libel.  The  tendency  to  expose  him  to  contempt  or  ridicule  could  not  be  doubted, 
and  the  tendency  to  injure  his  professional  reputation  would  be  equally  apparent. 
A  soldier's  character  for  courage  or  discipline  is  as  essential  to  his  good  stand- 
ing as  a  merchant's  reputation  for  honesty,  or  a  physician's  reputation  as  to  pro- 
fessional learning  or  skill,  would  be  in  their  respective  callings.  And  by  military 
law,  to  which  the  soldier  is  amenable,  we  suppose  cowardice  would  be  regarded 
a  crime  punishable  by  severe  penalties.  As  these  charges  were  made  against  a 
body  of  men,  without  specifying  individuals,  it  may  be  that  no  individual  soldier 

[  496  ] 


CH.  XII.]  LIBERTY    OF    SPEECH    AND    OF    THE    PRESS.  *  424 

On  similar  grounds  to  publish  injurious  charges  against  a 
foreign  *  prince  or  ruler  was  also  held  punishable  as  a  pub-  [*  425] 

could  have  maintained  a  private  action  therefor.  But  the  question  whether  the 
publication  might  not  afford  ground  for  a  public  prosecution  is  entirely  different. 
Civil  suits  for  libel  are  maintainable  only  on  the  ground  that  the  plaintiff  has  indi- 
vidually suffered  damage.  Indictments  for  libel  are  sustained  principally  because 
the  publication  of  a  libel  tends  to  a  breach  of  the  peace,  and  thus  to  the  disturb- 
ance of  society  at  large.  It  is  obvious  that  a  libellous  attack  on  a  body  of  men, 
though  no  individuals  be  pointed  out,  may  tend  as  much,  or  more,  to  create  public 
disturbances  as  an  attack  on  one  individual ;  and  a  doubt  has  been  suggested 
whether  '  the  fact  of  numbers  defamed  does  not  add  to  the  enormity  of  the  act.1 
See  2  Bishop  on  Criminal  Law,  3d  ed.  §  922  ;  Holt  on  Libel,  216-47  ;  Russell  on 
Crimes,  1st  Am.  ed.  305-332."  In  Sumner  v.  Buel,  12  Johns.  475,  where  a 
majority  of  the  court  held  that  a  civil  action  could  not  be  maintained  by  an 
officer  of  a  regiment,  for  a  publication  reflecting  on  the  officers  generally,  unless 
there  was  an  averment  of  special  damage,  Thompson,  Ch.  J.,  said,  p.  478 :  '  The 
offender,  in  such  case,  does  not  go  without  punishment.  The  law  has  provided 
a  fit  and  proper  remedy,  by  indictment ;  and  the  generality  and  extent  of  such 
libels  make  them  more  peculiarly  public  offences.'  In  Ryckman  v.  Delavan,  25 
Wend.  186,  Walworth,  Chancellor,  —  who  held,  in  opposition  to  the  majority  of 
the  Court  of  Errors,  that  the  plaintiff  could  not  maintain  a  civil  suit,  because  the 
publication  reflected  upon  a  class  of  individuals,  and  not  upon  the  plaintiff  per- 
sonally, —  said,  pp.  195-96  :  '  There  are  many  cases  in  the  books  where  the  writers 
and  publishers  of  defamatory  charges,  reflecting  upon  the  conduct  of  particular 
classes  or  bodies  of  individuals,  have  been  proceeded  against  by  indictment  or 
information,  although  no  particular  one  was  named  or  designated  therein  to  whom 
the  charge  had  a  personal  application.  All  those  causes,  however,  whether  the  libel 
is  upon  an  organized  body  of  men,  a  legislature,  a  court  of  justice,  a  church,  or  a 
company  of  soldiers,  or  upon  a  particular  class  of  individuals,  proceed  upon  the 
ground  that  the  charge  is  a  misdemeanor,  although  it  has  no  particular  personal 
application  to  the  individual  of  the  body  or  class  libelled  ;  because  it  tends  to 
excite  the  angry  passions  of  the  community  either  in  favor  of  or  against  the  body 
or  class  in  reference  to  the  conduct  of  which  the  charge  is  made,  or  because  it 
tends  to  impair  the  confidence  of  the  people  in  their  government  or  in  the  admin- 
istration of  its  laws.'  In  the  course  of  his  opinion,  the  Chancellor  mentions  a 
Scotch  case  (Shearlock  v.  Beardsworth,  1  Murray's  Report  of  Jury  Cases)  where 
a  civil  suit  was  maintained,  which  was  '  brought  by  a  lieutenant-colonel,  in  behalf 
of  his  whole  regiment,  for  defamation,  in  calling  them  a  regiment  of  cowards  and 
blackguards.'  In  Rex  v.  Hector  Campbell,  King's  Bench,  Hil.  Term,  1808 
(cited  in  Holt  on  Libel,  249,  250),  an  information  was  granted  for  a  libel  on  the 
college  of  physicians ;  and  the  respondent  was  convicted  and  sentenced.  Cases 
may  be  supposed  where  publications,  though  of  a  defamatory  nature,  have  such 
a  wide  and  general  application  that,  in  all  probability,  a  breach  of  the  peace  would 
not  be  caused  thereby ;  but  it  does  not  seem  to  us  that  the  present  publication 
belongs  to  that  class. 

"  Our  conclusion  is  that  the  jury  should  have  been  instructed  that  the  first, 

32  [  497  ] 


*  425  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

lie  offence,  because  tending  to  embroil  the  two  nations,  and  to  dis- 
turb the  peace  of  the  world.1  These  common-law  rules  are  whole- 
some, and  are  still  in  force. 

"We  are  not  so  much  concerned,  however,  with  the  general  rules 
pertaining  to  the  punishment  of  injurious  publications,  as  with 
those  special  cases  where,  for  some  reason  of  general  public  policy, 
the  publication  is  claimed  to  be  privileged,  and  where,  consequently, 
it  may  be  supposed  to  be  within  the  constitutional  protection.  It 
has  alway  been  held,  notwithstanding  the  general  rule  that  malice 
is  to  be  inferred  from  a  false  and  injurious  publication,  that  there 
were  some  cases  to  which  the  presumption  would  not  apply,  and 
where  a  private  action  could  not  be  maintained  without  proof  of 
express  malice.  These  are  the  cases  which  are  said  to  be  privi- 
leged. The  term  "  privileged,"  as  applied  to  a  communication 
alleged  to  be  libellous,  means  generally  that  the  circumstances 
under  which  it  was  made  were  such  as  to  rebut  the  legal  inference 
of  malice,  and  to  throw  upon  the  plaintiff  the  burden  of  offering 
some  evidence  of  its  existence  beyond  the  mere  falsity  of  the 
charge.2  The  cases  falling  within  this  classification  are  those  in 
which  a  party  has  a  duty  to  discharge  which  requires  that  he  should 
be  allowed  to  speak  freely  and  fully  that  which  he  believes  ;  where 
he  is  himself  directly  interested  in  the  subject-matter  of  the 
communication,  and  makes  it  with  a  view  to  the  protection  or 
advancement  of  his  own  interest,  or  where  he  is  communicating 
confidentially  with  a  person  interested  in  the  communication,  and 
by  way  of  advice  or  admonition.3     Many  such  cases  suggest  them- 

fourth,  and  fifth,  articles  were  prima  facie  libellous;  and  that  the  publication  of 
those  articles  must  be  regarded  as  '  illegal  conduct,'  unless  justified  or  excused 
by  facts  sufficient  to  constitute  a  defence  to  an  indictment  for  libel." 

1  27  State  Trials,  627 ;  2  May,  Const.  History  of  England,  c.  9. 

2  Lewis  v.  Chapman,  16  N.  Y.  373,  per  Seidell,  J. ;  Townsend  on  Libel  and 
Slander,  §  209. 

3  "When  a  communication  is  made  in  confidence,  either  by  or  to  a  person 
interested  in  the  communication,  supposing  it  to  be  true,  or  by  way  of  admoni- 
tion or  advice,  it  seems  to  be  a  general  rule  that  malice  (i.  e.,  express  malice)  is 
essential  to  the  maintenance  of  an  action."  1  Starkie  on  Slander,  321.  See 
Harrison  v.  Bush,  5  El.  &B1.  34-1 ;  Somerville  v.  Hawkins,  10  C.  B.  589  ;  Wright 
v.  Woodgate,  2  Cr.  M.  &  R.  573 ;  Whiteley  v.  Adams,  15  C.  B.  N.  s.  392.  A 
paper  signed  by  a  number  of  parties  agreeing  to  join  in  the  expense  of  prosecut- 
ing others,  who  were  stated  therein  to  have  "  robbed  and  swindled  "  them,  is 
privileged.     Klinck  v.  Colby,  46  N.  Y.  427  ;  s.  c.  7  Am.  Rep.  360. 

[498] 


CH.  XII.]  LIBERTY   OF   SPEECH    AND    OF   THE   PRESS.  *  425 

selves  which  are  purely  of  private   concern :    such  as  answers  to 
inquiries  into  the  character  or  conduct  of  one  formerly  employed 
by  the  person  to  whom  the  inquiry  is  addressed,  and  of  whom  the 
information  is  sought  with  a  view  to  guiding  the  inquirer  in  his 
own  action  in  determining  upon  employing  the  same  per- 
son ; 1  answers  to  inquiries  by  one  tradesman  of  another  *  as  [*  426] 
to  the  solvency  of  a  person  whom  the  inquirer  has  been 
desired  to  trust;2  answers  by  a  creditor  to  inquiries  regarding  the 
conduct  and  dealings  of  his  debtor,  made  by  one  who  had  become 
surety  for  the  debt ; 3  communications  from  an  agent  to  his  prin- 
cipal,  reflecting  injuriously  upon  the  conduct  of  a  third  person  in 
a  matter  connected  with  the  agency ; 4  communications  to  a  near 
relative  respecting  the  character  of  a  person  with  whom  the  relative 
is  in  negotiation  for  marriage  ; 5  and  as  many  more  like  cases  as 
would  fall  within  the  same  reasons.6     The  rules  of  law  applicable 

1  Pattison  v.  Jones,  8  B.  &  C.  578  ;  Elam  v.  Badger,  23  111.  498 ;  Bradley  v. 
Heath,  12  Pick.  163.      Compare  Fryer  v.  Kinnersley,  15  C.  B.  N.  s.  422. 

2  Smith  v.  Thomas,  2  Bing.  (N.  C.)  372 ;  Story  v.  Challands,  8  C.  &  P.  234. 
But  the  reports  of  a  mercantile  agency  to  its  customers  are  not  privileged. 
Taylor  v.  Church,  8  N.  Y.  452  ;  Sunderlin  v.  Bradstreet,  46  N.  Y.  188 ;  s.  C. 
7  Am.  Rep.  322.     Compare  Beardsley  v.  Tappan,  5  Blatch.  497. 

3  Dunman  v.  Bigg,  1  Campb.  269,  note. 

4  Washburn  v.  Cooke,  3  Denio,  110.     See  Easley  v.  Moss,  9  Ala.  266. 

5  Todd  v.  Hawkins,  8  C.  &  P.  88.  But  there  is  no  protection  to  such  a  com- 
munication from  a  stranger.     Joannes  v.  Bennett,  5  Allen,  170. 

6  As  to  whether  a  stranger  volunteering  to  give  information  injurious  to 
another,  to  one  interested  in  the  knowledge,  is  privileged  in  so  doing,  see  Cox- 
head  v.  Richards,  2  M.,  G.  &  S.  569;  and  Bennett  v.  Deacon,  ib.  628.  Where 
a  confidential  relation  of  any  description  exists  between  the  parties,  the  commu- 
nication is  privileged ;  as  where  the  tenant  of  a  nobleman  had  written  to  inform 
him  of  his  gamekeeper's  neglect  of  duty.  Cockagne  v.  Hodgkisson,  5  C.  &  P. 
543.  Where  a  son-in-law  wrote  to  warn  his  mother-in-law  of  the  bad  character 
of  a  man  she  was  about  to  marry.  Todd  v.  Hawkins,  8  C.  &  P.  88.  Where  a 
banker  communicated  with  his  correspondent  concerning  a  note  sent  to  him  for 
collection  ;  the  court  saying  that  "  all  that  is  necessary  to  entitle  such  communi- 
cation to  be  privileged  is,  that  the  relation  of  the  parties  should  be  such  as  to 
afford  reasonable  ground  for  supposing  an  innocent  motive  for  giving  the  infor- 
mation, and  to  deprive  the  act  of  the  appearance  of  officious  intermeddling  with 
the  affairs  of  others."  Lewis  v.  Chapman,  16  N.  Y.  875.  Where  one  commu- 
nicated to  an  employer  his  suspicions  of  dishonest  conduct  in  a  servant  towards 
himself.  Amann  v.  Damm,  8  C.  B.  N.  s.  597.  Where  a  tradesman  published  in 
a  newspaper  that  his  servant  had  left  his  employ,  and  taken  upon  himself  to  col- 
lect the  tradesman's  bills.     Hatch  v.  Lane,  105  Mass.  394. 

[  499  ] 


*  426  CONSTITUTIONAL    LIMITATIONS.  [CH.  XII. 

to  these  cases  are  very  well  settled,  and  are  not  likely  to  be  changed 
with  a  view  to  greater  stringency.1 

Libels  upon  the  Government. 

At  the  common  law  it  was  indictable  to  publish  any  thing  against 
the  constitution  of  the  country,  or  the  established  system  of  gov- 
ernment. The  basis  of  such  a  prosecution  was  the  tendency  of 
publications  of  this  character  to  excite  disaffection  with  the  govern- 
ment, and  thus  induce  a  revolutionary  spirit.  The  law 
[*  427]  always,  *  however,  allowed  a  calm  and  temperate  discus- 
sion of  public  events  and  measures,  and  recognized  in 
every  man  a  right  to  give  every  public  matter  a  candid,  full,  and 
free  discussion.  It  was  only  when  a  publication  went  beyond  this, 
and  tended  to  excite  tumult,  that  it  became  criminal.2  It  cannot 
be  doubted,  however,  that  the  common-law  rules  on  this  subject 
were  administered  in  many  cases  with  great  harshness,  and  that 
the  courts,  in  the  interests  of  repression  and  at  the  instigation  of 
the  government,  often  extended  them  to  cases  not  within  their 
reasons.  This  was  especially  true  during  the  long  and  bloody 
struggle  with  France,  at  the  close  of  the  last  and  beginning  of  the 
present  century,  and  for  a  few  subsequent  years,  until  a  rising 
public  discontent  with  political  prosecutions  began  to  lead  to 
acquittals,  and  finally  to  abandonment  of  all  such  attempts  to 
restrain  the  free  expression  of  sentiments  on  public  affairs.  Such 
prosecutions  have  now  altogether  ceased  in  England.  Like  the 
censorship  of  the  press,  they  have  fallen  out  of  the  British  consti- 
tutional system.  "  When  the  press  errs,  it  is  by  the  press  itself 
that  its  errors  are  left  to  be  corrected.  Repression  has  ceased  to 
be  the  policy  of  rulers,  and  statesmen  have  at  length  realized  the 
wise  maxim  of  Lord  Bacon,  that  '  the  punishing  of  wits  enhances 
their  authority,  and  a  forbidden  writing  is  thought  to  be  a  certain 
spark  of  truth  that  flies  up  in  the  faces  of  them  that  seek  to  tread 
it  out.' " 3 

1  See  further,  Harrison  v.  Bush,  5  El.  &  Bl.  344 ;  Shipley  v.  Todhunter,  7  C. 
&  P.  680 ;  Lawler  v.  Earle,  5  Allen,  22  ;  Grimes  v.  Coyle,  6  B.  Monr.  301 ; 
Rector  v.  Smith,  11  Iowa,  302;  Gosslin  v.  Cannon,  1  Harr.  3;  Joannes  v.  Ben- 
nett, 5  Allen,  169  ;  State  v.  Burnham,  9  N.  14.  34. 

2  Kegina  v.  Collins,  9  C.  &  P.  456,  per  Littledale,  J.  See  the  proceedings 
against  Thomas  Paine,  27  State  Trials,  357. 

3  May,  Constitutional  History,  c.  10. 

[500] 


CH.  XII.]  LIBERTY   OF   SPEECH    AND    OP   THE   PRESS.  *  427 

We  shall  venture  to  express  a  doubt  if  the  common-law  princi- 
ples on  this  subject  can  be  considered  as  having  been  practically 
adopted  in  the  American  States.  It  is  certain  that  no  prosecutions 
could  now  be  maintained  in  the  United  States  courts  for  libels  on 
the  general  government,  since  those  courts  have  no  common-law 
jurisdiction,1  and  there  is  now  no  statute,  and  never  was  except 
during  the  brief  existence  of  the  Sedition  Law,  which  assumed  to 
confer  any  such  power. 

The  Sedition  Law  was  passed  during  the  administration  of  the 
elder  Adams,  when  the  fabric  of  government  was  still  new  and 
untried,  and  when  many  men  seemed  to  think  that  the  breath  of 
heated  party  discussions  might  tumble  it  about  their  heads.  Its 
constitutionality  was  always  disputed  by  a  large  party,  and  its 
impolicy  was  beyond  question.  It  had  a  direct  tendency  to  pro- 
duce the  very  state  of  things  it  sought  to  repress ;  the 
prosecutions  *  under  it  were  instrumental,  among  other  [*  428] 
things,  in  the  final  overthrow  and  destruction  of  the  party 
by  which  it  was  adopted,  and  it  is  impossible  to  conceive,  at  the 
present  time,  of  any  such  state  of  things  as  would  be  likely  to  bring 
about  its  re-enactment,  or  the  passage  of  any  similar  repressive 
statute.2 

"When  it  is  among  the  fundamental  principles  of  the  government 
that  the  people  frame  their  own  constitution,  and  that  in  doing  so 
they  reserve  to  themselves  the  power  to  amend  it  from  time  to  time, 
as  the  public  sentiment  may  change,  it  is  difficult  to  conceive  of  any 
sound  principle  on  which  prosecutions  for  libels  on  the  system  of 
government  can  be  based,  except  when  their  evident  intent  and 
purpose  is  to  excite  rebellion  and  civil  war.3  It  is  very  easy  to  lay 
down  a  rule  for  the'  discussion  of  constitutional  questions ;  that 
they  are  privileged,  if  conducted  with  calmness  and  temperance, 
and  that  they  are  not  indictable  unless  they  go  beyond  the  bounds 

1  United  States  v.  Hudson,  7  Cranch,  32.  See,  ante,  19,  and  cases  cited  in 
note. 

2  For  prosecutions  under  this  law,  see  Lyon's  Case,  Wharton's  State  Trials, 
333;  Cooper's  Case,  ib.  659;  Haswell's  Case,  ib.  684;  Calender's  Case,  ib.  688. 
And  see  2  Randall,  Life  of  Jefferson,  417-421 ;  5  Hildreth,  History  of  United 
States,  247,  365. 

3  The  author  of  the  Life  and  Times  of  Warren  very  truly  remarks  that  "  the 
common-law  offence  of  libelling  a  government  is  ignored  in  constitutional  systems, 
as  inconsistent  with  the  genius  of  free  institutions."     P.  47. 

[501] 


*  428  CONSTITUTIONAL    LIMITATIONS.  [CH.  XII. 

of  'fair  discussion.  But  what  is  calmness  and  temperance,  and 
what  is  fair  in  the  discussion  of  supposed  evils  in  the  govern- 
ment ?  And  if  something  is  to  be  allowed  "  for  a  little  feeling 
in  men's  minds,"  1  how  great  shall  be  the  allowance  ?  The  heat  of 
the  discussion  will  generally  be  in  proportion  to  the  magnitude  of 
the  evil  as  it  appears  to  the  party  discussing  it:  must  the  question 
whether  he  has  exceeded  due  bounds  or  not,  be  tried  by  judge  and 
jury,  who  may  sit  under  different  circumstances  from  those  under 
which  he  has  spoken,  or  at  least  after  the  heat  of  the  occasion  has 
passed  away,  and  who,  feeling  none  of  the  excitement  themselves, 
may  think  it  unreasonable  that  any  one  else  should  ever  have  felt 
it  ?  The  dangerous  character  of  such  prosecutions  would  be  the 
more  glaring  if  aimed  at  those  classes  who,  not  being  admitted  to 
a  share  in  the  government,  attacked  the  constitution  in  the  .point 
which  excluded  them.  Sharp  criticism,  ridicule,  and  the  exhibi- 
tion of  such  feeling  as  a  sense  of  injustice  engenders,  are  to  be 
expected  from  any  discussion  in  these  cases  ;  but  when  the  very 
classes  who  have  established  the  exclusion  as  proper  and  reasonable 

are  to  try  as  judges  and  jurors  the  assaults  made  upon  it, 
[*  429]  they  will  be  very  likely  to  enter  upon  the  *  examination 

with  a  preconceived  notion  that  such  assaults  upon  their 
reasonable  regulations  must  necessarily  be  unreasonable.  If  any 
such  principle  of  repression  should  ever  be  recognized  in  the 
common  law  of  America,  it  might  reasonably  be  anticipated  that 
in  times  of  high  party  excitement  it  would  lead  to  prosecutions 
by  the  party  in  power,  to  bolster  up  wrongs  and  sustain  abuses  and 
oppressions  by  crushing  adverse  criticism  and  discussion.  The 
evil,  indeed,  could  not  be  of  long  continuance ;  for,  judging  from 
experience,  the  reaction  would  be  speedy,  thorough,  and  effectual ; 
but  it  would  be  no  less  a  serious  evil  while  it  lasted,  the  direct 
tendency  of  which  would  be  to  excite  discontent  and  to  breed  a 
rebellious  spirit.  Repression  of  full  and  free  discussion  is  danger- 
ous in  any  government  resting  upon  the  will  of  the  people.  The 
people  cannot  fail  to  feel  that  they  are  deprived  of  rights,  and  will 
be  certain  to  become  discontented,  when  their  discussion  of  public 
measures  is  sought  to  be  circumscribed  by  the  judgment  of  others 
upon  their  temperance  or  fairness.  They  must  be  left  at  liberty 
to  speak  with  the  freedom  which  the  magnitude  of  the  supposed 

1  Regina  v.  Collins,  9  C.  &.  P.  460,  per  Littledale,  J. 

[502] 


CH.  XII.]  LIBERTY    OF    SPEECH   AND    OP    THE    PRESS.  *  429 

wrongs  appears  in  their  minds  to  demand ;  and  if  they  exceed  all 
the  proper  bounds  of  moderation,  the  consolation  must  be,  that 
the  evil  likely  to  spring  from  the  violent  discussion  will  probably 
be  less,  and  its  correction  by  public  sentiment  more  speedy,  than 
if  the  terrors  of  the  law  were  brought  to  bear  to  prevent  the  dis- 
cussion. 

The  English  common-law  rule  which  made  libels  on  the  consti- 
tution or  the  government  indictable,  as  it  was  administered  by  the 
courts,  seems  to  us  unsuited  to  the  condition  and  circumstances  of 
the  people  of  America,  and  therefore  never  to  have  been  adopted 
in  the  several  States.  If  we  are  correct  in  this,  it  would  not  be  in 
the  power  of  the  State  legislatures  to  pass  laws  which  should  make 
mere  criticism  of  the  constitution  or  of  the  measures  of  government 
a  crime,  however  sharp,  unreasonable,  and  intemperate  it  might  be. 
The  constitutional  freedom  of  speech  and  of  the  press  must  mean  a 
freedom  as  broad  as  existed  when  the  constitution  which  guarantees 
it  was  adopted,  and  it  would  not  be  in  the  power  of  the  legislature 
to  restrict  it,  unless  it  might  be  in  those  cases  of  publications  inju- 
rious to  private  character,  or  public  morals  or  safety,  which  come 
strictly  within  the  reasons  of  civil  or  criminal  liability  at  the 
common  law,  but  in  which,  nevertheless,  the  common  law  as  we 
have  adopted  it  failed  to  provide  a  remedy.  It  certainly  could  not 
be  said  that  freedom  of  speech  was  violated  by  a  law  which 
should  *  make  imputing  the  want  of  chastity  to  a  female  [*430] 
actionable  without  proof  of  special  damage  ;  for  the  charge 
is  one  of  grievous  wrong,  without  any  reason  in  public  policy 
demanding  protection  to  the  communication,  and  the  case  is  strictly 
analogous  to  many  other  cases  where  the  common  law  made  the 
party  responsible  for  his  false  accusations.  The  constitutional 
provisions  do  not  prevent  the  modification  of  the  common-law  rules 
of  liability  for  libels  and  slanders,  but  they  would  not  permit 
bringing  new  cases  within  those  rules  when  they  do  not  rest  upon 
the  same  or  similar  reasons.1 

1  In  Respublica  v.  Dennie,  4  Yeates,  267,  the  defendant  was  indicted  in  1805 
foi\*publishing  the  following  in  a  public  newspaper :  "  A  democracy  is  scarcely 
tolerated  at  any  period  of  national  history.  Its  omens  are  always  sinister,  and 
its  powers  are  unpropitious.  With  all  the  lights  of  experience  blazing  before  our 
eyes,  it  is  impossible  not  to  discover  the  futility  of  this  form  of  government.  It 
was  weak  and  wicked  at  Athens,  it  was  bad  in  Sparta,  and  worse  in  Rome.  It 
has  been  tried  in  France,  and  terminated  in  despotism.     It  was  tried  in  England, 

[503  ] 


*  431  CONSTITUTIONAL    LIMITATIONS.  [CH.  XII. 

[*481]   *  Criticism  upon  Officers  and  Candidates  for  Office. 

There  are  certain  cases  where  criticism  upon   public  officers, 
their  actions,  character,  and  motives,  is    not  only  recognized  as 

and  rejected  with  the  utmost  loathing  and  abhorrence.  It  is  on  its  trial  here, 
ami  its  issue  will  be  civil  war,  desolation,  and  anarchy.  No  wise  man  but  discerns 
its  imperfections,  no  good  man  but  shudders  at  its  miseries,  no  honest  man  but 
proclaims  its  fraud,  and  no  brave  man  but  draws  his  sword  against  its  force. 
The  institution  of  a  scheme  of  polity  so  radically  contemptible  and  vicious  is  a 
memorable  example  of  what  the  villany  of  some  men  can  devise,  the  folly  of 
others  receive,  and  both  establish  in  spite  of  reason,  reflection,  and  sensation." 
Judge  Yentes  charged  the  jury,  among  other  things,  as  follows:  "  The  seventh 
section  of  the  ninth  article  of  the  constitution  of  the  State  must  be  our  guide 
upon  this  occasion  :  it  forms  the  solemn  compact  between  the  people  and  the 
three  branches  of  the  government,  —  the  legislative,  executive,  and  judicial 
powers.  Neither  of  them  can  exceed  the  limits  prescribed  to  them  respectively. 
To  this  exposition  of  the  public  will  every  branch  of  the  common  law  and  of  our 
municipal  acts  of  assembly  must  conform  ;  and  if  incompatible  therewith,  they 
must  yield  and  give  way.  Judicial  decisions  cannot  weigh  against  it  when  re- 
pugnant thereto.  It  runs  thus  :  '  The  printing-presses  shall  be  free  to  every  per- 
son who  undertakes  to  examine  the  pi-oceedings  of  the  legislature,  or  any  branch 
of  the  government ;  and  no  law  shall  ever  be  made  to  restrain  the  right  thereof. 
The  free  communication  of  thoughts  and  opinions  is  one  of  the  invaluable  rights 
of  man  ;  and  every  citizen  may  freely  speak,  write,  and  print  on  any  subject,  being 
responsible  for  the  abuse  of  that  liberty.  In  prosecutions  for  the  publication  of 
papers,  investigating  the  official  conduct  of  officers  or  men  in  a  public  capacity, 
or  where  the  matter  published  is  proper  for  public  information,  the  truth  thereof 
may  be  given  in  evidence ;  and  in  all  indictments  for  libels,  the  jury  shall  have  a 
right  to  determine  the  law  and  the  facts  under  the  direction  of  the  court,  as  in 
other  cases.1  Thus  it  is  evident  that  legislative  acts,  or  of  any  branch  of  the 
government,  are  open  to  public  discussion ;  and  every  citizen  may  freely  speak, 
write,  or  print  on  any  subject,  but  is  accountable  for  the  abuse  of  that  privilege. 
There  shall  be  no  licensers  of  the  press.  Publish  as  you  please  in  the  first  instance, 
without  control;  but  you  are  answerable  both  to  the  community  and  the  individ- 
ual if  you  proceed  to  unwarrantable  lengths.  No  alteration  is  hereby  made  in 
the  law  as  to  private  men  affected  by  injurious  publications,  unless  the  discussion 
be  proper  for  public  information.  But  '  if  one  uses  the  weapon  of  truth  wan- 
tonly for  disturbing  the  peace  of  families,  he  is  guilty  of  a  libel.'  Per  General 
Hamilton,  in  Croswell's  Trial,  p.  70.  The  matter  published  is  not  proper  for 
public  information.  The  common  weal  is  not  interested  in  such  a  communication, 
except  to  suppress  it. 

"  What  is  the  meaning  of  the  words  '  being  responsible  for  the  abuse  of  that 
liberty,'  if  the  jury  are  interdicted  from  deciding  on  the  case  ?  Who  else  can 
constitutionally  decide  on  it?  The  expressions  relate  to  and  pervade  every  part 
of  the  sentence.  The  objection  that  the  determinations  of  juries  may  vary  at 
different  times,  arising  from  their  different  political  opinions,  proves  too  much. 

[504  j 


CH.  XII.]  LIBERTY   OP   SPEECH   AND   OP   THE   PRESS.  *  432 

*  legitimate,  but  large  latitude  and  great  freedom  of  [*  432] 
expression  are  permitted,  so  long  as  good  faith  inspires 

The  same  matter  may  be  objected  against  them  when  party  spirit  runs  high,  in 
other  criminal  prosecutions.  But  we  have  no  other  constitutional  mode  of  de- 
cision pointed  out  to  us,  and  we  are  bound  to  use  the  method  described. 

"  It  is  no  infraction  of  the  law  to  publish  temperate  investigations  of  the 
nature  and  forms  of  government.  The  day  is  long  past  since  Algernon  Sidney's 
celebrated  treatise  on  government,  cited  on  this  trial,  was  considered  as  a  trea- 
sonable libel.  The  enlightened  advocates  of  representative  republican  govern- 
ment pride  themselves  in  the  reflection  that  the  more  deeply  their  system  is 
examined,  the  more  fully  will  the  judgments  of  honest  men  be  satisfied  that  it  is 
the  most  conducive  to  the  safety  and  happiness  of  a  free  people.  Such  matters 
are  '  proper  for  public  information.'  But  there  is  a  marked  and  evident  distinc- 
tion between  such  publications  and  those  which  are  plainly  accompanied  with  a 
criminal  intent,  deliberately  designed  to  unloosen  the  social  band  of  union,  totally 
to  unhinge  the  minds  of  the  citizens,  and  to  produce  popular  discontent  with  the 
exercise  of  power  by  the  known  constituted  authorities.  These  latter  writings 
are  subversive  of  all  government  and  good  order.  '  The  liberty  of  the  press 
consists  in  publishing  the  truth,  from  good  motives  and  for  justifiable  ends,  though 
it  reflects  on  government  or  on  magistrates.'  Per  General  Hamilton,  in  Cros- 
well's  Trial,  pp.  63,  64.  It  disseminates  political  knowledge,  and,  by  adding  to 
the  common  stock  of  freedom,  gives  a  just  confidence  to  every  individual.  But 
the  malicious  publications  which  I  have  reprobated  infect  insidiously  the  public 
mind  with  a  subtle  poison,  and  produce  the  most  mischievous  and  alarming  con- 
sequences by  their  tendency  to  anarchy,  sedition,  and  civil  war.  We  cannot, 
consistently  with  our  official  duty,  declare  such  conduct  dispunishable.  We  be- 
lieve that  it  is  not  justified  by  the  words  or  meaning  of  our  constitution.  It  is 
true  it  may  not  be  easy  in  every  instance  to  draw  the  exact  distinguishing  line. 
To  the  jury  it  peculiarly  belongs  to  decide  on  the  intent  and  object  of  the  writing. 
It  is  their  duty  to  judge  candidly  and  fairly,  leaning  to  the  favorable  side  when 
the  criminal  intent  is  not  clearly  and  evidently  ascertained. 

"It  remains,  therefore,  under  our  most  careful  consideration  of  the  ninth 
article  of  the  Constitution,  for  the  jury  to  divest  themselves  of  all  political  preju- 
dices (if  any  such  they  have),  and  dispassionately  to  examine  the  publication  which 
is  the  ground  of  the  present  prosecution.  They  must  decide  on  their  oaths,  as 
they  will  answer  to  God  and  their  country,  whether  the  defendant,  as  a  factious 
and  seditious  person,  with  the  criminal  intentions  imputed  to  him,  in  order  to 
accomplish  the  objects  stated  in  the  indictment,  did  make  and  publish  the  writing 
in  question.  Should  they  find  the  charges  laid  against  them  in  the  indictment  to 
be  well  founded,  they  are  bound  to  find  him  guilty.  They  must  judge  for  them- 
selves on  the  plain  import  of  the  words,  without  any  forced  or  strained  construc- 
tion of  the  meaning  of  the  author  or  editor,  and  determine  on  the  correctness 
of  the  innuendoes.  To  every  word  they  will  assign  its  natural  sense,  but  will  col- 
lect the  true  intention  from  the  context,  the  whole  piece.  They  will  accurately 
weiii'h  the  probabilities  of  the  charge  against  a  literary  man.  Consequences  they 
will  wholly  disregard,  but  firmly  discharge  their  duty.     Representative  republican 

[505] 


*  432  CONSTITUTIONAL    LIMITATIONS.  [CH.  XII. 

the  communication.  There  are  cases  where  it  is  clearly  the  duty 
of  every  one  to  speak  freely  what  he  may  have  to  say  concerning 
public  officers,  or  those  who  may  present  themselves  for  public 
positions.  Through  the  ballot-box  the  electors  approve  or  con- 
demn those  who  ask  their  suffrages ;  and  if  they  condemn,  though 
upon  grounds  the  most  unjust  or  frivolous,  the  law  affords  no 
redress.      Some  officers,  however,  are  not  chosen  by  the  people 

directly,  but  designated  through  some  other  mode  of  ap- 
[*  433]  poiutment.     But  the  public  have  a  right  to  be  *  heard  on 

the  question  of  their  selection  ;  and  they  have  the  right, 
for  such  reasons  as  seem  to  their  minds  sufficient,  to  ask  for  their 
dismissal  afterwards.  They  have  also  the  right  to  complain  of 
official  conduct  affecting  themselves,  and  to  petition  for  a  redress 
of  grievances.  A  principal  purpose  in  perpetuating  and  guarding 
the  right  of  petition  is  to  insure  to  the  public  the  privilege  of  being- 
heard  in  these  and  the  like  cases. 

In  a  case  in  the  Court  for  the  Correction  of  Errors  of  the  State 
of  New  York,  a  party  was  prosecuted  for  a  libel  contained  in  a 
petition  signed  by  him  and  a  number  of  other  citizens  of  his 
county,  and  presented  to  the  council  of  appointment,  praying  for 
the  removal  of  the  plaintiff  from  the  office  .of  district  attorney  of 
the  county,  which,  the  petition  charged,  he  was  prostituting  to 

governments  stand  on  immovable  bases,  which  cannot  be  shaken  by  theoretical 
systems.  Yet  if  the  consciences  of  the  jury  shall  be  clearly  satisfied  that  the  pub- 
lication was  seditiously,  maliciously,  and  wilfully  aimed  at  the  independence  of 
the  United  States,  the  Constitution  thereof  or  of  this  State,  they  should  convict 
the  defendant.  If,  on  the  other  hand,  the  production  was  honestly  meant  to  in- 
form' the  public  mind,  and  warn  them  against  supposed  clangers  in  society,  though 
the  subject  may  have  been  treated  erroneously,  or  that  the  censures  on  democracy 
were  bestowed  on  pure  unmixed  democracy,  where  the  people  en  masse  execute 
the  sovereign  power  without  the  medium  of  their  representatives  (agreeably  to 
our  forms  of  government),  as  have  occurred  at  different  times  in  Athens,  Sparta, 
Rome,  France,  and  England,  then,  however  the  judgments  of  the  jury  may  in- 
cline them  to  think  individually,  they  should  acquit  the  defendant.  In  the  first 
instance  the  act  would  be  criminal ;  in  the  last  it  would  be  innocent.  If  tbe  jury 
should  doubt  of  the  criminal  intention,  then  also  the  law  pronounces  that  he 
should  be  acquitted.  4  Burr.  2552,  per  Lord  Mansfield."  Verdict,  not  guilty. 
The  fate  of  this  prosecution  was  the  same  that  would  attend  any  of  a  similar  char- 
acter in  this  country,  admitting  its  law  to  be  sound,  except  possibly  in  cases  of 
violent  excitement,  and  when  a  jury  could  be  made  to  believe  that  the  defendant 
contemplated  and  was  laboring  to  produce  a  change  of  government,  not  by  con- 
stitutional means,  but  by  rebellion  and  civil  war. 

[506  ] 


CH.  XII.]  LIBERTY   OF   SPEECH    AND    OF   THE    PRESS.  *  433 

private  purposes.  The  defendant  did  not  justify  the  truth  of  this 
allegation,  and  the  plaintiff  had  judgment.  On  error,  the  sole 
question  was,  whether  the  communication  was  to  be  regarded  as 
privileged,  that  character  having  been  denied  it  by  the  court 
below.  The  prevailing  opinion  in  the  court  of  review  character- 
ized this  as  "  a  decision  which  violates  the  most  sacred  and 
unquestionable  rights  of  free  citizens  ;  rights  essential  to  the  very 
existence  of  a  free  government ;  rights  necessarily  connected  with 
the  relations  of  constituent  and  representative ;  the  right  of  peti- 
tioning for  a  redress  of  grievances,  and  the  right  of  remonstrating 
to  the  competent  authority  against  the  abuse  of  official  functions." 
And  it  was  held  that  the  communication  was  privileged,  and  could 
not  support  an  action  for  libel,  unless  the  plaintiff  could  show  that 
the  petition  was  malicious  and  groundless,  and  presented  for  the 
purpose  of  injuring  his  character.1  Such  a  petition,  it  was  said, 
although  containing  false  and  injurious  aspersions,  did  not  prima 
facie  carry  with  it  the  presumption  of  malice.2  A  similar  ruling 
was  made  by  the  Supreme  Court  of  Pennsylvania,  where  a  party 
was  prosecuted  for  charges  against  a  justice  of  the  peace,  con- 
tained in  a  deposition  made  to  be  presented  to  the  governor.3 
The  subsequent  case  of  Howard  v.  Thompson  4  has  enlarged  this 
rule  somewhat,  and  has  required  of  the  plaintiff,  in  order  to  sus- 
tain his  action  in  any  such  case,  to  prove  not  only  malice 
in  the  *  defendant,  but  also  a  want  of  probable  cause  for  [*  434] 
believing  the  injurious  charges  which  the  petition  con- 
tained. The  action  for  libel,  in  such  a  case,  it  was  said,  was  in 
the  nature  of  an  action  for  malicious  prosecution  ;  and  in  that 
action  malice  and  want  of  probable  cause  are  both  necessary  ingre- 
dients. And  it  has  also  been  held  that  in  such  a  case  the  court 
will  neither  compel  the  officer  to  whom  it  was  addressed  to  pro- 
duce the  petition  in  evidence,  nor  will  they  suffer  its  contents  to 
be  proved  by  parol.5 

The  rule  of  protection  in  these  cases  does  not  appear  to  be  dis- 
puted, and  has  been  laid  down  in  other  cases  coming  within  the 

1  Thorn  v.  Blanchard,  5  Johns.  528,  per  Clinton,  Senator. 

2  Ibid.  p.  526,  per  UHommedieu,  Senator. 

3  Gray  v.  Pentland,  2  S.  &  R.  23. 

4  21  Wend.  319.    See  Harris  v.  Harrington,  2  Tyler,  129  ;  Bodwell  v.  Osgood, 
3  Pick.  379. 

b  Gray  v.  Pentland,  2  S.  &  R.  23.     See  Hare  v.  Mellor,  3  Lev.  138. 

[507] 


*  434  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

same  reasons.1  The  rule,  however,  is  subject  to  this  qualification, 
that  the  petition  or  remonstrance  must  be  addressed  to  the  body 
or  officer  having  the  power  of  appointment  or  removal,  or  the 
authority  to  give  the  redress  or  grant  the  relief  which  is  sought ; 
or  at  least  that  the  petitioner  should  really  and  in  good  faith 
believe  he  is  addressing  himself  to  an  authority  possessing  power 

in  the  premises.2 
[*  435]       *  Such  being  the  rule  of  privilege  when  one  interested 

in  the  discharge  of  powers  of  a  public  nature  is  addressing 
himself  to  the  body  having  the  authority  of  appointment,  super- 
vision, or  removal,  the  question  arises  whether  the  same  reasons 
do  not  require  the  like  privilege  when  the  citizen  addresses  himself 
to  his  fellow-citizens  in  regard  to  the  conduct  of  persons  elevated 
to  office  by  their  suffrages,  or  in  regard  to  the  character,  capacity, 

1  In  Kershaw  v.  Bailey,  1  Exch.  743,  the  defendant  was  prosecuted  for  slander 
in  a  communication  made  by  him  to  the  vestry,  imputing  perjury  to  the  plaintiff 
as  a  reason  why  the  vestry  should  not  return  him  on  the  list  of  persons  qualified 
to  serve  as  constables.  The  defendant  was  a  parishioner,  and  bis  communication 
was  held  privileged.  In  O'Donaghue  v.  McGovern,  23  Wend.  26,  a  communica- 
tion from  a  member  of  a  church  to  his  bishop,  respecting  the  character,  moral 
conduct,  and  demeanor  of  a  clergyman  of  the  church,  was  placed  upon  the  same 
footing  of  privilege.  And  see  Reid  v.  Delorme,  2  Brev.  7G  ;  .Chapman  v.  Calder, 
14  Penn.  St.  365.  A  remonstrance  to  the  board  of  excise,  against  the  granting  of 
a  license  to  the  plaintiff,  comes  under  the  same  rule  of  protection.  Vanderzee  v. 
McGregor,  12  Wend.  545.  See  also  Kendillon  v.  Maltby,  1  Car.  &  Marsh.  402 ; 
Woodward  v.  Landor,  6  C.  &  P.  518 ;  Streety  v.  Wood,  15  Barb.  105 ;  Bradley 
v.  Heath,  12  Pick.  163. 

2  This  principle  is  recognized  in  all  the  cases  referred  to.  See  also  Fairman  v. 
Ives,  5  B.  &  Aid.  642.  In  that  case  a  petition  addressed  by  a  creditor  of  an  offi- 
cer in  the  army  to  the  Secretary  of  War,  bona  fide  and  with  a  view  of  obtaining 
through  his  interference  the  payment  of  a  debt  due,  and  containing  a  statement  of 
facts  which,  though  derogatory  to  the  officer's  character,  the  creditor  believed  to 
be  true,  was  held  not  to  support  an  action.  A  letter  to  the  Postmaster-General 
complaining  of  the  conduct  of  a  postmaster,  with  a  view  to  the  redress  of  griev- 
ances, is  privileged.  Woodward  v.  Lander,  6  C.  &  P.  548  ;  Cook  v.  Hill,  3  Sandf. 
341.  And  a  complaint  to  a  master,  charging  a  servant  with  a  dishonest  act  which 
had  been  imputed  to  the  complaining  party,  has  also  been  held  privileged.  Cow- 
ard v.  Wellington,  7  C.  &  P.  531.  And  see,  further.  Hosmer  v.  Loveland,  19 
Barb.  111.  A  petition  is  privileged  while  being  circulated.  Vanderzee  v. 
McGregor,  12  Wend.  545;  Streety  r.  Wood,  15  Barb.  105.  If,  however,  a 
petition  is  circulated  and  exhibited,  but  never  presented,  the  fact  that  the  libel- 
lous charge  has  assumed  the  form  of  a  petition  will  not  give  it  protection.  State 
v.  Burnham,  9  N.  H.  34.  And  see  Hunt  v.  Bennett,  19  N.  Y.  173  ;  Van  Wyck 
v.  Aspinwall,  17  N.  Y.  190. 

[508] 


CH.  XII.]  LIBERTY    OP    SPEECH    AND    OF    THE    PRESS.  *  435 

or  fitness  of  those  who  may  present  themselves,  or  be  presented  by 
their  friends, —  which  always  assumes  their  assent, —  as  candidates 
for  public  positions. 

When  Morgan  Lewis  was  Governor  of  the  State  of  New  York, 
and  was  a  candidate  for  re-election,  a  public  meeting  of  his  oppo- 
nents was  called,  at  which  an  address  was  adopted  condemning 
his  conduct  in  various  particulars.  Among  other  things,  he  was 
charged  with  want  of  fidelity  to  his  party,  pursuing  a  system  of 
family  aggrandizement  in  his  appointments,  signing  the  charter  of 
a  bank  with  notice  that  it  had  been  procured  by  fraudulent  prac- 
tices, publishing  doctrines  unworthy  of  a  chief  magistrate  and  sub- 
versive of  the  dearest  interests  of  society,  attempting  to  destroy 
the  liberty  of  the  press  by  vexatious  prosecutions,  and  calling  out 
the  militia  without  occasion,  thereby  putting  them  to  unnecessary 
trouble  and  expense.  These  seem  to  have  been  the  more  serious 
charges.  The  chairman  of  the  meeting  signed  the  address,  and  he 
was  prosecuted  by  the  governor  for  the  libel  contained  therein. 
No  justification  was  attempted  upon  the  facts,  and  the  Supreme 
Court  held  the  circumstances  to  constitute  no  protection  in  the 
law.  We  quote  from  the  opinion  delivered  by  Mr.  Justice 
Thompson  :  — 

"  Where  the  act  is  in  itself  unlawful,  the  proof  of  justification 
or  excuse  lies  on  the  defendent,  and  on  failure  thereof  the  law  im- 
plies a  criminal  intent.1  If  a  libel  contains  an  imputation  of  a  crime, 
or  is  actionable  without  showing  special  damage,  malice  is,  prima 
facie,  implied  ;  and  if  the  defendant  claims  to  be  exonerated,  on 
the  ground  of  want  of  malice,  it  lies  on  him  to  show  it  was  pub- 
lished under  such  circumstances  as  to  rebut  this  presumption  of 
law.2  The  manner  and  occasion  of  the  publication  have  been 
relied  on  for  this  purpose,  and  in  justification  of  the  libel. 
It  has  *  not  been  pretended  but  that  the  address  in  ques-  [*  436] 
tion  would  be  libellous  if  considered  as  the  act  of  an  indi- 
vidual ;  but  its  being  the  act  of  a  public  meeting,  of  which  the 
defendant  was  a  member,  and  the  publication  being  against  a 
candidate  for  a  public  office,  have  been  strenuously  urged  as 
affording  a  complete  justification.  The  doctrine  contended  for  by 
the  defendant's  counsel  results  in  the  position  that  every  publica- 
tion ushered  forth  under  the  sanction  of  a  public  political  meeting, 

1  5  Burr.  2667 ;  4  T.  R.  127. 
s  IT.  R.  110. 

[509] 


*  436  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

against  a  candidate  for  an  elective  office,  is  beyond  the  reach  of 
legal  inquiry.  To  such  a  proposition  I  can  never  yield  my  assent. 
Although  it  was  urged  by  the  defendant's  counsel,  I  cannot 
discover  any  analogy  whatever  between  the  proceedings  of  such 
meetings  and  those  of  courts  of  justice,  or  any  other  organized 
tribunals  known  in  our  law  for  the  redress  of  grievances.  That 
electors  should  have  a  right  to  assemble,  and  freely  and  openly 
to  examine  the  fitness  and  qualifications  of  candidates  for  public 
offices,  and  communicate  their  opinions  to  others,  is  a  position  to 
which  I  most  cordially  accede.  But  there  is  a  wide  difference 
between  this  privilege  and  a  right  irresponsibly  to  charge  a  candi- 
date with  direct  specific  and  unfounded  crimes.  It  would,  in  my 
judgment,  be  a  monstrous  doctrine  to  establish,  that,  when  a  man 
becomes  a  candidate  for  an  elective  office,  he  thereby  gives  to  others 
a  right  to  accuse  him  of  any  imaginable  crimes,  with  impunity. 
Candidates  have  rights  as  well  as  electors;  and  those  rights  and 
privileges  must  be  so  guarded  and  protected  as  to  harmonize  one 
with  the  other.  If  one  hundred  or  one  thousand  men,  when  as- 
sembled together,  undertake  to  charge  a  man  with  specific  crimes, 
'I  see  no  reason  why  it  should  be  less  criminal  than  if  each  one 
should  do  it  individually,  at  different  times  and  places.  All  that 
is  required,  in  the  one  case  or  the  other,  is,  not  to  transcend  the 
bounds  of  truth.  If  a  man  has  committed  a  crime,  any  one  has  a 
right  to  charge  him  with  it,  and  is  not  responsible  for  the  accusa- 
tion ;  and  can  any  one  wish  for  more  latitude  than  this  ?  Can  it 
be  claimed  a  privilege  to  accuse  ad  libitum  a  candidate  with  the 
most  base  and  detestable  crimes  ?  There  is  nothing  upon  the 
record  showing  the  least  foundation  or  pretence  for  the  charges. 
The  accusations,  then,  being  false,  the  prima  facie  presumption  of 
law  is,  that  the  publication  was  malicious  ;  and  the  circumstance 
of  the  defendant  being  associated  with  others  does  noiper  se  rebut 

this  presumption.  How  far  this  circumstance  ought  to 
[*  437]  affect  the  measure  of  damages  *  is  a  question  not  arising 

on  the  record.  It  may  in  some  cases  mitigate,  in  others 
enhance,  them.  Every  case  must  necessarily,  from  the  nature  of 
the  action,  depend  upon  its  own  circumstances,  which  are  to  be 
submitted  to  the  sound  discretion  of  a  jury.  It  is  difficult,  and 
perhaps  impossible,  to  lay  down  any  general  rule  on  the  subject."  * 

1  Lewis  v.  Few,  5  Johns.  1,  35.     See  also  Curtis  v.  Mussey,  6  Gray,  261; 
Aldnch  v.  Printing  Co.,  9  Minn.  133. 
[510] 


CH.  XII.]  LIBERTY   OF   SPEECH    AND    OF   THE   PRESS.  *  437 

The  difficulty  one  meets  with  in  the  examination  of  this  opinion 
is  in  satisfying  himself  in  what  manner  the  privileges  of  electors, 
of  which  it  speaks,  are  protected  by  it.  It  is  not  discovered  that 
the  citizen  who  publicly  discusses  the  qualifications  and  fitness  of 
the  candidate  for  public  office  who  challenges  his  suffrage  is,  by 
this  decision,  so  far  as  suits  for  recovery  of  private  damages  are 
concerned,  placed  on  any  different  footing  in  the  law  from  that 
occupied  by  one  who  drags  before  the  public  the  character  of  a 
private  individual.  In  either  case,  if  the  publication  proves  to  be 
false,  the  law,  it  seems,  attaches  to  it  a  presumption  of  malice. 
Nothing  in  the  occasion  justifies  or  excuses  the  act  in  either  case. 
It  is  true  it  is  intimated  that  it  may  lie  in  the  sound  discretion  of 
a  jury  to  be  moderate  in  the  imposition  of  damages,  but  it  is  also 
intimated  that  the  jury  would  be  at  liberty  to  consider  the  circum- 
stances of  the  public  meeting  an  aggravation.  There  is  abso- 
lutely no  privilege  of  discussion  to  the  elector  under  such  a  rule  ; 
no  right  to  canvass  the  fitness  of  candidates  beyond  what  exists 
in  other  cases.  Whatever  reasons  he  may  give  his  neighbors  for 
voting  against  a  candidate,  he  must  be  prepared  to  support  by 
evidence  in  the  courts.  In  criminal  prosecutions,  if  he  can  prove 
the  truth  of  his  charges,  he  may  be  protected  in  some  cases  where 
he  would  not  be  if  the  person  assailed  was  only  a  private  individ- 
ual ;  because  in  the  latter  case  he  must  make  a  showing  of  a  justi- 
fiable occasion  for  uttering  even  the  truth.  But  in  all  cases  where 
the  matter  is  proper  for  the  public  information,  the  truth  justifies 
its  publication. 

The  case  above  quoted  has  the  sanction  of  a  subsequent  decision 
of  the  Court  for  the  Correction  of  Errors,  which  in  like  manner 
repudiated  the  claim  of  privilege.1  The  office  then  in  question  was 
that  of  Lieutenant-Governor,  and  the  candidate  was  charged  in 
public  newspapers  with  habits  of  intoxication  which  unfitted  him 
for  the  position.  And  this  last  decision  has  since  been  followed  as 
authority  by  the  Superior  Court  of  New  York  ;  in  a  case,  however, 
which  does  not  seem  to  be  analogous,  since  there  the  gen- 
eral public  *  was  addressed  in  regard  to  a  candidate  for  [*  438] 
an  office  which  was  not  elective,  but  was  to  be  filled  by  an 
appointing  board.2 

1  King  v.  Root,  4  Wend.  113. 

*  Hunt  v.  Bennett,  4  E.  D.  Smith,  647 ;  s.  c.  19  N.  Y.  173.     See  Duncombe 
v.  Daniell,  8  C.  &  P.  213. 

[511] 


*  438  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

The  case  of  King  v.  Root 1  will  certainly  strike  any  one  as  a  very 
remarkable  one,  when  the  evidence  given  in  the  case  is  considered. 
The  Lieutenant-Governor  was  charged  in  the  public  press  with  in- 
toxication in  the  Senate  Chamber,  exhibited  as  he  was  proceeding 
to  take  his  seat  as  presiding  officer  of  that  body.  When  prosecuted 
for  libel,  the  publishers  justified  the  charge  as  true,  and  brought 
a  number  of  witnesses  who  were  present  on  the  occasion,  and  who 
testified  to  the  correctness  of  the  statement.  There  was  therefore 
abundant  reason  for  supposing  the  charge  to  have  been  published 
in  the  full  belief  in  its  truth.  If  it  was  true,  there  was  abundant 
reason,  on  public  grounds,  for  making  the  publication.  Neverthe- 
less, the  jury  were  of  opinion  that  the  preponderance  of  evidence 
was  against  the  truth  of  the  charge,  and  being  instructed  that  the 
only  privilege  the  defendants  had  was  "  simply  to  publish  the  truth, 
and  nothing  more,"  and  that  the  unsuccessful  attempt  at  justifica- 
tion —  which  in  fact  was  only  the  forming  of  such  an  issue,  and 
putting  in  such  evidence  as  showed  the  defendants  had  reason  for 
making  the  charge  —  was  in  itself  an  aggravation  of  the  offence, 
they  returned  a  verdict  for  the  plaintiff,  with  large  damages. 
Throughout  his  instructions  to  the  jury  by  the  judge  presiding 
at  the  trial,  no  privilege  of  discussion  whatever  is  conceded  to 
the  elector,  springing  from  the  relation  of  elector  and  candidate, 
or  of  citizen  and  representative,  but  the  case  is  considered  as  one 
where  the  accusation  was  to  be  defended  precisely  as  if  no  public 
considerations  had  in  any  way  been  involved.2 

The  law  of  New  York  is  not  placed  by  these  decisions  on  a  foot- 
ing very  satisfactory  to  those  who  claim  the  utmost  freedom  of 
discussion  in  public  affairs.  The  courts  have  considered  the  sub- 
ject as  if  there  were  no  middle  ground  between  absolute  immunity 
for  falsehood  and  the  application  of  the  same  strict  rules  which 
prevail  in  other  cases.  Whether  they  have  duly  considered  the 
importance  of  publicity  and  discussion  on  all  matters  of  general 
concern  in  a  representative  government  must  be  left  to  the  con- 
sideration of  judicial  tribunals,  as  these  questions  shall  come  be- 
fore them  in  the  future.  It  is  perhaps  safe  to  say  that  the 
[*  439]  general  public  *  sentiment  and  the  prevailing  customs 
allow  a  greater  freedom  of  discussion,  and  hold  the  elector 

1  4  Wend.  113.     See  the  same  case  in  the  Supreme  Court,  7  Cow.  613. 

2  See  also  Onslow  v.  Hone,  3  Wils.  177  ;  Harwood  v.  Astley,  1  New  Rep.  47. 

[512] 


CH.  XII.]  LIBERTY   OF  SPEECH   AND   OF  THE   PRESS. 


439 


less  strictly  to  what  he  may  be  able  to  justify  as  true  than  is  done 
by  these  decisions.1 

A  much  more  reasonable  rule  —  though  still,  we  think,  not 
sufficiently  comprehensive  and  liberal  —  was  indicated  by  Pollock, 
C.  B.,  in  a  case  where  it  was  urged  upon  the  court  that  a  sermon, 
preached  but  not  published,  was  the  subject  of  criticism  in  the 
enlarged  style  of  commentary  which  that  word  seems  to  introduce 
according  to  the  decided  cases ;  and  that  the  conduct  of  a  clergy- 
man with  reference  to  the  parish  charity,  and  especially  the  rules 
of  it,  justified  any  bona  fide  remarks,  whether  founded  in  truth  in 
point  of  fact,  or  justice  in  point  of  commentary,  provided  only  they 
were  an  honest  and  bona  fide  comment.  "  My  brother  Wilde,"  he 
says,  "  urged  upon  the  court  the  importance  of  this  question  ;  and 
I  own  I  think  it  is  a  question  of  very  grave  and  deep  importance. 
He  pressed  upon  us  that,  whenever  the  public  had  an  interest  in 
such  a  discussion,  the  law  ought  to  protect  it,  and  work  out  the 
public  good  by  permitting  public  opinion,  through  the  medium  of 
the  public  press,  to  operate  upon  such  transactions.  I  am  not 
sure  that  so  extended  a  rule  is  at  all  necessary  to  the  public  good. 
I  do  not  in  any  degree  complain  ;  on  the  contrary,  I  think  it  quite 
right  that  all  matters  that  are  entirely  of  a  public  nature  —  con- 
duct of  ministers,  conduct  of  judges,  the  proceedings  of  all  persons 
who  are  responsible  to  the  public  at  large  —  are  deemed  to  be  pub- 
lic property  ;  and  that  all  bona  fide  and  honest  remarks  upon  such 
persons,  and  their  conduct,  may  be  made  with  perfect  freedom,  and 

1  "  Freedom  of  speech  is  a  principal  pillar  of  a  free  government;  -when  this 
support  is  taken  away,  the  constitution  of  a  free  society  is  dissolved,  and  tyranny 
is  erected  on  its  ruins.  Republics  and  limited  monarchies  derive  their  strength 
and  vigor  from  a  popular  examination  into  the  action  of  the  magistrates ;  this 
privilege  in  all  ages  has  been  and  always  will  be  abused.  The  best  of  men  could 
not  escape  the  censure  and  envy  of  the  times  they  lived  in.  Yet  this  evil  is  not  so 
great  as  it  might  appear  at  first  sight.  A  magistrate  who  sincerely  aims  at  the 
good  of  society  will  always  have  the  inclinations  of  a  great  majority  on  his  side, 
and  an  impartial  posterity  will  not  fail  to  render  him  justice.  Those  abuses  of 
the  freedom  of  speech  are  the  excesses  of  liberty.  They  ought  to  be  repressed  ; 
but  to  whom  dare  we  commit  the  care  of  doing  it?  An  evil  magistrate,  intrusted 
with  power  to  punish  for  words,  would  be  armed  with  a  weapon  the  most  de- 
structive and  terrible.  Under  pretence  of  pruning  off  the  exuberant  branches, 
he  would  be  apt  to  destroy  the  tree."  Franklin,  Works  by  Sparks,  Vol.  II. 
p.  285. 

33  [  513  ] 


*  439  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

without  being  questioned  too  nicely  for  either  truth  or  justice." 1 
But  these  remarks  were  somewhat  aside  from  the  case  then  before 
the  learned  judge,  and  though  supported  by  similar  remarks  from 
his  associates,  yet  one  of  those  associates  deemed  it  important  to 
draw  such  a  distinction  as  to  detract  very  much  from  the  value  of 
this  privilege.  "  It  seems,"  he  says,  "  that  there  is  a  distinction, 
although  I  must  say  I  really  can  hardly  tell  what  the  limits  of  it 
are,  between  the  comments  on  a  man's  public  conduct  and  on  his 
private  conduct.  I  can  understand  that  you  have  a  right  to  com- 
ment on  the  public  acts  of  a  minister,  upon  the  public  acts  of  a 
general,  upon  the  public  judgments  of  a  judge,  upon  the  public 
skill  of  an  actor  ;    I  can  understand  that ;    but  I  do  not  know 

where  the  limit  can  be  drawn  distinctly  between  where  the 
[*  440]  *  comment  is  to  cease,  as  being  applied  solely  to  a  man's 

public  conduct,  and  where  it  is  to  begin  as  applicable  to 
his  private  character ;  because,  although  it  is  quite  competent  for 
a  person  to  speak  of  a  judgment  of  a  judge  as  being  an  extremely 
erroneous  and  foolish  one,  —  and  no  doubt  comments  of  that  sort 
have  great  tendency  to  make  persons  careful  of  what  they  say,  — 
and  although  it  is  perfectly  competent  for  persons  to  say  of  an  actor 
that  he  is  a  remarkably  bad  actor,  and  ought  not  to  be  permitted 
to  perform  such  and  such  parts,  because  he  performs  them  so  ill, 
yet  you  ought  not  to  be  allowed  to  say  of  an  actor  that  he  has  dis- 
graced himself  in  private  life,  nor  to  say  of  a  judge  or  a  minister 
that  he  has  committed  felony,  or  any  thing  of  that  description, 
which  is  in  no  way  connected  with  his  public  conduct  or  public 
judgment ;  and  therefore  there  must  be  some  limits,  although  I  do 
not  distinctly  see  where  those  limits  are  to  be  drawn.  No  doubt, 
if  there  are  such  limits,  my  brother  Wilde  is  perfectly  right  in  say- 
ing that  the  only  ground  on  which  the  verdict  and  damages  can  go 
is  for  the  excess,  and  not  for  the  lawful  exercise  of  the  criticism."  2 
The  radical  defect  in  this  rule,  as  it  seems  to  us,  consists  in  its 
assumption,  that  the  private  character  of  a  public  officer  is  some- 
thing aside  from,  and  not  entering  into  or  influencing,  his  public 
conduct;  that  a  thoroughly  dishonest  man  may  be  a  just  minister, 
and  that  a  judge  who  is  corrupt  and  debauched  in  private  life  may 

1  Gatbercole  v.  Miall,  15  M.  &  W.  331-333.     See  Commonwealth  v.  Clap, 
4  Mass.  163,  per  Parsons,  Ch.  J. ;  Townsend  on  Libel  and  Slander,  §  260. 

2  Alderson,  B.,  same  case,  p.  338. 

[514] 


CH.  XII.]  LIBERTY    OP   SPEECH   AND   OP   THE   PRESS.  *  440 

be  pure  and  upright  in  his  judgments ;  in  other  words,  that  an 
evil  tree  is  as  likely  as  any  other  to  bring  forth  good  fruits.  Any 
such  assumption  is  false  to  human  nature,  and  contradictory  to 
general  experience ;  and  whatever  the  law  may  say,  the  general 
public  will  still  assume  that  a  corrupt  life  will  influence  public 
conduct,  and  that  a  man  who  deals  dishonestly  with  his  fellows  as 
individuals  will  not  hesitate  to  defraud  them  in  their  aggregate 
and  corporate  capacity,  if  the  opportunity  shall  be  given  him. 
They  are,  therefore,  interested  in  knowing  what  is  the  character  of 
their  public  servants,  and  what  sort  of  persons  are  offering  them- 
selves for  their  suffrages.  And  if  this  be  so,  it  would  seem  that 
there  should  be  some  privilege  of  comment ;  that  that  privilege 
could  only  be  limited  by  good  faith  and  just  intention  ;  and  that  of 
these  it  was  the  province  of  a  jury  to  judge,  in  view  of  the  nature 
of  the  charges  made  and  the  reasons  which  existed  for  making 
them. 

Recent  English  cases  give  considerable  latitude  of  comment  to 
publishers  of  public  journals,  upon  subjects  in  the  discussion  of 
which  the  public  may  reasonably  be  supposed  to  have  an 
interest,  and  they  hold  the  discussions  to  be  *  privileged  if  [*  441] 
conducted  within  the  bounds  of  moderation  and  reason.1 

1  In  Kelley  v.  Sherlock,  1  Law  Rep.  Q.  B.  686,  it  was  held  that  a  sermon 
commenting  upon  public  affairs  —  e.  g.,  the  appointment  of  chaplains  for  prisons 
and  the  election  of  a  Jew  for  mayor  —  was  a  proper  subject  for  comment  in  the 
papers.  And  in  Kelley  v.  Tinling,  1  Law  Rep.  Q.  B.  699,  a  church-warden, 
having  written  to  the  plaintiff,  the  incumbent,  accusing  him  of  having  desecrated 
the  church  by  allowing  books  to  be  sold  in  it  during  service,  and  by  turning  the 
vestry-room  into  a  cooking-apartment,  the  correspondence  was  published  without 
the  plaintiff's  permission  in  the  defendant's  newspaper,  with  comments  on  the 
plaintiff's  conduct.  Held,  that  this  was  a  matter  of  public  interest,  which  might 
be  made  the  subject  of  public  discussion ;  and  that  the  publication  was  therefore 
not  libellous,  unless  the  language  used  was  stronger  than,  in  the  opinion  of  the 
jury,  the  occasion  justified. 

In  Wason  v.  Walter,  L.  R.  4  Q.  B.  73,  the  proprietor  of  the  "  London  Times  " 
was  prosecuted  for  comments  in  his  paper  upon  a  debate  in  the  House  of  Lords. 
The  plaintiff  had  presented  a  petition  to  that  body,  charging  Sir  Fitzroy  Kelly 
with  having,  many  years  before,  made  a  statement  false  to  his  own  knowledge,  in 
order  to  deceive  a  committee  of  the  House  of  Commons ;  and  praying  inquiry, 
and  his  removal  from  an  office  he  held,  if  the  charge  was  found  true.  A  debate 
ensued,  and  the  charge  was  wholly  refuted.  Held,  that  this  was  a  subject  of 
great  public  concern,  on  which  a  writer  in  a  public  newspaper  had  full  right  to 
comment ;  and  the  occasion  was  therefore  so  far  privileged  that  the  comments 
would  not  be  actionable  so  long  as  a  jury  should  think  them  honest,  and  made  in 

[515] 


*  441  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

And  in  this  country  it  has  been  held  that  where  a  charge  against 
an  officer  or  a  candidate  respects  only  his  qualifications  for  the 
office,  and  does  not  impugn  his  character,  it  forms  no  basis  for  a 
recovery  of  damages.  To  address  to  the  electors  of  a  district  let- 
ters charging  that  a  candidate  for  office  is  of  impaired  understand- 
ing, and  his  mind  weakened  by  disease,  is  presenting  that  subject 
to  "  the  proper  and  legitimate  tribunal  to  try  the  question." 
"  Talents  and  qualifications  for  office  are  mere  matters  of  opinion, 
of  which  the  electors  are  the  only  competent  judges."  1 

Statements  in  the   Course  of  Judicial  Proceedings. 

There  are  some  cases  which  are  so  absolutely  privileged  on  rea- 
sons of  public  policy,  that  no  inquiry  into  motives  is  permitted  in 
an  action  for  slander  or  libel.  Of  these,  the  case  of  a  party  who 
is  called  upon  to  give  evidence  in  the  course  of  judicial  proceed- 
ings is  a  familiar  illustration.  No  action  will  lie  against  a  witness 
at  the  suit  of  a  party  aggrieved  by  his  false  testimony,  even  though 
malice  be  charged.  The  remedy  against  a  dishonest  witness  is 
confined  to  the  criminal  prosecution  for  perjury.2  So  what  a  juror 
may  say  to  his  fellows  in  the  jury  room  while  they  are  considering 
their  verdict,  concerning  one  of  the  parties  to  the  suit  who  has 
been  a  witness  therein,  cannot  be  the  subject  of  an  action  for 
slander.3    False  accusations,  however,  contained  in  the  affidavits 

or  other  proceedings,  by  which  a  prosecution  is  com- 
[*  442]   menced  for  supposed  crime,  *  or  in  any  other  papers  in 

the  course  of  judicial  proceedings,  are  not  so  absolutely 

a  fair  spirit,  and  such  as  were  justified  by  the  circumstances  disclosed  in  the 
debate.  The  opinion  by  Chief  Justice  Cockburn  is  very  clear  and  pointed,  and 
reviews  all  the  previous  decisions.  See,  further,  Fairchild  v.  Adams,  11  Cush. 
549  ;  Terry  v.  Fellows,  21  La.  Ann.  375. 

1  Mayrant  v.  Richardson,  1  Nott  &  McCord,  348. 

2  But  a  qualification  of  this  rule  is  made  where  what  is  said  by  the  witness  is 
not  pertinent  or  material  to  the  cause,  and  he  has  been  actuated  by  malice  in 
stating  it.  White  v.  Carroll,  42  N.  Y.  166 ;  s.  c.  1  Am.  Rep.  504.  He  is  not, 
however,  to  be  himself  the  judge  of  what  is  pertinent  or  material  when  questions 
are  put  to  him,  and  no  objection  or  warning  comes  to  him  from  court  or  counsel. 
Calkins  v.  Sumner,  13  Wis.  193.  See  also  Warner  v.  Paine,  2  Sandf.  195 ;  Garr 
v.  Selden,  4  N.  Y.  91 ;  Jennings  v.  Paine,  4  Wis.  358;  Perkins  v.  Mitchell,  31 
Barb.  461 ;  Revis  v.  Smith,  18  C.  B.  126  ;  Grove  v.  Brandenburg,  7  Black,  234; 
Cunningham  v.  Brown,  18  Vt.  123 ;  Dunlap  v.  Glidden,  31  Me.  435. 

3  Dunham  v.  Powers,  42  Vt.  1. 

[  516  ] 


CH.  XII.]  LIBERTY   OF   SPEECH    AND   OF   THE   PRESS.  *  442 

protected.  They  are  privileged,1  but  the  party  making  them  is 
liable  to  action,  if  actual  malice  be  averred  and  proved.2  Prelim- 
inary information,  furnished  with  a  view  to  set  on  foot  an  inquiry 
into  an  alleged  offence,  or  to  institute  a  criminal  prosecution,  is, 
in  like  manner,  privileged  ; 3  but  the  protection  only  extends  to 
those  communications  which  are  in  the  course  of  the  proceedings 
to  bring  the  supposed  offender  to  justice,  or  are  designed  for  the 
purpose  of  originating  or  forwarding  such  proceedings  ;  and  com- 
munications not  of  that  character  are  not  protected,  even  although 
judicial  proceedings  may  be  pending  for  the  investigation  of  the 
offence  which  the  communication  refers  to.4  Still  less  would  a 
party  be  justified  in  repeating  a  charge  of  crime,  after  the  person 
charged  has  been  examined  on  his  complaint,  and  acquitted  of  all 
guilt.5 

1  Astley  v.  Younge,  Burr.  807 ;  Strauss  v.  Meyer,  48  111.  385. 

2  Padmore  v.  Lawrence,  11  Ad.  &  El.  380;  Kine  v.  Sewell,  3  M.  &  W.  297  ; 
Burlingame  v.  Burlingame,  8  Cow.  141 ;  Kidder  v.  Parkhurst,  3  Allen,  393 ; 
Doyle  v.  O'Doherty,  1  Car.  &  Marsh.  418 ;  Wilson  v.  Collins,  5  C.  &  P.  373 ; 
Home  v .  Bentinek,  2  Brod.  &  Bing.  130 ;  Jarvis  v.  Hatheway,  3  Johns.  180. 
In  Goslin  v.  Cannon,  1  Harr.  8,  it  was  held  that  where  a  crime  had  been  com- 
mitted, expressions  of  opinion  founded  upon  facts  within  the  knowledge  of  the 
party,  or  communicated  to  him,  made  prudently  and  in  confidence,  to  discreet 
persons,  and  made  obviously  in  good  faitli  with  a  view  only  to  direct  their  watch- 
fulness, and  enlist  their  aid  in  recovering  the  money  stolen,  and  detecting  and 
bringing  to  justice  the  offender,  were  privileged.  The  cause,  occasion,  object, 
and  end,  it  was  said,  was  justifiable,  proper,  and  legal,  and  such  as  should  actuate 
every  good  citizen. 

3  Grimes  v.  Coyle,  6  B.  Monr.  301.  The  subject  of  communications  privi- 
leged on  grounds  of  public  policy  will  be  found  considered,  at  some  length  and 
with  much  ability,  in  the  recent  case  of  Dawkins  v.  Lord  Paulet,  Law  Rep.  5  C.  B. 
94.  The  publication  complained  of  was  by  a  military  officer  to  his  superior  con- 
cerning the  qualifications  and  capacity  of  the  plaintiff  as  a  subordinate  military 
officer  under  him  ;  and  it  was  averred  that  the  words  were  published  by  the 
defendant  of  actual  malice,  and  without  any  reasonable,  probable,  or  justifiable 
cause,  and  not  bona  fide,  or  in  the  bona  fide  discharge  of  defendant's  duty  as 
superior  officer.  On  demurrer,  a  majority  of  the  court  (Mellor  and  Lush,  JJ.) 
held  the  action  would  not  lie :  planting  themselves,  in  part,  on  grounds  of  public 
policy,  and  in  part,  also,  on  the  fact  that  the  military  code  provided  a  remedy 
for  wrongs  of  the  nature  complained  of;  and  quoting  with  approval  Johnstone  v. 
Sutton,  1  T.  R.  544,  and  Dawkins  v.  Lord  Rokeby,  4  F.  &  F.  841.  Cockburn, 
Ch.  J.,  delivered  an  able  dissenting  opinion. 

4  Dancaster  v.  Hewson,  2  M.  &  Ry.  176.  As  to  the  privilege  connected  with 
church  trials  and  investigations,  see  Dunn  v.  Winters,  2  Humph.  512;  York  v. 
Pease,  2  Gray,  282. 

5  Burlingame  v.  Burlingame,  8  Cow.  141.     In  Mower  v.  Watson,  11  Vt.  536, 

[517] 


*  442  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 


Privilege  of  Counsel. 

One  of  the  most  important  cases  of  privilege,  in  a  constitutional 
point  of  view,  is  that  of  counsel  employed  to  represent  a 
[*  443]  party  in  *  judicial  proceedings.  The  benefit  of  the  consti- 
tutional right  to  counsel  depends  very  greatly  on  the  free- 
dom with  which  he  is  allowed  to  act,  and  to  comment  on  the  facts 
appearing  in  the  case,  and  on  the  inferences  deducible  therefrom. 
The  character,  conduct,  and  motives  of  parties  and  their  witnesses, 
as  well  as  of  other  persons  more  remotely  connected  with  the  pro- 
ceedings, enter  very  largely  into  any  judicial  inquiry,  and  must 
form  the  subject  of  comment,  if  they  are  to  be  sifted  and  weighed. 
To  make  the  comment  of  value,  there  must  be  the  liberty  of  exam- 
ination in  every  possible  light,  and  of  suggesting  any  view  of  the 
circumstances  of  the  case,  and  of  the  motives  surrounding  it, 
which  seems  legitimate  to  the  person  discussing  them.  It  will 
often  happen,  in  criminal  proceedings,  that,  while  no  reasonable 
doubt  can  exist  that  a  crime  has  been  committed,  there  may  be 
very  great  doubt  whether  the  prosecutor  or  the  accused  is  the  guilty 
party ;  and  to  confine  the  counsel  for  the  defence  to  such  remarks 
concerning  the  prosecutor  as  he  might  justify,  if  he  had  made  them 
without  special  occasion,  would  render  the  right  to  counsel,  in 
many  cases,  of  no  value.  The  law  justly  and  necessarily,  in  view 
of  the  importance  of  the  privilege,  allows  very  great  liberty  in  these 
cases,  and  surrounds  them  with  a  protection  that  is  always  a  com- 
plete shield,  except  where  the  privilege  of  counsel  has  been  plainly 
and  palpably  abused. 

The  rule  upon  this  subject  was  laid  down  in  these  words  in  an 
early  English  case  :  "  A  counsellor  hath  privilege  to  enforce  any 
thing  which  is  informed  him  by  his  client,  and  to  give  it  in 
evidence,  it  being  pertinent  to  the  matter  in  question,  and  not  to 

an  action  was  brought  for  slander  in  saying  to  a  witness  who  was  giving  his  tes- 
timony on  a  material  point  in  a  cause  then  on  trial  to  which  defendant  was  a 
party,  "  That's  a  lie,"  and  for  repeating  the  same  statement  to  counsel  for  the 
opposite  party  afterwards.  The  words  were  held  not  to  be  privileged.  To  the 
same  effect  are  the  cases  of  McClaughry  v.  Wetmore,  6  Johns.  82,  and  Kean 
v.  McLaughlin,  2  S.  &  R.  469.  See  also  Torrey  v.  Field,  10  Vt.  353;  Gilbert 
v.  People,  1  Denio,  41.  A  report  made  by  a  grand  jury  upon  a  subject  which 
they  conceive  to  be  within  their  jurisdiction,  but  which  is  not,  is  nevertheless 
privileged.     Rector  v.  Smith,  11  Iowa,  302. 

[518] 


CH.  XII.]  LIBERTY   OP   SPEECH   AND   OF  THE   PRESS.  *  443 

examine  whether  it  be  true  or  false  ;  for  a  counsellor  is  at  his  peril 
to  give  in  evidence  that  which  his  client  informs  him,  being  perti- 
nent to  the  matter  in  question ;  but  matter  not  pertinent  to  the 
issue,  or  the  matter  in  question,  he  need  not  deliver  ;  for  he  is  to 
discern  in  his  discretion  what  he  is  to  deliver,  and  what  not ;  and 
although  it  be  false,  he  is  excusable,  it  being  pertinent  to  the 
matter.  But  if  he  give  in  evidence  any  thing  not  material  to  the 
issue,  which  is  scandalous,  he  ought  to  aver  it  to  be  true  ;  other- 
wise he  is  punishable ;  for  it  shall  be  considered  as  spoken  ma- 
liciously and  without  cause  ;  which  is  a  good  ground  for  the 
action.  ...  So  if  counsel  object  matter  against  a  witness  which 
is  slanderous,  if  there  be  cause  to  discredit  his  testimony,  and  it  be 
pertinent  to  the  matter  in  question,  it  is  justifiable,  what 
he  *  delivers  by  information,  although  it  be  false."  1  The  [*  444] 
privilege  of  counsel  in  these  cases  is  the  same  with  that  of 
the'  party  himself,2  and  the  limitation  upon  it  is  concisely  suggested 
in  a  Pennsylvania  case,  "  that  if  a  man  should  abuse  his  privilege, 
and,  under  pretence  of  pleading  his  cause,  designedly  wander  from 
the  point  in  question,  and  maliciously  heap  slander  upon  his  adver- 
sary, I  will  not  say  that  he  is  not  responsible  in  an  action  at  law."  3 
Chief  Justice  Shaw  has  stated  the  rule  very  fully  and  clearly  : 
"  We  take  the  rule  to  be  well  settled  by  the  authorities  that  words 
spoken  in  the  course  of  judicial  proceedings,  though  they  are  such 
as  impute  crime  to  another,  and  therefore  if  spoken  elsewhere 
would  import  malice  and  be  actionable  in  themselves,  are  not 
actionable,  if  they  are  applicable  and  pertinent  to  the  subject  of 
the  inquiry.  The  question,  therefore,  in  such  cases  is,  not  whether 
the  words  spoken  are  true,  not  whether  they  are  actionable  in 
themselves,  but  whether  they  were  spoken  in  the  course  of  judi- 
cial proceedings,  and  whether  they  are  relevant  or  pertinent  to 
the  cause  or  subject  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 

1  Brook  v.  Montagne,  Cro.  Jac.  90.  See  this  case  approved  and  applied 
in  Hodgson  v.  Scarlett,  1  B.  &  Aid.  232.  And  see  Mackay  v.  Ford,  5 
H.  &  N.  792. 

2  Hoar  v.  Wood,  3  Met.  194,  per  SJiaiv,  Ch.  J. 

3  McMillan  v.  Birch,  1  Binney,  178,  per  Tilghman,  Ch.  J. 

[519] 


*  444  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

almost  necessarily  identifies  himself  with  his  client,  may  become 
animated,  by  constantly  regarding  one  side  only  of  an  interesting 
and  animated  controversy,  in  which  the  dearest  rights  of  such 
party  may  become  involved.  And  if  these  feelings  sometimes  man- 
ifest themselves  in  strong  invectives,  or  exaggerated  expressions, 
beyond  what  the  occasion  would  strictly  justify,  it  is  to  be  recol- 
lected that  this  is  said  to  a  judge  who  hears  both  sides,  in  whose 
mind  the  exaggerated  statement  may  be  at  once  controlled  and  met 
by  evidence  and  argument  of  a  contrary  tendency  from  the  other 
party,  and  who,  from  the  impartiality  of  his  position,  will  naturally 
give  to  an  exaggerated  assertion,  not  warranted  by  the  occasion, 
no  more  weight  than  it  deserves.  Still,  this  privilege  must  be 
restrained  by  some  limit,  and  we  consider  that  limit  to  be  this  : 

that  a  party  or  counsel  shall  not  avail  himself  of  his  situ- 
[*445]   ation  to  *  gratify  private  malice  by  uttering  slanderous 

expressions,  either  against  a  party,  witness,  or  third  per- 
son, which  have  no  relation  to  the  cause  or  subject-matter  of  the 
inquiry.  Subject  to  this  restriction,  it  is,  on  the  whole,  for  the 
public  interest,  and  best  calculated  to  subserve  the  purposes  of 
justice,  to  allow  counsel  full  freedom  of  speech  in  conducting  the 
cases  and  advocating  and  sustaining  the  rights  of  their  constit- 
uents ;  and  this  freedom  of  discussion  ought  not  to  be  impaired  by 
numerous  and  refined  distinctions."  1 

Privilege  of  Legislators. 

The  privilege  of  a  legislator  in  the  use  of  language  in  debate  is 
made  broader  and  more  complete  than  that  of  the  counsel  or  party 
in  judicial  proceedings  by  constitutional  provisions,  which  give 
him  complete  immunity,  by  forbidding  his  being  questioned  in  any 
other  place  for  any  thing  said  in  speech  or  debate.2    In  an  early 

1  Hoar  v.  Wood,  3  Met.  197.  See  also  Padmore  v.  Lawrence,  11  Ad.  &  El. 
380;  Ring«.  Wheeler,  7  Cow.  725;  Mower  v.  Watson,  11  Vt.  536;  Gilbert  v. 
People,  1  Denio,  41  ;  Hastings  v.  Lusk,  22  Wend.  410 ;  Bradley  v.  Heath,  12 
Pick.  103.  In  Hastings  v.  Lusk,  it  is  said  that  the  privilege  of  counsel  is  as 
broad  as  that  of  a  legislative  body ;  however  false  and  malicious  may  be  the 
charge  made  by  him  affecting  the  reputation  of  another,  an  action  of  slander  will 
not  lie,  provided  what  is  said  be  pertinent  to  the  question  under  discussion.  And 
see  Warner  v.  Paine,  2  Sandf.  195;  Garr  v.  Selden,  4  N.  Y.  91;  Jennings  v. 
Paine,  4  Wis.  358. 

2  There  are  provisions  to  this  effect  in  every  State  constitution  except  those  of 

[520] 


CH.  XII.]  LIBERTY   OP   SPEECH    AND   OP   THE   PRESS.  *  445 

case  in  Massachusetts,  the  question  of  the  extent  of  this  constitu- 
tional privilege  came  before  the  Supreme  Court,  and  was  largely 
discussed,  as  well  by  counsel  as  by  the  court.  The  constitutional 
provision  then  in  force  in  that  State  was  as  follows:  "The  free- 
dom of  deliberation,  speech,  and  debate  in  either  house  cannot  be 
the  foundation  of  any  accusation  or  prosecution,  action  or  com- 
plaint, in  any  other  court  or  place  whatsoever."  The  defendant 
was  a  member  of  the  General  Court,  and  was  prosecuted  for  utter- 
ing slanderous  words  to  a  fellow-member  in  relation  to  the  plain- 
tiff. The  member  to  whom  the  words  were  uttered  had  moved  a 
resolution,  on  the  suggestion  of  the  plaintiff,  for  the  appointment 
of  an  additional  notary-public  in  the  county  where  the 
plaintiff  *  resided.  The  mover,  in  reply  to  an  inquiry  [*  446] 
privately  made  by  defendant,  as  to  the  source  of  his  infor- 
mation that  such  appointment  was  necessary,  had  designated  the 
plaintiff,  and  the  defendant  had  replied  by  a  charge  against  the 
plaintiff  of  a  criminal  offence.  The  question  before  the  court  was, 
whether  this  reply  was  privileged.  The  house  was  in  session  at 
the  time,  but  the  remark  was  not  made  in  course  of  speech  or 
debate,  and  had  no  other  connection  with  the  legislative  proceed- 
ings than  is  above  shown. 

Referring  to  the  constitutional  provision  quoted,  the  learned 
judge  who  delivered  the  opinion  of  the  court  in  this  case  thus 
expressed  himself:  "In  considering  this  article,  it  appears  to  me 
that  the  privilege  secured  by  it  is  not  so  much  the  privilege  of  the 
house  as  an  organized  body,  as  of  each  individual  member  com- 
posing it,  who  is  entitled  to  this  privilege  even  against  the  declared 
will  of  the  house.  For  he  does  not  hold  this  privilege  at  the 
pleasure  of  the  house,  but  derives  it  from  the  will  of  the  people 
expressed  in  the  constitution,  which  is  paramount  to  the  will  of 
either  or  both  branches  of  the  legislature.  In  this  respect,  the 
privilege  here  secured  resembles  other  privileges  attached  to  each 
member  by  another  part  of  the  constitution,  by  which  he  is  ex- 
empted from  arrest  on  mesne  (or  original)  process,  during  his 
going  to,  returning  from,  or  attending  the  General  Court.  Of  these 

North  Carolina,  South  Carolina,  Mississippi,  Texas,  California,  and  Nevada. 
Mr.  Cushing,  in  his  work  on  the  law  and  Practice  of  Legislative  Assemblies, 
§  602,  has  expressed  the  opinion  that  these  provisions  were  unnecessary,  and  that 
the  protection  was  equally  complete  without  them. 

[521] 


*  446  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

privileges,  thus  secured  to  each  member,  he  cannot  be  deprived  by 
a  resolve  of  the  house,  or  by  an  act  of  the  legislature. 

"  These  privileges  are  thus  secured,  not  with  the  intention  of 
protecting  the  members  against  prosecutions  for  their  own  benefit, 
but  to  support  the  rights  of  the  people,  by  enabling  their  repre- 
sentatives to  execute  the  functions  of  their  office  without  fear  of 
prosecution,  civil  or  criminal.     I  therefore  think  the  article  ought 
not  to  be  construed  strictly,  but  liberally,  that  the  full  design  of  it 
may  be  answered.     I  will  not  confine  it  to  delivering  an  opinion, 
uttering  a  speech,  or  haranguing  in  debate,  but  will  extend  it  to 
the  giving  of  a  vote,  to  the  making  of  a  written  report,  and  to  every 
other  act  resulting  from  the  nature  and  in  the  execution  of  the 
office ;  and  I  would  define  the  article  as  securing  to  every  member 
exemption  from  prosecution  for  every  thing  said  or  done  by  him, 
as  a  representative,  in  the  exercise  of  the  functions  of  that  office, 
without  inquiring  whether  the  exercise  was  regular  according  to 
the  rules  of  the  house,  or  irregular  and  against  their  rules. 
[*  447]  I  do  *  not  confine  the  member  to  his  place  in  the  house,  and 
I  am  satisfied  that  there  are  cases  in  which  he  is  entitled 
to  this  privilege  when  not  within  the  walls  of  the  representatives' 
chamber.     He  cannot  be  exercising  the  functions  of  his  office  as 
member  of  a  body,  unless  the  body  is  in  existence.     The  house 
must  be  in  session  to  enable  him  to  claim  this  privilege,  and  it  is  in 
session  notwithstanding  occasional  adjournments  for  short  intervals 
for  the  convenience  of  the  members.     If  a  member,  therefore,  be 
out  of  the  chamber,  sitting  in  committee,  executing  the  commission 
of  the  house,  it  appears  to  me  that  such  member  is  within  the 
reason  of  the  article,  and  ought  to  be  considered  within  the  privi- 
lege.    The  body  of  which  he  is  a  member  is  in  session,  and  he,  as 
a  member  of  that  body,  is  in  fact  discharging  the  duties  of  his  office. 
He  ought,  therefore,  to  be  protected  from  civil  or  criminal  prosecu- 
tions for  every  thing  said  or  done  by  him  in  the  exercise  of  his 
functions  as  a  representative,  in  a  committee,  either  in  debating 
or  assenting  to  or  draughting  a  report.     Neither  can  I  deny  the 
member  his  privilege  when  executing  the  duties  of  the  office,  in  a 
convention  of  both  houses,  although  the  convention  may  be  holden 
in  the  Senate  Chamber."  And  after  considering  the  hardships  that 
might  result  to  individuals  in  consequence  of  this  privilege,  he 
proceeds :  "  A  more  extensive  construction  of  the  privilege  of  the 
members  secured  by  this  article  I  cannot  give,  because  it  could 
[522] 


CH.  XII.]  LIBERTY   OP   SPEECH   AND   OP   THE   PRESS.  *  447 

not  be  supported  by  the  language  or  the  manifest  intent  of  the 
article.  When  a  representative  is  not  acting  as  a  member  of  the 
house,  he  is  not  entitled  to  any  privilege  above  his  fellow-citizens  ; 
nor  are  the  rights  of  the  people  affected  if  he  is  placed  on  the  same 
ground  on  which  his  constituents  stand."  And  coming  more  par- 
ticularly to  the  facts  then  before  the  court,  it  was  shown  that  the 
defendant  was  not  in  the  discharge  of  any  official  duty  at  the  time 
of  uttering  the  obnoxious  words  ;  that  they  had  no  connection  or 
relevancy  to  the  business  then  before  the  house,  but  might  with 
equal  pertinency  have  been  uttered  at  any  other  time  or  place, 
and  consequently  could  not,  even  under  the  liberal  rule  of  pro- 
tection which  the  court  had  laid  down,  be  regarded  as  within  the 
privilege.1 

*  Publication  of  privileged  Communications  through  the     [*  448] 

Press. 

If  now  we  turn  from  the  rules  of  law  which  protect  communi- 
cations because  of  the  occasion  on  which  they  are  made  and  the 
duty  resting  upon  the  person  making  them,  to  those  rules  which 
concern  the  spreading  before  the  world  the  same  communications, 
we  shall  discover  a  very  remarkable  difference.  It  does  not  follow 
because  a  counsel  may  freely  speak  in  court  as  he  believes  or  is 
instructed,  that  therefore  he  may  publish  his  speech  through  the 
public  press.  The  privilege  in  court  is  necessary  to  the  complete 
discharge  of  his  duty  to  his  client ;  but  when  the  suit  is  ended, 
that  duty  is  discharged,  and  he  is  not  called  upon  to  appeal  from 
the  court  and  the  jury  to  the  general  public.  Indeed  such  an 
appeal,  while  it  could  not  generally  have  benefit  to  the  client  in 
view,  would  be  unfair  and  injurious  to  the  parties  reflected  upon 
by  the  argument,  inasmuch  as  it  would  take  only  a  partial  and  one- 
sided view  of  the  case,  and  the  public  would  not  have,  as  the  court 
and  jury  did,  all  the  facts  of  the  case  as  given  in  evidence  before 
them,  so  that  they  might  be  in  position  to  weigh  the  arguments 
fairly  and  understandingly,  and  reject  injurious  inferences  not 
warranted  by  the  evidence. 

The  law,  however,  favors  publicity  in  legal  proceedings,  so  far  as 
that  object  can  be  attained  without  injustice  to  the  persons  iinme- 

1  Coffin  v.  Coffin,  4  Mass.  1.  See  Jefferson's  Manual,  §  3;  Hosmer  v.  Love- 
land,  19  Barb.  Ill ;  State  v.  Burnham,  9  N.  H.  34. 

[523] 


*  448  CONSTITUTIONAL    LIMITATIONS.  [CH.  XII. 

diately  concerned.  The  public  are  permitted  to  attend  nearly  all 
judicial  inquiries,  and  there  appears  to  be  no  sufficient  reason  why 
they  should  not  also  be  allowed  to  see  in  print  the  reports  of  trials, 
if  they  can  thus  have  them  presented  as  fully  as  they  are  in  court, 
or  at  least  all  the  material  portion  of  the  proceedings  stated  impar- 
tially, so  that  one  shall  not,  by  means  of  them,  derive  erroneous 
impressions,  which  he  would  not  have  received  from  hearing  the 
case  in  court. 

It  seems  to  be  a  settled  rule  of  law,  that  a  fair  and  impartial 
account  of  judicial  proceedings,  which  have  not  been  ex  parte,  but 
in  the  hearing  of  both  parties,  is,  generally  speaking,  a  justifiable 
publication.1  But  it  is  said  that,  if  a  party  is  to  be  allowed  to 
publish  what  passes  in  a  court  of  justice,  he  must  publish  the 
whole  case,  and  not  merely  state  the  conclusion  which  he  himself 

draws  from  the  evidence.2  A  plea  that  the  supposed  libel 
[*  449]  was,  in  *  substance,  a  true  account  and  report  of  a  trial 

has  been  held  bad  ; 3  and  a  statement  of  the  circumstances 
of  a  trial  as  from  counsel  in  the  case  has  been  held  not  privileged.4 
The  report  must  also  be  strictly  confined  to  the  actual  proceedings 
in  court,  and  must  contain  no  defamatory  observations  or  comments 
from  any  quarter  whatsoever,  in  addition  to  what  forms  strictly  and 
properly  the  legal  proceedings.5  And  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  character  of  the  evidence  exhibited,  the 
publication,  though  impartial  and  full,  will  be  a  public  offence,  and 
punishable  accordingly.6 

1  Hoare  v.  Silverlock,  9  C.  B.  20  ;  Lewis  v.  Levy,  E.  B.  &  E.,  537  ;  Ryalls  v. 
Leader,  Law  Rep.  1  Exch.  296.  And  see  Stanley  v.  Webb,  4  Sandf.  21 ;  Cin- 
cinnati Gazette  Co.  v.  Timberlake,  10  Ohio,  n.  s.  548.  But  not  if  the  matter 
published  is  indecent  or  blasphemous.  Rex  v.  Carlisle,  3  B.  &  Aid.  167  ;  Rex 
v.  Creevey,  1  M.  &  S.  273.  The  privilege  extends  to  the  publication  of  testi- 
mony taken  on  an  investigation  by  Congress.  Terry  v.  Fellows,  21  La.  Ann. 
375. 

2  Lewis  v.  Walter,  4  B.  &  Aid.  611. 

3  Flint  v.  Pike,  4  B.  &  C.  473. 

4  Saunders  v.  Mills,  6  Bing.  213;  Flint  v.  Pike,  4  B.  &  C,  473.  And  see 
Stanley  v.  Webb,  4  Sandf.  26 ;  Lewis  v.  Walter,  4  B.  &  Aid.  605. 

6  Stiles  v.  Nokes,  7  East,  493 ;  Delegal  v.  Highley,  3  Bing.  (N.  C.)  950. 
And  see.  Lewis  v.  Clement,  3  B.  &  Aid.  702  ;  Pittock  v.  O'Neill,  63  Penn.  St. 
253;  s.  c.  3  Am.  Rep.  544. 

6  Rex  v.  Carlile,  3  B.  &  Aid.  167 ;  Rex  v.  Creevey,  1  M.  &  S.  273. 

[  524  ] 


CH.  XII.]  LIBERTY   OF   SPEECH   AND    OF   THE   PRESS.  *  449 

It  lias,  however,  been  held,  that  the  publication  of  ex  parte  pro- 
ceedings, or  mere  preliminary  examinations,  though  of  a  judicial 
character,  is  not  privileged ;  and  when  they  reflect  injuriously 
upon  individuals,  the  publisher  derives  no  protection  from  their 
having  already  been  delivered  in  court.1  The  reason  for 
*  distinguishing  these  cases  from  those  where  the  parties  [*  450] 
are  heard  is  thus  stated  by  Lord  Ullenboroitgh,  in  the  early 
case  of  the  King  v.  Fisher : 2  "  Jurors  and  judges  are  still  but  men  ; 

1  Duncan  v.  Thwaites,  3  B.  &  C.  556  ;  Flint  v.  Pike,  4  B.  &  C.  473  ;  Stanley 
v.  Webb,  4  Sandf.  21 ;  Charlton  v.  Watton,  6  C.  &  P.  385 ;  Cincinnati  Gazette 
Co.  v.  Titnberlake,  10  Ohio,  n.  s.  548  ;  Mathews  v.  Beach,  5  Sandf.  256  ;  Huff 
v.  Bennett,  4  Sandf.  120.  It  seems,  however,  that  if  the  proceeding  has  resulted 
in  the  discharge  of  the  person  accused,  or  in  a  decision  that  no  cause  exists  for 
proceeding  against  him,  a  publication  of  an  account  of  it  is  privileged.  In  Curry 
v.  Walter,  1  B.  &  P.  525,  the  Court  of  Common  Pleas  held  that,  in  an  action  for 
libel,  it  was  a  good  defence,  under  the  plea  of  not  guilty,  that  the  alleged  libel 
was  a  true  account  of  what  had  passed  upon  a  motion  in  the  Court  of  King's 
Bench  for  an  information  against  two  magistrates  for  corruption  in  refusing  to 
license  an  inn  ;  the  motion  having  been  refused  for  want  of  notice  to  the  magis- 
trates. In  Lewis  v.  Levy,  El.  Bl.  &  El.  537,  the  publisher  of  a  newspaper  gave 
a  full  report  of  an  examination  before  a  magistx-ate  on  a  charge  of  perjury  fc 
resulting  in  the  discharge  of  the  defendant ;  and  the  Court  of  Queen's  Bench 
sustained  the  claim  of  privilege ;  distinguishing  the  case  from  those  where  the 
party  was  held  for  trial,  and  where  the  publication  of  the  charges  and  evidence 
might  tend  to  his  prejudice  on  the  trial.  The  opinion  of  Lord  Campbell  in  the 
case,  however,  seems  to  go  far  towards  questioning  the  correctness  of  the  deci- 
sions above  cited.  See  especially  his  quotation  from  the  opinion  of  Lord  Denman, 
delivered  before  a  committee  of  the  House  of  Lords  in  the  year  1843,  on  the 
law  of  libel :  "I  have  no  doubt  that  [police  reports]  are  extremely  useful  for  the 
detection  of  guilt  by  making  facts  notorious,  and  for  bringing  those  facts  more 
correctly  to  the  knowledge  of  all  parties  interested  in  unravelling  the  truth.  The 
public,  I  think,  are  perfectly  aware  that  those  proceedings  are  ex  parte,  and  they 
become  more  and  more  aware  of  it  in  proportion  to  their  growing  intelligence ; 
they  know  that  such  proceedings  are  only  in  course  of  trial,  and  they  do  not 
form  their  opinion  until  the  trial  is  had.  Perfect  publicity  in  judicial  proceed- 
ings is  of  the  highest  importance  in  other  points  of  view,  but  in  its  effects  on 
character  I  think  it  desirable.  The  statement  made  in  open  court  will  probably 
find  its  way  to  the  ears  of  all  in  whose  good  opinion  the  party  assailed  feels  an 
interest,  probably  in  an  exaggerated  form,  and  the  imputation  may  often  rest 
upon  the  wrong  person  ;  both  these  evils  are  prevented  by  correct  reports."  In 
the  case  of  Lewis  v.  Levy,  it  was  insisted  that  the  privilege  of  publication  only 
extended  to  the  proceedings  of  the  superior  courts  of  law  and  equity ;  but  the 
court  gave  no  countenance  to  any  such  distinction.  See  also  Wason  v.  Walter, 
L.  It.  4  Q.  B.  73;  Terry  v.  Fellows,  21  La.  Ann.  375. 

2  2  Camp.  563. 

[  525  ] 


*  450  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

they  cannot  always  control  feeling  excited  by  inflammatory  lan- 
guage. If  they  are  exposed  to  be  thus  warped  and  misled,  in- 
justice must  sometimes  be  done.  Trials  at  law,  fairly  reported, 
although  they  may  occasionally  prove  injurious  to  individuals,  have 
been  held  to  be  privileged.  Let  them  continue  so  privileged.  The 
benefit  they  produce  is  great  and  permanent,  and  the  evil  that 
arises  from  them  is  rare  and  incidental.  But  these  preliminary 
examinations  have  no  such  privilege.  Their  only  tendency  is  to 
prejudge  those  whom  the  law  still  presumes  to  be  innocent,  and  to 
poison  the  sources  of  justice.  It  is  of  infinite  importance  to  us 
all,  that  whatever  has  a  tendency  to  prevent  a  fair  trial  should  be 
guarded  against.  Every  one  of  us  may  be  questioned  in  a  court 
of  law,  and  called  upon  to  defend  his  life  and  character.  We  would 
then  wish  to  meet  a  jury  of  our  countrymen  with  unbiassed  minds. 
But  for  this  there  can  be  no  security,  if  such  publications  are  per- 
mitted." And  in  another  case  it  has  been  said :  "  It  is  our  boast 
that  we  are  governed  by  that  just  and  salutary  rule  upon  which 
security  of  life  and  character  often  depends,  that  every  man  is  pre- 
sumed innocent  of  crimes  charged  upon  him,  until  he  is  proved 
guilty.  But  the  circulation  of  charges  founded  upon  ex  parte  tes- 
timony, of  statements  made,  often  under  excitement,  by  persons 
smarting  under  real  or  fancied  wrongs,  may  prejudice  the  public 
mind,  and  cause  the  judgment  of  conviction  to  be  passed  long 
before  the  day  of  trial  has  arrived.  When  that  day  of 
[*  451]  trial  comes,  the  rule  has  been  *  reversed,  and  the  pre- 
sumption of  guilt  has  been  substituted  for  the  presump- 
tion of  innocence.  The  chances  of  a  fair  and  impartial  trial  are 
diminished.  Suppose  the  charge  to  be  utterly  groundless.  If  every 
preliminary  ex  parte  complaint  which  may  be  made  before  a  police 
magistrate  may,  with  entire  immunity,  be  published  and  scattered 
broadcast  over  the  land,  then  the  character  of  the  innocent,  who 
may  be  the  victim  of  a  conspiracy,  or  of  charges  proved  afterwards 
to  have  arisen  entirely  from  misapprehension,  may  be  cloven  down, 
without  any  malice  on  the  part  of  the  publisher.  The  refutation 
of  slander,  in  such  cases,  generally  follows  its  propagation  at  dis- 
tant intervals,  and  brings  often  but  an  imperfect  balm  to  wounds 
which  have  become  festered,  and  perhaps  incurable.  It  is  not  to 
be  denied,  that  occasionally  the  publication  of  such  proceedings 
is  productive  of  good,  and  promotes  the  ends  of  justice.  But,  in 
[526] 


CH.  XII.]  LIBERTY   OF  SPEECH   AND    OF   THE   PRESS.  *  451 

such  cases,  the  publisher  must  find  his  justification,  not  in  privi- 
lege, but  in  the  truth  of  the  charges."  1 

Privilege  of  Publishers   of  News. 

Among  the  inventions  of  modern  times,  by  which  the  world  has 
been  powerfully  influenced,  and  from  which  civilization  has  received 
a  new  and  wonderful  impulse,  must  be  classed  the  newspaper. 
Beginning  with  a  small  sheet,  insignificant   alike  in  matter  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 
telegraph,  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  agita- 
tions in  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  described,  but  the  actions  and 
words  of  public  men  are  made  public  property  ;  and  any 
person  sufficiently  notorious  *  to  become  an  object  of  pub-  [*452] 
lie  interest  will  find  his  movements  chronicled  in  this  index 
of  the  times.     Every  party  has  its  newspaper  organs  ;  every  shade 
of  opinion  on  political,   religious,  literary,  moral,   industrial,  or 
financial  questions  has  its  representative;   every  locality  has  its 
press  to  advocate  its  claims,  and  advance  its  interests,  and  even  the 
days  regarded  as  sacred  have  their  special  papers  to  furnish  read- 
ing suitable  for  the  time.     The  newspaper  is  also  the  medium  by 
means  of  which  all  classes  of  the  people  communicate  with  each 
other  concerning  their  wants  and  desires,  and  through  which  they 
offer  their  wares,  and  seek  bargains.  As  it  has  gradually  increased 
in  value,  and  in  the  extent  and  variety  of  its  contents,  so   the 
exactions  of  the  community  upon  its   conductors   have  also  in- 
creased, until  it  is  demanded  of  the  newspaper  publisher,  that  he 

1  Stanley  v.  Webb,  4  Sandf.  30.  See  this  case  approved  and  followed  in  Cin- 
cinnati Gazette  Co.  v.  Timberlake,  10  Ohio,  N.  s.  548,  where,  however,  the  court 
are  careful  not  to  express  an  opinion  whether  a  publication  of  the  proceedings  on 
preliminary  examinations  may  not  be  privileged,  where  the  accused  is  present, 
with  full  opportunity  of  defence. 

[527] 


*  452  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

shall  daily  spread  before  his  readers  a  complete  summary  of  the 
events  transpiring  in  the  world,  public  or  private,  so  far  as  those 
readers  can  reasonably  be  supposed  to  take  an  interest  in  them ; 
and  he  who  does  not  comply  with  this  demand  must  give  way  to 
him  who  will. 

The  newspaper  is  also  one  of  the  chief  means  for  the  education 
of  the  people.  The  highest  and  the  lowest  in  the  scale  of  intelli- 
gence resort  to  its  columns  for  information ;  it  is  read  by  those 
who  read  nothing  else,  and  the  best  minds  of  the  age  make  it  the 
medium  of  communication  with  each  other  on  the  highest  and  most 
abstruse  subjects.  Upon  politics  it  may  be  said  to  be  the  chief 
educator  of  the  people ;  its  influence  is  potent  in  every  legislative 
body ;  it  gives  tone  and  direction  to  public  sentiment  on  each 
important  subject  as  it  arises ;  and  no  administration  in  any  free 
country  ventures  to  overlook  or  disregard  an  element  so  pervading 
in  its  influence,  and  withal  so  powerful. 

And  yet  it  may  be  doubted  if  the  newspaper,  as  such,  has  ever 
influenced  at  all  the  current  of  the  common  law,  in  any  particular 
important  to  the  protection  of  the  publishers.  The  railway  has 
become  the  successor  of  the  king's  highway,  and  the  plastic  rules 
of  the  common  law  have  accommodated  themselves  to  the  new  con- 
dition of  things  ;  but  the  changes  accomplished  by  the  public  press 
seem  to  have  passed  unnoticed  in  the  law,  and,  save  only  where 
modifications  have  been  made  by  constitution  or  statute,  the 
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  pro- 
tection. 
[*  453]  *  We  quote  from  an  opinion  by  the  Supreme  Court  of 
New  York,  in  a  case  where  a  publisher  of  a  newspaper  was 
prosecuted  for  libel,  and  where  the  position  was  taken  by  counsel, 
that  the  publication  was  privileged :  "  It  is  made  a  point  in  this 
case,  and  was  insisted  upon  in  argument,  that  the  editor  of  a  public 
newspaper  is  at  liberty  to  copy  an  item  of  news  from  another  paper, 
giving  at  the  same  time  his  authority,  without  subjecting  himself 
to  legal  responsibility,  however  libellous  the  article  may  be,  unless 
express  malice  is  shown.  It  was  conceded  that  the  law  did  not, 
and  ought  not,  to  extend  a  similar  indulgence  to  any  other  class  of 
citizens;  but  the  counsel  said  that  a  distinction  should  be  made  in 
favor  of  editors,  on  the  ground  of  the  peculiarity  of  their  occupa- 
[628] 


CH.  XII.]  LIBERTY   OF   SPEECH    AND   OP   THE    PRESS.  *  453 

tion.  That  their  business  was  to  disseminate  useful  information 
among  the  people  ;  to  publish  such  matters  relating  to  the  current 
events  of  the  day  happening  at  home  or  abroad  as  fell  within  the 
sphere  of  their  observation,  and  as  the  public  curiosity  or  taste 
demanded ;  and  that  it  was  impracticable  for  them  at  all  times  to 
ascertain  the  truth  or  falsehood  of  the  various  statements  contained 
in  other  journals.  We  were  also  told  that  if  the  law  were  not  thus 
indulgent,  some  legislative  relief  might  become  necessary  for  the 
protection  of  this  class  of  citizens.  Undoubtedly  if  it  be  desirable 
to  pamper  a  depraved  public  appetite  or  taste,  if  there  be  any  such, 
by  the  republication  of  all  the  falsehoods  and  calumnies  upon  pri- 
vate character  that  may  find  their  way  into  the  press,  —  to  give 
encouragement  to  the  widest  possible  circulation  of  these  vile  and 
defamatory  publications  by  protecting  the  retailers  of  them, —  some 
legislative  interference  will  be  necessary,  for  no  countenance  can 
be  found  for  the  irresponsibility  claimed  in  the  common  law.  That 
reprobates  the  libeller,  whether  author  or  publisher,  and  subjects 
him  to  both  civil  and  criminal  responsibility.  His  offence  is  there 
ranked  with  that  of  the  receiver  of  stolen  goods,  the  perjurer  and 
suborner  of  perjury,  the  disturber  of  the  public  peace,  the  conspir- 
ator, and  other  offenders  of  like  character."  And  again :  "  The 
act  of  publication  is  an  adoption  of  the  original  calumny,  which 
must  be  defended  in  the  same  way  as  if  invented  by  the  defendant. 
The  republication  assumes  and  indorses  the  truth  of  the  charge, 
and  when  called  on  by  the  aggrieved  party,  the  publisher  should  be 
held  strictly  to  the  proof.  If  he  chooses  to  become  the  indorser 
and  retailer  of  private  scandal,  without  taking  the  trouble  to  in- 
quire into  the  truth  of  what  he  publishes,  there  is  no 
ground  for  *  complaint  if  the  law,  which  is  as  studious  to  [*  454] 
protect  the  character  as  the  property  of  a  citizen,  holds 
him  to  this  responsibility.  The  rule  is  not  only  just  and  wise  in 
itself,  but,  if  steadily  and  inflexibly  adhered  to  and  applied  by 
courts  and  juries,  will  greatly  tend  to  the  promotion  of  truth,  good 
morals,  and  common  decency  on  the  part  of  the  press,  by  incul- 
cating caution  and  inquiry  into  the  truth  of  charges  against  private 
character  before  they  are  published  and  circulated  throughout  the 
community."  2 

1  Hotchkiss  v.  Oliphant,  2  Hill,  513,  per  Nelson,  Ch.  J.  And  see  King  v. 
Root,  4  Wend.  138,  per  Walivorth,  Chancellor.  "  It  has  been  urged  upon  you 
that  conductors  of  the  public  press  are  entitled  to  peculiar  indulgences  and  have 

34  [  529  ]      , 


*  454  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

If  this  strong  condemnatory  language  were  confined  to  the  cases 
where  private  character  is  dragged  before  the  public  for  detraction 
and  abuse,  to  pander  to  a  depraved  appetite  for  scandal,  its  pro- 
priety and  justice  and  the  force  of  its  reasons  would  be  at  once 
conceded.  But  a  very  large  proportion  of  what  the  newspapers 
spread  before  the  public  relates  to  matters  of  public  concern,  but 
in  which,  nevertheless,  individuals  figure,  and  must  therefore  be 
mentioned  in  any  account.  To  a  great  extent,  also,  the  informa- 
tion comes  from  abroad ;  the  publisher  can  have  no  knowledge 
concerning  it,  and  no  inquiries  which  he  could  make  would  be 
likely  to  give  him  more  definite  information,  unless  he  delays  the 
publication  until  it  ceases  to  be  of  value  to  his  readers.  Whatever 
view  the  law  may  take,  the  public  sentiment  does  not  brand  the 
publisher  of  a  newspaper  as  libeller,  conspirator,  or  villain,  because 
the  telegraph  despatches  transmitted  to  him  from  all  parts  of  the 
world,  without  any  knowledge  on  his  part  concerning  the  facts,  are 
published  in  his  paper,  in  reliance  upon  the  prudence,  care,  and 
honesty  of  those  who  have  charge  of  the  lines  of  communication, 
and  whose  interest  it  is  to  be  vigilant  and  truthful.  The  public 
demand  and  expect  accounts  of  every  important  meeting,  of  every 
important  trial,  and  of  all  the  events  which  have  a  bearing  upon 
trade  and  business,  or  upon  political  affairs.  It  is  impossible  that 
these  shall  be  given  in  all  cases  without  matters  being  mentioned 
derogatory  to  individuals  ;  and  if  the  question  were  a  new  one  in 
the  law,  it  might  be  worthy  of  inquiry  whether  some  line  of  dis- 
tinction could  not  be  drawn  which  would  protect  the  publisher 
when  giving  in  good  faith  such  items  of  news  as  would  be  proper, 
if  true,  to  spread  before  the  public,  and  which  he  gives  in  the 
regular  course  of  his  employment,  in  pursuance  of  a  public  demand, 
and  without  any  negligence,  as  they  come  to  him  from  the 
[*  455]  *  usual  and  legitimate  sources,  which  he  has  reason  to 
rely  upon ;  at  the  same  time  leaving  him  liable  when  he 
makes  his  columns  the  vehicle  of  private  gossip,  detraction,  and 
malice. 

especial  rights  and  privileges.  The  law  recognizes  no  such  peculiar  rights,  priv- 
ileges, or  claims  to  indulgence.  They  have  no  rights  but  such  as  are  common  to 
all.  They  have  just  the  same  rights  that  the  rest  of  the  community  have,  and  no 
more.  They  have  the  right  to  publish  the  truth,  but  no  right  to  publish  false- 
hood to  the  injury  of  others  with  impunity."  Instructions  approved  in  Sheckell 
v.  Jackson,  10  Cush.  26.     And  see  Palmer  v.  Concord,  48  N.  H.  216. 

.      [530] 


CH.  XII.]  LIBERTY   OF   SPEECH   AND    OF   THE    PRESS.  *  455 

The  question,  however,  is  not  new,  and  the  authorities  have 
generally  held  the  publisher  of  a  paper  to  the  same  rigid  responsi- 
bility with  any  other  person  who  makes  injurious  communications. 
Malice  on  his  part  is  conclusively  inferred,  if  the  communications 
are  false.  It  is  no  defence  that  they  have  been  copied  with  or 
without  comment  from  another  paper  ; l  or  that  the  source  of  the 
information  was  stated  at  the  time  of  the  publication  ;2  or  that  the 
publication  was  made  in  the  paper  without  the  knowledge  of 
the  proprietor,  as  an  advertisement  or  otherwise  ; 3  or  that  it  con- 
sists in  a  criticism  on  the  course  and  character  of  a  candidate  for 
public  office  ; 4  or  that  it  is  a  correct  and  impartial  account  of  a 

1  Hotchkiss  v.  Oliphant,  2  Hill,  510.  Even  though  they  be  preceded  by  the 
statement  that  they  are  so  copied.     Sanford  v.  Bennett,  24  N.  Y.  20. 

2  Dole  v.  Lyon,  10  Johns.  417 ;  Mapes  v.  Weeks,  1  Wend.  659 ;  Inman  v. 
Foster,  8  Wend.  602;  Hotchkiss  v.  Oliphant,  2  Hill,  514. 

3  Andres  v.  Wells,  7  Johns.  260;  Huffy.  Bennett,  4  Sandf.  120;  s.  c.  6  N.  Y. 
337 ;  Marten  v.  Van  Schaick,  4  Paige,  479  ;  Commonwealth  v.  Nichols,  10  Met. 
259. 

4  King  v.  Root,  4  Wend.  113.  The  action  was  for  a  libel,  published  in  the 
"New  York  American,"  reflecting  upon  Root,  who  was  candidate  for  lieutenant- 
governor.  We  quote  from  the  opinion  of  the  chancellor:  "  It  is  insisted  that 
this  libel  was  a  privileged  communication.  If  so,  the  defendants  were  under  no 
obligation  to  prove  the  truth  of  the  charge,  and  the  party  libelled  had  no  right 
to  recover,  unless  he  established  malice  in  fact,  or  showed  that  the  editors  knew 
the  charge  to  be  false.  The  effect  of  such  a  doctrine  would  be  deplorable. 
Instead  of  protecting,  it  would  be  destroying  the  freedom  of  the  press,  if  it 
were  understood  that  an  editor  could  publish  what  he  pleased  against  candidates 
for  office,  without  being  answerable  for  the  truth  of  such  publications.  No  honest 
man  could  afford  to  be  an  editor,  and  no  man  who  had  any  character  to  lose 
would  be  a  candidate  for  office  under  such  a  construction  of  the  law  of  libel. 
The  only  safe  rule  to  adopt  in  such  cases  is  to  permit  editors  to  publish  what 
they  please  in  relation  to  the  character  and  qualifications  of  candidates  for  office, 
but  holding  them  responsible  for  the  truth  of  what  they  publish.'1  Notwithstand- 
ing the  deplorable  consequences  here  predicted  from  too  great  license  to  the 
press,  it  is  matter  of  daily  observation  that  the  press,  in  its  comments  upon  public 
events  and  public  men,  proceeds  in  all  respects  as  though  it  were  privileged ; 
public  opinion  would  not  sanction  prosecutions  by  candidates  for  office  for 
publications  amounting  to  technical  libels,  but  which  were  nevertheless  published 
without  malice  in  fact;  and  the  man  who  has  a  "  character  to  lose  "  presents  him- 
self for  the  suffrages  of  his  fellow-citizens  in  the  full  reliance  that  detraction  by 
the  public  press  will  be  corrected  through  the  same  instrumentality,  and  that 
unmerited  abuse  will  react  on  the  public  opinion  in  his  favor.  Meantime  the 
press  is  gradually  becoming  more  just,  liberal,  and  dignified  in  its  dealings  with 
political  opponents,  and  vituperation  is  much  less  common,  reckless,  and  bitter 

[531] 


*  455  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

f*  456]  public  *  meeting,1  or  of  any  proceedings  in  which  the 
public  have  an  interest,  unless  they  were  legislative  or 
judicial  in  their  character,  and  where  both  parties  had 

[*  457]  opportunity  to  be  heard.2  Criticisms  on  *  works  of  art  and 
literary  productions  are  allowable,  if  fair,  reasonable,  and 

now  than  it  was  at  the  beginning  of  the  century,  when  repression  was  more  often 
resorted  to  as  a  remedy. 

1  Dawson  v.  Duncan,  7  El.  &  Bl.  229. 

2  Sanford  v.  Bennett,  24  N.  Y.  20.  Bennett  was  sued  for  publishing  in  the 
"  New  York  Herald  "  the  speech  of  a  person  convicted  of  murder,  made  upon  the 
scaffold  as  he  was  about  to  be  executed,  and  reflecting  upon  the  counsel  who  had 
defended  him.  The  principal  question  in  the  case  was,  whether  a  statute  of  the 
State,  passed  after  the  publication  but  before  the  trial,  was  applicable.  The 
statute  privileged  any  fair  and  true  report  in  a  newspaper,  of  a  judicial,  legis- 
lative, or  other  public  official  proceeding,  or  statement,  speech,  argument,  or 
debate  in  the  course  of  the  same.  The  court  held  the  statute  not  applicable, 
both  because  it  was  not  retrospective  in  its  provisions,  and  therefore  could  not 
apply  to  publications  previously  made,  and  also  because  this  was  not  any  such 
proceeding  as  the  statute  contemplated.  Upon  the  question  whether  the  pub- 
lication was  not  privileged,  independent  of  the  statute,  Denio,  J.,  says:  "  The 
want  of  legal  connection  between  the  words  spoken  and  the  proceeding  which 
was  going  forward  at  the  same  time  and  place,  which  has  led  me  to  the  conclusion 
that  the  statute  does  not  apply,  shows  that  it  is  not  within  the  reason  upon  which 
the  common-law  rule  is  based.  That  rule  assumes  that  the  public  may  have  a 
legitimate  interest  in  being  made  acquainted  with  the  proceedings  of  courts  of 
justice  and  of  legislative  bodies.  The  free  circulation  of  such  intelligence  is  of 
vast  advantage  in  every  country,  and  particularly  here,  where  all  reforms  in 
legal  or  administrative  polity  must  proceed  from  the  people  at  large.  But  neither 
the  reason  of  the  rule,  nor,  as  I  believe,  the  rule  itself,  has  any  application  to  a 
proceeding  in  which  neither  forensic  debate  nor  legislative  or  administrative 
deliberations  or  determinations  have  any  place.  Where  the  proceeding  is  a  mere 
act,  with  which  neither  oral  nor  written  communications  have  any  thing  more  than 
an  accidental  or  fortuitous  connection,  there  is  no  room  for  the  application  of  the 
doctrine  of  privilege  to  whatever  may  be  spoken  or  written  at  the  time  and  place 
where  and  when  it  is  transpiring.  Such  transactions  are  subject  to  be  reported, 
described,  and  published  in  newspapers  or  otherwise,  like  other  affairs  in  which 
individuals  and  communities  feel  a  curiosity,  and  with  the  same  liability  attaching 
to  the  publisher  to  answer  for  any  injury  which  may  happen  to  the  character  of 
individuals  if,  in  the  course  of  such  publications,  libellous  imputations  are  applied 
to  any  one.  It  is  of  course  perfectly  lawful  to  publish  all  the  circumstances 
attending  a  public  execution,  including  the  dying  speech  of  the  malefactor ;  but 
it  is  a  necessary  condition  of  that  right,  that  if  scandalous  imputations  are  used 
by  the  culprit  or  any  one  else  which  are  untrue,  he  who  publishes  them  afterwards 
must  be  responsible  for  the  wrong  and  injury  thereby  occasioned  to  the  person 
attacked."  Mason,  J.,  in  the  same  case  gives  a  reason  for  concurring  in  the 
conclusion  of  the  court,  which  seems  to  us  to  possess  some  force,  independent  of 

[532  ] 


CH.  XII.]  LIBERTY   OP   SPEECH   AND   OP   THE   PRESS.  *  457 

temperate ;  but  the  artist  or  author  is  not  to  be  criticised  through 
his  works,  and  his  personal  character  is  not  made  the  property  of 
the  public  by  his  publications.1  For  further  privilege  it  would  seem 
that  publishers  of  news  must  appeal  to  the  protection  of  public 
opinion,  or  they  must  call  upon  the  legislature  for  such  modifica- 
tion of  the  law  as  may  seem  important  to  their  just  protection. 

The  publisher  of  a  newspaper,  however,  though  responsible  for 
all  the  actual  damage  which  a  party  may  suffer  in  consequence  of 
injurious  publications  in  his  paper,  cannot  properly  be  made  liable 
for  exemplary  or  vindictive  damages,  where  the  article  complained 
of  was  inserted  in  his  paper  without  his  personal  knowledge,  and 
he  has  been  guilty  of  no  negligence  in  the  selection  of  agents,  or 
of  personal  misconduct,  and  is  not  shown  habitually  to  make  his 
paper  the  vehicle  of  detraction  and  malice.2 

Publication  of  Legislative  Proceedings. 

Although  debates,  reports,  and  other  proceedings  in  legislative 
bodies  are  privileged,  it  does  not  seem  to  follow  that  the  publica- 
tion of  them  is  always  equally  privileged.  The  English  decisions 
do  not  place  such  publications  on  any  higher  ground  of  right  than 
any  other  communication  through  the  public  press.  A  member  of 
Parliament,  it  is  said,  has  a  right  to  publish  his  speech,  but  it 
must  not  be  made  the  vehicle  of  slander  against  any  individual, 
and  if  it  is,  it  is  a  libel.3     And  in  another  case :  "  A  member  of 

the  question  of  privilege.  It  is  that  the  provisions  of  law  then  in  force,  requir- 
ing capital  executions  to  be  within  the  walls  of  the  prison,  or  in  an  adjoining 
enclosure,  and  excluding  all  spectators  with  limited  exceptions,  must  be  regarded 
as  indicating  a  legislative  policy  adverse  to  the  publicity  of  what  passes  on  such 
occasions. 

1  The  libel  suits  brought  by  J.  Fenimore  Cooper  may  be  usefully  consulted  in 
this  connection.  Cooper  v.  Stone,  24  Wend.  434 ;  Cooper  v.  Barber,  24  Wend. 
105 ;  Cooper  v.  Greeley,  1  Denio,  347  ;  Stone  v.  Cooper,  2  Denio,  293.  As  to 
criticisms  on  public  entertainments,  see  Fry  v.  Bennett,  5  Sandf.  54,  and  28 
N.  Y.  324;  Dibdin  v.  Swan,  1  Esp.  28;  Green  v.  Chapman,  4  Bing.  (N.  C.)  92. 
As  to  how  far  sermons,  preached,  but  not  otherwise  published,  form  a  proper  sub- 
ject for  comment  and  criticism  by  the  public  press,  see  Gathercole  v.  Miall,  15 
M.  &  W.  318. 

2  Daily  Post  Co.  v.  McArthur,  and  Detroit  Free  Press  v.  Same,  16  Mich. 
447. 

3  Rex  v.  Lord  Abington,  1  Esp.  226.  In  this  case  the  defendant  was  fined, 
imprisoned,  and  required  to  find  security  for  his  good  behavior,  for  a  libel  con- 
tained in  a  speech  made  by  him  in  Parliament,  and  afterwards  published. 

[533] 


*  458  CONSTITUTIONAL    LIMITATIONS.  [CH.  XII. 

[*  458]  [*  the  House  of  Commons]  has  spoken  what  he  thought 
material,  and  what  he  was  at  liberty  to  speak,  in  his  char- 
acter as  a  member  of  that  house.  So  far  he  is  privileged  ;  but  he 
lias  not  stopped  there,  but,  unauthorized  by  the  house,  has  chosen 
to  publish  an  account  of  that  speech,  in  what  he  has  pleased  to  call 
a  corrected  form,  and  in  that  publication  has  thrown  out  reflections 
injurious  to  the  character  of  an  individual."  And  he  was  convicted 
and  fined  for  the  libel.1 

The  circumstance  that  the  publication  was  unauthorized  by  the 
house  was  alluded  to  in  this  opinion,  but  the  rule  of  law  would 
seem  to  be  unaffected  by  it,  since  it  was  afterwards  held  that  an 
order  of  the  house  directing  a  report  made  to  it  to  be  published 
did  not  constitute  any  protection  to  the  official  printer,  who  had 
published  it  in  the  regular  course  of  his  duty,  in  compliance  with 
such  order.  All  the  power  of  the  house  was  not  sufficient  to 
protect  its  printer  in  obeying  the  order  to  make  this  publication  ; 
and  a  statute  was  therefore  passed  to  protect  in  the  future  persons 
publishing  parliamentary  reports,  votes,  or  other  proceedings,  by 
order  of  either  house.2 

1  Rex  v.  Creevey,  1  M.  &  S.  278. 

2  Stat.  3  and  4  Victoria,  c.  9.  The  case  was  that  of  Stockdale  v.  Hansard, 
very  fully  reported  in  9  Al.  &  El.  1.  See  also  11  Al.  &  El.  253.  The  Messrs. 
Hansard  were  printers  to  the  House  of  Commons,  and  had  printed  by  order  of 
that  house  the  report  of  the  inspectors  of  prisons,  in  which  a  book,  published  by 
Stockdale,  and  found  among  the  prisoners  in  Newgate,  was  described  as  obscene 
and  indecent.  Stockdale  brought  an  action  against  the  printers  for  libel,  and 
recovered  judgment.  Lord  Denman,  presiding  on  the  trial,  said  that  "  the  fact 
of  the  House  of  Commons  having  directed  Messrs.  Hansard  to  publish  all  their 
parliamentary  reports  is  no  justification  for  them,  or  for  any  bookseller  who 
publishes  any  parliamentary  report  containing  a  libel  against  any  man."  The 
house  resented  this  opinion  and  resolved,  "  that  the  power  of  publishing  such  of 
its  reports,  votes,  and  proceedings  as  it  shall  deem  necessary  or  conducive  to  the 
public  interests  is  an  essential  incident  to  the  constitutional  functions  of  Parlia- 
ment, more  especially  of  this  house  as  the  representative  portion  of  it."  They 
also  resolved  that  for  any  person  to  institute  a  suit  in  order  to  call  its  privileges 
in  question,  or  for  any  court  to  decide  upon  matters  of  privilege  inconsistent 
with  the  determination  of  either  house,  was  a  breach  of  privilege.  Stockdale, 
however,  brought  other  actions,  and  again  recovered.  When  he  sought  to 
enforce  these  judgments  by  executions,  his  solicitor  and  himself  were  proceeded 
against  for  contempt  of  the  house,  and  imprisoned.  While  in  prison,  Stockdale 
commenced  a  further  suit.  The  sheriffs,  who  had  been  ordered  by  the  House  of 
Commons  to  restore  the  money  which  they  had  collected,  were,  on  the  other 
hand,  compelled  by  attachments  from  the  Queen's  Bench  to  pay  it  over  to  Stock- 

[534] 


CH.  XII.]  LIBERTY    OF   SPEECH   AND   OF   THE   PRESS.  *  459 

*  It  has  been  intimated,  however,  that  what  a  representa-  [*  459] 
tive  is  privileged  to  address  to  the  house  of  which  he  is  a 
member,  he  is  also  privileged  to  address  to  his  constituents  ;  and 

dale.  In  this  complicated  state  of  affairs,  the  proper  and  dignified  mode  of 
relieving  the  difficulty  by  the  passage  of  a  statute  making  such  publications  privi- 
leged for  the  future  was  adopted.  For  an  account  of  this  controversy,  in  addition 
to  what  appears  in  the  law  reports,  see  May,  Law  and  Practice  of  Parliament, 
156-159,  2d  ed.  ;  May,  Constitutional  History,  c.  7.  A  case  in  some  respects 
similar  to  that  of  Stockdale  v.  Hansard  is  that  of  Popham  v.  Pickburn,  7  Hurl. 
&  Nor.  891.  The  defendant,  the  proprietor  of  a  newspaper,  was  sued  for 
publishing  a  report  made  by  a  medical  officer  of  health  to  a  vestry  board,  in 
pursuance  of  the  statute,  and  which  reflected  severely  upon  the  conduct  of  the 
plaintiff.  The  publication  was  made  without  any  comment,  and  as  a  part  of 
the  proceedings  of  the  vestry  board.  It  was  held  not  to  be  privileged,  notwith- 
standing the  statute  provided  for  the  publication  of  the  report  by  the  vestry 
board,  —  which,  however,  had  not  yet  been  made.  Wilde,  B.,  delivering  the 
opinion  of  the  court,  said:  "The  defendant  has  published  that  of  the  plaintiff 
which  is  undoubtedly  a  libel,  and  which  is  untrue.  He  seeks  to  protect  himself 
on  the  ground  that  the  publication  is  a  correct  report  of  a  document  read  at  a 
meeting  of  the  Clerkenwell  vestry,  which  document  must  have  been  published 
and  sold  at  a  small  price  by  the  vestry  in  a  short  time.  But  we  are  of  opinion 
this  furnishes  no  defence.  Undoubtedly  the  report  of  a  trial  in  a  court  of  justice 
in  which  this  document  had  been  read  would  not  make  the  publisher  thereof 
liable  to  an  action  for  libel,  and  reasonably,  for  such  reports  only  extend  that 
publicity  which  is  so  important  a  feature  of  the  administration  of  the  law  in 
England,  and  thus  enable  to  be  witnesses  of  it  not  merely  the  few  whom  the 
court  can  hold,  but  the  thousands  who  can  read  the  reports.  But  no  case  has 
decided  that  the  reports  of  what  takes  place  at  the  meeting  of  such  a  body  as 
this  vestry  are  so  privileged ;  indeed  the  case  cited  in  the  argument  [Rex  v. 
Wright,  8  T.  R.  293]  is  an  authority  that  they  are  not.  Then,  is  the  publication 
justified  by  the  statute  ?  It  is  true  that  the  document  would  have  been  accessible 
to  the  public  in  a  short  time,  though  not  published  by  the  defendant ;  but  this 
cannot  justify  his  anticipating  the  publication,  and  giving  it  a  wider  circulation, 
and  possibly  without  an  answer  which  the  vestry  might  have  received  in  some 
subsequent  report  or  otherwise,  and  which  would  then  have  been  circulated  with 
the  libel.     This  defence  therefore  fails. 

"  It  was  further  contended  that  this  libel  might  be  justified  as  a  matter  of 
public  discussion  on  a  subject  of  public  interest.  The  answer  is :  This  is  not  a 
discussion  or  comment.  It  is  the  statement  of  a  fact.  To  charge  a  man  incor- 
rectly with  a  disgraceful  act  is  very  different  from  commenting  on  a  fact  relating 
to  him  truly  stated ;  there  the  writer  may,  by  his  opinion,  libel  himself  rather 
than  the  subject  of  his  remarks. 

"It  is  to  be  further  observed  that  this  decision  does  not  determine  or  affect 
the  question  whether,  after  the  statutory  publication,  it  might  or  might  not  be 
competent  to  others  to  republish  these  reports,  with  or  without  reasonable  com- 
ments." 

[  535  ] 


*  459  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

that  the  bona  fide  publication  for  that  purpose  of  his  speech  in  the 
house  is  protected.1  And  the  practice  in  this  country 
[*  460]  appears  to  proceed  on  *  this  idea  ;  the  speeches  and  pro- 
ceedings in  Congress  being  fully  reported  by  the  press, 
and  the  exemption  of  the  member  from  being  called  to  account  for 
his  speech  being  apparently  supposed  to  extend  to  its  publication 
also.  When  complete  publicity  is  thus  practised,  perhaps  every 
speech  published  should  be  regarded  as  addressed  bona  fide  by  the 
representative,  not  only  to  the  house,  but  also  to  his  constituents. 
But  whether  that  view  be  taken  or  not,  if  publication  is  provided 
for  by  law,  as  in  the  case  of  Congressional  debates,  the  publishing 
must  be  considered  as  privileged. 

The  Jury  as  Judges  of  the  Law. 

In  a  considerable  number  of  the  State  constitutions  it  is  provided 
that,  in  prosecutions  for  libel,  the  jury  shall  have  a  right  to  deter- 
mine the  law  and  the  fact.  In  some  it  is  added,  "  as  in  other 
cases  ;  "  in  others,  "  under  the  direction  of  the  court."  For  the 
necessity  of  these  provisions  we  must  recur  to  the  rulings  of 
the  English  judges  in  the  latter  half  of  the  last  century,  and  the 
memorable  contest  in  the  courts  and  in  Parliament,  resulting  at 
last  in  the  passage  of  Mr.  Fox's  Libel  Act,  declaratory  of  the  rights 
of  juries  in  prosecutions  for  libel. 

In  the  year  1770,  Woodfall,  the  printer  of  the  "  Morning  Adver- 
tiser," was  tried  before  Lord  Mansfield  for  having  published  in  his 
paper  what  was  alleged  to  be  a  libel  on  the  king ;  and  his  lordship 
told  the  jury  that  all  they  had  to  consider  was,  whether  the  de- 
fendant had  published  the  paper  set  out  in  the  information,  and 
whether  the  innuendoes,  imputing  a  particular  meaning  to  particu- 
lar words  were  true,  as  that  "the  K "  meant  his  Majesty 

King  George  III. ;  but  that  they  were  not  to  consider  whether  the 
publication  was,  as  alleged  in  the  information,  false  and  malicious, 
those  being  mere  formal  words ;  and  that  whether  the  letter  was 
libellous  or  innocent  was  a  pure  question  of  law,  upon  which  the 
opinion  of  the  court  might  be  taken  by  a  demurrer,  or  a  motion  in 
arrest  of  judgment.     His  charge  obviously  required  the  jury,  if 

1  Lives  of  Chief  Justices,  by  Lord  Campbell,  Vol.  III.  p.  167 ;  Davison  v. 
Duncan,  7  El.  &  Bl.  229,  233. 
[536] 


CH.  XII.]  LIBERTY   OP   SPEECH   AND   OF   THE   PRESS.  *  460 

satisfied  the  publication  was  made,  and  had  the  meaning  attributed 
to  it,  to  render  a  verdict  of  guilty,  whether  they  believed  the  pub- 
lication false  and  malicious  or  not ;  in  other  words,  to  convict  the 
party  of  guilt,  notwithstanding  they  might  believe  the  essential 
element  of  criminality  to  be  wanting.  The  jury,  dissatisfied  with 
these  instructions,  and  unwilling  to  make  their  verdict 
cover  *  matters  upon  which  they  were  not  at  liberty  to  [*  461] 
exercise  their  judgment,  returned  a  verdict  of  "  guilty  of 
printing  and  publishing  only"  but  this  the  court  afterwards  rejected 
as  ambiguous,  and  ordered  a  new  trial.1 

In  Miller's  case,  which  was  tried  the  same  year,  Lord  Mansfield 
instructed  the  jury  as  follows :  "  The  direction  I  am  going  to  give 
you  is  with  a  full  conviction  and  confidence  that  it  is  the  language 
of  the  law.  If  you  by  your  verdict  find  the  defendant  not  guilty, 
the  fact  established  by  that  verdict  is,  he  did  not  publish  a  paper  of 
that  meaning ;  that  fact  is  established,  and  there  is  an  end  of  the 
prosecution.  You  are  to  try  the  fact,  because  your  verdict  estab- 
lishes that  fact,  that  he  did  not  publish  it.  If  you  find  that, 
according  to  your  judgment,  your  verdict  is  final,  and  if  you  find 
it  otherwise,  it  is  between  God  and  your  consciences,  for  that  is  the 
basis  upon  which  all  verdicts  ought  to  be  founded ;  then  the  fact 
finally  established  by  your  verdict,  if  you  find  him  guilty,  is,  that 
he  printed  and  published  a  paper  of  the  tenor  and  of  the  meaning 
set  forth  in  the  information  ;  that  is  the  only  fact  finally  established 
by  your  verdict ;  and  whatever  fact  is  finally  established  never  can 
be  controverted  in  any  shape  whatever.  But  you  do  not  by  that 
verdict  give  an  opinion,  or  establish  whether  it  is  or  not  lawful  to 
print  or  publish  a  paper  of  the  tenor  and  meaning  in  the  informa- 
tion ;  for,  supposing  the  defendant  is  found  guilty,  and  the  paper 
is  such  a  paper  as  by  the  law  of  the  land  may  be  printed  and  pub- 
lished, the  defendant  has  a  right  to  have  judgment  respited,  and  to 
have  it  carried  to  the  highest  court  of  judicature."  2 

Whether  these  instructions  were  really  in  accordance  with  the 
law  of  England,  it  would  be  of  little  importance  now  to  inquire. 
They  were  assailed  as  not  only  destructive  to  the  liberty  of  the 

1  20  State  Trials,  895. 

2  20  State  Trials,  870.  For  an  account  of  the  raising  of  the  same  question 
in  Pennsylvania,  so  early  as  1692,  see  The  Forum,  by  David  Paul  Brown,  Vol.  I. 
p.  280. 

[537] 


*  461  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

press,  but  as  taking  from  the  jury  that  right  to  cover  by  their  verdict 
all  the  matter  charged  and  constituting  the  alleged  offence,  as  it 
was  conceded  was  their  right  in  all  other  cases.  In  no  other  case 
could  the  jury  be  required  to  find  a  criminal  intent  which  they  did 
not  believe  to  exist.  In  the  House  of  Lords  they  were  assailed  by 
Lord  Chatham;  and  Lord  Camden,  the  Chief  Justice  of  the  Common 
Pleas,  in  direct  contradiction  to  Lord  Mansfield,  declared 
[*  462]  his  instructions  not  to  be  the  law  of  England.  *  Never- 
theless, with  the  judges  generally  the  view  of  Lord  Mans- 
field prevailed,  and  it  continued  to  be  enforced  for  more  than 
twenty  years,  so  far  as  juries  would  suffer  themselves  to  be  con- 
trolled by  the  directions  of  the  courts. 

The  act  known  as  Mr.  Fox's  Libel  Act  was  passed  in  1792, 
against  the  protest  of  Lord  Thurlow  and  five  other  lords,  who 
predicted  from  it  "  the  confusion  and  destruction  of  the  law  of 
England."  It  was  entitled  "  An  act  to  remove  doubts  respecting 
the  functions  of  juries  in  cases  of  libel,"  and  it  declared  and 
enacted  that  the  jury  might  give  a  general  verdict  of  guilty  or  not 
guilty,  upon  the  whole  matter  put  in  issue  upon  the  indictment  or 
information,  and  should  not  be  required  or  directed  by  the  court 
or  judge  before  whom  it  should  be  tried  to  find  the  defendant 
guilty,  merely  on  the  proof  of  the  publication  of  the  paper  charged 
to  be  a  libel,  and  of  the  sense  ascribed  to  the  same  in  the  indict- 
ment or  information :  Provided,  that  on  every  such  trial  the  court 
or  judge  before  whom  it  should  be  tried  should,  according  to  their 
discretion,  give  their  opinion  and  direction  to  the  jury  on  the 
matter  in  issue,  in  like  manner  as  in  other  criminal  cases :  Pro- 
vided also,  that  nothing  therein  contained  should  prevent  the  jury 
from  finding  a  special  verdict  in  their  discretion,  as  in  other 
criminal  cases :  Provided  also,  that  in  case  the  jury  should  find 
the  defendant  guilty,  he  might  move  in  arrest  of  judgment  on  such 
ground  and  in  such  manner  as  by  law  he  might  have  done  before 
the  passing  of  the  act. 

Whether  this  statute  made  the  jury  the  rightful  judges  of  the 
law  as  well  as  of  the  facts  in  libel  cases,  or  whether,  on  the  other 
hand,  it  only  placed  these  cases  on  the  same  footing  as  other  crim- 
inal prosecutions,  leaving  it  the  duty  of  the  jury  to  accept  and 
follow  the  instructions  of  the  judge  upon  the  criminal  character  of 
the  publication,  are  questions  upon  which  there  are  still  differences 
[538] 


CH.  XII.]  LIBERTY   OF   SPEECH   AND    OF   THE   PRESS.  *  462 

of  opinion.     Its  friends  have  placed  the  former  construction  upon 
it,  while  others  adopt  the  opposite  view.1 

In  the  United  States  the  disposition  of  the  early  judges  was  to 
adopt  the  view  of  Lord  Mansfield  as  a  correct  exposition  of  the 
respective  functions  of  court  and  jury  in  cases  of  libel ;  and  on 
the  memorable  trial  of  Callendar,  which  led  to  the  impeachment 
of  Judge  Chase,  of  the  United  States  Supreme  Court,  the 
right  of  the  *jury  to  judge  of  the  law  was  the  point  in  [*  463] 
dispute  upon  which  that  judge  first  delivered  his  opinion, 
and  afterwards  invited  argument.  The  charge  there  was  of  libel 
upon  President  Adams,  and  was  prosecuted  under  the  Sedition 
Law  so  called,  which  expressly  provided  that  the  jury  should  have 
the  right  to  determine  the  law  and  the  fact,  under  the  direction  of 
the  court,  as  in  other  cases.  The  defence  insisted  that  the  Sedition 
Law  was  unconstitutional  and  void,  and  proposed  to  argue  that 
question  to  the  jury,  but  were  stopped  by  the  court.  The  question 
of  the  constitutionality  of  a  statute,  it  was  said  by  Judge  Chase, 
was  a  judicial  question,  and  could  only  be  passed  upon  by  the 
court ;  the  jury  might  determine  the  law  applicable  to  the  case 
under  the  statute,  but  they  could  not  inquire  into  the  validity  of 
the  statute  by  which  that  right  was  given.2 

Whatever  may  be  the  true  import  of  Mr.  Fox's  Libel  Act,  it 
would  seem  clear  that  a  constitutional  provision  which  allows  the 
jury  to  determine  the  law  refers  the  questions  of  law  to  them  for 
their  rightful  decision.  "Wherever  such  provisions  exist,  the  jury, 
we  think,  are  the  judges  of  the  law ;  and  the  argument  of  counsel 
upon  it  is  rightfully  addressed  to  both  the  court  and  the  jury. 
Nor  can  the  distinction  be  maintained  which  was  taken  by  Judge 
Chase,  and  which  forbids  the  jury  considering  questions  affecting 
the  constitutional  validity  of  statutes.  When  the  question  before 
them  is,  what  is  the  law  of  the  case,  the  highest  and  paramount 
law  of  the  case  cannot  be  shut  from  view.  Nevertheless,  we  con- 
ceive it  to  be  proper,  and  indeed  the  duty  of  the  judge,  to  instruct 
the  jury  upon  the  law  in  these  cases,  and  it  is  to  be  expected  that 
they  will  generally  adopt  and  follow  his  opinion. 

Where,  however,  the  constitution  provides  that  they  shall  be 
judges  of  the  law  "  as  in  other  cases,"  or  may  determine  the  law 

1  Compare  Forsyth  on  Trial  by  Jury,  c.  12,  with  May's  Constitutional  History 
of  England,  c.  9. 

2  Wharton's  State  Trials,  688. 

[539] 


*  463  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

and  the  fact  "  under  the  direction  of  the  court,"  we  must  perhaps 
conclude  that  the  intention  has  been  simply  to  put  libel  cases  on 
the  same  footing  with  any  other  criminal  prosecutions,1  and  that 
the  jury  will  be  expected  to  receive  the  law  from  the  court. 

1  "By  the  last  clause  of  the  sixth  section  of  the  eighth  article  of  the  Consti- 
tution of  this  State,  it  is  declared  that,  in  all  indictments  for  libel,  the  jury  shall 
have  the  ri^ht  to  determine  the  law  and  the  facts  under  the  direction  of  the  court 
as  in  other  cases.  It  would  seem  from  this  that  the  framers  of  our  Bill  of  Rights 
did  not  imagine  that  juries  were  rightfully  judges  of  the  law  and  fact  in  criminal 
cases,  independently  of  the  directions  of  courts.  Their  right  to  judge  of  the 
law  is  a  right  to  be  exercised  only  under  the  direction  of  the  courts  ;  and  if  they 
go  aside  from  that  direction  and  determine  the  law  incorrectly,  they  depart  from 
their  duty,  and  commit  a  public  wrong ;  and  this  in  criminal  as  well  as  in  civil 
cases."  Montgomery  v.  State,  11  Ohio,  427.  See  also  State  v.  Allen,  1 
McCord,  525. 

The  Constitution  of  Pennsylvania  declares  that  "  in  all  indictments  for  libels 
the  jury  shall  have  a  right  to  determine  the  law  and  the  facts,  under  the  direction 
of  the  court,  as  in  other  cases."     In  Pittock  v.  O'Neill,  63  Penn.  St.  256 ;  s.  c. 

3  Am.  Rep.  544,  Sharswood,  J.,  says:  "There  can  be  no  doubt  that  both  in 
criminal  and  civil  cases  the  court  may  express  to  the  jury  their  opinion  as  to 
whether  the  publication  is  libellous.  The  difference  is  that  in  criminal  cases  they 
are  not  bound  to  do  so,  and  if  they  do,  their  opinion  is  not  binding  on  the  jury, 
who  may  give  a  general  verdict  in  opposition  to  it ;  and  if  that  verdict  is  for  the 
defendant,  a  new  trial  cannot  be  granted  against  his  consent.  As  our  declaration 
of  rights  succinctly  expresses  it,  the  jury  have  the  right  to  determine  the  law  and 
the  facts  in  indictments  for  libel  as  in  other  cases.  But  in  civil  cases  the  judge  is 
bound  to  instruct  the  jury  as  to  whether  the  publication  is  libellous,  supposing  the 
innuendoes  to  be  true ;  and  if  that  instruction  is  disregarded,  the  verdict  will  be 
set  aside  as  contrary  to  law.  In  England,  the  courts  have  recently  disregarded, 
to  some  extent,  this  plain  distinction  between  criminal  and  civil  proceedings.  It 
appears  to  be  upon  the  ground  that  Mr.  Fox's  act,  though  limited  in  terms  to 
indictments  and  informations,  was  declaratory  of  the  law  in  all  cases  of  libel ; 
upon  what  principle  of  construction,  however,  it  is  not  very  easy  to  understand. 
It  is  there  the  approved  practice  for  the  judge  in  civil  actions,  after  explaining  to 
the  jury  the  legal  definition  of  a  libel,  to  leave  to  them  the  question  whether  the 
publication  upon  which  the  action  is  founded  falls  within  that  definition.  Folkafd's 
Stark.  202;  Baylis  v.  Lawrence,  11  A.  &  E.  920;  Parmiter  v.  Coupland,  6 
M.  &  W.  105;  Campbell  ».  Spottiswoode,  3  B.  &  S.  781;   Cox  v.  Lee,  L.  R. 

4  Exch.  284.  These  cases  were  followed  in  Shattuck  v.  Allen,  4  Gray,  540. 
Yet  it  is  clearly  held  that  a  verdict  for  the  defendant  upon  that  issue  will  be  set 
aside,  and  a  new  trial  granted.  Hakewell  v.  Ingram,  28  Eng.  Law  &  Eq.  413. 
'Though  in  criminal  proceedings  for  libel,'  says  Jarvis,  Ch.  J.,  '  there  may  be  no 
review,  in  civil  matters  there  are  cases  in  which  verdicts  for  the  defendant  are 
set  aside  upon  the  ground  that  the  matter  was  a  libel,  though  the  jury  have  found 
it  was  not.'  This  must  be  conceded  to  be  an  anomaly ;  and  it  will  be  best  to 
avoid  a  practice  which  leads  to  such  a  result.     The  law,  indeed,  may  be  con- 

[  540] 


CH.  XII.]  LIBERTY    OP    SPEECH    AND    OF    THE    PRESS.  *  464 

*  "  Good  Motives  and  Justifiable    ~Ends."  [*  464] 

In  civil  suits  to  recover  damages  for  slander  or  libel,  the  truth 
is  generally  a  complete  defence,  if  pleaded  and  established.1  In 
criminal  prosecutions  it  was  formerly  not  so.  The  basis  of  the 
prosecution  being  that  the  libel  was  likely  to  disturb  the  peace 
and  order  of  society,  that  liability  was  supposed  to  be  all  the 
greater  if  the  injurious  charges  were  true,  as  a  man  would  be 
more  likely  to  commit  a  breach  of  the  peace  when  the  matters 
alleged  against  him  were  true  than  if  they  were  false,  in  which 
latter  case  he  might,  perhaps,  afford  to  treat  them  with  contempt. 
Hence  arose  the  common  maxim,  "  The  greater  the  truth  the 
greater  the  libel,"  which  subjected  the  law  on  this  subject  to  a 
great  deal  of  ridicule  and  contempt.  The  constitutional  provisions 
we  have  quoted  generally  make  the  truth  a  defence  if  published 
with  good  motives  and  for  justifiable  ends.  Precisely  what  show- 
ing shall  establish  good  motives  and  justifiable  occasion  must  be 
settled  by  future  decisions.  In  one  case  the  suggestion  was  thrown 
out  that  proof  of  the  truth  of  the  charge  alone  might  be  sufficient,2 
but  this  was  not  an  authoritative  decision,  and  it  could  not  be  true 
in  any  case  where  the  matter  published  was  not  fit  to  be  spread 
before  the  public,  whether  true  or  false.  It  must  be  held,  we  think, 
that  where  the  defendant  justifies  in  a  criminal  prosecution,  the 
burden  is  upon  him  to  prove,  not  only  the  truth  of  the  charge,  but 

sidered  as  settled  iu  this  State  by  long  practice,  never  questioned,  but  incidentally 
confirmed  in  McConkle  v.  Binns,  5  Binn.  34U,  and  Hays  v.  Brierly,  4  Watts,  392. 
It  was  held  in  the  case  last  cited  that  where  words  of  a  dubious  import  are  used, 
the  plaintiff  has  a  right  to  aver  their  meaning  by  innuendo,  and  the  truth  of  such 
innuendo  is  for  the  jury.  In  .New  York,  siuce  the  recent  English  cases,  the  ques- 
tion has  been  ably  discussed  and  fully  considered  in  Snyder  v.  Andrews,  b  liarb. 
43 ;  Green  v.  Telfair,  20  Ibid.  11 ;  Hunt  v.  Bennett,  19  N.  Y.  173  ;  and  the  law 
established  on  its  old  foundations." 

1  Foss  v.  Hildreth,  lu  Allen,  76.     See  ante,  455. 

2  Charge  of  Judge  Betts  to  the  jury  in  King  v.  Koot,  4  Wend.  121 :  "  Should 
the  scope  of  proofs  and  circumstances  lead  you  to  suppose  the  defendants  had 
no  good  end  iu  contemplation,  that  they  were  instigated  to  these  charges  solely  to 
avenge  personal  and  political  resentments  against  the  plaintiff,  still,  if  they  have 
satisfactorily  shown  the  charges  to  be  true,  they  must  be  acquitted  of  all  liability 
to  damage  in  a  private  action  on  account  of  the  publication.  Indeed,  if  good 
motives  and  justifiable  ends  must  be  shown,  they  might  well  be  implied  from  the 
establishment  of  the  truth  of  a  charge,  lor  the  like  reason  that  inalice  is  inferred 
from  its  falsity." 

[541] 


*  464  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

also  the  "  good  motives  and  justifiable  ends  "  of  the  publication. 

These  might  appear  from  the  very  character  of  the  publication 

itself,  if  it  was  true ;  as  where  it  exhibited  the  misconduct  or  un- 
fitness of  a  candidate  for  public  office  ;  but  where  it  related 

[*  465]  to  a  *  person  in  private  life,  and  who  was  himself  taking 
no  such  action  as  should  put  his  character  in  issue  before 

the  public,  some  further  showing  would  generally  be  requisite  after 

the  truth  had  been  proved.1 

1  In  Commonwealth  v.  Bonner,  9  Met.  410,  the  defendant  was  indicted  for  a 
libel  on  one  Oliver  Brown,  in  the  following  words  :  "  However,  there  were  few 
who,  according  to  the  old  toper's  dictionary,  were  drunk ;  yea,  in  all  conscience, 
drunk  as  a  drunken  man  ;  and  who  and  which  of  you  desperadoes  of  the  town  got 
them  so  ?  Was  it  you  whose  groggery  was  open,  and  the  rat  soup  measured  out 
at  your  bar  to  drunkards,  while  a  daughter  lay  a  corpse  in  your  house,  and  even 
on  the  day  she  was  laid  in  her  cold  and  silent  grave,  a  victim  of  God's  chasten- 
ing rod  upon  your  guilty  drunkard-manufacturing  head?  Was  it  you  who  refused 
to  close  your  drunkery  on  the  day  that  your  aged  father  was  lai,d  in  the  narrow 
house  appointed  for  all  the  living,  and  which  must  ere  long  receive  your  recreant 
carcass  ?  We  ask  again,  Was  it  you  ?  Was  it  you  ?  "  On  the  trial  the  defend- 
ant introduced  evidence  to  prove,  and  contended  that  he  did  prove,  all  the  facts 
alleged  in  his  publication.  The  court  charged  the  jury  that  the  burden  was 
upon  the  defendant  to  show  that  the  matter  charged  to  be  libellous  was  published 
with  good  motives  and  for  justifiable  ends ;  that  malice  is  the  wilful  doing  of  an 
unlawful  act,  and  does  not  necessarily  imply  personal  ill-will  towards  the  person 
libelled.  The  defendant  excepted  to  the  ruling  of  the  court  as  applied  to  the 
facts  proved,  contending  that,  having  proved  the  truth  of  all  the  facts  alleged  in 
the  libel,  and  the  publication  being  in  reference  to  an  illegal  traffic,  a  public 
nuisance,  the  jury  should  have  been  instructed  that  it  was  incumbent  on  the 
government  to  show  that  defendant's  motives  were  malicious,  in  the  popular  sense 
of  the  word,  as  respects  said  Brown.  By  the  court,  Shaw,  Ch.  J. :  "  The  court 
are  of  opinion  that  the  charge  of  the  judge  of  the  Common  Pleas  was  strictly 
correct.  If  the  publication  be  libellous,  that  is,  be  such  as  to  bring  the  person 
libelled  into  hatred,  contempt,  and  ridicule  amongst  the  people,  malice  is  pre- 
sumed from  the  injurious  act.  But  by  Rev.  Stat.  c.  133,  §  6,  '  in  every  prosecu- 
tion for  writing  or  publishing  a  libel,  the  defendant  may  give  in  evidence,  in  his 
defence  upon  the  trial,  the  truth  of  the  matter  contained  in  the  publication 
charged  as  libellous  :  provided,  that  such  evidence  shall  not  be  deemed  a  sufficient 
justification,  unless  it  shall  be  further  made  to  appear,  on  the  trial,  that  the  matter 
charged  to  be  libellous  was  published  with  good  motives  and  for  justifiable  ends.' 
Nothing  can  be  more  explicit.  The  judge,  therefore,  was  right  in  directing  the 
jury  that,  after  the  publication  had  been  shown  to  have  been  made  by  the  defend- 
ant, and  to  be  libellous  and  malicious,  the  burden  was  on  the  defendant,  not  only 
to  prove  the  truth  of  the  matter  charged  as  libellous,  but  likewise  that  it  was 
published  with  good  motives  and  for  justifiable  ends.  We  are  also  satisfied  that 
the  judge  was  right  in  his  description  or  definition  of  legal  malice,  that  it  is  not 

[542] 


CH.  XII.]  LIBERTY   OF  SPEECH   AND   OF  THE   PRESS. 


465 


malice  in  its  popular  sense;  viz.,  that  of  hatred  and  ill-will  to  the  party  libelled, 
but  an  act  done  wilfully,  unlawfully,  and  in  violation  of  the  just  rights  of  another." 
And  yet  it  would  seem  as  if,  conceding  the  facts  published  to  be  true,  the  jury 
ought  to  have  found  the  occasion  a  proper  one  for  correcting  such  indecent  con- 
duct by  public  exposure.  See  further  on  this  subject,  Regina  v.  New- 
man, *  1  El.  &  Bl.,268  and  558;  s.  c.  18  Eng.  El.  &  Eq.  113;  Bar-  [*466] 
thelemy  v.  People,  2  Hill,  248 ;  State  v.  White,  7  Ired.  180 ;  State  v. 
Burnham,  9  N.  H.  34;  Cole  v.  Wilson,  18  B.  Monr.  217 ;  Hagan  v.  Hendry,  18 
Md.  191 ;  Bradley  v.  Heath,  12  Pick.  163 ;  Snyder  v.  Fulton,  34  Md.  128 ;  Com- 
monwealth v.  Snelling,  15  Pick.  337.  The  fact  that  the  publication  is  copied  from 
another  source  is  clearly  no  protection,  if  it  is  not  true  in  fact.  Regina  v.  New- 
man, ubi  sup.  Compare  Saunders  v.  Mills,  6  Bing.  213 ;  Creevy  v.  Carr,  7  C.  & 
P.  64.  Neither  are  the  motives  or  good  character  of  the  defendant,  if  he  has 
published  libellous  matter  which  is  false.  Barthelemy  v.  People,  2  Hill,  248 ; 
Commonwealth  v.  Snelling,  15  Pick.  337;  Wilson  v.  Noonan,  27  Wis.  610. 

[543] 


467  CONSTITUTIONAL    LIMITATIONS.  [CH.  XIII. 


[*467]  CHAPTER   XIII. 

OF    RELIGIOUS     LIBERTY. 

Whoever  shall  examine  with  care  the  American  constitutions  will 
find  nothing  more  fully  stated  or  more  plainly  expressed  than  the 
desire  of  their  authors  to  preserve  and  perpetuate  religious  liberty, 
and  to  guard  against  the  slightest  approach  towards  the  establish- 
ment of  inequality  in  the  civil  or  political  rights  of  citizens,  based 
upon  differences,  of  religious  belief.  The  American  people  came 
to  the  work  of  framing  their  fundamental  laws  after  centuries  of 
religious  oppression  and  persecution,  sometimes  by  one  party  or 
sect  and  sometimes  by  another,  had  taught  them  the  utter  futility 
of  all  attempts  to  propagate  religious  opinions  by  the  rewards, 
penalties,  or  terrors  of  human  laws.  They  could  not  fail  to  per- 
ceive, also,  that  a  union  of  Church  and  State,  like  that  which 
existed  in  England,  if  not  wholly  impracticable  in  America,  was 
certainly  opposed  to  the  spirit  of  our  institutions,  and  that  any 
domineering  of  one  sect  over  another  was  repressing  to  the  ener- 
gies of  the  people,  and  must  necessarily  tend  to  discontent  and 
disorder.  Whatever,  therefore,  may  have  been  their  individual 
sentiments  upon  religious  questions,  or  upon  the  propriety  of  the 
State  assuming  supervision  and  control  of  religious  affairs  under 
other  circumstances,  the  general  voice  has  been,  that  persons  of 
every  religious  persuasion  should  be  made  equal  before  the  law, 
and  that  questions  of  religious  belief  and  religious  worship  should 
be  questions  between  each  individual  man  and  his  Maker,  of  which 
human  tribunals  are  not  to  take  cognizance,  so  long  as  the  public 
order  is  not  disturbed,  except  as  the  individual,  by  his  voluntary 
action  in  associating  himself  with  a  religious  organization,  may 
have  conferred  upon  such  organization  a  jurisdiction  over  him  in 
ecclesiastical  matters.1     These  constitutions,  therefore,  have  not 

1  The  religious  societies  which  exist  in  America  are  mere  voluntary  societies, 
having  little  resemblance  to  those  which  constitute  a  part  of  the  machinery  of 
government  in  England.  They  are  for  the  most  part  formed  under  general 
laws,   which  permit  the  voluntary  incorporation  of  attendants   upon  religious 

[544] 


CH.  XIII.]  OF    RELIGIOUS    LIBERTY.  *   466 

established  religious  toleration  merely,  but  religious  equality ;  in 
that  particular  being  far  in  advance  not  only  of  the  mother  country, 

•worship,  with  power  in  the  corporation  to  hold  real  and  personal  estate  for  the 
purposes  of  their  organization,  but  not  for  other  purposes.  Such  a  society  is 
"  a  voluntary  association  of  individuals  or  families,  united  for  the  purpose  of 
having  a  common  place  of  worship,  and  to  provide  a  proper  teacher  to  instruct 
them  in  religious  doctrines  and  duties,  and  to  administer  the  ordinances  of  bap- 
tism, &c.  Although  a  church  or  body  of  professing  Christians  is  almost  uniformly 
connected  with  such  a  society  or  congregation,  the  members  of  the  church  have 
no  other  or  greater  rights  than  any  other  members  of  the  society  who  statedly 
attend  with  them  for  the  purposes  of  divine  worship.  Over  the  church,  as  such, 
the  legal  or  temporal  tribunals  of  the  State  do  not  profess  to  have  any  jurisdic- 
tion whatever,  except  so  far  as  is  necessary  to  protect  the  civil  rights  of  others, 
and  to  preserve  the  public  peace.  All  questions  relating  to  the  faith  and  prac- 
tice of  the  church  and  its  members  belong  to  the  church  judicatories,  to  which 
they  have  voluntarily  subjected  themselves.  But,  as  a  general  principle,  those 
ecclesiastical  judicatories  cannot  interfere  with  the  temporal  concerns  of  the  con- 
gregation or  society  with  which  the  church  or  the  members  thereof  are  con- 
nected." Walworth,  Chancellor,  in  Baptist  Church  v.  Wetherell,  3  Paige,  301. 
See  Ferraria  v.  Vasconcellos,  31  111.  25;  Lawyer  v.  Clipperly,  7  Paige,  281; 
Shannon  v.  Frost,  3  B.  Monr.  258;  German,  &c,  Cong.  v.  Pressler,  17  La.  An. 
127.  Such  a  corporation  is  not  an  ecclesiastical,  but  merely  a  private  civil  cor- 
poration, the  members  of  the  society  being  the  corporators,  and  the  trustees  the 
managing  officers,  with  such  powers  as  the  statute  confers,  and  the  ordinary 
discretionary  powers  of  officers  in  civil  corporations.  Robertson  v.  Bullions, 
11  N.  Y.  249;  Miller  v.  Gable,  2  Denio,  492.  Compare  Watson  v.  Jones, 
13  Wall.  679.  The  church  connected  with  the  society,  if  any  there  be,  is  not 
recognized  in  the  law  as  a  distinct  entity;  the  corporators  in  the  society  are  not 
necessarily  members  thereof,  and  the  society  may  change  its  government,  faith, 
form  of  worship,  discipline,  and  ecclesiastical  relations  at  will,  subject  only  to  the 
restraints  imposed  by  their  articles  of  association,  and  to  the  general  laws  of  the 
State.  Keyser  v.  Stansifer,  6  Ohio,  363;  Robertson  v.  Bullions,  11  N".  Y.  249; 
Parish  of  Bellport  v.  Tooker,  29  Barb.  256  ;  Same  Case,  21  N.  Y.  267  ;  Burrel 
v.  Associated  Reform  Church,  44  Barb.  282.  The  courts  of  the  State  have  no 
general  jurisdiction  and  control  over  the  officers  of  such  corporations  in  respect 
to  the  performance  of  their  official  duties ;  but  as  in  respect  to  the  property  which 
they  hold  for  the  corporation  they  stand  in  position  of  trustees,  the  courts  may 
exercise  the  same  supervision  as  in  other  cases  of  trust.  Ferraria  v.  Vasconcellos, 
31  111.  25;  Smith  v.  Nelson,  18  Vt.  511;  Watson  v.  Avery,  2  Bush,  322.  But 
the  courts  will  interfere  where  abuse  of  trust  is  alleged  only  in  clear  cases, 
especially  if  the  abuse  alleged  be  a  departure  from  the  tenets  of  the  founders  of 
a  charity.  Happy  v.  Morton,  33  111.  398.  The  articles  of  association  will  deter- 
mine who  may  vote  when  the  State  law  does  not  prescribe  qualifications.  State 
v.  Crowed,  4  Halst.  390.  Should  there  be  a  disruption  of  the  society,  the  title  to 
the  property  will  remain  with  that  part  of  it  which  is  acting  in  harmony  with  its 
own  law ;  seceders  will  be  entitled  to  no  part  of  it.     McGinnis  v.  Watson,  41 

35  [  545  ] 


*  467  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIII. 

but  also  of  much  of  the  colonial  legislation,  which,  though  more 
liberal  than  that  of  other  civilized  countries,  nevertheless  exhib- 
ited features  of  discrimination  based  upon  religious  beliefs  or  pro- 
fessions.1 

Penn.  St.  9 ;  M.  E.  Church  v.  Wood,  5  Ohio,  286 ;  Koyser  v.  Stansifer,  6  Ohio, 
363;  Shannon  v.  Frost,  3  B.  Monr.  253;  Gibson  v.  Armstrong,  7  B.  Monr.  281  ; 
Hadden  v.  Chorn,  8  B.  Monr.  70;  Ferraria  v.  Vasconcellos,  23  111.  456.  And 
this  even  though  there  may  have  been  a  change  in  doctrine  on  the  part  of  the 
controlling  majority.  Keyser  v.  Stansifer,  6  Ohio,  363.  See  Petty  v.  Tooker, 
21  N.  Y.  267  ;  Horton  v.  Baptist  Church,  34  Vt.  309  ;  Eggleston  v.  Doolittle,  33 
Conn.  396;  Miller  v.  English,  1  Zab.  317.  The  administration  of  church  rules 
or  discipline  the  courts  of  the  State  do  not  interfere  with,  unless  civil  rights 
become  involved,  and  then  only  for  the  protection  of  such  rights.  Hendrickson 
v.  Decow,  Sax.  Ch.  577  ;  Baptist  Church  v.  Wetherell,  3  Paige,  301  ;  German 
Reformed  Church  i>:  Seither,  3  Penn.  St.  291;  Watson  v.  Farris,  45  Mo.  183; 
German  Reformed  Church  v.  Seibert,  3  Penn.  St.  291  ;  McGinnis  v.  Watson,  41 
Penn.  St.  21.  And  see  Watson  v.  Jones,  13  Wall.  679,  and  the  recent  case  of 
Chase  v.  Cheney  in  the  Supreme  Court  of  Illinois. 

1  For  the  distinction  between  religious  toleration  and  religious  equality,  see 
Bloom  v.  Richards,  2  Ohio  St.  390.  And  see  Madison's  views,  in  his  Life  by 
Rives,  Vol.  I.  p.  140.  It  was  not  easy,  two  centuries  ago,  to  make  men 
educated  in  the  ideas  of  those  days  understand  how  there  could  be  complete 
religious  liberty,  and  at  the  same  time  order  and  due  subordination  to  authority  in 
the  State.  "  Coleridge  said  that  toleration  was  impossible  until  indifference  made 
it  worthless.11  Lowell,  "Among  my  Books,"  336.  Roger  Williams  explained 
and  defended  his  own  views,  and  illustrated  the  subject  thus :  "  There  goes  many 
a  ship  to  sea,  with  many  hundred  souls  in  one  ship,  whose  weal  and  woe  is  com- 
mon, and  is  a  true  picture  of  a  commonwealth,  or  human  combination  or  society. 
It  hath  fallen  out  sometimes  that  both  Papists  and  Protestants,  Jews  and  Turks, 
may  be  embarked  in  one  ship;  upon  which  supposal  I  affirm  that  all  the  liberty 
of  conscience  I  ever  pleaded  for  turns  upon  these  two  hinges  :  that  none  of  the 
Papists,  Protestants,  Jews,  or  Turks  be  forced  to  come  to  the  ship's  prayers  or 
worship  if  they  practice  any.  I  further  add  that  I  never  denied  that,  notwith- 
standing this  liberty,  the  commander  of  this  ship  ought  to  command  the  ship's 
course,  yea,  and  also  command  that  justice,  peace,  and  sobriety  be  kept  and 
practised,  both  among  the  seamen  and  all  the  passengers.  If  any  of  the  seamen 
refuse  to  perform  their  service,  or  passengers  to  pay  their  freight ;  if  any  refuse 
to  help,  in  person  or  purse,  towards  the  common  charges  or  defence ;  if  any 
refuse  to  obey  the  common  laws  and  orders  of  the  ship,  concerning  their  com- 
mon peace  and  preservation  ;  if  any  shall  mutiny  and  rise  up  against  their  com- 
manders and  officers ;  if  any  should  preach  or  write  that  there  ought  to  be  no 
commanders  or  officers,  because  all  are  equal  in  Christ,  therefore  no  masters  nor 
officers,  no  laws  nor  orders,  no  corrections  nor  punishments  ;  I  say  I  never  denied 
but  in  such  cases,  whatever  is  pretended,  the  commander  or  commanders  may 
judge,  resist,  compel,  and  punish  such  transgressors  according  to  their  deserts 

[546] 


CH.  XIII.]  OF    RELIGIOUS   LIBERTY.  *  468 

*  Considerable  differences  will  appear  in  the  provisions  [*  408] 
in  the  State  constitutions  on  the  general  subject  of  the 
present  chapter;  some  of  them  being  confined  to  declarations  and 
prohibitions  whose  purpose  is  to  secure  the  most  perfect  equality 
before  the  law  of  all  shades  of  religious  belief,  while  some  exhibit 
a  jealousy  of  ecclesiastical  authority  by  making  persons  who  exer- 
cise the  functions  of  clergyman,  priest,  or  teacher  of  any  religious 
persuasion,  society,  or  sect,  ineligible  to  civil  office;1  and  still 
others  show  some  traces  of  the  old  notion,  that  truth  and  a  sense 
of  duty  are  inconsistent  with  scepticism  in  religion.2     There  are 

and  merits."     Arnold's  History  of  Rhode  Island,  Vol.  I.  p.  254,  citing  Knowles, 
279,  280. 

1  There  are  provisions  to  this  effect,  more  or  less  broad,  in  the  Constitutions 
of  Tennessee,  Louisiana,  Delaware,  Maryland,  and  Kentucky. 

2  The  Constitution  of  Pennsylvania  provides  "  that  no  person  who  acknowl- 
edges the  being  of  God,  and  a  future  state  of  rewards  and  punishments,  shall,  on 
account  of  his  religious  sentiments,  be  disqualified  to  hold  any  office  or  place  of 
trust  or  profit  under  this  commonwealth."  Art.  9,  §  4. —  The  Constitution  of  North 
Carolina:  "The  following  classes  of  persons  shall  be  disqualified  for  office: 
First.  All  persons  who  shall  deny  the  existence  of  Almighty  God,"  &Ci  Art. 
6,  §  5. — The  Constitutions  of  Mississippi  and  South  Carolina:  "  No  person  who 
denies  the  existence  of  the  Supreme  Being  shall  hold  any  office  under  this  Con- 
stitution." —  The  Constitution  of  Tennessee  :  "  No  person  who  denies  the  being 
of  a  God,  or  of  a  future  state  of  rewards  and  punishments,  shall  hold  any  office 
in  the  civil  department  of  this  State."  On  the  other  hand  the  Constitutions  of 
Georgia,  Kansas,  Virginia,  West  Virginia,  Maine,  Delaware,  Indiana,  Iowa, 
Oregon,  Ohio,  New  Jersey,  Nebraska,  Minnesota,  Arkansas,  Louisiana,  Texas, 
and  Wisconsin  expressly  forbid  religious  tests  as  a  qualification  for  office  or  pub- 
lic trust.  The  Constitution  of  Maryland  provides  "  that  no  religious  test  ought 
ever  to  be  required  as  a  qualification  for  any  office  of  trust  or  profit  in  this  State, 
other  than  a  declaration  of  belief  in  the  existence  of  God ;  nor  shall  the  legis- 
lature prescribe  any  other  oath  of  office  than  the  oath  prescribed  by  this  constitu- 
tion." Declaration  of  Rights,  Art.  37.  —  The  Constitution  of  Illinois  provides 
that  "  the  free  exercise  and  enjoyment  of  religious  profession  and  worship  without 
discrimination  shall  for  ever  be  guaranteed  ;  and  no  person  shall  be  denied  any 
civil  or  political  right,  privilege,  or  capacity,  on  account  of  his  religious  opinions  ; 
but  the  liberty  of  conscience  hereby  secured  shall  not  be  construed  to  dispense 
with  oaths  or  affirmations,  excuse  acts  of  licentiousness,  or  justify  practices 
inconsistent  with  the  peace  or  safety  of  the  State.  No  person  shall  be  required 
to  attend  or  support  any  ministry  or  place  of  worship  against  his  consent,  nor 
shall  any  preference  be  given  by  law  to  any  religious  denomination  or  mode  of 
worship."  Art.  2,  §  3.  Some  other  constitutions  contain  provisions  that  liberty 
of  conscience  is  not  to  justify  licentiousness  or  practices  inconsistent  with  the 
peace  and  moral  safety  of  society.  The  Constitution  of  Tennessee  declares  that 
"  no  political  or  religious  test,  other  than  an  oath  to  support  the  Constitution  of 

[547] 


*  4G8  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIII. 

[*  469]  exceptional  *  clauses,  however,  not  many  in  number ; 
and  it  is  believed  that,  where  they  exist,  they  are  not 
often  made  use  of,  to  deprive  any  person  of  the  civil  or  political 
rights  or  privileges  which  are  placed  by  law  within  the  reach  of  his 
fellows. 

Those  things  which  are  not  lawful  under  any  of  the  American 
constitutions  may  be  stated  thus:  — 

1.  Any  law  respecting  an  establishment  of  religion.  The  legis- 
latures have  not  been  left  at  liberty  to  effect  a  union  of  Church 
and  State,  or  to  establish  preferences  by  law  in  favor  of  any  one 
religious  persuasion  or  mode  of  worship.  There  is  not  complete 
religious  liberty  where  any  one  sect  is  favored  by  the  State  and 
given  an  advantage  by  law  over  other  sects.  Whatever  establishes 
a  distinction  against  one  class  or  sect  is,  to  the  extent  to  which 
the  distinction  operates  unfavorably,  a  persecution ;  and  if  based 
on  religious  grounds,  a  religious  persecution.  It  is  not  mere  toler- 
ation which  is  established  in  our  system,  but  religious  equality. 

2.  Compulsory  support,  by  taxation  or  otherwise,  of  religious 
instruction.  Not  only  is  no  one  denomination  to  be  favored  at  the 
expense  of  the  rest,  but  all  support  of  religious  instruction  must 
be  entirely  voluntary.  It  is  not  within  the  sphere  of  government 
to  coerce  it.1 

3.  Compulsory  attendance  upon  religious  worship.  Whoever  is 
not  led  by  choice  or  a  sense  of  duty  to  attend  upon  the  ordinances 
of  religion  is  not  to  be  compelled  to  do  so  by  the  State.  It  is  the 
province  of  the  State  to  enforce,  so  far  as  it  may  be  found  practi- 
cable, the  obligations  and  duties  which  the  citizen  may  be  under 
or  may  owe  to  his  fellow-citizen  or  to  society ;  but  those  which 
spring  from  the  relations  between  himself  and  his  Maker  are  to  be 
enforced  by  the  admonitions  of  the  conscience,  and  not  by  the 
penalties  of  human  laws.  Indeed,  as  all  real  worship  must  essen- 
tia United  States,  and  of  this  State,  shall  ever  be  required  as  a  qualification  to 
any 'office  or  public  trust  under  the  State ;  "  but  afterwards,  with  singular  incon- 
sistency, proceeds  to  disqualify  certain  classes  as  above  stated. 

1  We  must  exempt  from  this  the  State  of  New  Hampshire,  whose  constitution 
permits  the  legislature  to  authorize  "  the  several  to%vns,  parishes,  bodies  corpo- 
rate, or  religious  societies  within  this  State  to  make  adequate  provisions,  at  their 
own  expense,  for  the  support  and  maintenance  of  public  Protestant  teachers  of 
piety,  religion,  and  morality  ;  "  but  not  to  tax  those  of  other  sects  or  denominations 
for  their  support.    Part  1,  Art.  6. 

[  *48  ] 


CH.  XIII.]  OF    RELIGIOUS    LIBERTY.  *  469 

tially  and  necessarily  consist  in  the  free-will  offering  of  adoration 
and  gratitude  by  the  creature  to  the  Creator,  human  laws  are  ob- 
viously inadequate  to  incite  or  compel  those  internal  and  voluntary 
emotions  which  shall  induce  it,  and  human  penalties  at  most  could 
only  enforce  the  observance  of  idle  ceremonies,  which,  when  un- 
willingly performed,  are  alike  valueless  to  the  participants  and 
devoid  of  all  the  elements  of  true  worship. 

4.  Restraints  upon  the  free  exercise  of  religion  according  to  the 
dictates  of  the  conscience.     No  external  authority  is  to 

place  itself  *  between   the  finite  being  and   the   Infinite   [*  470] 

when  the  former  is  seeking  to  render  the  homage  that  is 

due,  and  in  a  mode  which  commends  itself  to  his  conscience  and 

judgment  as  being  suitable  for  him  to  render  and  acceptable  to  its 

object. 

5.  Restraints  upon  the  expression  of  religious  belief.  An  ear- 
nest believer  usually  regards  it  as  his  duty  to  propagate  his  opin- 
ions, and  to  bring  others  to  his  views.  To  deprive  him  of  this 
right  is  to  take  from  him  the  power  to  perform  what  he  considers 
a  most  sacred  obligation. 

These  are  the  prohibitions  which  in  some  form  of  words  are  to 
be  found  in  the  American  constitutions,  and  which  secure  freedom 
of  conscience  and  of  religious  worship.1    No  man  in  religious  mat- 

1  This  whole  subject  was  considered  very  largely  in  the  case  of  Minor  v.  The 
Board  of  Education,  in  the  Superior  Court  of  Cincinnati,  involving  the  right 
of  the  school  board  of  that  city  to  exclude  the  reading  of  the  Bible  from  the 
public  schools.  The  case  was  reported  and  published  by  Robert  Clarke  and 
Co.,  Cincinnati,  under  the  title,  "  The  Bible  in  the  Public  Schools,"  1870.  The 
point  of  the  case  may  be  briefly  stated.  The  constitution  of  the  State,  after 
various  provisions  for  the  protection  of  religious  liberty,  contained  this  clause : 
"Religion,  morality  and  knowledge,  however,  being  essential  to  good  govern- 
ment, it  shall  be  the  duty  of  the  general  assembly  to  pass  suitable  laws  to 
protect  every  religious  denomination  in  the  peaceable  enjoyment  of  its  own 
mode  of  public  worship,  and  to  encourage  schools  and  the  means  of  instruction." 
There  being  no  legislation  on  the  subject,  except  such  as  conferred  large  discre- 
tionary power  on  the  Board  of  Education  in  the  management  of  schools,  that  body 
passed  a  resolution,  "  that  religious  instruction  and  the  reading  of  religious  books, 
including  the  Holy  Bible,  are  prohibited  in  the  Common  Schools  of  Cincinnati ;  it 
beinf  the  true  object  and  intent  of  this  rule  to  allow  the  children  of  the  parents  of 
all  sects  and  opinions,  in  matters  of  faith  and  worship,  to  enjoy  alike  the  benefit 
of  the  Common  School  fund."  Certain  tax-payers  and  citizens  of  said  city,  on 
the  pretence  that  this  action  was  against  public  policy  and  morality,  and  in  violation 
of  the  spirit  and  intent  of  the  provision  in  the  constitution  which  has  been  quoted, 

[549] 


*  470  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIII. 

ters  is  to  be  subjected  to  the  censorship  of  the  State  or  of  any 
public  authority  ;  and  the  State  is  not  to  inquire  into  or  take  notice 
of  religious  belief,  when  the  citizen  performs  his  duty  to  the  State 
and  to  his  fellows,  and  is  guilty  of  no  breach  of  public  morals  or 
public  decorum.1 

But  while  thus  careful  to  establish,  protect,  and  defend  religious 
freedom  and  equality,  the  American  constitutions  contain  no  pro- 
visions which  prohibit  the  authorities  from  such  solemn  recog- 
nition of  a  superintending  Providence  in  public  transactions  and 
exercises  as  the  general  religious  sentiment  of  mankind  inspires, 
and  as  seems  meet  and  proper  in  finite  and  dependent 
[*  471]  beings.  Whatever  may  be  the  shades  *  of  religious  belief, 
all  must  acknowledge  the  fitness  of  recognizing  in  impor- 

filed  their  complaint  in  the  Superior  Court,  praying  that  the  board  be  enjoined 
from  enforcing  said  resolution.  The  Superior  Court  (Judge  Taft  dissenting) 
made  an  order  granting  the  prayer  of  the  complaint :  but  the  Supreme  Court,  on 
appeal,  reversed  it,  holding  that  the  provision  in  the  constitution  requiring  the 
passage  of  suitable  laws  to  encourage  morality  and  religion,  was  one  addressed 
solely  to  the  judgment  and  discretion  of  the  legislative  department;  and  that,  in 
the  absence  of  any  legislation  on  the  subject,  the  Board  of  Education  could  not 
be  compelled  to  permit  the  reading  of  the  Bible  in  the  schools. 

1  Congress  is  forbidden,  by  the  first  amendment  to  the  Constitution  of  the 
United  States,  from  making  any  law  respecting  an  establishment  of  religion,  or 
prohibiting  the  free  exercise  thereof.  Mr.  Story  says  of  this  provision  :  "  It  was 
under  a  solemn  consciousness  of  the  dangers  from  ecclesiastical  ambition,  the 
bigotry  of  spiritual  pride,  and  the  intolerance  of  sects,  exemplified  in  our  do- 
mestic, as  well  as  in  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  such  an  exclusion.  In  some  of  the  States,  Episcopalians  constituted  the  pre- 
dominant sect;  in  others,  Presbyterians;  in  others,  Congregationalists ;  in 
others,  Quakers  ;  and  in  others  again  there  was  a  close  numerical  rivalry  among 
contending  sects.  It  was  impossible  that  there  should  not  arise  perpetual  strife 
and  perpetual  jealousy  on  the  subject  of  ecclesiastical  ascendency,  if  the  national 
government  were  left  free  to  create  a  religious  establishment.  The  only  security 
was  in  extirpating  the  power.  But  this  alone  would  have  been  an  imperfect 
security,  if  it  had  not  been  followed  up  by  a  declaration  of  the  right  of  the  free 
exercise  of  religion,  and  a  prohibition  (as  we  have  seen)  of  all  religious  tests. 
Thus,  the  whole  power  over  the  subject  of  religion  is  left  exclusively  to  the  State 
governments,  to  be  acted  upon  according  to  their  own  sense  of  justice  and  the 
State  constitutions ;  and  the  Catholic  and  the  Protestant,  the  Calvinist  and  the 
Arminian,  the  Jew  and  the  infidel,  may  sit  down  at  the  common  table  oi 
the  national  councils,  without  any  inquisition  into  their  faith  or  mode  of  wor- 
ship."    Story  on  the  Constitution,  §  1879. 

[550] 


CH.  XIII.]  OF   RELIGIOUS   LIBERTY.  *  471 

tant  human  affairs  the  superintending  care  and  control  of  the  great 
Governor  of  the  Universe,  and  of  acknowledging  with  thanksgiving 
his  boundless  favors,  or  bowing  in  contrition  when  visited  with  the 
penalties  of  his  broken  laws.  No  principle  of  constitutional  law 
is  violated  when  thanksgiving  or  fast  days  are  appointed  ;  when 
chaplains  are  designated  for  the  army  and  navy  ;  when  legislative 
sessions  are  opened  with  prayer  or  the  reading  of  the  Scriptures, 
or  when  religious  teaching  is  encouraged  by  a  general  exemption 
of  the  houses  of  religious  worship  from  taxation  for  the  support 
of  State  government.  Undoubtedly  the  spirit  of  the  constitution 
will  require,  in  all  these  cases,  that  care  be  taken  to  avoid  discrim- 
ination in  favor  of  or  against  any  one  religious  denomina  i<  n  or 
sect ;  but  the  power  to  do  any  of  these  things  does  not  become 
unconstitutional  simply  because  of  its  susceptibility  to  abuse.  This 
public  recognition  of  religious  worship,  however,  is  not  based  en- 
tirely, perhaps  not  even  mainly,  upon  a  sense  of  what  is  due  to 
the  Supreme  Being  himself  as  the  author  of  all  good  and  of  all 
law  ;  but  the  same  reasons  of  State  policy  which  induce  the  gov- 
ernment to  aid  institutions  of  charity  and  seminaries  of  instruc- 
tion will  incline  it  also  to  foster  religious  worship  and  religious 
institutions,  as  conservators  of  the  public  morals,  and  valuable,  if 
not  indispensable,  assistants  to  the  preservation  of  the  public 
order. 

Nor,  while  recognizing  a  superintending  Providence,  are  we 
always  precluded  from  recognizing  also,  in  the  rules  prescribed 
for  the  conduct  of  the  citizen,  the  notorious  fact  that  the  prevail- 
incf  religion  in  the  States  is  Christian.  Some  acts  would  be  offen- 
sive  to  public  sentiment  in  a  Christian  community,  and  would  tend 
to  public  disorder,  which  in  a  Mahometan  or  Pagan  country  might 
be  passed  by  without  notice,  or  even  be  regarded  as  meritorious ; 
just  as  some  things  would  be  considered  indecent,  and  worthy  of 
reprobation  and  punishment  as  such,  in  one  state  of  society  which 
in  another  would  be  in  accord  with  the  prevailing  customs,  and 
therefore  defended  and  protected  by  the  laws.  The  criminal  laws 
of  every  country  are  shaped  in  greater  or  less  degree  by  the  pre- 
vailing public  sentiment  as  to  what  is  right,  proper,  and  decorous, 
or  the  reverse  ;  and  they  punish  those  acts  as  crimes  which  disturb 
the  peace  and  order,  or  tend  to  shock  the  moral  sense  or  sense  of 
propriety  and  decency,  of  the  community.  The  moral  sense  is 
largely  regulated  and  controlled  by  the  religious  belief;  and  there- 

[551] 


*  471  CONSTITUTIONAL    LIMITATIONS.  [CH.  XIII. 

fore  it  is  that  those  things  which,  estimated  hy  a  Christian  stand- 
ard, are  profane  and  blasphemous,  are  properly  punished  as  crimes 
against  society,  since  they  are  offensive  in  the  highest  degree  to 
the  general  public  sense,  and  have  a  direct  tendency  to  under- 
mine the  moral  support  of  the  laws,  and  to  corrupt  the  com- 
munity. 
[*472]  *It  is  frequently  said  that  Christianity  is  a  part  of  the 
law  of  the  land.  In  a  certain  sense  and  for  certain  pur- 
poses this  is  true.  The  best  features  of  the  common  law,  and 
especially  those  which  regard  the  family  and  social  relations ; 
which  compel  the  parent  to  support  the  child,  the  husband  to  sup- 
port the  wife ;  which  make  the  marriage-tie  permanent  and  forbid 
polygamy,  —  if  not  derived  from,  have  at  least  been  improved  and 
strengthened  by  the  prevailing  religion  and  the  teachings  of  its 
sacred  Book.  But  the  law  does  not  attempt  to  enforce  the  precepts 
of  Christianity  on  the  ground  of  their  sacred  character  or  divine 
origin.  Some  of  those  precepts,  though  we  may  admit  their  con- 
tinual and  universal  obligation,  we  must  nevertheless  recognize  as 
being  incapable  of  enforcement  by  human  laws.  That  standard  of 
morality  which  requires  one  to  love  his  neighbour  as  himself  we 
must  admit  is  too  elevated  to  be  accepted  by  human  tribunals  as 
the  proper  test  by  which  to  judge  the  conduct  of  the  citizen  ;  and 
one  could  hardly  be  held  responsible  to  the  criminal  laws  if  in 
goodness  of  heart  and  spontaneous  charity  he  fell  something  short 
of  the  Good  Samaritan.  The  precepts  of  Christianity,  moreover, 
affect  the  heart,  and  address  themselves  to  the  conscience ;  while 
the  laws  of  the  State  can  regard  the  outward  conduct  only:  and 
for  these  several  reasons  Christianity  is  not  a  part  of  the  law  of  the 
land  in  any  sense  which  entitles  the  courts  to  take  notice  of  and 
base  their  judgments  upon  it,  except  so  far  as  they  can  find  that 
its  precepts  and  principles  have  been  incorporated  in  and  made  a 
component  part  of  the   positive  law  of  the  State.1 

Mr.  Justice  Story  has  said  in  the  Girard  Will  case  that,  al- 
though Christianity  is  a  part  of  the  common  law  of  the  State,  it  is 
only  so  in  this  qualified  sense,  that  its  divine  origin  and  truth  are 
admitted,  and  therefore  it  is  not  to  be  maliciously  and  openly  re- 
viled and  blasphemed  against,  to  the  annoyance  of  believers  or  to 

1  Andrew  v.  Bible  Society,  4  Sandf.  182 ;  Ayres  v.  Methodist  Church,  8  Sandf. 
377 ;  State  v.  Chandler,  2  Harr.  555 ;  Bloom  v.  Richards,  2  Ohio,  N.  s.  387. 

[552] 


CH.  XIII.]  OF   RELIGIOUS   LIBERTY.  *  472 

the  injury  of  the  public.1  It  may  be  doubted,  however,  if  the  pun- 
ishment of  blasphemy  is  based  necessarily  upon  an  admission  of 
the  divine  origin  or  truth  of  the  Christian  religion,  or  incapable  of 
being  otherwise  justified. 

Blasphemy  has  been  defined  as  consisting  in  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  purposely  using  words  concerning  the  Supreme  Being 
calculated  and  designed  to  impair  and  destroy  the  reverence,  re- 
spect, and  confidence  due  to  him,  as  the  intelligent  Creator,  Gov- 
ernor, and  Judge  of  the  world.  It  embraces  the  idea  of  detraction 
as  regards  the  character  and  attributes  of  God,  as  calumny  usually 
carries  the  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  as  such.2  *  Contumelious  reproaches  [*473] 
and  profane  ridicule  of  Christ  or  of  the  Holy  Scriptures 
have  the  same  evil  effect  in  sapping  the  foundations  of  society  and 
of  public  order,  and  are  classed  under  the  same  head.3 

In  an  early  case  where  a  prosecution  for  blasphemy  came  before 
Lord  Hale,  he  is  reported  to  have  said :  "  Such  kind  of  wicked, 
blasphemous  words  are  not  only  an  offence  to  God  and  religion, 
but  a  crime  against  the  laws,  State,  and  government,  and  therefore 
punishable  in  the  Court  of  King's  Bench.  For  to  say  religion  is  a 
cheat,  is  to  subvert  all  those  obligations  whereby  civil  society  is 
preserved ;  that  Christianity  is  a  part  of  the  laws  of  England,  and 
to  reproach  the  Christian  religion  is  to  speak  in  subversion  of 
the  law."4     Eminent  judges  in   this  country  have  adopted  this 

1  Vidal  v.  Girard's  Ex'rs,  2  How.  198.  Mr.  Webster's  argument  that  Chris- 
tianity is  a  part  of  the  law  of  Pennsylvania,  is  given  in  6  Webster's  Works, 
p.  175. 

2  Shaiv,  Ch.  J.,  in  Commonwealth  v.  Kneeland,  20  Pick.  213. 

3  People  v.  Ruggles,  8  Johns.  290;  Commonwealth  v.  Kneeland,  20  Pick. 
213;  Updegraph  v.  Commonwealth,  11  S.  &  R.  394;  State  v.  Chandler,  2  Harr. 
553;  Rex  v.  Waddington,  1  B.  &  C.  26;  Rex  v.  Carlile,  3  B.  &  Aid.  161; 
Cowan  v.  Milbourn,  Law  R.  2  Exch.  230. 

4  The  King  v.  Taylor,  3  Keb.  607,  Vent.  293.  See  also  The  King  v.  Wool- 
aston,  2  Stra.  8-44,  Fitzg.  64,  Raym.  162,  in  which  the  defendant  was  convicted 
of  publishing  libels,  ridiculing  the  miracles  of  Christ,  his  life  and  conversation. 
Lord  Ch.  J.  Raymond  in  that  case  says:  "I  would  have  it  taken  notice  of,  that 

[  553  J 


*  473  CONSTITUTIONAL   LIMITATIONS.  [[CH.  XIII. 

language,  and  applied  it  to  prosecutions  for  blasphemy,  where  the 
charge  consisted  in  malicious  ridicule  of  the  Author  and  Founder 
of  the  Christian  religion.  The  early  cases  in  New  York  and  Mas- 
sachusetts *  are  particularly  marked  by  clearness  and  precision  on 
this  point,  and  Mr.  Justice  Clayton,  of  Delaware,  has  also  adopted 
and  followed  the  ruling  of  Lord  Chief  Justice  Hale,  with  such  ex- 
planations of  the  true  basis  and  justification  of  these  prosecutions 
as  to  give  us  a  clear  understanding  of  the  maxim  that  Christianity 
is  a  part  of  the  law  of  the  land,  as  understood  and  applied  by 

the  courts  in  these  cases.2  Taken  with  the  explanation 
[*  474]   *  given,    there  is  nothing   in  the    maxim  of  which    the 

believer  in  any  creed,  or  the  disbeliever  of  all,  can  justly 
complain.  The  language  which  the  Christian  regards  as  blas- 
phemous, no  man  in  sound  mind  can  feel  under  a  sense  of  duty  to 
make  use  of  under  any  circumstances,  and  no  person  is  therefore 
deprived  of  a  right  when  he  is  prohibited,  under  penalties,  from 
uttering  it. 

But  it  does  not  follow,  because  blasphemy  is  punishable  as  a 
crime,  that  therefore  one  is  not  at  liberty  to  dispute  and  argue 
against  the  truth  of  the  Christian  religion,  or  of  any  accepted 
dogma.     Its  "  divine  origin  and  truth  "  are  not  so  far  admitted  in 

•we  do  not  meddle  with  the  difference  of  opinion,  and  that  we  interfere  only  where 
the  root  of  Christianity  is  struck  at." 

1  People  v .  Ruggles,  8  Johns.  291 ;  Commonwealth  v.  Kneeland,  20  Pick. 
203. 

2  State  i'.  Chandler,  2  Harr.  555.  The  case  is  very  full,  clear,  and  instruc- 
tive, and  cites  all  the  English  and  American  authorities.  The  conclusion  at 
which  it  arrives  is,  that  "  Christianity  was  never  considered  a  part  of  the  com- 
mon law,  so  far  as  that  for  a  violation  of  its  injunctions,  independent  of  the 
established  laws  of  man,  and  without  the  sanction  of  any  positive  act  of  Parlia- 
ment made  to  enforce  those  injunctions,  any  man  could  be  drawn  to  answer  in  a 
common-law  court.  It  was  a  part  of  the  common  law,  '  so  far  that  any  person 
reviling,  subverting,  or  ridiculing  it  might  be  prosecuted  at  common  law'  as 
Lord  Mansfield  has  declared  ;  because,  in  the  judgment  of  our  English  ancestors 
and  their  judicial  tribunals,  he  who  reviled,  subverted,  or  ridiculed  Christianity, 
did  an  act  which  struck  at  the  foundation  of  our  civil  society,  and  tended  by  its 
necessary  consequences  to  disturb  that  common  peace  of  the  land  of  which  (as 
Lord  Coke  had  reported)  the  common  law  was  the  preserver.  The  common  law 
.  .  .  adapted  itself  to  the  religion  of  the  country  just  so  far  as  was  necessary  for 
the  peace  and  safety  of  civil  institutions  ;  but  it  took  cognizance  of  offences 
against  God  only,  when,  by  their  inevitable  effects,  they  became  offences  against 
man  and  his  temporal  security."  See,  also,  what  is  said  on  this  subject  by  Duer, 
J.,  in  Andrew  v.  Bible  Society,  4  Sandf.  182. 

[554] 


CH.  XIII.]  OP   RELIGIOUS   LIBERTY.  *  474 

the  law  as  to  preclude  their  being  controverted.  To  forbid  dis- 
cussion on  this  subject,  except  by  the  various  sects  of  believers, 
would  be  to  abridge  the  liberty  of  speech  and  of  the  press  in  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  highest  and  most  vital.  A  bad 
motive  must  exist ;  there  must  be  a  wilful  and  malicious  attempt 
to  lessen  men's  reverence  for  the  Deity,  or  for  the  accepted  religion. 
But  outside  of  such  wilful  and  malicious  attempt,  there  is  a  broad 
field  for  candid  investigation  and  discussion,  which  is  as  much 
open  to  the  Jew  and  the  Mahometan  as  to  the  professors  of  the 
Christian  faith.  "No  author  or  printer  who  fairly  and  conscien- 
tiously promulgates  the  opinions  with  whose  truths  he  is  impressed, 
for  the  benefit  of  others,  is  answerable  as  a  criminal.  A  malicious 
and  mischievous  intention  is,  in  such  a  case,  the  broad  boundary 
between  right  and  wrong  ;  it  is  to  be  collected  from  the  offensive 
levity,  scurrilous  and  opprobrious  language,  and  other  circum- 
stances, whether  the  act  of  the  party  was  malicious."  J  Legal 
blasphemy  implies  that  the  words  were  uttered  in  a  wanton  man- 
ner, "  with  a  wicked  and  malicious  disposition,  and  not  in  a  serious 
discussion  upon  any  controverted  point  in  religion."  2  The  courts 
have  always  been  careful,  in  administering  the  law,  to  say  that 
they  did  not  intend  to  include  in  blasphemy  disputes  between 
learned  men  upon  particular  controverted  points.3  The 
constitutional  *  provisions  for  the  protection  of  religious  [*  475] 
liberty  not  only  include  within  their  protecting  power  all 
sentiments   and    professions   concerning  or  upon  the   subject  of 

1  Updegraph  v.  Commonwealth,  11  S.  &  R.  394.  In  Ayres  v.  Methodist 
Church,  3  Sandf.  377,  Duer,  J.,  in  speaking  of  "pious  uses,"  says:  "If  the 
Presbyterian  and  the  Baptist,  the  Methodist  and  the  Protestant  Episcopalian,  must 
each  be  allowed  to  devote  the  entire  income  of  his  real  and  personal  estate,  for 
ever,  to  the  support  of  missions,  or.  the  spreading  of  the  Bible,  so  must  the 
Roman  Catholic  his  to  the  endowment  of  a  monastery,  or  the  founding  of  a  per- 
petual mass  for  the  safety  of  his  soul ;  the  Jew  his  to  the  translation  and  publi- 
cation of  the  Mishna  or  the  Talmud,  and  the  Mahometan  (if  in  that  colluvies 
gentium  to  which  this  city  [New  York],  like  ancient  Rome,  seems  to  be  doomed, 
such  shall  be  among  us),  the  Mahometan  his  to  the  assistance  or  relief  of  the 
annual  pilgrims  to  Mecca." 

2  People  v.  Ruggles,  8  Johns.  293,  per  Kent,  Ch.  J. 

3  Rex  v.  Woolaston,  Stra.  834,  Fitzg.  64 ;  People  v.  Ruggles,  8  Johns.  293, 
per  Kent,  Ch.  J. 

[555] 


*  475  CONSTITUTIONAL   LIMITATIONS.  [CII    XIII. 

religion,  but  they  guarantee  to  every  one  a  perfect  right  to  form 
and  to  promulgate  such  opinions  and  doctrines  upon  religious 
matters,  and  in  relation  to  the  existence,  power,  attributes,  and 
providence  of  a  Supreme  Being  as  to  himself  shall  seem  reasonable 
and  correct.  In  doing  this  he  acts  under  an  awful  responsibility, 
but  it  is  not  to  any  human  tribunal.1 

1  Per  SJiaic,  Ch.  J.,  in  Commonwealth  v.  Kneeland,  20  Pick.  234.  The  lan- 
guage of  the  courts  has  perhaps  not  always  been  as  guarded  as  it  should  have 
been  on  this  subject.  In  the  King  v.  Waddington,  1  B.  &  C.  26,  the  defendant 
was  on  trial  for  blasphemous  libel,  in  saying  that  Jesus  Christ  was  an  impostor, 
and  a  murderer  in  principle.  One  of  the  jurors  asked  the  Lord  Chief  Justice 
(Abbott),  whether  a  work  which  denied  the  divinity  of  the  Saviour  was  a  libel. 
The  Lord  Chief  Justice  replied  that  "  a  work  speaking  of  Jesus  Christ  in  the 
language  used  in  the  publication  in  question  was  a  libel,  Christianity  being  a 
part  of  the  law  of  the  land."  This  was  doubtless  true,  as  the  wrong  motive  was 
apparent;  but  it  did  not  answer  the  juror's  question.  On  motion  for  a  new  trial, 
the  remarks  of  Best,  J.,  are  open  to  a  construction  which  answers  the  question 
in  the  affirmative :  "  My  Lord  Chief  Justice  reports  to  us  that  he  told  the  jury 
that  it  was  an  indictable  offence  to  speak  of  Jesus  Christ  in  the  manner  in  which 
he  is  spoken  of  in  the  publication  for  which  this  defendant  is  indicted.  It  cannot 
admit  of  the  least  doubt  that  this  direction  was  correct.  The  53  Geo.  III.  c.  160, 
has  made  no  alteration  in  the  common  law  relative  to  libel.  If,  previous  to  the 
passing  of  that  statute,  it  would  have  been  a  libel  to  deny,  in  any  printed  book, 
the  divinity  of  the  second  person  in  the  Trinity,  the  same  publication  would  be 
a  libel  now.  The  53  Geo.  III.  c.  160,  as  its  title  expresses,  is  an  act  to  relieve 
persons  who  impugn  the  doctrine  of  the  Trinity  from  certain  penalties  If  we 
look  at  the  body  of  the  act  to  see  from  what  penalties  such  parties  are  relieved, 
we  find  that  they  are  the  penalties  from  which  the  1  "W.  &  M.  Sess.  1,  c.  18, 
exempted  all  Protestant  dissenters,  except  such  as  denied  the  Trinity,  and  the 
penalties  or  disabilities  which  the  9  &  10  W.  III.  imposed  on  those  who  denied 
the  Trinity.  The  1  W.  &  M.  Sess.  1,  c.  18,  is,  as  it  has  been  usually  called,  an 
act  of  toleration,  or  one  which  allows  dissenters  to  worship  God  in  the  mode  that 
is  agreeable  to  their  religious  opinions,  and  exempts  them  from  punishment  for 
non-attendance  at  the  Established  Church  and  non-conformity  to  its  rights.  The 
legislature,  in  passing  that  act,  only  thought  of  easing  the  conscience  of  dis- 
senters, and  not  of  allowing  them  to  attempt  to  weaken  the  faith  of  the  members 
of  the  church.  The  9  &  10  W.  III.  was  to  give  security  to  the  government,  by 
rendering  men  incapable  of  office,  who  entertained  opinions  hostile  to  the  estab- 
lished religion.  The  only  penalty  imposed  by  that  statute  is  exclusion  from 
office,  and  that  penalty  is  incurred  by  any  manifestation  of  the  dangerous  opinion, 
without  proof  of  intention  in  the  person  entertaining  it,  either  to  induce  others 
to  be  of  that  opinion,  or  in  any  manner  to  disturb  persons  of  a  different  per- 
suasion. This  statute  rested  on  the  principle  of  the  test  laws,  and  did  not  in- 
terfere with  the  common  law  relative  to  blasphemous  libels.  It  is  not  necessary 
for  me  to  say  whether  it  be  libellous  to  argue  from  the  Scriptures  against  the 
divinity  of  Christ  ;  that  is  not  what  the  defendant  professes  to  do ;  he  argues 

[  556  ] 


CH.  XIII.]  OF   RELIGIOUS   LIBERTY.  *  476 

*  Other  forms  of  profanity,  besides  that  of  blasphemy,  [*  476] 
are  also  made  punishable  by  statutes  in  the  several  States. 
The  cases  these  statutes  take  notice  of  are  of  a  character  no  one 
can  justify,  and  their  punishment  involves  no  question  of  religious 
liberty.  The  right  to  use  profane  and  indecent  language  is  recog- 
nized by  no  religious  creed,  and  the  practice  is  reprobated  by  right- 
thinking  men  of  every  nation  and  every  religious  belief.  The 
statutes  for  the  punishment  of  public  profanity  require  no  further 
justification  than  the  natural  impulses  of  every  man  who  believes 
in  a  Supreme  Being,  and  recognizes  his  right  to  the  reverence  of 
his  creatures. 

The  laws  against  the  desecration  of  the  Christian  Sabbath,  by 
labor  or  sports,  are  not  so  readily  defensible  by  arguments  the 
force  of  which  will  be  felt  and  admitted  by  all.  It  is  no  hardship  to 
any  one  to  compel  him  to  abstain  from  public  blasphemy  or  other 
profanity,  and  none  can  complain  that  his  rights  of  conscience  are 
invaded  by  this  enforced  respect  to  a  prevailing  religious  sentiment. 
But  the  Jew  who  is  forced  to  respect  the  first  day  of  the  week, 
when  his  conscience  requires  of  him  the  observance  of  the  seventh 
also,  may  plausibly  urge  that  the  law  discriminates  against  his 
religion,  and  by  forcing  him  to  keep  a  second  Sabbath  in  each 
week,  unjustly,  though  by  indirection,  punishes  him  for  his  belief. 

The  laws  which  prohibit  ordinary  employments  on  Sunday  are 
to  be  defended,  either  on  the  same  grounds   which  justify  the 

against  the  divinity  of  Christ  by  denying  the  truth  of  the  Scriptures.  A  work 
containing  such  arguments,  published  maliciously  (which  the  jury  in  this  case 
have  found),  is  by  the  common  law  a  libel,  and  the  legislature  has  never  altered 
this  law,  nor  can  it  ever  do  so  while  the  Christian  religion  is  considered  the 
basis  of  that  law."  It  is  a  little  difficult,  perhaps,  to  determine  precisely  how 
far  this  opinion  was  designed  to  go  in  holding  that  the  law  forbids  the  public 
denial  of  the  truth  of  the  Scriptures.  That  arguments  against  it,  made  in  good 
faith  by  those  who  do  not  accept  it,  are  legitimate  and  rightful,  we  think  there 
is  no  doubt ;  and  the  learned  judge  doubtless  meant  to  admit  as  much  when 
he  required  a  malicious  publication  as  an  ingredient  in  the  offence.  However, 
when  we  are  considering  what  is  the  common  law  of  England  and  of  this  country 
as  regards  offences  against  God  and  religion,  the  existence  of  a  State  church  in 
that  country  and  the  effect  of  its  recognition  upon  the  law,  are  circumstances  to 
be  kept  constantly  in  view. 

In  People  v.  Porter,  2  Park.  Cr.  R.  14,  the  defence  of  drunkenness  was  made 
to  a  prosecution  for  a  blasphemous  libel.  Walworth,  Circuit  Judge,  presiding  at 
the  trial,  declared  the  intoxication  of  defendant,  at  the  time  of  uttering  the 
words,  to  be  an  aggravation  of  the  offence  rather  than  an  excuse. 

[557] 


*  476  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIII. 

punishment  of  profanity,  or  as  establishing  sanitary  regulations, 
based  upon  the  demonstration  of  experience  that  one  day's  rest  in 

seven  is  needful  to  recuperate  the  exhausted  energies  of 
[*  477]   body  and  mind.     If  *  sustained  on  the  first  ground,  the 

view  must  be  that  such  laws  only  require  the  proper  defer- 
ence and  regard  which  those  not  accepting  the  common  belief  may 
justly  be  required  to  pay  to  the  public  conscience.  The  Supreme 
Court  of  Pennsylvania  have  preferred  to  defend  such  legislation  on 
the  second  ground  rather  than  the  first; 1  but  it  appears  to  us  that 
if  the  benefit  to  the  individual  is  alone  to  be  considered,  the  argu- 
ment against  the  law  which  he  may  make  who  has  already  observed 
the  seventh  day  of  the  week,  is  unanswerable.  But  on  the  other 
ground  it  is  clear  that  these  laws  are  supportable  on  authority, 
notwithstanding  the  inconvenience  which  they  occasion  to  those 
whose  religious  sentiments  do  not  recognize  the  sacred  character 
of  the  .  rst  day  of  the  week.2 

1  "  It  intermeddles  not  with  the  natural  and  indefeasible  right  of  all  men  to 
worship  Almighty  God  according  to  the  dictates  of  their  own  consciences  ;  it 
compels  none  to  attend,  erect,  or  support  any  place  of  worship,  or  to  maintain 
any  ministry  against  his  consent ;  it  pretends  not  to  control  or  to  interfere  with 
the  rights  of  conscience,  and  it  establishes  no  preference  for  any  religious  estab- 
lishment or  mode  of  worship.  It  treats  no  religious  doctrine  as  paramount  in 
the  State ;  it  enforces  no  unwilling  attendance  upon  the  celebration  of  divine 
worship.  It  says  not  to  the  Jew  or  Sabbatarian,  'You  shall  desecrate  the  day 
you  esteem  as  holy,  and  keep  sacred  to  religion  that  we  deem  to  be  so.'  It 
enters  upon  no  discussion  of  rival  claims  of  the  first  and  seventh  days  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  intrudes  not  into  the  domestic 
circle  to  dictate  when,  where,  or  to  what  god  its  inmates  shall  address  their 
orisons ;  nor  does  it  presume  to  enter  the  synagogue  of  the  Israelite,  or  the 
church  of  the  seventh-day  Christian,  to  command  or  even  persuade  their  attend- 
ance in  the  temples  of  those  who  especially  approach  the  altar  on  Sunday.  It 
does  not  in  the  slightest  degree  infringe  upon  the  Sabbath  of  any  sect,  or  curtail 
their  freedom  of  worship.  It  detracts  not  one  hour  from  any  period  of  time 
they  may  feel  bound  to  devote  to  this  object,  nor  does  it  add  a  moment  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."  Specht  v.  Commonwealth,  8  Penn.  St.  312.  See  also  Charleston 
V.  Benjamin,  2  Strob.  508 ;  Bloom  v.  Richards,  2  Ohio  St.  387  ;  McGatrick  v. 
Wason,  3  Ohio  St.  .566  ;   Hudson  v.  Geary,  4.  It.  I.  485. 

2  Commonwealth  v.  Wolf,  3  S.  &  R.  50;    Commonwealth  v.  Fisher,  17  S.  & 

R.  160;  Shover  v.  State,  5  Eng.  529;  Voglesong  v.  State,  9  Ind.  112;  State  v. 

Ambs,  20  Mo.  214 ;  Cincinnati  v.  Rice,  15  Ohio,  225.     In  Simonds's  ExVs  v. 

Gratz,  2  Pen.  &  Watts,  416,  it  was  held  that  the  conscientious  scruples  of  a  Jew 

[558] 


CH.  XIII.]  OF   RELIGIOUS   LIBERTY.  *  477 

Whatever  deference  the  constitution  or  the  laws  may  require  to 
be  paid  in  some  cases  to  the  conscientious  scruples  or  religious 
convictions  of  the  majority,  the  general  policy  always  is, 
to  *  avoid  with  care  any  compulsion  which  infringes  on  [*  478] 
the  religious  scruples  of  any,  however  little  reason  may 
seem  to  others  to  underlie  them.  Even  in  the  important  matter 
of  bearing  arms  for  the  public  defence,  those  who  cannot  in 
conscience  take  part  are  excused,  and  their  proportion  of  this 
great  and  sometimes  imperative  burden  is  borne  by  the  rest  of  the 
community.1 

Some  of  the  State  constitutions  have  also  done  away  with  the 
distinction  which  existed  at  the  common  law  regarding  the  admis- 
sibility of  testimony  in  some  cases.  All  religions  were  recognized 
by  the  law  to  the  extent  of  allowing  all  persons  to  be  sworn  and 
to  give  evidence  who  believed  in  a  superintending  Providence,  who 
rewards  and  punishes,  and  that  an  oath  was  binding  on  their 
conscience.2      But  the  want  of   such  belief  rendered  the  person 

to  appear  and  attend  a  trial  of  his  cause  on  Saturday  were  not  sufficient  cause 
for  a  continuance.  But  quaere  of  this.  In  Frolickstein  v.  Mayor  of  Mobile, 
40  Ala.  725,  it  was  held  that  a  statute  or  municipal  ordinance  prohibiting  the 
sale  of  goods  by  merchants  on  Sunday,  in  its  application  to  religious  Jews  "  who 
believe  that  it  is  their  religious  duty  to  ab>tain  from  work  on  Saturdays,  and  to 
work  on  all  the  other  six  days  of  the  week,"  was  not  violative  of  the  article  in 
the  State  constitution  which  declares  that  no  person  shall,  "  upon  any  pretence 
whatsoever,  be  hurt,  molested,  or  restrained  in  his  religious  sentiments  or  per- 
suasions." 

1  There  are  constitutional  provisions  to  this  effect  in  New  Hampshire,  Ala- 
bama, Texas,  Illinois,  Indiana,  Vermont,  and  Tennessee,  and  statutory  provi- 
sions in  other  States. 

2  See  upon  this  point  the  leading  case  of  Ormichund  v.  Barker,  Willes,  538, 
and  1  Smith's  Leading  Cases,  535,  where  will  be  found  a  full  discussion  of  this 
subject.  Some  of  the  earlier  American  cases  required  of  a  witness  that  he  should 
believe  in  the  existence  of  God,  and  of  a  state  of  rewards  and  punishments  after 
the  pre>ent  life.  See  especially  Atwood  v.  Welton,  7  Conn.  6G.  But  this  rule 
did  not  generally  obtain  ;  belief  in  a  Supreme  Being  who  would  punish  false 
swearing,  whether  in  this  world  or  in  the  world  to  come,  being  regarded  sufficient. 
Cubbison  v.  MeCreary,  7  W.  &  S.  262 ;  Blocker  v.  Burness,  2  Ala.  354 ;  Jones 
v.  Harris,  1  Strob.  160;  Shaw  v.  Moore,  4  Jones,  25;  Hunscum  v.  Hunscum,  15 
Mass.  184;  Brock  v.  Milligan,  10  Ohio,  121;  Bennett  v.  Mate,  1  Swan,  411; 
Central  R.R.  Co.  v.  Rockafellow,  17  111.  511;  Arnold  v.  Arnold,  13  Vt.  362. 
But  one  who  lacked  this  belief  was  not  sworn,  because  there  was  no  mode  known 
to  the  law  by  which  it  was  supposed  an  oath  could  be  made  binding  upon  his 
conscience.     Arnold  v.  Arnold,  13  Vt.  362. 

[559  ] 


*  478  CONSTITUTIONAL    LIMITATIONS.  [CH.  XIII. 

incompetent.  Wherever  the  common  law  remains  unchanged,  it 
must,  we  suppose,  be  held  no  violation  of  religious  liberty  to  recog- 
nize and  enforce  its  distinctions ;  but  the  tendency  is  to  do  away 
with  them  entirely,  or  to  allow  one's  unbelief  to  go  to  his  credi- 
bility only,  if  taken  into  account  at  all.1 

1  The  States  of  Iowa,  Minnesota,  Michigan,  Oregon,  Wisconsin,  Arkansas, 
Florida,  Missouri,  California,  Indiana,  Kansas,  Nebraska,  Nevada,  Ohio,  and 
New  York  have  constitutional  provisions  expressly  doing  away  with  incompe- 
tency from  want  of  religious  belief.  Perhaps  the  general  provisions  in  some  of 
the  other  constitutions  declaring  complete  equality  of  civil  rights,  privileges,  and 
capacities  are  sufficiently  broad  to  accomplish  the  same  purpose.  Perry's  Case, 
3  Grat.  632.  In  Michigan  and  Oregon  a  witness  is  not  to  be  questioned  concern- 
ing his  religious  belief.  See  People  v.  Jenness,  5  Mich.  305.  In  Georgia  the  code 
provides  that  religious  belief  shall  only  go  to  the  credit  of  a  witness,  and  it  has  been 
held  inadmissible  to  inquire  of  a  witness  whether  he  believed  in  Christ  as  the 
Saviour.  Donkle  v.  Kohn,  4-1  Geo.  266.  In  Maryland  no  one  is  incompetent 
as  a  witness  or  juror  "  provided  he  believes  in  the  existence  of  God,  and  that, 
under  His  dispensation,  such  person  will  be  held  morally  accountable  for  his  acts, 
and  be  rewarded  or  punished  therefor,  either  in  this  world  or  the  world  to  come." 
Const.  Dec.  of  Rights,  §  36. 

[560  ] 


CH.  XIV.]  THE   POWER   OF   TAXATION.  *  479 


*  CHAPTER    XIV.  [*479] 

THE     POWER     OF     TAXATION. 

i 

The  power  to  impose  taxes  is  one  so  unlimited  in  force  and 
so  searching  in  extent,  that  the  courts  scarcely  venture  to  declare 
that  it  is  subject  to  any  restrictions  whatever,  except  such  as  rest 
in  the  discretion  of  the  authority  which  exercises  it.  It  reaches 
to  every  trade  or  occupation  ;  to  every  object  of  industry,  use, 
or  enjoyment ;  to  every  species  of  possession  ;  and  it  imposes  a 
burden  which,  in  case  of  failure  to  discharge  it,  may  be  followed 
by  seizure  and  sale  or  confiscation  of  property.  No  attribute  of 
sovereignty  is  more  pervading,  and  at  no  point  does  the  power  of 
the  government  affect  more  constantly  and  intimately  all  the 
relations  of  life  than  through  the  exactions  made  under  it. 

Taxes  are  defined  to  be  burdens  or  charges  imposed  by  the 
legislative  power  upon  persons  or  property,  to  raise  money  for 
public  purposes.1  The  power  to  tax  rests  upon  necessity,  and  is 
inherent  in  every  sovereignty.  The  legislature  of  every  free  State 
will  possess  it  under  the  general  grant  of  legislative  power, 
whether  particularly  specified  in  the  constitution  among  the 
powers  to  be  exercised  by  it  or  not.  No  constitutional  govern- 
ment can  exist  without  it,  and  no  arbitrary  government  without 
regular  and  steady  taxation  could  be  any  thing  but  an  oppressive 
and  vexatious  despotism,  since  the  only  alternative  to  taxation 
would  be  a  forced  extortion  for  the  needs  of  government  from  such 
persons,  or  objects  as  the  men  in  power  might  select  as  victims. 
Chief  Justice  Marshall  has  said  of  this  power :  "  The  power  of 
taxing  the  people  and   their   property  is  essential   to   the  very 

1  Blackwell  on  Tax  Titles,  1.  A  taxis  a  contribution  imposed  by  government 
on  individuals  for  the  service  of  the  State.  It  is  distinguished  from  a  subsidy 
as  being  certain  and  orderly,  which  is  shown  in  its  derivation  from  Greek,  rd^tg, 
ordo,  order  or  arrangement.  Jacob,  Law  Die. ;  Bouvier,  Law  Die.  "  The 
revenues  of  a  State  are  a  portion  that  each  subject  gives  of  his  property  in 
order  to  secure,  or  to  have,  the  agreeable  enjoyment  of  the  remainder."  Mon- 
tesquieu, Spirit  of  the  Laws,  B.  12,  c.  30. 

36  [  561  ] 


*  479  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

existence  of  government,  and  may  be  legitimately  exercised  on 
the  objects  to  which  it  is  applicable  to  the  utmost  extent  to  which 
the  government  may  choose  to  carry  it.     The  only  security  against 

the  abuse  of  this  power  is  found  in  the  structure  of  the 
[*  480]   government  itself.     In  imposing  a  *  tax,  the  legislature 

acts  upon  its  constituents.  This  is,  in  general,  a  suf- 
ficient security  against  erroneous  and  oppressive  taxation.  The 
people  of  a  State,  therefore,  give  to  their  government  a  right  of 
taxing  themselves  and  their  property ;  and  as  the  exigencies  of 
the  government  cannot  be  limited,  they  prescribe  no  limits  to  the 
exercise  of  this  right,  resting  confidently  on  the  interest  of  the 
legislator,  and  on  the  influence  of  the  constituents  over  their 
representative,  to  guard  them  against  its  abuse."  1 

And  the  same  high  authority  has  said  in  another  case  :  "  The 
power  of  legislation,  and  consequently  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  the  government 
as  part  of  itself,  and  need  not  be  reserved  where  property  of  any 
description,  or  the  right  to  use  it  in  any  manner,  is  granted  to  in- 
dividuals or  corporate  bodies.  However  absolute  the  right  of  any 
individual  may  be,  it  is  still  in  the  nature  of  that  right  that  it 
must  bear  a  portion  of  the  public  burdens,  and  that  portion  must 
be  determined  by  the  legislature.  This  vital  power  may  be  abused ; 
but  the  interest,  wisdom,  and  justice  of  the  representative  body, 
and  its  relations  with  its  constituents,  furnish  the  only  security 
against  unjust  and  excessive  taxation,  as  well  as  against  unwise 
taxation."  2  And  again,  the  same  judge  says  it  is  "  unfit  for  the 
judicial  department  to  inquire  what  degree  of  taxation  is  the 
legitimate  use,  and  what  degree  may  amount  to  the  abuse,  of 
the  power."  3  And  the  same  general  views  have  been  frequently 
expressed  in  other  cases.4 

1  McCulloeh  v.  Maryland,  4  Wheat.  428. 

2  Providence  Bank  v.  Billings,  4  Pet.  561. 

3  McCulloeh  v.  Maryland,  4  Wheat.  430. 

4  Kirby  v.  Shaw,  19  Penn.  St.  260;  Sharpless  v.  Mayor,  &c,  21  Penn.  St. 
168 ;  Weister  v.  Hade,  52  Penn.  St.  478  ;  Wingate  v.  Sluder,  6  Jones,  Law,  552  ; 
Herrick  v.  Randolph,  lo  Vt.  529 ;  Armington  v.  Barnet,  15  Vt.  745  ;  Thomas  v. 
Leland,  24  Wend.  65  ;  People  v.  Mayor,  etc.,  of  Brooklyn,  4  N.  Y.  425  ;  Portland 
Bank  v.  Apthorp,  12  Mass.  252. 

[  562  ] 


CH.  XIV.]  THE   POWER   OP   TAXATION.  *  480 

Notwithstanding  the  pervading  nature  of  this  power,  there  are 
some  things  under  our  system  of  government  which,  by  necessary 
implication,   are  exempted  from  its  exercise.      Thus,  the  States 
cannot  tax  the  agencies  of  the  general  government ;    for,  if  they 
conld,  it  would  be  within  their  power  to  impose  taxation 
to  an  extent  that  might  cripple,  if  not  wholly  defeat,  *  the  [*  481] 
operations  of  the  national  authorities  within  their  proper 
sphere  of  action.     "  That  the  power  to  tax,"  says  Chief  Justice 
Marshall,  "  involves  the  power  to  destroy  ;  that  the  power  to  de- 
stroy may  defeat  and   render  useless  the  power  to  create  ;   that 
there  is  a   plain  repugnance  in  conferring  on  one  government  a 
power  to  control  the  constitutional  measures  of  another,  which 
other,  with  respect  to  those  very  measures,  is  declared  to  be  su- 
preme over  that  which  exerts  the  control, —  are  propositions  not 
to  be  denied."     And  referring  to  the  argument  that  confidence  in 
the  good  faith  of  the  State  governments  must  forbid  our  indulging . 
the  anticipation  of  such  consequences,  he  adds  :  "  But  all  inconsis- 
tencies are  to  be  reconciled  by    the  magic   word,  —  confidence. 
Taxation,  it  is  said,  does  not  necessarily  and  unavoidably  destroy. 
To  carry  it  to  the  excess  of  destruction  would  be  an  abuse,  to  pre- 
sume which  would  banish  that  confidence  which  is  essential  to  all 
government.     But  is  this  a  case  of  confidence  ?     Would  the  people 
of  any  one  State  trust  those  of  another  with  a  power  to  control  the 
most  insignificant  operations  of  their  State  government  ?    We  know 
they  would  not.     Why  then  should  we  suppose  that  the  people  of 
any  one  State  would  be  willing  to  trust  those  of  another  with  a 
power  to  control  the  operations  of  a  government  to  which  they 
have  confided  their  most  important  and  most  valuable  interests  ? 
In  the  legislature  of  the  Union  alone  are  all  represented.     The 
legislature  of  the  Union  alone,  therefore,  can  be  trusted  by  the 
people  with  the  power  of  controlling  measures  which  concern  all, 
in  the  confidence  that  it  will  not  be  abused.     This,  then,  is  not  a 
case  of  confidence."  x 

1  McCulloch  v,  Maryland,  4  Wheat.  431.  The  case  involved  the  right  of  the 
State  of  Maryland  to  impose  taxes  upon  the  operations,  within  its  limits,  of  the 
Bank  of  the  United  States,  created  by  authority  of  Congress.  "If,"  continues 
the  Chief  Justice,  "  we  apply  the  principle  for  which  the  State  of  Maryland  con- 
tends to  the  Constitution  generally,  we  shall  find  it  capable  of  changing  totally 
the  character  of  that  instrument.  We  shall  find  it  capable  of  arresting  all  the 
measures  of  the* government,  and  of  prostrating  it  at  the  foot  of  the  States.     The 

[  563] 


*  482  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

[*  482]  *  It  follows  as  a  logical  result  from  this  doctrine  that 
if  the  Congress  of  the  Union  may  constitutionally  create 
a  Bank  of  the  United  States,  as  an  agency  of  the  national  govern- 
ment in  the  accomplishment  of  its  constitutional  purposes,  any 
power  of  the  States  to  tax  such  bank,  or  its  property,  or  the  means 
of  performing  its  functions,  is  precluded  by  necessary  implication.1 
For  the  like  reasons  a  State  is  prohibited  from  taxing  an  officer  of 
the  general  government  for  his  office  or  its  emoluments,  since  such 
a  tax,  having  the  effect  to  reduce  the  compensation  for  the  services 
provided  by  the  act  of  Congress,  would  to  that  extent  conflict 
with  such  act,  and  tend  to  neutralize  its  purpose.2  So  the  States 
may  not  impose  taxes  upon  the  obligations  or  evidences  of  debt 
issued  by  the  general  government  upon  the  loans  made  to  it,  un- 
less such  taxation  is  permitted  by  law  of  Congress,  and  then  only 
in  the  manner  such  law  shall  prescribe,  —  any  such  tax  being  an 
impediment  to  the  operations  of  the  government  in  negotiating 
loans,  and  in  greater  or  less  degree,  in  proportion  to  its  magnitude, 

American  people  have  declared  their  Constitution,  and  the  laws  made  in  pursu- 
ance thereof,  to  be  supreme  ;  but  this  principle  would  transfer  the  supremacy  in 
fact  to  the  States.  If  the  States  may  tax  one  instrument  employed  by  the  gov- 
ernment in  the  execution  of  its  powers,  they  may  tax  any  and  every  other  instru- 
ment. They  may  tax  the  mail ;  they  may  tax  the  mint ;  they  may  tax  patent 
rights ;  they  may  tax  the  papers  of  the  custom-house ;  they  may  tax  judicial 
process ;  they  may  tax  all  the  means  employed  by  the  government  to  an  excess 
which  would  defeat  all  the  ends  of  government.  This  was  not  intended  by  the 
American  people.  They  did  not  design  to  make  their  government  dependent  on 
the  States."  In  Veazie  Bank  v.  Fenno,  8  Wall.  533,  it  was  held  competent  for 
Congress,  in  aid  of  the  circulation  of  the  national  banks,  to  impose  restraints 
upon  the  circulation  of  the  State  banks  in  the  form  of  taxation.  Perhaps  no 
other  case  goes  so  far  as  this,  in  holding  that  taxation  may  be  imposed  for  other 
purposes  than  the  raising  of  revenue,  though  the  levy  of  duties  upon  imports 
with  a  view  to  incidental  protection  to  domestic  manufactures  is  upon  a  similar 
principle. 

1  McCulloch  v.  Maryland,  4  Wheat.  316 ;  Osborn  v.  United  States  Bank,  9 
Wheat.  738 ;  Dobbins  v.  Commissioners  of  Erie  Co.,  16  Pet.  435.  But  the  doc- 
trine which  exempts  the  instrumentalities  of  the  general  government  from  the 
influence  of  State  taxation,  being  founded  on  the  implied  necessity  for  the  use  of 
such  instruments  by  the  government,  such  legislation  as  does  not  impair  the  use- 
fulness or  capability  of  such  instruments  to  serve  the  government,  is  not  within 
the  rule  of  prohibition.  National  Bank  v.  Commonwealth,  9  Wall.  353  ;  Thomp- 
son v.  Pacific  R.R.  Co.,  ib.  579. 

s  Dobbins  v.  Commissioners  of  Erie  Co.,  16  Pet.  435. 

[  564  ] 


CH.  XIV.]  THE   POWER   OP   TAXATION.  *  482 

tending  to  cripple  and  embarrass  the  national  power.1  The  tax 
upon  the  national  securities  is  a  tax  upon  the  exercise  of  the 
power  of  Congress  "  to  borrow  money  on  the  credit  of  the  United 
States."  The  exercise  of  this  power  is  interfered  with  to  the 
extent  of  the  tax  imposed  under  State  authority,  and  the  liability 
of  the  certificates  of  stock  or  other  securities  to  taxation  by  a 
State,  in  the  hands  of  individuals,  would  necessarily  affect  their 
value  in  market,  and  therefore  affect  the  free  and  unrestrained 
exercise  of  the  power.  ';  If  the  right  to  impose  a  tax  exists,  it  is 
a  right  which,  in  its  nature,  acknowledges  no  limits.  It  may  be 
carried  to  any  extent  within  the  jurisdiction  of  the  State  or  corpo- 
ration which  imposes  it,  which  the  will  of  such  State  or  corporation 
may  prescribe." 2 

*If  the  States  cannot  tax  the  means  by  which  the  [*483] 
national  government  performs  its  functions,  neither,  on 
the  other  hand,  and  for  the  same  reasons,  can  the  latter  tax  the 
agencies  of  the  state  governments.  "  The  same  supreme  power 
which  established  the  departments  of  the  general  government 
determined  that  the  local  governments  should  also  exist  for  their 
own  purposes,  and  made  it  impossible  to  protect  the  people  in 
their  common  interests  without  them.  Each  of  these  several 
agencies  is  confined  to  its  own  sphere,  and  all  are  strictly  subor- 
dinate to  the  constitution  which  limits  them,  and  independent  of 
other  agencies,  except  as  thereby  made  dependent.  There  is 
nothing  in  the  Constitution  [of  the  United  States]  which  can  be 

!  Weston  v.  Charleston,  2  Pet.  449 ;  Bank  of  Commerce  v.  New  York  City,  2 
Black,  620 ;  Bank  Tax  Case,  2  Wall.  200 ;  Van  Allen  v.  Assessors,  3  Wall.  573 ; 
People  v.  Commissioners,  4  Wall.  244 ;  Bradley  v.  People,  ib.  459  ;  The  Banks  v. 
The  Mayor,  7  Wall.  16  ;  Bank  v.  Supervisors,  ib.  26.  For  a  kindred  doctrine, 
see  State  v.  Jackson,  33  N.  J.  450. 

2  Weston  v.  Charleston,  4  Pet.  449 ;  Bank  of  Commerce  v.  New  York  City,  2 
Black,  631.  This  principle  is  unquestionably  sound,  but  a  great  deal  of  difficulty 
has  been  experienced  in  consequence  of  it,  under  the  law  of  Congress  establishing 
the  National  Banking  System,  which  undertakes  to  subject  the  National  Banks 
to  State  taxation,  but  at  the  same  time  to  guard  those  institutions  against  unjust 
discriminations,  by  providing  that  their  shares  shall  only  be  taxed  at  the  place 
where  the  bank  is  located,  and  in  the  same  manner  as  shares  in  the  State  banks 
are  taxed.  The  difficulty  is  in  harmonizing  the  State  and  national  laws  on  the 
subject,  and  it  will  be  illustrated  in  a  measure  by  some  of  the  cases  above  cited ; 
though  the  full  extent  of  the  difficulty  is  only  perceived  in  other  cases  where  the 
taxation  of  State  banks  is  fixed  by  constitutional  provisions,  which  provide  modes 
that  cannot  be  harmonized  at  all  with  the  law  of  Congress. 

[565] 


*  483  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

made  to  admit  of  any  interference  by  Congress  with  the  secure 
existence  of  any  State  authority  within  its  lawful  bounds.  And 
any  such  interference  by  the  indirect  means  of  taxation  is  quite 
as  much  beyond  the  power  of  the  national  legislature  as  if  the 
interference  were  direct  and  extreme."  1  It  has  therefore  been 
held  that  the  law  of  Congress  requiring  judicial  process  to  be 
stamped  could  not  constitutionally  be  applied  to  the  process  of 
the  State  courts;  since  otherwise  Congress  might  impose  such 
restrictions  upon  the  State  courts  as  would  put  an  end  to  their 
effective  action,  and  be  equivalent  practically  to  abolishing  them 
altogether.2     And  a  similar  ruling  has  been  made  in  other  cases. 

1  Fifield  v.  Close,  15  Mich.  509.  "In  respect  to  the  reserved  powers,  the 
State  is  as  sovereign  and  independent  as  the  general  government.  And  if  the 
means  and  instrumentalities  employed  by  that  government  to  carry  into  operation 
the  powers  granted  to  it  are  necessarily,  and  for  the  sake  of  self-preservation, 
exempt  from  taxation  by  the  States,  why  are  not  those  of  the  States  depending 
upon  their  reserved  powers,  for  like  reasons,  equally  exempt  from  Federal  tax- 
ation ?  Their  unimpaired  existence  in  the  one  case  is  as  essential  as  in  the  other. 
It  is  admitted  that  there  is  no  express  provision  in  the  Constitution  that  prohibits 
the  general  government  from  taxing  the  means  and  instrumentalities  of  the  States. 
nor  is  there  any  prohibiting  the  States  from  taxing  the  means  and  instrumentalities 
of  that  government.  In  both  cases  the  exemption  rests  upon  necessary  implication, 
and  is  upheld  by  the  great  law  of  self-preservation ;  as  any  government,  whose 
means  employed  in  conducting  its  operations,  if  subject  to  the  control  of  another 
and  distinct  government,  can  only  exist  at  the  mercy  of  that  government.  Of  what 
avail  are  these  means  if  another  power  may  tax  them  at  discretion  ?  "  Per  Nelson, 
J.,  in  Collector  v.  Day,  11  Wall.  124. 

*  Warren  v.  Paul,  22  Ind.  279  ;  Jones  v.  Estate  of  Keep,  19  Wis.  369  ;  Fifield 
v.  Close,  15  Mich.  505 ;  Union  Bank  v.  Hill,  3  Cold.  (Tenn.)  325 ;  Smith  v. 
Short,  40  Ala.  796.  "State  governments,"  it  is  said  in  the  Indiana  case, 
"  are  to  exist  with  judicial  tribunals  of  their  own.  This  is  manifest  all  the  way 
through  the  Constitution.  This  being  so,  these  tribunals  must  not  be  subject  to  be 
encroached  upon  or  controlled  by  Congress.  This  would  be  incompatible  with 
their  free  existence.  It  was  held,  when  Congress  created  a  United  States  Bank, 
and  is  now  decided,  when  the  United  States  has  given  bonds  for  borrowed  money, 
that  as  Congress  had  rights  to  create  such  fiscal  agents,  and  issue  such  bonds,  it 
would  be  incompatible  with  the  full  and  free  enjoyment  of  those  rights  to  allow 
that  the  States  might  tax  the  bank  or  bonds  ;  because,  if  the  right  to  so  tax  them 
was  conceded,  the  States  might  exercise  the  right  to  the  destruction  of  congres- 
sional power.  The  argument  applies  with  full  force  to  the  exemption  of  State 
governments  from  Federal  legislative  interference. 

"There  must  be  some  limit  to  the  power  of  Congress  to  lay  stamp  taxes. 
Suppose  a  State  to  form  a  new,  or  to  amend  her  existing  constitution ;  could 
Congress  declare  that  it  should  be  void,  unless  stamped  with  a  Federal  stamp  ? 
Can  Congress  require  State  legislatures  to  stamp  their  bills,  journals,  laws,  &c. 

[566] 


CH.  XIV.]  THE   POWER   OF   TAXATION.  *  484 

*  Strong  as  is  the  language  employed  to  characterize  the  [*  484] 
taxing  power  in  some  of  the  cases  which  have  considered 

in  order  that  they  shall  be  valid  ?  Can  it  require  the  executive  to  stamp  all 
commissions  ?  If  so,  where  is  he  to  get  the  money  ?  Can  Congress  compel  the 
State  legislatures  to  appropriate  it  ?  Can  Congress  thus  subjugate  a  State  by 
legislation?  We  think  this  will  scarcely  be  pretended.  Where,  then,  is  the  line 
of  dividing  power  in  this  particular  ?  Could  Congress  require  voters  in  State 
and  corporation  elections  to  stamp  their  tickets  to  render  them  valid  ?  Under 
the  old  Confederation,  Congress  legislated  upon  States,  not  upon  the  citizens 
of  the  State.  The  most  important  change  wrought  in  the  government  by  the 
Constitution  was  that  legislation  operated  upon  the  citizens  directly,  enforced  by 
Federal  tribunals  and  agencies,  not  upon  the  States.  Another  established  con- 
stitutional principle  is,  that  the  government  of  the  United  States,  while  sovereign 
within  its  sphere,  is  still  limited  in  jurisdiction  and  power  to  certain  specified 
subjects.  Taking  these  three  propositions  then  as  true,  —  1.  States  are  to  exist 
with  independent  powers  and  institutions  within  their  spheres  ;  2.  The  Federal 
government  is  to  exist  with  independent  powers  and  institutions  within  its  sphere  ; 
3.  The  Federal  government  operates  within  its  sphere  upon  the  people  in  their 
individual  capacities,  as  citizens  and  subjects  of  that  government,  within  its 
sphere  of  power,  and  upon  its  own  officers  and  institutions  as  a  part  of  itself,  — 
taking  these  propositions  as  true,  we  say,  it  seems  to  result  as  necessary  to  har- 
mony of  operation  between  the  Federal  and  State  governments,  that  the  Federal 
government  must  be  limited,  in  its  right  to  lay  and  collect  stamp  taxes,  to  the 
citizens  and  their  transactions  as  such,  or  as  acting  in  the  Federal  government, 
officially  or  otherwise ;  and  cannot  be  laid  upon  and  collected  from  individuals 
or  their  proceedings  when  acting,  not  as  citizens  transacting  business  with  each 
other  as  such,  but  officially  or  in  the  pursuit  of  rights  and  duties  in  and  through 
State  official  agencies  and  institutions.  When  thus  acting,  they  are  not  acting 
under  the  jurisdiction  nor  within  the  power  of  the  United  States ;  not  acting  as 
subjects  of  that  government,  not  within  its  sphere  of  power  over  them ;  and 
neither  they  nor  their  proceedings  are  subject  to  interference  from  the  United 
States.  Can  Congress  regulate  or  prescribe  the  taxation  of  costs  in  a  State 
court?  The  Federal  government  may  tax  the  governor  of  a  State,  or  the 
clerk  of  a  State  court,  and  his  transactions  as  an  individual,  but  not  as  a  State 
officer.  This  must  be  so,  or  the  State  may  be  annihilated  at  the  pleasure  of 
the  Federal  government.  The  Federal  government  may  perhaps  take  by  tax- 
ation most  of  the  property  in  a  State,  if  exigencies  require ;  but  it  has  not  a 
right,  by  direct  or  indirect  means,  to  annihilate  the  functions  of  the  State  gov- 
ernment." 

The  case  of  Hoyt  v.  Benner,  22  La.  Am.  353,  is  opposed  to  those  above 
cited  as  to  the  power  of  the  government  to  tax  the  process  of  State  courts, 
but  the  soundness  of  those  decisions  was  really  conceded  by  Congress  in  repeal- 
ing the  provision  of  law  that  provided  for  the  tax,  and  was  recognized  by  Judge 
Clifford,  in  Day  v.  Buffington,  Am.  Law  Rev.,  Oct.,  1870,  p.  176. 

It  has  been  repeatedly  decided  that  the  act  of  Congress  which  provided  that 
certain  papers  not  stamped  should  not  be  received  in  evidence  must  be  limited  in 

[567] 


*  484  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

this  subject,  subsequent  events  have  demonstrated  that  it  was  by- 
no  means  extravagant.  An  enormous  national  debt  has 
[*  485]  not  only  made  *  imposts  necessary  which  in  some  cases 
reach  several  hundred  per  cent  of  the  original  cost  of  the 
articles  upon  which  they  are  imposed,  but  the  systems  of  State 
banking  which  were  in  force  when  the  necessity  for  contracting 
that  debt  first  arose  have  been  literally  taxed  out  of  existence  by 
burdens  avowedly  imposed  for  that  very  purpose.1  If  taxation  is 
thus  unlimited  in  its  operation  upon  the  objects  within  its  reach,  it 
cannot  be  extravagant  to  say  that  the  agencies  of  government  are 
necessarily  excepted  from  it,  since  otherwise  its  exercise  might 
altogether  destroy  the  government  through  the  destruction  of  its 
agencies.  That  which  was  predicted  as  a  possible  event  has  been 
demonstrated  by  actual  facts  to  be  within  the  compass  of  the 
power  ;  and  if  considerations  of  policy  were  important,  it  might 
be  added  that,  if  the  States  possessed  the  authority  to  tax  the 
agencies  of  the  national  government,  they  would  hold  within  their 

its  operation  to  the  Federal  courts.  Carpenter  v.  Snelling,  97  Mass.  452  ;  Green 
v.  Holway,  101  Mass.  250  ;  s.  c.  3  Am.  Rep.  339  ;  Clemens  v.  Conrad,  19  Mich. 
170 ;  Haight  v.  Grist,  64  N.  C.  739 ;  Griffin  v.  Ranney,  35  Conn.  239  ;  People  v. 
Gates,  43  N.  Y.  40;  Bowen  v.  Byrne,  55  111.  467;  Hale  v.  Wilkinson,  21  Grat. 
75 ;  Atkins  v.  Plympton,  44  Vt.  21 ;  Bumpas  v.  Taggart,  26  Ark.  398 ;  s.  c.  7 
Am.  Rep.  623;  Sammons  v.  Holloway,  21  Mich.  162;  s.  c.  4  Am.  Rep.  465; 
Duffy  v.  Hobson,  40  Cal.  240 ;  Sporrer  v.  Eifler,  1  Heisk.  633 ;  McElvain  v. 
Mudd,  44  Ala.  48 ;  s.  c.  4  Am.  Rep.  106 ;  Burnson  v.  Huntington,  21  Mich.  415 ; 
s.  c.  4  Am.  Rep.  497 ;  Davis  v.  Richardson,  45  Miss.  499 ;  s.  c.  7  Am.  Rep. 
732;  Hunter  v.  Cobb,-6  Bush,  239;  Craig  v.  Dimmock,  47  111.  308;  Moore  v. 
Moore,  47  N.  Y.  467 ;  s.  c.  7  Am.  Rep.  466.  Several  of  these  cases  have  gone 
still  farther,  and  declared  that  Congress  cannot  preclude  parties  from  entering 
into  contracts  permitted  by  the  State  laws,  and  that  to  declare  them  void  was  not 
a  proper  penalty  for  the  enforcement  of  tax  laws.  Congress  cannot  make  void  a 
tax  deed  issued  by  a  State.  Sayles  v.  Davis,  22  Wis.  225.  Nor  require  a  stamp 
upon  the  official  bonds  of  State  officers.  State  v.  Garton,  32  Ind.  1.  Nor  tax  the 
salary  of  a  State  officer.  Day  v.  Buffington,  Am.  Law  Rev.  Oct.  1870,  176  ; 
s.  c.  in  error,  11  Wall.  113 ;  Freedman  v.  Sigel,  10  Blatch.  327.  Nor  forbid  the 
recording  of  an  unstamped  instrument  under  the  State  laws.  Moore  v.  Quirk, 
105  Mass.  49;  s.  c.  7  Am.  Rep.  499.  "Power  to  tax  for  State  purposes  is  as 
much  an  exclusive  power  in  the  States,  as  the  power  to  lay  and  collect  taxes  to 
pay  the  debts  and  provide  for  the  common  defence  and  general  welfare  of  the 
United  States  is  an  exclusive  power  in  Congress."  Clifford,  J.,  Ward  v.  Mary- 
land, 12  Wall.  427. 

1  The  constitutionality  of  this  taxation  was  sustained  by  a  divided  court  in 
Veazie  Bank  v.  Fenno,  8  Wall.  533. 

[568] 


CH.  XIV.]  THE   POWER   OF   TAXATION.  *  485 

hands  a  constitutional  weapon  which  factious  and  disappointed 
parties  would  be  able  to  wield  with  terrible  effect  when  the  policy 
of  the  national  government  did  not  accord  with  their  views ;  while, 
on  the  other  hand,  if  the  national  government  possessed  a  corre- 
sponding power  over  the  agencies  of  the  State  governments,  there 
would  not  be  wanting  men  who,  in  times  of  strong  party  excite- 
ment, would  be  willing  and  eager  to  resort  to  this  power  as  a 
means  of  coercing  the  States  in  their  legislation  upon  the  subjects 
remaining  under  their  control. 

There  are  other  subjects  which  are  or  may  be  removed  from  the 
sphere  of  State  taxation  by  force  of  the  Constitution  of  the  United 
States,  or  of  the  legislation  of  Congress  under  it.  That  instru- 
ment declares  that  "  no  State  shall,  without  the  consent  of  Con- 
gress, lay  any  imposts  or  duties  on  imports  or  exports,  except  what 
may  be  absolutely  necessary  for  executing  its  inspection  laws." 
This  prohibition  has  led  to  some  difficulty  in  its  practical  applica- 
tion. Imports,  as  such,  are  not  to  be  taxed  generally,  but  it  was 
not  the  purpose  of  the  Constitution  to  exclude  permanently  from 
the  sphere  of  State  taxation  all  property  brought  into  the  country 
from  abroad  ;  and  the  difficulty  met  with  has  been  in  indicating 
with  sufficient  accuracy  for  practical  purposes  the  point  of  time  at 
which  articles  imported  cease  to  be  regarded  as  imports  within  the 
meaning  of  the  prohibition.  In  general  terms  it  has  been  said 
that  when  the  importer  has  so  acted  upon  the  thing  imported 
that  it  has  become  incorporated  and  mixed  up  with  the  mass  of 
property  in  the  country,  it  has  perhaps  lost  its  distinctive  character 
as  an  import,  and  has  become  subject  to  the  taxing  power  of  the 
State  ;  but  that  while  remaining  the  property  of  the  importer,  in 
his  warehouse,  in  the  original  form  or  package  in  which  it 
was  *  imported,  a  tax  upon  it  is  too  plainly  a  duty  on  im-  [*  486] 
ports  to  escape  the  prohibition  in  the  Constitution.1  And 
in  the  application  of  this  rule  it  was  declared  that  a  State  law 
which,  for  revenue  purposes,  required  an  importer  to  take  a  license 
and  pay  fifty  dollars  before  he  should  be  permitted  to  sell  a  pack- 
age of  imported  goods,  was  equivalent  to  laying  a  duty  upon 
imports.  It  has  also  been  held  in  another  case,  that  a  stamp  duty 
imposed  by  the  legislature  of,  California  upon  bills  of  lading  for 
gold  or  silver,  transported  from  that  State  to  any  port  or  place  out 

1  Brown  v.  Maryland,  12  Wheat.  441,  per  Marshall,  Ch.  J. 

[569] 


*  486  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

of  the  State,  was  in  effect  a  tax  upon  exports,  and  the  law  was 
consequently  void.1 

Congress  also  is  vested  with  power  to  regulate  commerce  ;  but 
this  power  is  not  so  far  exclusive  as  to  prevent  regulations  by  the 
States  also,  when  they  do  not  conflict  with  those  established  by 
Congress.2  The  States  may  unquestionably  tax  the  subjects  of 
commerce ;  and  no  necessary  conflict  with  that  complete  control 
which  is  vested  in  Congress  appears  until  the  power  is  so  exercised  . 
as  to  defeat  or  embarrass  the  congressional  legislation.  Where 
Congress  has  not  acted  at  all  upon  the  subject,  the  State  taxation 
cannot  be  invalid  on  this  ground  ;  but  when  national  regulations 
exist,  under  which  rights  are  established  or  privileges  given,  the 
State  can  impose  no  burdens  which  shall  in  effect  make  the  enjoy- 
ment of  those  rights  and  privileges  contingent  upon  the  payment 
of  tribute  to  the  State.3 

It  is  also  believed  that  that  provision  in  the  Constitu- 
te* 487]  tion  of  the  *  United  States,  which  declares  that  "  the 
citizens  of  each  State  shall  be  entitled  to  all  the  privileges 
and  immunities  of  the  citizens  of  the  several  States,"  4  will  pre- 
clude any  State  from  imposing  upon  the  property  within  its  limits 
belonging  to  citizens  of  other  States  any  higher  burdens  by  way  of 
taxation  than  are  imposed  upon  the  like  property  of  its  own  citi- 
zens.     This  is  the  express  decision  of  the   Supreme  Court  of 

1  Almy  v.  People,  24  How.  169.     See  also  Bruraagim  v.  Tillinghast,  18  Cal. 
265  ;  Garrison  v.  Tillinghast,  ib.  404. 

2  Cooley  v.  Board  of  Wardens,  12  How.  299.     See  also  Wilson  v.  Blackbird 
Creek  Marsh  Co.,  2  Pet.  245. 

3  In  Brown  v.  Maryland,  12  Wheat.  141,  it  was  held  that  a  license  fee  of  fifty 
dollars,  required  by  the  State  of  an  importer  before  he  should  be  permitted  to 
sell  imported  goods,  was  unconstitutional,  as  coming  directly  in  conflict  with  the 
regulations  of  Congress  over  commerce.  For  further  discussion  of  this  subject, 
see  New  York  v.  Miln,  11  Pet.  102;  License  Cases,  5  How.  504;  Lin  Sing  v. 
Washburn,  20  Cal.  534;  Erie  Railway  Co.  v.  New  Jersey,  2  Vroom,  531,  revers- 
ing same  case  in  1  Vroom ;  Pennsylvania  R.R.  Co.  v.  Commonwealth,  3  Grant, 
128;  Hinsen  v.  Lott,  40  Vt.  133;  Commonwealth  v.  Erie  R.R.,  62  Penn.  St. 
286;  Osborn  v.  Mobile,  44  Ala.  493;  Wolcott  v.  People,  17  Mich.  68.  In 
Crandall  v.  Nevada,  6  Wall.  35,  it  was  held  that  a  State  law  imposing  a  tax  of 
one  dollar  on  each  person  leaving  the  State  by  public  conveyance  was  not  void  as 
coming  in  conflict  with  the  control  of  Congress  over  commerce,  though  set  aside 
on  other  grounds.  This  general  subject  underwent  some  discussion  in  the  recent 
case  of  Ward  v.  Maryland,  12  Wall.  418  ;  and  also  in  Case  of  State  Freight  Tax, 
15  Wall.  232,  and  Case  of  tax  on  Railway  Gross  Receipts,  15  Wall.  284. 

*  Art.  4,  §  2. 

[570] 


CH.  XIV.]  THE   POWER   OF   TAXATION.  *  487 

Alabama,1  following  in  this  particular  the  dictum  of  an  eminent 
Federal  judge  at  an  early  day,2  and  the  same  doctrine  has  been 
recently  affirmed  by  the  Federal  Supreme  Court.3 

Having  thus  indicated  the  extent  of  the  taxing  power,  it  is  neces- 
sary to  add  that  certain  elements  are  essential  in  all  taxation,  and 
that  it  will  not  follow  as  of  course,  because  the  power  is  so  vast, 
that  every  thing  which  may  be  done  under  pretence  of  its  exercise 
will  leave  the  citizen  without  redress,  even  though  there  be  no  con- 
flict with  express  constitutional  inhibitions.  Every  thing  that  may 
be  done  under  the  name  of  taxation  is  not  necessarily  a  tax  ;  and 
it  may  happen  that  an  oppressive  burden  imposed  by  the  govern- 
ment, when  it  comes  to  be  carefully  scrutinized,  will  prove,  instead 
of  a  tax,  to  be  an  unlawful  confiscation  of  property,  unwarranted 
by  any  principle  of  constitutional  government. 

In  the  first  place,  taxation  having  for  its  only  legitimate  object 
the  raising  of  money  for  public  purposes  and  the  proper  needs  of 
government,  the  exaction  of  moneys  from  the  citizens  for  other 
purposes  is  not  a  proper  exercise  of  this  power,  and  must  therefore 
be  unauthorized.  In  this  place,  however,  we  do  not  use  the  word 
public  in  any  narrow  and  restricted  sense,  nor  do  we  mean  to  be 
understood  that  whenever  the  legislature  shall  overstep  the  legit- 
imate bounds  of  their  authority,  the  case  will  be  such  that  the 
courts  can  interfere  to  arrest  their  action.  There  are  many  cases 
of  unconstitutional  action  by  the  representatives  of  the  people 
which  can  be  reached  only  through  the  ballot-box ;  and  there  are 
other  cases  where  the  line  of  distinction  between  that  which  is 
allowable  and  that  which  is  not  is  so  faint  and  shadowy  that  the 
decision  of  the  legislature  must  be  accepted  as  final,  even  though 
the  judicial  opinion  might  be  different.  But  there  are  still 
other  cases  where  *it  is  entirely  possible  for  the  legisla-  [*  488] 
ture  so  clearly  to  exceed  the  bounds  of  due  authority  that 
we  cannot  doubt  the  right  of  the  courts  to  interfere  and  check 
what  can  only  be  looked  upon  as  ruthless  extortion,  provided  the 
nature  of  the  case  is  such  that  judicial  process  can  afford  relief. 

1  Wiley  v.  Parmer,  14  Ala.  627. 

*  Washington,  J.,  in  Corfield  v.  Coryell,  4  Wash.  C.  C.  380.  And  see  Camp- 
bell v.  Morris,  3  H.  &  McH.  554 ;  Ward  v.  Morris,  4  H.  &  McH.  340  ;  and  other 
cases  cited,  ante,  p.  16,  note.    See  also  Oliver  v.  Washington  Mills,  11  Allen,  268. 

3  Ward  v.  Maryland,  12  Wall.  430.  Case  of  State  Tax  on  foreign  held  bonds, 
15  Wall.  300. 

[571] 


*  488  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

An  unlimited  power  to  make  any  and  every  thing  lawful  which  the 
legislature  might  see  fit  to  call  taxation,  would  be,  when  plainly 
stated,  an  unlimited  power  to  plunder  the  citizen.1 

It  must  always  be  conceded  that  the  proper  authority  to  deter- 
mine what  should  and  what  should  not  properly  constitute  a  public 
burden  is  the  legislative  department  of  the  State.  This  is  not  only 
true  for  the  State  at  large,  but  it  is  true  also  in  respect  to  each 
municipality  or  political  division  of  the  State ;  these  inferior  cor- 
porate existences  having  only  such  authority  in  this  regard  as  the 
legislature  shall  confer  upon  them.2  And  in  determining  this 
question,  the  legislature  cannot  be  held  to  any  narrow  or  technical 
rule.  Certain  expenditures  are  not  only  absolutely  necessary  to 
the  continued  existence  of  the  government,  but  as  a  matter  of 
policy  it  may  sometimes  be  proper  and  wise  to  assume  other  bur- 
dens which  rest  entirely  on  considerations  of  honor,  gratitude,  or 
charity.  The  officers  of  government  must  be  paid,  the  laws  print- 
ed, roads  constructed,  and  public  buildings  erected ;  but  with  a 
view  to  the  general  well-being  of  society,  it  may  also  be  important 
that  the  children  of  the  State  should  be  educated,  the  poor  kept 
from  starvation,  losses  in  the  public  service  indemnified,  and  incen- 
tives held  out  to  faithful  and  fearless  discharge  of  duty  in  the 
future,  by  the  payment  of  pensions  to  those  who  have  been  faithful 
public  servants  in  the  past.  There  will  therefore  be  necessary 
expenditures,  and  expenditures  which  rest  upon  considerations  of 
policy  alone ;  and  in  regard  to  the  one  as  much  as  to  the  other, 
the  decision  of  that  department  to  which  alone  questions  of  State 
policy  are  addressed  must  be  accepted  as  conclusive. 

Very  strong  language  has  been  used  by  the  courts,  in  some  of 

1  Tyson  v.  School  Directors,  51  Penn.  St.  9  ;  Morford  v.  Unger,  8  Iowa,  92 ; 
Talbot  v.  Hudson,  16  Gray,  421 ;  Hansen  v.  Vernon,  27  Iowa,  28  ;  Allen  v.  Jay, 
60  Me.  139;  Ferguson  v.  Landraw,  5  Bush,  230;  People  v.  Township  Board  of 
Salem,  21  Mich.  459 ;  Washington  Avenue,  69  Penn.  St.  353 ;  s.  c.  8  Am.  Rep. 
255.  "  It  is  the  clear  right  of  every  citizen  to  insist  that  no  unlawful  or  unauthor- 
ized exaction  shall  be  made  upon  him  under  the  guise  of  taxation.  If  any  such 
illegal  encroachment  is  attempted,  he  can  always  invoke  the  aid  of  the  judicial 
tribunals  for  his  protection,  and  prevent  his  money  or  other  property  from  being 
taken  and  appropriated  for  a  purpose  and  in  a  manner  not  authorized  by  the  Con- 
stitution and  laws."  Per  Biyelow,  Ch.  J.,  in  Freeland  v.  Hastings,  10  Allen,  575. 
See  Hooper  v.  Emery,  14  Me.  379  ;  People  v.  Suprs.  of  Saginaw,  26  Mich.  22. 

*  Litchfield  v.  Vernon,  41  N.  Y.  123.  See  ante,  p.  230,  and  cases  cited  in 
note  to  p.  489. 

[572] 


CH.  XIV.]  THE   POWER   OF   TAXATION.  *  488 

the  cases  on  this  subject.     In  a  case  where  was  questioned 
the  *  validity  of  the  State  law  confirming  township  action  [*  489] 
which  granted  gratuities  to  persons  enlisting  in  the  mili- 
tary service  of  the  United  States,  the  Supreme  Court  of  Connec- 
ticut assigned  the  following  reasons  in  its  favor :  — 

"  In  the  first  place,  if  it  be  conceded  that  it  is  not  competent  for 
the  legislative  power  to  make  a  gift  of  the  common  property,  or  of 
a  sum  of  money  to  be  raised  by  taxation,  where  no  possible  public 
benefit,  direct  or  indirect,  can  be  derived  therefrom,  such  exercise 
of  the  legislative  power  must  be  of  an  extraordinary  character 
to  justify  the  interference  of  the  judiciary ;  and  this  is  not  that 
case. 

"  Second.  If  there  be  the  least  possibility  that  making  the  gift 
will  be  promotive  in  any  degree  of  the  public  welfare,  it  becomes  a 
question  of  policy,  and  not  of  natural  justice,  and  the  determination 
of  the  legislature  is  conclusive.  And  such  is  this  case.  Such  gifts 
to  unfortunate  classes  of  society,  as  the  indigent  blind,  the  deaf 
and  dumb,  or  insane,  or  grants  to  particular  colleges  or  schools,  or 
grants  of  pensions,  swords,  or  other  mementos  for  past  services, 
involving  the  general  good  indirectly  and  in  slight  degree,  are  fre- 
quently made  and  never  questioned. 

"  Third.  The  government  of  the  United  States  was  constituted 
by  the  people  of  the  State,  although  acting  in  concert  with  the 
people  of  the  other  States,  and  the  general  good  of  the  people  of 
this  State  is  involved  in  the  maintenance  of  that  general  govern- 
ment. In  many  conceivable  ways  the  action  of  the  town  might 
not  only  mitigate  the  burdens  imposed  upon  a  class,  but  render  the 
service  of  that  class  more  efficient  to  the  general  government,  and 
therefore  it  must  be  presumed  that  the  legislature  found  that  the 
public  good  would  be  thereby  promoted. 

"  And  fourth.  It  is  obviously  possible,  and  therefore  to  be 
intended,  that  the  General  Assembly  found  a  clear  equity  to  justify 
their  action." 1 

1  Booth  v.  Woodbury,  32  Conn.  128.  See  to  the  same  effect  Speer  v.  School 
Directors  of  Blairville,  50  Penn.  St.  150.  The  legislature  is  not  obliged  to  con- 
sult the  will  of  the  people  concerned  in  ordering  the  levy  of  local  assessments 
for  the  public  purposes  of  the  local  government.  Cheaney  v.  Hooser,  9  B.  Monr. 
350;  Slack  v.  Maysville,  &c,  R.R.  Co.,  13  B.  Monr.  26;  Cypress  Pond  Drain- 
ing Co.  v.  Hooper,  2  Met.  (Ky.)  353.  Compare  People  v.  Common  Council  of 
Detroit,  27  Mich. 

[573] 


*  489  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

And  the  Supreme  Court  of  Wisconsin  has  said :  "  To  justify  the 
court  in  arresting  the  proceedings  and  in  declaring  the  tax  void, 
the  absence  of  all  possible  public  interest  in  the  purposes  for  which 
the  funds  are  raised  must  be  clear  and  palpable  ;  so  clear  and  pal- 
pable as  to  be  perceptible  by  every  mind  at  the  first  blush.  .  .  It  is 
not  denied  that  claims  founded  in  equity  and  justice,  in  the 
[*  490]  *  largest  sense  of  those  terms,  or  in  gratitude  or  charity,  will 
support  a  tax.    Such  is  the  language  of  the  authorities."  1 

But  we  think  it  clear  in  the  words  of  the  Supreme  Court  of 
Wisconsin,  that  "  the  legislature  cannot  ...  in  the  form  of  a  tax 
take  the  money  of  the  citizen  and  give  to  an  individual,  the  public 
interest  or  welfare  being  in  no  way  connected  with  the  transaction. 
The  objects  for  which  money  is  raised  by  taxation  must  be  public, 
and  such  as  subserve  the  common  interest  and  well-being  of  the 
community  required  to  contribute."  2  Or,  as  stated  by  the  Supreme 
Court  of  Pennsylvania,  "  the  legislature  has  no  constitutional  right 
to  .  .  .  levy  a  tax,  or  to  authorize  any  municipal  corporation  to 
do  it,  in  order  to  raise  funds  for  a  mere  private  purpose.  No  such 
authority  passed  to  the  assembly  by  the  general  grant  of  the  legis- 
lative power.  This  would  not  be  legislation.  Taxation  is  a  mode 
of  raising  revenue  for  public  purposes.  When  it  is  prostituted  to 
objects  in  no  way  connected  with  the  public  interest  or  welfare,  it 
ceases  to  be  taxation  and  becomes  plunder.  Transferring  money 
from  the  owners  of  it  into  the  possession  of  those  who  have  no  title 
to  it,  though  it  be  done  under  the  name  and  form  of  a  tax,  is 
unconstitutional  for  all  the  reasons  which  forbid  the  legislature  to 
usurp  any  other  power  not  granted  to  them."  3  And  by  the  same 
court,  in  a  still  later  case,  where  the  question  was  whether  the 
legislature  could  lawfully  require  a  municipality  to  refund  to  a 
bounty  association  the  sums  which  they  had  advanced  to  relieve 
themselves  from  an  impending  military  conscription,"  such  an  en- 
actment would  not  be  legislation  at  all.  It  would  be  in  the  nature 
of  judicial  action,  it  is  true,  but  wanting  the  justice  of  notice  to 

1  Brodhead  v.  City  of  Milwaukee,  19  Wis.  652;  Mills  v.  Charlton,  29  Wis. 
411;  Spring  v.  Russell,  7  Greenl.  273;  Williams  v.  School  District,  33. 

2  Per  Dixon,  Ch.  J.,  in  Brodhead  v.  Milwaukee,  19  Wis.  652.  See  also 
Lumsden  v.  Cross,  10  Wis.  282  ;  Opinions  of  Judges,  58  Me.  590 ;  Moultou  v. 
Raymond,  GO  Me.  121 ;  post,  494  and  note. 

3  Per  Black,  Ch.  J.,  in  Sharpless  v.  Mayor,  &c.,  21  Penn.  St.  108.  See 
Opinions  of  Judges,  58  Me.  590. 

[574] 


CH.  XIV.]  THE    POWER   OP   TAXATION.  *  490 

parties  to  be  affected  by  the  hearing,  trial,  and  all  that  gives  sanc- 
tion and  force  to  regular  judicial  proceedings  ;  it  would  much  more 
resemble  an  imperial  rescript  than  constitutional  legislation  :  first, 
in  declaring  an  obligation  where  none  was  created  or  previously 
existed  ;  and  next,  in  decreeing  payment,  by  directing  the  money 
or  property  of  the  people  to  be  sequestered  to  make  the  payment. 
The  legislature  can  exercise  no  such  despotic  functions."  : 

1  Tyson  v.  School  Directors  of  Halifax,  51  Perm.  St.  9.  See  also  Grim  v. 
Weisenburg  School  District,  57  Penn.  St.  433.  The  decisions  in  Miller  v. 
Grandy,  13  Mich.  540,  Crowell  v.  Hopkinton,  45  N.  H.  9,  and  Shackford 
v.  Newington,  46  N.  H.  415,  so  far  as  they  hold  that  a  bounty  law  is  not  to  be 
held  to  cover  moneys  before  advanced  by  an  individual  without  any  pledge  of 
the  public  credit,  must  be  held  referable,  we  think,  to  the  same  principle.  We 
are  aware  that  there  are  some  cases,  the  doctrine  of  which  seems  opposed  to 
those  we  have  cited,  but  perhaps  a  careful  examination  will  enable  us  to  harmo- 
nize them  all.  One  of  these  is  Guilford  v.  Supervisors  of  Chenango,  18  Barb. 
615,  and  13  N.  Y.  143.  The  facts  in  that  case  were  as  follows :  Cornell  and 
Clark  were  formerly  commissioners  of  highways  of*  the  town  of  Guilford,  and  as 
such,  by  direction  of  the  voters  of  the  town,  had  sued  the  Butternut  and  Oxford 
Turnpike  Road  Company.  They  were  unsuccessful  in  the  action,  and  were, 
after  a  long  litigation,  obliged  to  pay  costs.  The  town  then  refused  to  reimburse 
them  these  costs.  Cornell  and  Clark  sued  the  town,  and,  after  prosecuting  the 
action  to  the  court  of  last  resoi't,  ascertained  that  they  had  no  legal  remedy. 
They  then  applied  to  the  legislature,  and  procured  an  act  authorizing  the  ques- 
tion of  payment  or  not  by  the  town  to  be  submitted  to  the  voters  at  the  succeed- 
ing town  meeting.  The  voters  decided  that  they  would  not  tax  themselves  for 
any  such  purpose.  Another  application  was  then  made  to  the  legislature,  which 
resulted  in  a  law  authorizing  the  county  judge  of  Chenango  County  to  appoint 
three  commissioners,  whose  duty  it  should  be  to  hear  and  determine  the  amount 
of  costs  and  expenses  incurred  by  Cornell  and  Clark  in  the  prosecution  and 
defence  of  the  suits  mentioned.  It  authorized  the  commissioners  to  make  an 
award,  which  was  to  be  filed  with  the  county  clerk,  and  the  board  of  supervisors 
.were  then  required,  at  their  next  annual  meeting,  to  apportion  the  amount  of 
the  award  upon  the  taxable  property  of  the  town  of  Guilford,  and  provide  for 
its  collection  in  the  same  manner  as  other  taxes  are  collected.  The  validity 
of  this  act  was  affirmed.  It  was  regarded  as  one  of  those  of  which  Denio,  J., 
6ays  "the  statute  book  is  full,  perhaps  too  full,  of  laws  awarding  damages  and 
compensation  of  various  kinds  to  be  paid  by  the  public  to  individuals,  who  had 
failed  to  obtain  what  they  considered  equitably  due  to  them  by  the  decision  of 
administrative  officers  acting  under  the  provisions  of  former  laws.  The  courts 
have  no  power  to  supervise  or  review  the  doings  of  the  legislature  in  such  cases." 
It  is  apparent  that  there  was  a  strong  equitable  claim  upon  the  township  in  this 
case  for  the  reimbursement  of  moneys  expended  by  public  officers  under  the  direc- 
tion of  their  constituents,  and  perhaps  no  principle  of  constitutional  law  was 
violated  by  the  legislature  thus  changing  it  into  a  legal  demand,  and  compelling 

[575] 


*  491  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

[*491]       *The  Supreme  Court  of  Michigan  has  proceeded  upon 
the  same  principle  in  a  recent  case.     The  State  is  forbid- 

its  satisfaction.  Mr.  Sedgwick  criticises  this  act,  and  says  of  it  that  it  "  may  be 
called  taxation,  but  in  truth  it  is  the  reversal  of  a  judicial  decision."  Sedg.  on 
Stat,  and  Const.  Law,  414.  There  are  very  many  claims,  however,  resting  in 
equity,  which  the  courts  would  be  compelled  to  reject,  but  which  it  would  be 
very  proper  for  the  legislature  to  recognize,  and  provide  for  by  taxation.  Brew- 
ster v.  City  of  Syracuse,  19  N.  Y.  116.  Another  case,  perhaps  still  stronger 
than  that  of  Guilford  v.  The  Supervisors,  is  Thomas  v.  Leland,  24  Wend.  65. 
Persons  at  Utica  had  given  bond  to  pay  the  extraordinary  expense  that  would 
be  caused  to  the  State  by  changing  the  junction  of  the  Chenango  Canal  from 
Whitesborough  to  Utica,  and  the  legislature  afterwards  passed  an  act  requiring 
the  amount  to  be  levied  by  a  tax  on  the  real  property  of  the  city  of  Utica. 
The  theory  of  this  act  may  be  stated  thus  :  The  canal  was  a  public  way.  The 
expense  of  constructing  all  public  ways  may  be  properly  charged  on  the  commu- 
nity specially  or  peculiarly  benefited  by  it.  The  city  of  Utica  was  specially  and 
peculiarly  benefited  by  having  the  canal  terminate  there ;  and  as  the  expense  of 
construction  was  thereby  increased,  it  was  proper  and  equitable  that  the  property 
to  be  benefited  should  pay  this  difference,  instead  of  the  State  at  large.  The 
act  was  sustained  by  the  courts,  and  it  was  well  remarked  that  the  fact  that  a 
bond  had  been  before  given  securing  the  same  money  could  not  detract  from  its 
validity.  Whether  this  case  can  stand  with  some  others,  and  especially  with  that 
of  Hampshire  v.  Franklin,  16  Mass.  83,  we  have  elsewhere  expressed  a  doubt, 
and  it  must  be  conceded  that,  for  the  legislature  in  any  case  to  compel  a  munici- 
pality to  assume  a  burden,  on  the  ground  of  local  benefit  or  local  obligation, 
against  the  will  of  the  citizens,  is  the  exercise  of  an  arbitrary  power  little  in 
harmony  with  the  general  features  of  our  republican  system,  and  only  to  be  jus- 
tified, if  at  all,  in  extreme  cases.  The  general  idea  of  our  tax  system  is,  that 
those  shall  vote  the  burdens  who  are  to  pay  them ;  and  it  would  be  intolerable 
that  a  central  authority  should  have  power,  not  only  to  tax  localities,  for  local  pur- 
poses of  a  public  character  which  they  did  not  approve,  but  also,  if  it  so  pleased, 
to  compel  them  to  assume  and  discharge  private  claims  not  equitably  chargeable 
upon  them.  See  the  New  York  cases  above  referred  to  criticised  in  State  v. 
Tappan,  29  Wis.  674,  680.  See  also  Shaw  v.  Dennis,  5  Gilm.  416.  The  cases  of 
Cheaney  v.  Hooser,  9  B.  Monr.  330  ;  Sharp's  Ex.  v.  Dunavan,  17  B.  Monr.  223; 
Maltus  v.  Shields,  2  Met.  (Ky.)  553,  will  throw  some  light  on  this  general  sub- 
ject. The  case  of  Cypress  Pond  Draining  Co.  v.  Hooper,  2  Met.  (Ky.)  350,  is 
also  instructive.  The  Cypress  Pond  Draining  Company  was  incorporated  to 
drain  and  keep  drained  the  lands  within  a  specified  boundary,  at  the  cost  of  the 
owners,  and  was  authorized  by  the  act  to  collect  a  tax  on  each  acre,  not  exceed- 
ing twenty-five  cents  per  acre,  for  that  purpose,  for  ten  years,  to  be  collected  by 
the  sheriff.  With  the  money  thus  collected,  the  board  of  managers,  six  in  num- 
ber, named  in  the  act,  was  required  to  drain  certain  creeks  and  ponds  within 
said  boundary.  The  members  of  the  board  owned  in  the  aggregate  3,840  acres, 
the  larger  portion  of  which  was  low  land,  subject  to  inundation,  and  of  little  or 
no  value  in  its  then  condition,  but  which  would  be  rendered  very  valuable  by 

[576] 


Cl!H.  XIV.]  THE   POWER   OF   TAXATION.  *  491 

den  by  the  *  constitution  to  engage  in  works  of  public  im-  [*  492] 
provement,  except  in  the  expenditure  of  grants  or  other 
property  made  to  it  for  this  purpose.  The  State,  with  this  prohibi- 
tion in  force,  entered  into  a  contract  with  a  private  party  for  the 
construction  by  such  party  of  an  improvement  in  the 
Muskegon  River,  for  which  the  State  was  to  pay  *  the  [*  493] 
contractor  fifty  thousand  dollars,  from  the  Internal  Im- 
provement Fund.  The  improvement  was  made,  but  the  State 
officers  declined  to  draw  warrants  for  the  amount,  on  the  ground 
that  the  fund  from  which  payment  was  to  have  been  made  was 
exhausted.  The  State  then  passed  an  act  for  the  levying  of  tolls 
upon  the  property  passing  through  the  improvement  sufficient  to 
pay  the  contract  price  within  five  years.  The  court  held  this  act 
void.  As  the  State  had  no  power  to  construct  or  pay  for  such  a 
work  from  its  general  fund,  and  could  not  constitutionally  have 
agreed  to  pay  the  contractors  from  tolls,  there  was  no  theory  on 
which  the  act  could  be  supported,  except  it  was  that  the  State  had 
misappropriated  the  Internal  Improvement  Fund,  and  therefore 
ought  to  provide  payment  from  some  other  source.  But  if  the 
State  had  misappropriated  the  fund,  the  burden  of  reimbursement 
would  fall  upon  the  State  at  large  ;  it  could  not  lawfully  be  imposed 
upon  a  single  town  or  district,  or  upon  the  commerce  of  a  single 
town  or  district.  The  burden  must  be  borne  by  those  upon  whom 
it  justly  rests,  and  to  recognize  in  the  State  a  power  to  compel 
some  single  district  to  assume  and  discharge  a  State  debt  would 
be  to  recognize  its  power  to  make  an  obnoxious  district  or  an  ob- 
noxious class  bear  the  whole  burden  of  the  State  government.  An 
act  to  that  effect  would  not  be  taxation,  nor  would  it  be  the  exer- 
cise of  any  legitimate  legislative  authority.1 .  And  it  may  be  said 

the  contemplated  draining.  The  corporate  boundary  contained  14,621  acres, 
owned  by  sixty-eight  persons.  Thirty-four  of  these,  owning  5975  acres,  had 
no  agency  in  the  passage  of  the  act,  and  no  notice  of  the  application  therefor, 
gave  no  assent  to  its  provisions,  and  a  very  small  portion  of  their  land,  if  any, 
would  be  benefited  or  improved  in  value  by  the  proposed  draining;  and  they 
resisted  the  collection  of  the  tax.  As  to  these  owners  the  act  of  incorporation 
was  held  unconstitutional  and  inoperative.  See  also  The  City  of  Covington  v. 
Southgate,  15  B.  Monr.  491;  Lovingston  v.  Wider,  53  111.  302;  Curtis  v. 
Whipple,  21  Wis.  350 ;  People  v.  Flagg,  16  N.  Y.  401  ;  People  v.  Bacheller, 
Albany  Law  Journal,  Aug.  23,  1873 ;  People  v.  Common  Council  of  Detroit,  27 
Mich. 

1  Ryerson  v.  Utley,  16  Mich.  269.  See  also  People  v.  Springwells,  25  Mich.  153. 

37  [  577  ] 


*  493  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

of  such  an  act,  that,  so  far  as  it  would  operate  to  make  those  who 
would  pay  the  tolls  pay  more  than  their  proportion  of  the 
[*  494]  State  obligation,  it  *  was  in  effect  taking  their  property  for 
the  private  benefit  of  other  citizens, of  the  State,  and  was 
obnoxious  to  all  the  objections  against  the  appropriation  of  private 
property  for  private  purposes  which  could  exist  in  any  other  case. 
And  the  Supreme  Court  of  Iowa  has  said :  "  If  there  be  such  a 
flagrant  and  palpable  departure  from  equity  in  the  burden  imposed  ; 
if  it  be  imposed  for  the  benefit  of  others,  or  for  purposes  in  which 
those  objecting  have  no  interest,  and  are  therefore  not  bound  to 
contribute,  it  is  no  matter  in  what  form  the  power  is  exercised,  — 
whether  in  the  unequal  levy  of  a  tax,  or  in  the  regulation  of  the 
boundaries  of  the  local  government,  which  results  in  subjecting  the 
party  unjustly  to  local  taxes,  —  it  must  be  regarded  as  coming 
within  the  prohibition  of  the  constitution  designed  to  protect  pri- 

"  Uniformity  in  taxation  implies  equality  in  the  burden  of  taxation."  Bank  v. 
Hines,  3  Ohio,  N.  s.  15.  "  This  equality  in  the  burden  constitutes  the  very  sub- 
stance designed  to  be  secured  by  the  rule."  Weeks  v.  City  of  Milwaukee,  10 
Wis.  258.  See  also  Sanborn  v.  Rice,  9  Minn.  273  ;  State  v.  Haben,  22  Wis.  G60. 
The  reasoning  of  these  cases  seems  not  to  have  been  satisfactory  to  the  New  York 
Court  of  Appeals.  See  Gordon  v.  Cornes,  47  N.  Y.  614,  in  which  an  act  was  sus- 
tained which  authorized  "  and  required"  the  village  of  Brockport  to  levy  a  tax 
for  the  erection  of  a  State  Normal  School  building  at  that  place.  No  recent  case, 
we  think,  has  gone  so  far  as  this.  Compare  State  v.  Tappan,  29  Wis.  674; 
Mayor  of  Mobile  v.  Dargan,  45  Ala.  310.  "  There  can  be  no  doubt  that,  as  a 
general  rule,  where  an  expenditure  is  to  be  made  for  a  public  object,  the  execution 
of  which  will  be  substantially  beneficial  to  every  portion  of  the  Commonwealth 
alike,  and  in  the  benefits  and  advantages  of  which  all  the  people  will  equally 
participate,  if  the  money  is  to  be  raised  by  taxation,  the  assessment  would 
be  deemed  to  come  within  that  class  which  was  laid  to  defray  one  of  the  general 
charges  of  government,  and  ought  therefore  to  be  imposed  as  nearly  as  possible 
with  equality  upon  all  persons  resident  and  estates  lying  within  the  Common- 
wealth. ...  An  assessment  for  such  a  purpose,  if  laid  in  any  other  manner, 
could  not  in  any  just  or  proper  sense  be  regarded  as  '  proportional '  within  the 
meaning  of  the  Constitution."  Merrick  v.  Inhabitants  of  Amherst,  12  Allen,  504, 
per  Bigelow,  Ch.  J.  This  case  holds  that  local  taxation  for  a  State  purpose  may 
be  permitted  in  consideration  of  local  benefits,  and  only  differs  in  principle  from 
Gordon  v.  Cornes,  in  that  the  one  permitted  what  the  other  required.  The  case 
of  Marks  v.  Trustees  of  Pardue  University,  37  Ind.  155,  follows  Merrick  v. 
Amherst.  Taxation  not  levied  according  to  the  principles  upon  which  the  right 
to  tax  is  based,  is  an  unlawful  appropriation  of  private  property  to  public  uses. 
City  of  Covington  v.  Southgate,  15  B.  Monr.  498 ;  People  v.  Township  Board  of 
Salem,  20  Mich.  452 ;  Tide  Water  Co.  v.  Costar,  3  C.  E.  Green,  519 ;  Hammett 
v.  Philadelphia,  65  Penn.  St.  146 ;  s.  c.  3  Am.  Rep.  615. 

[578] 


CH.  XIV.]  THE   POWER   OP   TAXATION.  *  494 

vate  rights  against  oppression  however  made,  and  whether  under 
color  of  recognized  power  or  not."  1 

When,  therefore,  the  legislature  assumes  to  impose  a  pecuniary 
burden  upon  the  citizen  in  the  form  of  a  tax,  two  questions  may 
always  be  raised  :  First,  whether  the  purpose  of  such  burden  may 
properly  be  considered  public  on  any  of  the  grounds  above  indi- 
cated ; 2  and  second,  if  public,  then  whether  the  burden  is  one  which 
should  properly  be  borne  by  the  district  upon  which  it  is  imposed. 
If  either  of  these  questions  is  answered  in  the  negative,  the  legis- 
lature must  be  adjudged  to  have  assumed  an  authority  not  con- 
ferred  in  the  general   grant  of   legislative    power,  and  which  is 
therefore  unconstitutional  and  void.     "  The  power  of  taxation," 
says  an  eminent  writer,  "  is  a  great  governmental  attribute,  with 
which  the  courts  have  very  wisely  shown  extreme  unwillingness  to 
interfere ;   but  if  abused,  the  abuse  should  share  the  fate  of  all 
other  usurpations."  3     In  the  case  of  burdens  thus  assumed  by  the 
legislature  on  behalf  of  the  State,  it  is  not  always  that  a  speedy 
and  safe  remedy  can  be  properly  afforded  in  the  courts.     It  would 
certainly  be  a  very  dangerous  exercise  of  power  for  a  court  to 
attempt  to  stay  the  collection  of  State   taxes  because  an  illegal 
demand  was  included  in  the  levy;  and  indeed,  as  State  taxes  are 
not  usually  levied  for  the  purpose  of  satisfying  specific  demands, 
but  a  gross  sum  is  raised  which  it  is  calculated  will  be  sufficient 
for  the  wants  of  the  year,  the  question  is  not  one  usually  of  the 
unconstitutionality  of  taxation,   but  of  the  misappropriation    of 
moneys  which  have  been  raised  by  taxation.      But  if  the   State 
should  order  a  city,  township,  or  village  to  raise  money  by  taxa- 
tion to  establish  one  of  its  citizens  in  business,  or  for  any  other 
object  equally  removed  from  the  proper  sphere  of  government,  or 
should  undertake    to   impose   the  whole  burden  of  the  govern- 
ment upon  a  fraction  of  the  State,  the  usurpation  of  authority 

1  Morford  v.  Unger,  8  Iowa,  92.     See  Durant  v.  Kauffman,  34  Iowa,  194. 

2  Though  the  legislature  first  decides  that  the  use  is  public,  the  decision  is  not 
conclusive.  They  cannot  make  that  a  public  purpose  which  is  not  so  in  fact. 
Gove  v.  Eppiug,  41  N.  H.  539  ;  Crowell  v.  Hopkinton,  45  N.  H.  9  ;  Freeland  v. 
Hastings,  10  Allen,  570 ;  Hooper  v.  Emery,  14  Me.  379 ;  Allen  v.  Jay,  60  Me. 
124 ;  Tyler  v.  Beacher,  44  Vt.  651  ;  Ferguson  v.  Landraw,  5  Bush,  230 ;  Kelly 
v.  Marshall,  69  Penn.  St.  319 ;  People  v.  Flagg,  46  N.  Y.  401  ;  Curtis  v.  Whip- 
ple, 24  Wis.  350. 

3  Sedgwick  on  Const,  and  Stat.  Law,  414. 

[  579  ] 


*  494  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV,. 

[*  495]   would  not  only  be  *  plain  and  palpable,  but  the  proper 
remedy  would  also  be  plain,  and  no  court  of  competent 
jurisdiction  could  feel  at  liberty  to  decline  to  enforce  the  paramount 
law. 

In  the  second  place,  it  is  of  the  very  essence  of  taxation  that  it 
be  levied  with  equality  and  uniformity,  and  to  this  end,  that  there 
should  be  some  system  of  apportionment.  Where  the  burden  i 
common,  there  should  be  common  contribution  to  discharge  it.1 
Taxation  is  the  equivalent  for  the  protection  which  the  government 
affords  to  the  persons  and  property  of  its  citizens  ;  and  as  all  are 
alike  protected,  so  all  alike  should  bear  the  burden,  in  proportion 
to  the  interests  secured.  Taxes  by  the  poll  are  justly  regarded  as 
odious,  and  are  seldom  resorted  to  for  the  collection  of  revenue  ; 
and  when  taxes  are  levied  upon  property  there  must  be  an  appor- 
tionment with  reference  to  a  uniform  standard,  or  they  degenerate 
into  mere  arbitrary  exactions.  In  this  particular  the  State  consti- 
tutions have  been  very  specific,  though  in  providing  for  equality  and 
uniformity  they  have  done  little  more  than  to  state  in  concise  lan- 
guage a  principle  of  constitutional  law  which,  whether  declared  or 
not,  would  inhere  in  the  power  to  tax. 

Taxes  may  assume  the  form  of  duties,  imposts,  and  excises ; 
and  those  collected  by  the  national  government  are  very  largely  of 
this  character.  They  may  also  assume  the  form  of  license  fees,  for 
permission  to  carry  on  particular  occupations,  or  to  enjoy  special 
franchises.  They  may  be  specific ;  such  as  are  often  levied  upon 
corporations,  in  reference  to  the  amount  of  capital  stock,  or  to  the 
business  done,  or  profits  earned  by  them.  Or  they  may  be  direct, 
upon  property,  in  proportion  to  its  value,  or  upon  some  other  basis 
of  apportionment,  which  the  legislature  shall  regard  as  just,  and 
which  shall  keep  in  view  the  general  idea  of  uniformity.  The  taxes 
collected  by  the  States  are  mostly  of  the  latter  class,  and  it  is  to 
them  that  the  constitutional  principles  we  shall  have  occasion  to 
discuss  will  more  particularly  apply. 

As  to  all  taxation  apportioned  upon  property,  there  must  be 
taxing  districts,  and  within  these  districts  the  rule  of  absolute 
uniformity  must  be  applicable.     A  State  tax  is  to  be  apportioned 

1  2  Kent,  231 ;  Sanborn  v.  Rice,  9  Minn.  273  ;  Ryerson  v.  Utley,  16  Mich. 
269;  Oliver  v.  Washington  Mills,  11  Allen,  268;  Tidewater  Co.  v.  Costar,  3 
C.  E.  Green,  519. 

[580] 


CH.  XIV.]  THE   POWER   OF   TAXATION.  *  495 

through  the  State,  a  county  tax  through  the  county,  a  city  tax 
through  the  city ;  while  in  the  case  of  local  improvements,  benefit- 
ing in  a  special  and  peculiar  manner  some  portion  of  the  State  or 
of  a  county  or  city,  it  is  competent  to  arrange  a  special  taxing 
district,  within  which  the  expense  shall  be  apportioned. 
School  districts  and  road  districts  are  *  also  taxing  dis-  [*  496] 
tricts  for  the  peculiar  purposes  for  which  they  exist,  and 
villages  may  have  special  powers  of  taxation  distinct  from  the 
townships  of  which  they  form  a  part.  Whenever  it  is  made  a 
requirement  of  the  State  constitution  that  taxation  shall  be  upon 
property  according  to  value,  such  a  requirement  implies  an  assess- 
ment of  valuation  by  public  officers  at  such  regular  periods  as 
shall  be  provided  by  law,  and  a  taxation  upon  the  basis  of  such 
assessment  until  the  period  arrives  for  making  it  anew.  Thus,  the 
Constitutions  of  Maine  and  Massachusetts  require  that  there  should 
be  a  valuation  of  estates  within  the  Commonwealth  to  be  made 
at  least  every  ten  years ;  1  the  Constitution  of  Michigan  requires 
the  annual  assessments  which  are  made  by  township  officers  to  be 
equalized  by  a  State  board,  which  reviews  them  for  that  purpose 
every  five  years  ;  2  and  the  Constitution  of  Rhode  Island  requires 
the  legislature  "  from  time  to  time  "  to  provide  for  new  valuations 
of  property  for  the  assessment  of  taxes  in  such  manner  as  they 
may  deem  best.3  Some  other  Constitutions  contain  no  provisions 
upon  this  subject ;  but  the  necessity  for  valuation  is  nevertheless 
implied,  though  the  mode  of  making  it,  and  the  periods  at  which 
it  shall  be  made,  are  left  to  the  legislative  discretion. 

There  are  some  kinds  of  taxes,  however,  that  are  not  usually 
assessed  according  to  the  value  of  property,  and  some  which  could 
not  be  thus  assessed.  And  there  is  probably  no  State  which  does 
not  levy  other  taxes  than  those  which  are  imposed  upon  property.4 
Every  burden  which  the  State  imposes  upon  its  citizens  with  a  view 
to  a  revenue,  either  for  itself  or  for  any  of  the  municipal  govern- 
ments, or  for  the  support  of  the  governmental  machinery  in  any 
of  the  political  divisions,  is  levied  under  the  power  of  taxation, 
whether  imposed  under   the  name  of  tax,  or  under  some  other 

1  Constitution  of  Maine,  art.  9,  §  7 ;  Constitution  of  Mass.,  Part  2,  c.  1,  §  1, 
art.  4. 

2  Constitution  of  Mich.,  art.  14,  §  13. 

*  Constitution  of  Rhode  Island,  art.  4,  §  15. 
4  See  Bright  v.  MeCulloeh,  27  Ind.  223. 

[581] 


*  496  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

designation.  The  license  fees  which  are  sometimes  required  to 
be  paid  by  those  who  follow  particular  employments  are,  when 
imposed  for  purposes  of  revenue,  taxes ;  the  tolls  upon  the  per- 
sons or  property  making  use  of  the  works  of  public  improvement 
owned  and  controlled  by  the  State,  are  a  species  of  tax ;  stamp 
duties  when  imposed  are  taxes,  and  it  is  not  uncommon,  as  we 

have  already  stated,  to  require  that  corporations  shall  pay 
[*  497]   a  certain  sum   annually,  in  proportion  to  their  *  capital 

stock,  or  by  some  other  standard,  and  which  is  the  mode 
regarded  by  the  State  as  most  convenient  and  suitable  for  the 
taxation  of  such  organizations.  It  is  evident,  therefore,  that  the 
constitutional  requirements  sometimes  met  with,  that  taxation  upon 
property  shall  be  according  to  value,  do  not  include  every  species 
of  taxation  ;  but  all  special  cases  like  those  we  have  here  referred 
to  are,  by  implication,  excepted. 

But  in  addition  to  these  cases,  there  are  others  where  taxes  are 
levied  directly  upon  property,  which  are  nevertheless  held  not  to 
be  within  the  constitutional  provisions.  Assessments  for  the  open- 
ing, making,  improving,  or  repairing  of  streets,  the  draining  of 
swamps,  and  the  like  local  works,  have  been  generally  made  upon 
property,  with  some  reference  to  the  supposed  benefits  which  the 
property  would  receive  therefrom.  Instead,  therefore,  of  making 
the  assessment  include  all  the  property  of  the  municipal  organiza- 
tion in  which  the  improvement  is  made,  a  new  and  special  taxing 
district  is  created,  whose  bounds  are  confined  to  the  limits  within 
which  property  receives  a  special  and  peculiar  benefit,  in  conse- 
quence of  the  improvement.  Even  within  this  district  the  assess- 
ment is  sometimes  made  by  some  other  standard  than  that  of 
value  ;  and  it  is  evident  that  if  it  be  just  to  create  the  taxing 
district  with  reference  to  special  benefits,  it  would  be  equally  just 
and  proper  to  make  the  taxation  within  the  district  have  reference 
to  the  benefit  each  parcel  of  property  receives,  rather  than  to  its 
relative  value.  The  opening  or  paving  of  a  street  may  increase 
the  value  of  all  property  upon  or  near  it;  and  it  may  be  just  that 
all  such  property  should  contribute  to  the  expense  of  the  improve- 
ment :  but  it  by  no  means  follows  that  each  parcel  of  the  property 
will  receive  from  the  improvement  a  benefit  in  proportion  to  the 
previous  value.  One  lot  upon  the  street  may  be  greatly  increased 
in  value,  another  at  a  little  distance  may  be  but  slightly  benefited; 
and  if  no  constitutional  provision  interferes,  there  is  consequently 

[582] 


CH.  XIV.]  THE   POWER   OF   TAXATION.  *  497 

abundant  reason  why  the  tax  levied  within  the  taxing  district 
should  have  reference,  not  to  value,  but  to  benefit. 

It  has  been  objected,  however,  to  taxation  upon  this  basis,  that 
inasmuch  as  the  district  upon  which  the  burden  is  imposed  is  com- 
pelled to  make  the  improvement  for  the  benefit  of  the  general 
public,  it  is,  to  the  extent  of  the  tax  levied,  an  appropriation  of 
private  property  for  the  public  use  ;  and  as  the  persons  taxed,  as  a 
part  of  the  public,  would  be  entitled  of  right  to  the  enjoyment  of 
the  improvement  when  made,  such  right  of  enjoyment  could  not 
be  treated  as  compensation  for  the  exaction  made,  and  such  exac- 
tion would  therefore  be  opposed  to  those  constitutional  principles 
which  declare  the  inviolability  of  private  property.  But  those 
principles  have  no  reference  to  the  taking  of  property  under  the 
right  of  taxation.  When  the  constitution  provides  that  private 
property  shall  not  be  taken  for  public  use  without  just 
compensation  made  therefore,  it  has  reference  to  *  an  [*  498] 
appropriation  thereof  under  the  right  of  eminent  domain. 
Taxation  and  eminent  domain  indeed  rest  substantially  on  the 
same  foundation,  as  each  implies  the  taking  of  private  property  for 
the  public  use  on  compensation  made ;  but  the  compensation  is 
different  in  the  two  cases.  When  taxation  takes  money  for  the 
public  use,  the  tax-payer  receives,  or  is  supposed  to  receive,  his 
just  compensation  in  the  protection  which  government  affords  to 
his  life,  liberty,  and  property,  and  in  the  increase  in  the  value  of 
his  possessions  by  the  use  to  which  the  government  applies  the 
money  raised  by  the  tax,1  and  either  of  these  benefits  will  support 
the  burden. 

But  if  these  special  local  levies  are  taxation,  do  they  come  under 
the  general  provisions  on  the  subject  of  taxation  to  be  found  in 
our  State  constitutions  ?  The  Constitution  of  Michigan  provides 
that  "the  legislature  shall  provide  an  uniform  rule  of  taxation, 
except  on  property  paying  specific  taxes  ;  and  taxes  shall  be  levied 
upon  such  property  as  shall  be  prescribed  by  law;"2  and  again: 
"  All  assessments  hereafter  authorized  shall  be  on  property  at  its 
cash  value."  3     The  first  of  these  provisions  has  been  regarded  as 

1  People  v.  Mayor,  &c,  of  Brooklyn,  4  N.  Y.  422  ;  Williams  v.  Mayor,  &c, 
of  Detroit,  2  Mich.  565;  Scovills  v.  Cleveland,  1  Ohio,  n.  s.  126;  Northern 
Indiana  R.R.  Co.  v.  Connelly,  10  Ohio,  N.  s.  165  ;  Washington  Avenue,  69  Penn. 
St.  353  ;  s.  c.  8  Am.  Rep.  255. 

2  Art.  14,  §  11.  3  Art.  14,  §  12. 

[583] 


*  498  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

confiding  to  the  discretion  of  the  legislature  the  establishment  of 
the  rule  of  uniformity  by  which  taxation  was  to  be  imposed ;  and 
the  second  as  having  reference  to  the  annual  valuation  of  property 
for  the  purposes  of  taxation,  which  it  is  customary  to  make  in  that 
State,  and  not  to  the  actual  levy  of  a  tax.  And  a  local  tax,  there- 
fore, levied  in  the  city  of  Detroit,  to  meet  the  expense  of  paving  a 
public  street,  and  which  was  levied,  not  in  proportion  to  the  value 
of  property,  but  according  to  an  arbitrary  scale  of  supposed  benefit, 
was  held  not  invalid  under  the  constitutional  provision.1 

So  the  Constitution  of  Illinois  provides  that  "  the  General  As- 
sembly shall  provide  for  levying  a  tax  by  valuation,  so  that  every 
person  and  corporation  shall  pay  a  tax  in  proportion  to  the  value 
of  his  or  her  property ;  such  value  to  be  ascertained  by  some  per- 
son or  persons  to  be  elected  or  appointed  in  such  manner  as  the 
General  Assembly  shall   direct,  and  not  otherwise,"2  &c.     The 

charter  of  the  city  of  Peoria  provided  that,  when  a  public 
[*  499]  street  *  was  opened  or  improved,  commissioners  should  be 

appointed  by  the  county  court  to  assess  upon  the  property 
benefited  the  expense  of  the  improvement  in  proportion  to  the 
benefit.  These  provisions  were  held  to  be  constitutional,  on  the 
ground  that  assessments  of  this  character  were  not  such  taxation 
as  was  contemplated  by  the  general  terms  which  the  constitution 
employed.3  And  a  similar  view  of  these  local  assessments  has 
been  taken  in  other  cases.4 

1  Williams  v.  Mayor,  &c,  of  Detroit,  2  Mich.  560.  And  see  Woodbridge  v. 
Detroit,  8  Mich.  274.  2  Art  9,  §  2. 

3  City  of  Peoria  v.  Kidder,  26  111.  357.  See  also  Canal  Trustees  v.  Chicago, 
12  111.  406.  In  the  subsequent  case  of  Chicago  v.  Larned,  34  111.  203,  it  was 
decided,  after  very  full  argument  and  consideration,  that,  while  taxation  for  these 
local  assessments  might  constitutionally  be  made  in  proportion  and  to  the  extent 
of  the  benefits  received,  it  could  not  be  made  on  the  basis  of  frontage.  This  case 
was  followed  in  Wright  v.  Chicago,  46  111.  44. 

4  People  v.  Mayor,  &c,  of  Brooklyn,  4  N.  Y.  419 ;  Matter  of  Mayor,  &c,  of 
New  York,  11  Johns.  77  ;  Sharp  v.  Spier,  4  Hill,  76  ;  Livingston  v.  Mayor,  &c,  of 
New  York,  8  Wend.  85  ;  Matter  of  Furman  St.,  17  Wend.  649  ;  Nichols  v.  Bridge- 
port, 23  Conn.  189  ;  Schenley  v.  City  of  Alleghany,  25  Penn .  St.  128  ;  Wray  v.  Pitts- 
burg, 46  Penn.  St.  365  ;  Hammett  v.  Philadelphia,  65  Penn.  St.  146  ;  s.  c.  3  Am. 
Rep.  615  ;  Washington  Avenue,  69  Penn.  St.  353  ;  s.  c  8  Am.  Rep.  255  ;  McBride 
v.  Chicago,  22  111.  574;  Chicago  v.  Larned,  34  111.  203;  City  of  Lexington  v. 
McQuillan's  Heirs,  9  Dana,  513;  Barnes  v.  Atchison,  2  Kansas,  454  ;  Hines  v.  Leav- 
enworth, 3  Kansas,  186  ;  St.  Joseph  v.  ODonoghue,  31  Mo.  345  ;  Egyptian  Levee 
Co.  v.  Hardin,  27  Mo.  495  ;  St.  Joseph  v.  Anthony,  30  Mo.  537  ;  Burnet  v.  Sacra- 

[584] 


CH.  XIV.]  THE   POWER   OF   TAXATION.  *  499 

But  whatever  may  be  the  basis  of  the  taxation,  the  requirement 
that  it  shall  be  uniform  is  universal.  It  applies  as  much  to  these 
local  assessments  as  to  any  other  species  of  taxes.  The  difference 
is  only  in  the  character  of  the  uniformity,  and  in  the  basis  on  which 
it  is  established.  But  to  render  taxation  uniform  in  any  case,  two 
things  are  essential.  The  first  of  these  is  that  each  taxing  district 
should  confine  itself  to  the  objects  of  taxation  within  its  limits. 
Otherwise  there  is,  or  may  be,  duplicate  taxation,  and  of  course 
inequality.  Assessments  upon  real  estate  not  lying  within  the 
taxing  districts  would  be  void,1  and  assessments  for  per- 
sonal property  *  made  against  persons  not  residing  in  the  [*  500] 
district  would  also  be  void,  unless  made  with  reference  to 
the  actual  presence  of  the  property  in  such  district.2 

mento,  12  Cal.  76  ;  Yeatman  v.  Crandell,  11  La.  An.  220;  Wallaces  Shelton,  1-1 
La.  An.  498  ;  Richardson  v.  Morgan,  10  La.  An.  429  ;  Hill  v.  Higdon,  5  Ohio,  n.  s. 
243 ;  Marion  v.  Epler,  ib.  250 ;  Reeves  v.  Treasurer  of  Wood  Co.,  8  Ohio,  n.  s.  333 ; 
Northern  Ind.  R.R.  Co.  v.  Connelly,  10  Ohio,  N.  s.  159  ;  Baker  v.  Cincinnati, 
11  Ohio,  n.  s.  534;  Maloy  v.  Marietta,  11  Ohio,  N.  s.  636;  State  v.  Dean,  3 
Zab.  335  ;  State  v.  Mayor,  &c,  of  Jersey  City,  4  Zab.  662 ;  Bond  v.  Kenosha,  17 
Wis.  289 ;  City  of  Fairfield  v.  RatcliiF,  20  Iowa,  396 ;  Municipality  No.  2  v. 
White,  9  La.  An.  447  ;  Gumming  v.  Police  Jury,  ib.  503 ;  Northern  Liberties  v. 
St.  John's  Church,  13  Penn.  St.  107  ;  McGee  v.  Mathis,  21  Ark.  40 ;  Goodrich 
v.  Winchester,  &c,  Turnpike  Co.,  26  Ind.  119  ;  Emery  v.  Gas  Co.,  2S  Cal.  345  ; 
Palmer  v.  Stumpb,  29  Ind.  329 ;  Dergan  v.  Boston,  12  Allen,  223.  In  Alabama 
a  recent  decision  has  been  made  the  other  way.  The  constitution  provides  that 
"  all  taxes  levied  on  property  in  this  State  shall  be  assessed  in  exact  proportion 
to  the  value  of  such  property ;  provided,  however,  that  the  General  Assembly 
may  levy  a  poll  tax  not  to  exceed  one  dollar  and  fifty  cents  on  each  poll,  which 
shall  be  applied  exclusively  in  aid  of  the  public  school  fund."  This,  it  was 
decided,  would  preclude  the  levy  of  a  local  assessment  for  the  improvement  of  a 
street  by  the  foot  front.  Mayor  of  Mobile  v.  Dargan,  45  Ala.  310.  The  cases 
of  Weeks  v.  Milwaukee,  10  Wis.  242,  and  Lumsden  v.  Cross,  ib.  282,  recognize 
the  fact  that  these  local  burdens  are  generally  imposed  under  the  name  of  assess- 
ments  instead  of  taxes,  and  that  therefore  they  are  not  covered  by  the  general 
provisions  in  the  constitution  of  the  State  on  the  subject  of  taxation.  And  see 
Bond  v.  Kenosha,  17  Wis.  284 ;  Hale  v.  Kenosha,  29  Wis.  599.  An  exemption 
of  church  property  from  taxation  will  not  preclude  its  being  assessed  for  improv- 
ing streets  in  front  of  it.     See  post ,  514,  note. 

1  But  sometimes,  when  a  parcel  of  real  estate  lies  partly  in  two  districts, 
authority  is  given  by  law  to  assess  the  whole  in  one  of  these  districts,  and  the 
whole  parcel  may  then  be  considered  as  having  been  embraced  within  the  district 
where  taxed,  by  an  enlargement  of  the  district  bounds  to  include  it.  Saunders  v. 
Springstein,  4  Wend.  429. 

4  People  v.  Supervisors  of  Chenango,  11  N.  Y.  563 ;  Mygatt  v.  Washburn, 

[585] 


*  500  CONSTITUTIONAL  LIMITATIONS.  [CH.  XIV. 

In  Wells  v.  City  of  Weston,1  the  Supreme  Court  of  Missouri 
deny  the  right  of  the  legislature  to  subject  property  located  in  one 
taxing  district  to  taxation  in  another,  upon  the  express  ground 
that  it  is  .in  substance  the  arbitrary  taxation  of  the  property  of 
one  class  of  citizens  for  the  benefit  of  another  class.     The  case  was 
one  where  the  legislature  sought  to  subject  real  estate  lying  out- 
side the  limits  of  a  city  to  taxation  for  city  purposes,  on  the  theory 
that  it  received  some  benefit  from  the  city  government,  and  ought 
to  contribute  to  its  support.     In  Kentucky2  and  Iowa3  decisions 
have  been  made  which,  while  affirming  the  same  principle  as  the 
case    above   cited,    go    still  further,  and  declare   that   it   is    not 
competent  for  the  legislature  to  increase  the  limits  of  a  city,  in 
order  to  include  therein  farming  lands,  occupied  by  the  owner  for 
agricultural  purposes,  and  not  required  for  either  streets  or  houses, 
or  other  purposes  of  a  town,  and  solely  for  the  purpose  of  increas- 
ing the  city  revenue  by  taxation.      The  courts  admit  that  the 
extension  of  the  limits  of  a  city  or  town,  so  as  to  include  its  actual 
enlargement,  as  manifested  by  houses  and   population,  is  to  be 
deemed  a  legitimate  exercise  of  the  taxing  power,  but  they  declare 
that  an  indefinite  or  unreasonable  extension,  so  as  to  embrace 
lands  or  farms  at  a  distance  from  the  local  government,  does  not 
rest  upon  the  same  authority.     And  although  it  may  be  a  delicate 
as  well  as  a  difficult  duty  for  the  judiciary  to  interpose,  the  court 
had  no  doubt  but  strictly  there  are  limits  beyond  which  the  legis- 
lative discretion  cannot  go.     "  It  is  not  every  case  of  injustice  or 
oppression  which  may  be  reached ;  and  it  is  not  every  case  which 
will  authorize  a  judicial  tribunal  to  inquire  into  the  minute  opera- 
tion of  laws  imposing  taxes,  or  defining  the  boundaries  of  local 
jurisdictions.     The  extension  of  the  limits  of  the  local  authority 
may  in   some  cases   be  greater  than  is  necessary  to  include  the 

adjacent  population,  or  territory  laid  out  into  city  lots, 
[*  501]   without   a   *  case   being   presented  in  which  the  courts 

would  be  called  upon  to  apply  a  nice  and  exact  scrutiny  as 
to  its  practical  operation.     It  must  be  a  case  of  flagrant  injustice 

15  N.  Y.  316  ;  Brown  ».  Smith,  24  Barb.  419  ;  Hartland  v.  Church,  47  Me.  169  ; 
Lessee  of  Hughey  v.  Horrell,  2  Ohio,  231. 

1  22  Mo.  385. 

2  City  of  Covington  v.  Southgate,  15  B.  Monr.  491 ;  Arbegust  v.  Louisville, 
3  Bush,  271. 

3  Morford  v.  Unger,  8  Iowa,  82. 

[586] 


CH.  XIV.]  THE   POWER   OF   TAXATION.  *  501 

and  palpable  wrong,  amounting  to  the  taking  of  private  property 
without  such  compensation  in  return  as  the  tax-payer  is  at  liberty 
to  consider  a  fair  equivalent  for  the  tax."  This  decision  has  been 
subsequently  recognized  and  followed  as  authority,  in  the  last- 
named  State.1 

The  second  essential  is  that  there  should  be  uniformity  in  the 
manner  of  the  assessment,  and  approximate  equality  in  the  amount 
of  exactions  within  the  district ;  and  to  this  end  that  all  the  objects 
of  taxation  within  the  district  should  be  embraced.  The  correct- 
ness of  this  principle  will  be  conceded,  but  whether  in  practice  it 
has  been  applied  or  not,  it  may  not  always  be  easy  to  determine. 

"  With  the  single  exception  of  specific  taxes,"  says  Christiancy , 
J.,  in  Woodbridge  v.  Detroit,2  "  the  terms  '  tax  '  and  '  assessment' 
both,  I  think,  when  applied  to  property,  and  especially  to  lands, 
always  include  the  idea  of  some  ratio  or  rule  of  apportionment,  so 
that  of  the  whole  sum  to  be  raised,  the  part  paid  by  one  piece  of 
property  shall  bear  some  known  relation  to,  or  be  affected  by,  that 
paid  by  another.  Thus,  if  one  hundred  dollars  are  to  be  raised 
from  tracts  A,  B,  and  0,  the  amount  paid  by  A  will  reduce  by  so 
much  that  to  be  paid  by  B  and  C,  and  so  of  the  others.  In  the  case 
of  specific  taxes,  as  well  as  duties  and  imposts,  though  the  amount 
paid  by  one  is  not  affected  by  that  paid  by  another,  yet  there  is  a 
known  and  fixed  relation  of  one  to  the  other,  a  uniform  rate  by 
which  it  is  imposed  upon  the  whole  species  or  class  of  property  or 
persons  to  which  the  specific  tax  applies  ;  and  this  is  so  of  duties 
and  imposts,  whether  specific  or  ad  valorem.  To  compel  individuals 
to  contribute  money  or  property  to  the  use  of  the  public,  without 

1  Langworthy  v.  Dubuque,  13  Iowa,  86  ;  Fulton  v.  Davenport,  17  Iowa,  404  ; 
Buell  v.  Ball,  20  Iowa,  282.  These  cases  were  cited  and  followed  in  Bradshaw 
v.  Omaha,  1  Neb.  16.  These  cases,  however,  do  not  hold  the  legislative  act 
which  enlarges  the  city  limits  to  be  absolutely  void,  but  only  hold  that  they 
will  limit  the  exercise  of  the  taxing  power  as  nearly  as  practicable  to  the  line 
where  the  extension  of  the  boundaries  ceases  to  be  beneficial  to  the  proprietor 
in  a  municipal  point  of  view.  For  this  purpose  they  enter  into  an  inquiry  of 
fact,  whether  the  lands  in  question,  in  view  of  their  relative  position  to  the  grow- 
ing and  improved  parts  of  the  town,  and  partaking  more  or  less  of  the  benefits 
of  municipal  government,  are  proper  subjects  of  municipal  taxation ;  and  if  not, 
they  enjoin  the  collection  of  such  taxes.  It  would  seem  as  if  there  must  be 
great  practical  difficulties  —  if  not  some  of  principle  —  in  making  this  disposition 
of  such  a  case. 

8  8  Mich.  301.  See  also  Chicago  v.  Larned,  34  111.  203;  Creote  v.  Chicago, 
56  111.  422. 

[587] 


*  501  CONSTITUTIONAL    LIMITATIONS.  [CH.  XIV. 

reference  to  any  common  ratio,  and  without  requiring  the 
[*  502]  sum  *  paid  by  one  piece  or  kind  of  property,  or  by  one 

person,  to  bear  any  relation  whatever  to  that  paid  by 
another,  is,  it  seems  to  me,  to  lay  a  forced  contribution,  not  a  tax, 
duty,  or  impost,  within  the  sense  of  these  terms,  as  applied  to 
the  exercise  of  powers  by  any  enlightened  or  responsible  govern- 
ment." 

In  the  case  of  Knowlton  v.  Supervisors  of  Rock  County,1  an 
important  and  interesting  question  arose,  involving  the  very  point 
now  under  discussion.  The  Constitution  of  Wisconsin  provides 
that  "  the  rule  of  taxation  shall  be  uniform,"  which,  if  we  are 
correct  in  what  we  have  already  stated,  is  no  more  than  an  affirm- 
ance of  a  settled  principle  of  constitutional  law.  The  city  of 
Janesville  included  within  its  territorial  limits,  not  only  the  land 
embraced  within  the  recorded  plat  of  the  village  of  Janesville  and 
its  additions,  but  also  a  large  quantity  of  the  adjacent  farming  or 
agricultural  lands.  Conceiving  the  owners  of  these  lands  too 
greatly  and  unequally  burdened  by  taxation  for  the  support  of  the 
city  government,  the  legislature  passed  an  act  declaring  that  "  in 
no  case  shall  the  real  and  personal  property  within  the  territorial 
limits  of  said  city,  and  not  included  within  the  territorial  limits  of 
the  recorded  plat  of  the  village  of  Janesville,  or  of  any  additions  to 
said  village,  which  may  be  used,  occupied,  or  reserved  for  agricul- 
tural or  horticultural  purposes,  be  subject  to  an  annual  tax  to 
defray  the  current  expenses  of  said  city,  exceeding  one-half  of  one 
per  cent,  nor  for  the  repair  and  building  of  roads  and  bridges,  and 
the  support  of  the  poor,  more  than  one-half  as  much  on  each 
dollar's  valuation  shall  be  levied  for  such  purposes  as  on  the  prop- 
erty within  such  recorded  plats,  nor  shall  the  same  be  subject  to 
any  tax  for  any  of  the  purposes  mentioned  in  §  3  of  c.  5  of  [the  city 
charter],  nor  shall  the  said  farming  or  gardening  lands  be  subject 
to  any  tax,  other  than  before  mentioned,  for  any  city  purpose  what- 
ever." Under  the  charter  the  property  of  the  city  was  liable  to  an 
annual  tax  of  one  per  cent  to  defray  the  current  expenses  of  the 
city  ;  and  also  an  additional  tax  of  such  sum  as  the  common 
council  might  deem  necessary  for  the  repair  and  building  of  roads 
and  bridges,  and  for  the  support  of  the  poor.  Thus  it  will  be 
perceived  that  the  legislature,  within  the  same  taxing  district, 

1  9  Wis.  410. 
[588] 


CH.  XIV.]  THE   POWER   OF   TAXATION.  *  502 

undertook  to  provide  that  a  portion  of  the  property  should  be  taxed 
at  one  rate  in  proportion  to  value,  and  another  portion  at  a  much 
lower  rate ;  while  from  taxation  for  certain  proper  local  purposes 
the  latter  class  was  exempted  altogether. 

*  "  It  was  contended  in  argument,"  say  the  court,  "  that  [*  503] 
as  those  provisions  fixed  one  uniform  rate  without  the 
recorded  plats,  and  another  within  them,  thus  taxing  all  the  prop- 
erty without  alike,  and  all  within  alike,  they  do  not  infringe  the 
Constitution.  In  other  words,  that  for  the  purpose  of  taxation,  the 
legislature  have  the  right  arbitrarily  to  divide  up  and  classify 
the  property  of  the  citizens,  and,  having  done  so,  they  do  not 
violate  the  constitutional  rule  of  uniformity,  provided  all  the  prop- 
erty within  a  given  class  is  rated  alike. 

"  The  answer  to  this  argument  is,  that  it  creates  different  rules 
of  taxation,  to  the  number  of  which  there  is  no  limit,  except  that 
fixed  by  legislative  discretion,  while  the  constitution  establishes 
but  one  fixed,  unbending,  uniform  rule  on  the  subject.  It  is  be- 
lieved that  if  the  legislature  can,  by  classification,  thus  arbitrarily, 
and  without  regard  to  value,  discriminate  in  the  same  municipal 
corporation  between  personal  and  real  property  within,  and  per- 
sonal and  real  property  without,  a  recorded  plat,  they  can  also  by 
the  same  means  discriminate  between  lands  used  for  one  purpose 
and  those  used  for  another,  such  as  lands  used  for  growing  wheat 
and  those  used  for  growing  corn,  or  any  other  crop  ;  meadow-lands 
and  pasture-lands,  cultivated  and  uncultivated  lands ;  or  they  can 
classify  by  the  description,  such  as  odd-numbered  lots  and  blocks 
and  even  numbered  ones,  or  odd  and  even-numbered  sections. 
Personal  property  can  be  classified  by  its  character,  use,  or  descrip- 
tion, or,  as  in  the  present  case,  by  its  location,  and  thus  the  rules 
of  taxation  may  be  multiplied  to  an  extent  equal  in  number  to  the 
different  kinds,  uses,  descriptions,  and  locations  of  real  and  per- 
sonal property.  We  do  not  see  why  the  system  may  not  be  carried 
further,  and  the  classification  be  made  by  the  character,  trade, 
profession,  or  business  of  the  owners.  For  certainly  this  rule  of 
uniformity  can  as  well  be  applied  to  such  a  classification  as  any 
other,  and  thus  the  constitutional  provision  be  saved  intact.  Such 
a  construction  would  make  the  constitution  operative  only  to  the 
extent  of  prohibiting  the  legislature  from  discriminating  in  favor 
of  particular  individuals,  and  would  reduce  the  people,  while  con- 
sidering so  grave  and  important  a  proposition,  to  the  ridiculous 

[  589] 


*  503  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

attitude  of  saying  to  the  legislature,  '  You  shall  not  discriminate 
between  single  individuals  or  corporations;  but  you  may  divide 
the  citizens  up  into  different  classes,  as  the  followers  of  different 
trades,  professions,  or  kinds  of  business,  or  as  the  owners 
[*  504]  of  *  different  species  or  descriptions  of  property,  and  legis- 
late for  one  class,  and  against  another,  as  much  as  you 
please,  provided  you  serve  all  of  the  favored  or  unfavored  classes 
alike  ; '  thus  affording  a  direct  and  solemn  sanction  to  a  system  of 
taxation  so  manifestly  and  grossly  unjust  that  it  will  not  find  an 
apologist  anywhere,  at  least  outside  of  those  who  are  the  recipients 
of  its  favor.  We  do  not  believe  the  framers  of  that  instrument 
intended  such  a  construction,  and  therefore  cannot  adopt  it."  x 

The  principle  to  be  deduced  from  the  Iowa  and  Wisconsin  cases, 
assuming  that  they  do  not  in  any  degree  conflict,  seems  to  be  this  : 
The  legislature  cannot  arbitrarily  include  within  the  limits  of  a 
village,  borough,  or  city,  property  and  persons  not  properly  charge- 
able with  its  burdens,  and  for  the  sole  purpose  of  increasing  the 
corporate  revenues  by  the  exaction  of  the  taxes.  But  whenever 
the  corporate  boundaries  are  established,  it  is  to  be  understood 
that  whatever  property  is  included  within  those  limits  has  been 
thus  included  by  the  legislature,  because  it  justly  belongs  there,  as 
being  within  the  circuit  which  is  benefited  by  the  local  government, 
and  which  ought  consequently  to  contribute  to  its  burdens.  The 
legislature  cannot,  therefore,  after  having  already,  by  including  the 
property  within  the  corporation,  declared  its  opinion  that  such 
property  should  contribute  to  the  local  government,  immediately 
turn  about  and  establish  a  basis  of  taxation  which  assumes  that  the 

1  Per  Dixon,  Ch.  J.,  9  Wis.  421.  Besides  the  other  cases  referred  to,  see, 
on  this  same  general  subject,  Lin  Sing  v.  Washburn,  20  Cal.  534 ;  State  v.  Mer- 
chants Ins.  Co.,  12  La  An.  802;  Adams  v.  Somerville,  2  Head,  363;  McComb 
v.  Bell,  2  Minn.  295  ;  Attorney-General  v.  Winnebago  Lake  and  Fox  River  P.  R. 
Co.,  11  Wis.  35;  Weeks  v.  Milwaukee,  10  Wis.  242;  O'Kane  v.  Treat,  25  111. 
557 ;  Philadelphia  Association,  &c.  v.  Wood,  39  Penn.  73 ;  Sacramento  v. 
Crocker,  16  Cal.  119.  There  was  a  provision  in  the  charter  of  Covington  that  a 
street  might  be  paved  with  the  Nicholson  pavement  at  the  expense  of  the  adjoining 
owners,  when  the  owners  of  the  larger  part  of  the  frontage  should  petition  therefor. 
An  amendatory  act  authorized  it  as  to  a  portion  of  a  certain  street  without  such 
a  petition ;  thus  permitting  a  special  improvement  on  that  street,  at  the  expense 
of  the  owners  of  adjoining  lots,  on  a  different  principle  from  that  adopted  for  the 
city  generally.  In  Howell  v.  Bristol,  8  Bush,  493,  this  amendment  was  held  in- 
consistent with  the  fundamental  principles  of  taxation,  and  consequently  void. 

[  590  ] 


CH.  XIV.]  THE   POWER   OP   TAXATION.  *  504 

property  is  not  in  fact  urban  property  at  all,  but  is  agricultural 
lands,  and  should  be  assessed  accordingly.  The  rule  of  apportion- 
ment must  be  uniform  throughout  the  taxing  district,  applicable  to 
all  alike  ;  but  the  legislature  have  no  power  to  arrange  the  taxing 
districts  arbitrarily,  and  without  reference  to  the  great  fundamental 
principle  of  taxation,  that  the  burden  must  be  borne  by  those  upon 
whom  it  justly  rests.  The  Kentucky  and  Iowa  decisions  hold  that, 
in  a  case  where  they  have  manifestly  and  unmistakably  done  so, 
the  courts  may  interfere  and  restrain  the  imposition  of  municipal 
burdens  on  property  which  does  not  properly  belong  within  the 
municipal  taxing  district  at  all. 

*  This  rule  of  uniformity  has  perhaps  been  found  most  [*  505] 
difficult  of  application  in  regard  to  those  cases  of  taxation 
which  are  commonly  known  under  the  head  of  assessments,  and 
which  are  made  either  for  local  improvement  and  repair,  or  to 
prevent  local  causes  resulting  in  the  destruction  of  health  or  prop- 
erty. In  those  cases  where  it  has  been  held  that  such  assessments 
were  not  covered  by  the  constitutional  provision  that  taxation 
should  be  laid  upon  property  in  proportion  to  value,  it  has,  neverthe- 
less, been  decided  that  the  authority  to  make  them  must  be  referred 
to  the  taxing  power,  and  not  to  the  police  power  of  the  State, 
under  which  sidewalks  have  sometimes  been  ordered  to  be  con- 
structed. Apportionment  of  the  burden  was  therefore  essential, 
though  it  need  not  be  made  upon  property  in  proportion  to  its 
value.  But  the  question  then  arises  :  What  shall  be  the  rule  of 
apportionment  ?  Can  a  street  be  ordered  graded  and  paved,  and 
the  expense  assessed  exclusively  upon  the  property  which,  in  the 
opinion  of  the  assessors,  shall  be  peculiarly  benefited  thereby,  in 
proportion  to  such  benefit  ?  Or  may  a  taxing  district  be  created, 
for  the  purpose,  and  the  expense  assessed  in  proportion  to  the  area 
of  the  lots  ?  Or  may  the  street  be  made  a  taxing  district,  and  the 
cost  levied  in  proportion  to  the  frontage  ?  Or  may  each  lot  owner 
be  required  to  grade  and  pave  in  front  of  his  lot  ?  These  are  grave 
questions,  and  they  have  not  been  found  of  easy  solution. 

The  case  of  The  People  v.  The  Mayor,  &c,  of  Brooklyn,1  is  a 
leading  case,  holding  that  a  statute  authorizing  a  municipal  corpora- 
tion to  grade  and  improve  streets,  and  to  assess  the  expense  among 
the  owners  and  occupants  of  lands  benefited  by  the  improvement,  in 

1  4  N.  Y.  410 ;  reversing  same  case,  6  Barb.  209. 

[591] 


*  505  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

proportion  to  the  amount  of  such  benefit,  is  a  constitutional  and 
valid  law.  The  court  in  that  case  concede  that  taxation  cannot 
be  laid  without  apportionment,  but  hold  that  the  basis  of  apportion- 
ment in  these  cases  is  left  by  the  constitution  with  the  legislature. 
The  application  of  any  one  rule  or  principle  of  apportionment  to 
all  cases  would  be  manifestly  oppressive  and  unjust.  Taxation  is 
sometimes  regulated  by  one  principle,  and  sometimes  by  another  ; 
and  very  often  it  has  been  apportioned  without  reference  to  local- 
ity, or  to  the  tax-payer's  ability  to  contribute,  or  to  any  proportion 
between  the  burden  and  the  benefit.    "  The  excise  laws,  and  taxes 

on  carriages  and  watches,  are  among  the  many  examples 
[*  506]  of  *  this  description  of  taxation.    Some  taxes  affect  classes 

of  inhabitants  only.  All  duties  on  imported  goods  are 
taxes  on  the  class  of  consumers.  The  tax  on  one  imported  article 
falls  on  a  large  class  of  consumers,  while  the  tax  on  another  affects 
comparatively  a  few  individuals.  The  duty  on  one  article  con- 
sumed by  one  class  of  inhabitants  is  twenty  per  cent  of  its  value, 
while  on  another,  consumed  by  a  different  class,  it  is  forty  per 
cent.  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  manufacture  of  the 
same  article,  thus  compelling  the  consumer  to  pay  a  higher  price 
to  one  man  than  he  could  otherwise  have  bought  the  article  for 
from  another.  These  discriminations  may  be  impolitic,  and  in 
some  cases  unjust ;  but  if  the  power  of  taxation  upon  importations 
had  not  been  transferred  by  the  people  of  this  State  to  the  Federal 
government,  there  could  have  been  no  pretence  for  declaring  them 
to  be  unconstitutional  in  State  legislation. 

"  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  as  a  just  and  equitable  tax.  The  reason  is  obvious.  It 
apportions  the  burden  according  to  the  benefit  more  nearly  than 
any  other  inflexible  rule  of  general  taxation.  A  rich  man  derives 
more  benefit  from  taxation,  in  the  protection  and  improvement  of 
his  property,  than  a  poor  man,  and  ought  therefore  to  pay  more. 
But  the  amount  of  each  man's  benefit  in  general  taxation  cannot 
be  ascertained  and  estimated  with  any  degree  of  certainty  ;  and  for 
that  reason  a  property  tax  is  adopted,  instead  of  an  estimate  of 
benefits.  In  local  taxation,  however,  for  special  purposes,  the 
[592] 


CH.  XIV.]  THE    POWER   OP   TAXATION.  *  506 

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  pre- 
scribe the  rules  on  which  taxation  is  to  be  apportioned,  and  whose 
determination  of  this  matter,  being  within  the  scope  of  its  lawful 
power,  is  conclusive." 

The  reasoning  of  this  case  has  been  generally  accepted  as  satis- 
factory, and  followed  in  subsequent  cases.1 

1  Scoville  v.  Cleveland,  1  Ohio,  w.  8.  126 ;  Hill  v.  Higdon,  5  Ohio,  n.  s.  243 ; 
Marion  v.  Epler,  ib.  250 ;  Maloy  v.  Marietta,  11  Ohio,  N.  s.  636 ;  City  of  Peoria 
v.  Kidder,  26  111.  351;  Reeves  v.  Treasurer  of  Wood  Co.,  8  Ohio,  x.  s.  333; 
Garrett  v.  St.  Louis,  25  Mo.  505 ;  Uhrig  v.  St.  Louis,  44  Mo.  463 ;  Bradley  v. 
McAtee,  7  Bush,  667  ;  s.  c.  3  Am.  Rep.  309;  Jones  v.  Boston,  104  Mass.  461 ; 
Sessions  v.  Crunkilton,  20  Ohio,  N.  s.  349  ;  State  v.  Fuller,  34  N.  J.  227.  The 
legislation  in  Ohio  on  the  subject  has  authorized  the  cities  and  villages,  in  open- 
ing and  improving  streets,  to  assess  the  expense  either  upon  the  lots  abutting  on 
the  street  in  proportion  to  the  street  front,  or  upon  the  lands  in  proportion  to 
their  assessed  value.  In  a  case  where  the  former  mode  was  resorted  to,  and  an 
assessment  made  upon  property  owned  by  the  Northern  Indiana  Railroad  Com- 
pany for  its  corporate  purposes,  Peck,  J.,  thus  states  and  answers  an  objection 
to  the  validity  of  the  tax:  "  But  it  is  said  that  assessments,  as  distinguished  from 
general  taxation,  rest  solely  upon  the  idea  of  equivalents ;  a  compensation  pro- 
portioned to  the  special  benefits  derived  from  the  improvement,  and  that,  in  the 
case  at  bar,  the  railroad  company  is  not,  and  in  the  nature  of  things  cannot  be, 
in  any  degree  benefited  by  the  improvement.  It  is  quite  true  that  the  right  to 
impose  such  special  taxes  is  based  upon  a  presumed  equivalent;  but  it  by  no 
means  follows  that  there  must  be  in  fact  such  full  equivalent  in  every  instance, 
or  that  its  absence  will  render  the  assessment  invalid.  The  rule  of  apportion- 
ment, whether  by  the  front  foot  or  a  percentage  upon  the  assessed  valuation,  must 
be  uniform,  affecting  all  the  owners  and  all  the  property  abutting  on  the  street 
alike.  One  rule  cannot  be  applied  to  one  owner,  and  a  different  rule  to  another 
owner.  One  could  not  be  assessed  ten  per  cent,  another  five,  another  three, 
and  another  left  altogether  unassessed  because  he  was  not  in  fact  benefited.  It 
is  manifest  that  the  actual  benefits  resulting  from  the  improvement  may  be  as 
various  almost  as  the  number  of  the  owners  and  the  uses  to  which  the  property 
may  be  applied.  No  general  rule,  therefore,  could  be  laid  down  which  would  do 
equal  and  exact  justice  to  all.  The  legislature  have  not  attempted  so  vain  a  thing, 
but  have  prescribed  two  different  modes  in  which  the  assessment  may  be  made, 
and  left  the  city  authorities  free  to  adopt  either.  The  mode  adopted  by  the 
council  becomes  the  statutory  equivalent  for  the  benefits  conferred,  although  in 
fact  the  burden  imposed  may  greatly  preponderate.  In  such  case,  if  no  fraud 
intervene,  and  the  assessment  does  not  substantially  exhaust  the  owner's  interest 
in  the  land,  his  remedy  would  seem  to  be  to  procure,  by  a  timely  appeal  to  the 
city  authorities,  a  reduction  of  the  special  assessment,  and  its  imposition,  in  whole 

38  [  593  ] 


*  507  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

[*  507]  *  On  the  other  hand,  and  on  the  like  reasoning,  it  has 
been  held  equally  competent  to  make  the  street  a  taxing 
district,  and  assess  the  expense  of  the  improvement  upon  the  lots 
in  proportion  to  the  frontage.1  Here  also  is  apportionment  by  a 
rule  which  approximates  to  what  is  just,  but  which,  like  any  other 
rule  that  can  be  applied,  is  only  an  approximation  to  absolute 
equality.  But  if,  in  the  opinion  of  the  legislature,  it  is  the 
proper  rule  to  apply  to  any  particular  case,  the  courts  must  en- 
force it. 
[*  508]  *  But  a  very  different  case  is  presented  when  the  legis- 
lature undertakes  to  provide  that  each  lot  upon  a  street 
shall  pay  the  whole  expense  of  grading  and  paving  the  street  along 
its  front.  For  while  in  such  a  case  there  would  be  something 
having  the  outward  appearance  of  apportionment,  it  requires  but 
slight  examination  to  discover  that  it  is  a  deceptive  semblance 
only,  and  that  the  measure  of  equality  which  the  constitution 
requires  is  entirely  wanting.  If  every  lot  owner  is  compelled  to 
construct  the  street  in  front  of  his  lot,  his  tax  is  neither  increased 

or  in  part,  upon  the  public  at  large."     Northern  Indiana  R.R.  Co.  v.  Connelly, 
10  Ohio,  n.  s.  165.     And  see  Howell  v.  Bristol,  8  Bush,  493. 

1  Williams  v.  Detroit,  2  Mich.-  560 ;  Northern  Ind.  R.R.  Co.  v.  Connelly, 
10  Ohio,  N.  s.  159 ;  Lumsden  v.  Cross,  10  Wis.  282.  And  see  St.  Joseph  v. 
O'Donoghue,  31  Mo.  145 ;  Burnet  v.  Sacramento,  12  Cal.  76 ;  Scoville  v.  Cleve- 
land, 1  Ohio,  x.  s.  133 ;  Hill  v.  Higdon,  5  Ohio,  N.  s.  246 ;  Ernst  v.  Kunkle,  ib. 
520;  Hines  v.  Leavenworth,  3  Kansas,  186;  Magee  v.  Commonwealth,  46  Penn. 
St.  388 ;  Wray  v.  Pittsburg,  ib.  365 ;  Palmer  v.  Stumph,  29  Ind.  329.  In  Ham- 
mett  v.  Philadelphia,  65  Penn.  St.  146,  s.  c.  3  Am.  Rep.  615,  while  the  cases  here 
cited  are  approved,  it  is  denied  that  a  street  already  laid  out  and  in  good  con- 
dition can  be  taken  and  improved  for  a  public  drive  or  carriage  way  at  the  expense 
of  the  adjacent  owners ;  this  not  being  an  improvement. for  local  but  for  general 
purposes.  Compare  Washington  Avenue,  69  Penn.  St.  353 ;  s.  c.  8  Am.  Rep. 
255 ;  Allen  v.  Drew,  44  Vt.  174  (case  of  water-rents)  ;  Willard  v.  Presbury,  14 
Wall.  676  ;  Hoyt  v.  East  Saginaw,  19  Mich.  39 ;  s.  c.  2  Am.  Rep.  76  ;  La  Fayette 
v.  Fowler,  34  Ind.  140;  Chambers  v.  Satterlee,  40  Cal.  497  ;  Bradley  v.  McAtee, 
7  Bush,  667  ;  s.  c.  3  Am.  Rep.  309.  In  Washington  Avenue,  69  Penn.  St.  353, 
S.  c.  8  Am.  Rep.  255,  it  is  denied  that  this  principle  can  be  applied  to  the  country 
and  to  farming  lands.  Agneiv,  J.,  says  :  "To  apply  it  to  the  country,  or  to  farm 
lands,  would  lead  to  such  inequality  and  injustice  as  to  deprive  it  of  all  soundness 
as  a  rule,  or  as  a  substitute  for  a  fair  and  impartial  valuation  of  benefits  in  pursu- 
ance of  law  ;  so  that  at  the  very  first  blush  every  one  would  pronounce  it  palpably 
unreasonable  and  unjust,"  We  commend  the  able  opinion  in  this  case  as  a  \ary 
satisfactory  and  very  thorough  examination  of  the  principles  on  which  local  assess- 
ments are  supported. 

[594  ] 


CH.  XIV.]  THE   POWER   OP   TAXATION.  *  508 

nor  diminished  by  the  assessment  upon  his  neighbors  ;  nothing  is 
divided  or  apportioned  between  him  and  them ;  and  each  particu- 
lar lot  is  in  fact  arbitrarily  made  a  taxing  district,  and  charged 
with  the  whole  expenditure  therein,  and  thus  apportionment 
avoided.  If  the  tax  were  for  grading  the  street  simply,  those  lots 
which  were  already  at  the  established  grade  would  escape  alto- 
gether, while  those  on  either  side,  which  chanced  to  be  above  and 
below,  must  bear  the  whole  burden,  though  no  more  benefited  by 
the  improvement  than  the  others.1  It  is  evident,  therefore,  that  a 
law  for  making  assessments  on  this  basis  could  not  have  in  view 
such  distribution  of  burdens  in  proportion  to  benefits  as  ought  to 
be  a  cardinal  idea  in  every  tax  law.2  It  would  be  nakedly  an  arbi- 
trary command  of  the  law  to  each  lot  owner  to  construct  the  street 
in  front  of  his  lot  at  his  own  expense,  according  to  a  prescribed 
standard  ;  and  a  power  to  issue  such  command  could  never  be 
exercised  by  a  constitutional  government,  unless  we  are  at  liberty 
to  treat  it  as  a  police  regulation,  and  place  the  duty  to  make  the 
streets  upon  the  same  footing  as  that  to  keep  the  sidewalks  free 
from  obstruction  and  fit  for  passage.  But  any  such  idea  is  clearly 
inadmissible.3 

1  In  fact,  lots  above  and  below  an  established  grade  are  usually  less  benefited 
by  the  grading  than  the  others ;  because  the  improvement  subjects  them  to  new 
burdens,  in  order  to  bring  the  general  surface  to  the  grade  of  the  street,  which 
the  others  escape. 

2  The  case  of  Warren  v.  Henley,  31  Iowa,  38,  is  opposed  to  the  reasoning  of 
the  text ;  but  the  learned  Judge  who  delivers  the  opinion  concedes  that  he  is 
unable  to  support  his  conclusions  on  the  authorities  within  his  reach. 

3  See  City  of  Lexington  v.  McQuillan's  Heirs,  9  Dana,  513,  and  opinions  of 
Campbell  and  Christiancy,  J  J.,  in  Woodbridge  v.  Detroit,  8  Mich.  274.  The  case 
of  Weeks  v.  Milwaukee,  10  Wis.  258,  seems  to  be  contra.  We  quote  from  the 
opinion  of  the  court  by  Paine,  J.  After  stating  the  rule  that  uniformity  in  taxation 
implies  equality  in  the  burden,  he  proceeds:  "The  principle  upon  which  these 
assessments  rest  is  clearly  destructive  of  this  equality.  It  requires  every  lot  owner 
to  build  whatever  improvements  the  public  may  require  on  the  street  in  front  of 
his  lot,  without  reference  to  inequalities  in  the  value  of  the  lots,  in  the  expense  of 
constructing  the  improvements,  or  to  the  question  whether  the  lot  is  injured  or 
benefited  by  their  construction.  Corner  lots  are  required  to  construct  and  keep 
in  repair  three  times  as  much  as  other  lots ;  and  yet  it  is  well  known  that  the 
difference  in  value  bears  no  proportion  to  this  difference  in  burden.  In  front  of 
one  lot  the  expense  of  building  the  street  may  exceed  the  value  of  the  lot ;  and 
its  construction  may  impose  on  the  owner  additional  expense,  to  render  his  lot 
accessible.  In  front  of  another  lot,  c?  even  much  greater  value,  the  expense  is 
comparatively  slight.    These  inequalities  are  obvious ;  and  I  have  always  thought 

[595] 


*  509  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

[*509]       *  Iii  many  other  cases,  besides  the  construction,  im- 
provement,  and   repair   of    streets,   may    special   taxing 

the  principle  of  such  assessments  was  radically  wrong.  They  have  been  very 
extensively  discussed,  and  sustained  upon  the  ground  that  the  lot  should  pay 
because  it  receives  the  benefit.  But  if  this  be  true,  that  the  improvements  in 
front  of  a  lot  are  made  for  the  benefit  of  the  lot  only,  then  the  right  of  the  public 
to  tax  the  owner  at  all  for  that  purpose  fails ;  because  the  public  has  no  right  to 
tax  the  citizen  to  make  him  build  improvements  for  his  own  benefit  merely.  It 
must  be  for  a  public  purpose  ;  and  it  being  once  established  that  the  construction 
of  streets  is  a  public  purpose  that  will  justify  taxation,  I  think  it  follows,  if  the 
matter  is  to  be  settled  on  principle,  that  the  taxation  should  be  equal  and  uniform, 
and  that  to  make  it  so  the  whole  taxable  property  of  the  political  division  in  which 
the  improvement  is  made  should  be  taxed  by  a  uniform  rule  for  the  purpose  of 
its  construction. 

"  But  in  sustaining  these  assessments  when  private  property  was  wanted  for  a 
street,  it  has  been  said  that  the  State  could  take  it,  because  the  use  of  a  street 
was  a  public  use  ;  in  order  to  justify  a  resort  to  the  power  of  taxation,  it  is  said 
the  building  of  a  street  is  a  public  purpose.  But  then,  having  got  the  land  to 
build  it  on,  and  the  power  to  tax  by  holding  it  a  public  purpose,  they  immediately 
abandon  that  idea,  and  say  that  it  is  a  private  benefit,  and  make  the  owner  of  the 
lot  build  the  whole  of  it.  I  think  this  is  the  same  in  principle  as  it  would  be  to 
say  that  the  town,  in  which  the  county  seat  is  located,  should  build  the  county 
buildings,  or  that  the  county  where  the  capital  is  should  construct  the  public 
edifices  of  the  State,  upon  the  ground  that,  by  being  located  nearer,  they  derived 
a  greater  benefit  than  others.  If  the  question,  therefore,  was,  whether  the  sys- 
tem of  assessment  could  be  sustained  upon  principle,  I  should  have  no  hesitation 
in  deciding  it  in  the  negative.  I  fully  agree  with  the  reasoning  of  the  Supreme 
Court  of  Louisiana  in  the  case  of  Municipality  No.  2  v.  White,  9  La.  An.  447, 
upon  this  point. 

"But  the  question  is  not  whether  this  system  is  established  upon  sound  prin- 
ciples, but  whether  the  legislature  has  power,  under  the  constitution,  to  establish 
such  a  system.  As  already  stated,  if  the  provision  requiring  the  rule  of  taxation 
to  be  uniform  was  the  only  one  bearing  upon  the  question,  I  should  answer  this 
also  in  the  negative.  But  there  is  another  provision  which  seems  to  me  so  im- 
portant, that  it  has  changed  the  result  to  which  I  should  otherwise  have  arrived. 
That  provision  is  §  3  of  art.  11,  and  is  as  follows  :  '  It  shall  be  the  duty  of  the 
legislature,  and  they  are  hereby  empowered,  to  provide  for  the  organization  of 
cities  and  incorporated  villages,  and  to  restrict  their  power  of  taxation,  assess- 
vient,  borrowing  money,  contracting  debts,  and  loaning  their  credit,  so  as  to 
prevent  abuses  in  assessments  and  taxation,  and  in  contracting  debts  by  such 
municipal  corporations.' 

"  It  cannot  well  be  denied  that  if  the  word  '  assessment,'  as  used  in  this  sec- 
tion, had  reference  to  this  established  system  of  special  taxation  for  municipal 
improvements,  that  then  it  is  a  clear  recognition  of  the  existence  and  legality  of 
the  power."  And  the  court,  having  reached  the  conclusion  that  the  word  did 
have  reference  to  such  an  established  system,  sustain  the  assessment,  adding : 
[  596  ] 


CH.  XIV.]  THE   POWER    OP   TAXATION.  *  509 

districts  be  created,  with  a  *  view  to  local  improvements.  [*  510] 
The  cases  of  drains  to  relieve  swamps,  marshes,  and  other 
low  lands  of  their  stagnant  water,  and  of  levees  to  prevent  lands 
being  overflowed  by  rivers,  will  at  once  suggest  themselves.  In 
providing  for  such  cases,  however,  the  legislature  exercises  another 
power  besides  the  power  of  taxation.  On  the  theory  that  the 
drainage  is  for  the  sole  purpose  of  benefiting  the  lands  of  individ- 
uals, it  might  be  difficult  to  defend  such  legislation.  But  if  the 
stagnant  water  causes  or  threatens  disease,  it  may  be  a  nuisance, 
which,  under  its  power  of  police,  the  State  would  have  authority 

"  The  same  effect  was  given  to  the  same  clause  in  the  Constitution  of  Ohio,  by 
the  Supreme  Court  of  that  State,  in  a  recent  decision  in  the  case  of  Hill  v.  Higdon, 
5  Ohio,  N.  s.  243.  And  the  reasoning  of  Chief  Justice  Ranney  on  the  question 
I  think  it  impossible  to  answer." 

If  the  State  of  Wisconsin  had  any  settled  and  known  practice,  designated  as 
assessments,  under  which  each  lot  owner  was  compelled  to  construct  the  streets 
in  front  of  his  lot,  then  the  constitution  as  quoted  may  well  be  held  to  recognize 
such  practice.  In  this  view,  however,  it  is  still  difficult  to  discover  any  "  restric- 
tion "  in  a  law  which  perpetuates  the  arbitrary  and  unjust  custom,  and  which  still 
permits  the  whole  expense  of  making  the  street  in  front  of  each  lot  to  be  imposed 
upon  it.  The  only  restriction  which  the  law  imposes  is,  that  its  terms  exclude 
uniformity,  equality,  and  justice,  which  surely  could  not  be  the  restriction  the 
constitution  designed.  Certainly  the  learned  judge  shows  very  clearly  that  such 
a  law  is  unwarranted  as  a  legitimate  exercise  of  the  taxing  power ;  and  as  it 
cannot  be  warranted  under  any  other  power  known  to  constitutional  government, 
the  authority  to  adopt  it  should  not  be  found  in  doubtful  words.  The  case  of 
Hill  v.  Higdon,  referred  to,  is  different.  There  the  expense  of  improving  the 
street  was  assessed  upon  the  property  abutting  on  the  street,  in  proportion  to  the 
foot  front.  The  decision  there  was,  that  the  constitutional  provision  that  "  laws 
shall  be  passed  taxing  by  a  uniform  rule  all  moneys,  &c,  and  also  all  real  and 
personal  property,  according  to  its  true  value  in  money,"  had  no  reference  to 
these  local  assessments,  which  might  still  be  made,  as  they  were  before  the  con- 
stitution was  adopted,  with  reference  to  the  benefits  conferred.  The  case,  there- 
fore, showed  a  rule  of  apportionment  which  was  made  applicable  throughout  the 
taxing  district,  to  wit,  along  the  street  so  far  as  the  improvement  extended. 
The  case  of  State  v.  City  of  Portage,  12  Wis.  562,  holds  that  a  law  authorizing 
the  expense  of  an  improvement  to  be  assessed  upon  the  abutting  lots,  in  pro- 
portion to  their  front  or\size,  would  not  justify  and  sustain  city  action  which 
required  the  owner  of  each  lot  to  bear  the  expense  of  the  improvement  in  front 
of  it. 

It  has  been  often  contended  that  taxation  by  frontage  was  in  effect  a  taking  of 
property  for  the  public  use,  but  the  courts  have  held  otherwise.  People  v. 
Mayor,  &c,  of  Brooklyn,  4  X.  Y.  419;  Allen  v.  Drew,  44  Vt.  174;  Warren  v. 
Henley,  31  Iowa,  39;  Washington  Avenue,  69  Penn.  St.  353;  s.  c.  8  Am. 
Rep.  255. 

[597] 


*  510  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

to  abate.  The  laws  for  this  purpose,  so  far  as  they  have  fallen 
under  our  observation,  have  proceeded  upon  this  theory. 
[*  511]  Nevertheless,  when  the  State  incurs  *  expense  in  the  exer- 
cise of  its  police  power  for  this  purpose,  it  is  proper  to 
assess  that  expense  upon  the  portion  of  the  community  specially 
and  peculiarly  benefited.  The  assessment  is  usually  made  with 
reference  to  the  benefit  to  property  ;  and  it  is  difficult  to  frame  or 
to  conceive  of  any  other  rule  of  apportionment  that  would  operate 
so  justly  and  so  equally  in  these  cases.  There  maybe  difficulty 
in  the  detail ;  difficulty  in  securing  just  and  impartial  assessments  ; 
but  the  principle  of  such  a  law  would  not  depend  for  its  sound- 
ness upon  such  considerations.1 

1  See  Reeves  v.  Treasurer  of  Wood  Co.,  8  Ohio.  n.  s.  333;  French  v.  Kirk- 
land,  1  Paige,  117  ;  Philips  v.  Wickkam,  ib.  590.  In  Woodruff  v.  Fisher,  17 
Barb.  224,  Hand,  J.,  speaking  of  one  of  these  drainage  laws,  says:  "  If  the 
object  to  be  accomplished  by  this  statute  may  be  considered  a  public  improve- 
ment, the  power  of  taxation  seems  to  have  been  sustained  upon  analogous  prin- 
ciples. [Citing  People  v.  Mayor,  &c,  of  Brooklyn,  4  N.  Y.  419  ;  Thomas  v. 
Leland,  24  Wend.  65;  and  Livingston  v.  Mayor,  &c,  of  New  York,  8  Wend. 
101.]  But  if  the  object  was  merely  to  improve  the  property  of  individuals,  I 
think  the  statute  would  be  void,  although  it  provided  for  compensation.  The 
water  privileges  on  Indian  River  cannot  be  taken  or  affected  in  any  way  solely 
for  the  private  advantage  of  others,  however  numerous  the  beneficiaries.  Sev- 
eral statutes  have  been  passed  for  draining  swamps,  but  it  seems  to  me  that 
the  principle  above  advanced  rests  upon  natural  and  constitutional  law.  The 
professed  object  of  this  statute  is  to  promote  public  health.  And  one  question 
that  arises  is,  whether  the  owners  of  large  tracts  of  land  in  a  state  of  nature  can 
be  taxed  to  pay  the  expense  of  draining  them,  by  destroying  the  dams,  &c,  of 
other  persons  away  from  the  drowned  lands,  and  for  the  purposes  of  public 
health.  This  law  proposes  to  destroy  the  water  power  of  certain  persons  against 
their  will,  to  drain  the  lands  of  others,  also,  for  all  that  appears,  against  their 
will ;  and  all  at  the  expense  of  the  latter,  for  this  public  good.  If  this  taxation  is 
illegal,  no  mode  of  compensation  is  provided,  and  all  is  illegal."  "  The  owners 
of  these  lands  could  not  be  convicted  of  maintaining  a  public  nuisance  because 
they  did  not  drain  them ;  even  though  they  were  the  owners  of  the  lands  upon 
which  the  obstructions  are  situated.  It  does  not  appear  by  the  act  or  the  com- 
plaint that  the  sickness  to  be  prevented  prevails  among  inhabitants  on  the  wet 
lands,  nor  whether  these  lands  will  be  benefited  or  injured  by  draining;  and  cer- 
tainly, unless  they  will  be  benefited,  it  would  seem  to  be  partial  legislation  to  tax 
a  certain  tract  of  land,  for  the  expense  of  doing  to  it  what  did  not  improve  it, 
merely  because,  in  a  state  of  nature,  it  may  be  productive  of  sickness.  Street 
assessments  are  put  upon  the  ground  that  the  land  assessed  is  improved,  and  its 
value  greatly  enhanced."  The  remarks  of  Green,  J.,  in  Williams  v.  Mayor,  &c, 
of  Detroit,  2  Mich.  567,  may  be  here  quoted:  "Every  species  of  taxation,  in 
every  mode,  is  in  theory  and  principle  based  upon  an  idea  of  compensation,  ben- 

[  598  ] 


CH.  XIV.]  THE    POWER   OF   TAXATION.  *  512 

*  Iii  certain  classes  of  cases,  it  has  been  customary  to  [*  512] 
call  upon  the  citizen  to  appear  in  person  and  perform  ser- 
vice for  the  State,  in  the  nature  of  police  duties.  The  burden  of 
improving  and  repairing  the  common  highways  of  the  country, 
except  in  the  urban  districts,  is  generally  laid  upon  the  people  in 
the  form  of  an  assessment  of  labor.  The  assessment  may  be  upon 
each  citizen,  in  proportion  to  his  property ;  or,  in  addition  to  the 
property  assessment,  there  may  be  one  also  by  the  poll.  But 
though  the  public  burden  assumes  the  form  of  labor,  it  is  still  tax- 
ation, and  must  therefore  be  levied  on  some  principle  of  uniform- 
ity. But  it  is  a  peculiar  species  of  taxation  ;  and  the  general  terms 
"  tax,"  or  "  taxation,"  as  employed  in  the  State  constitutions, 
would  not  generally  be  understood  to  include  it.  It  has  been  de- 
cided that  the  clause  in  the  Constitution  of  Illinois,  that  "  the 
mode  of  levying  a  tax  shall  be  by  valuation,  so  that  every  person 
shall  pay  a  tax  in  proportion  to  the  value  of  the  property  he  or  she 
has  in  his  or  her  possession,"  did  not  prevent  the  levy  of  poll-taxes 
in  highway  labor.  "  The  framers  of  the  constitution  intended  to 
direct  a  uniform  mode  of  taxation  on  property,  and  not  to  prohibit 
any  other  species  of  taxation,  but  to  leave  the  legislature  the  power 
to  impose  such  other  taxes  as  would  be  consonant  to  public  justice, 
and  as  the  circumstances  of  the  country  might  require.  They  prob- 
ably intended  to  prevent  the  imposition  of  an  arbitrary  tax  on  prop- 

efit,  or  advantage  to  the  person  or  property  taxed,  either  directly  or  indirectly. 
If  the  tax  is  levied  for  the  support  of  the  government  and  general  police  of  the 
State,  for  the  education  and  moral  instruction  of  the  citizens,  or  the  construction 
of  works  of  internal  improvement,  be  is  supposed  to  receive  a  just  compensation 
in  the  security  which  the  government  affords  to  his  person  and  property,  the  means 
of  enjoying  his  possessions,  and  their  enhanced  capacity  to  contribute  to  his 
comfort  and  gratification,  which  constitute  their  value." 

It  has  been  held  incompetent,  however,  for  a  city  which  has  itself  created  a 
nuisance  on  the  property  of  a  citizen,  to  tax  him  for  the  expense  of  removing  or 
abating   it.     Weeks  v.  Milwaukee,  10  Wis.  258. 

In  Egyptian  Levee  Co.  v.  Hardin,  27  Mo.  495,  it  was  held  that  a  special 
assessment  for  the  purpose  of  reclaiming  a  district  from  inundation  might  prop- 
erly be  laid  upon  land  in  proportion  to  its  area,  and  that  the  constitutional  pro- 
vision that  taxation  should  be  levied  on  property  in  proportion  to  its  valuation 
did  not  preclude  this  mode  of  assessment.  The  same  ruling  was  made  in  Louisi- 
ana cases.  Crowley  v.  Copley,  2  La.  An.  829  ;  Yeatman  v.  Crandall,  11  La.  An. 
220;  Wallace  v.  Shelton,  14  La.  An.  498;  Bishop  v.  Marks,  15  La.  An.  147; 
Richardson  v.  Morgan,  16  La.  An.  429  ;  McGehee  v.  Mathis,  21  Ark.  40 ;  Jones 
v.  Boston,  104  Mass.  461. 

[599] 


*  512  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

erty,  according  to  kind  and  quantity,  and  without  reference  to 
value.  The  inequality  of  the  mode  of  taxation  was  the  object  to 
be  avoided.  We  cannot  believe  that  they  intended  that  all  the 
public  burdens  should  be  borne  by  those  having  property  in  pos- 
session, wholly  exempting  the  rest  of  the  community,  who, 
"*513j  by  the  *  same  constitution  were  made  secure  in  the  exer- 
cise of  the  rights  of  suffrage,  and  all  the  immunities  of 
the  citizen."  l  And  in  another  case,  where  an  assessment  of  high- 
way labor  is  compared  with  one  upon  adjacent  property  for  widen- 
ing a  street,  —  which  had  been  held  not  to  be  taxation,  as  that  term 
was  understood  in  the  Constitution,  —  it  is  said :  ;'  An  assessment 
of  labor  for  the  repair  of  roads  and  streets  is  less  like  a  tax  than 
is  such  an  assessment.  The  former  is  not  based  upon,  nor  has  it 
any  reference  to,  property  or  values  owned  by  the  person  of  whom 
it  is  required,  whilst  the  latter  is  based  alone  upon  the  property 
designated  by  the  law  imposing  it.  Nor  is  an  assessment  a  capi- 
tation tax,  as  that  is  a  sum  of  money  levied  upon  each  poll.  This 
rate,  on  the  contrary,  is  a  requisition  for  so  many  days'  labor,  which 
may  be  commuted  in  money.  No  doubt,  the  number  of  days"  levied, 
and  the  sum  which  may  be  received  by  commutation,  must  be  uni- 
form within  the  limits  of  the  district  or  body  imposing  the  same. 
This  requisition  for  labor  to  repair  roads  is  not  a  tax,  and  hence 
this  exemption  is  not  repugnant  to  the  constitution."  2 

It  will  be  apparent  from  what  has  already  been  said,  that  it  is 
not  essential  to  the  validity  of  taxation  that  it  be  levied  according 
to  rules  of  abstract  justice.3  It  is  only  essential  that  the  legis- 
lature keep  within  its  proper  sphere  of  action,  and  not  impose 
burdens  under  the  name  of  taxation  which  are  not  taxes  in  fact ; 
and  its  decision  as  to  what  is  proper,  just,  and  politic,  must  then 
be  final  and  conclusive.  Absolute  equality  and  strict  justice  are 
unattainable  in  tax  proceedings.     The  legislature  must  be  left  to 

1  Sawyer  v.  City  of  Alton,  3  Scam.  130. 

2  Town  of  Pleasant  v.  Kost,  29  111.  494. 

3  Frellsen  v.  Mahan,  21  La.  An.  79 ;  People  v.  Whyler,  41  Cal.  351  ;  War- 
ren v.  Henley,  31  Iowa,  43.  In  this  last  case,  Beck,  J.,  criticises  the  position 
taken  ante,  pp.  507,  508,  that  the  cost  of  a  local  improvement  cannot  be  imposed 
on  the  adjoining  premises  irrespective  of  any  apportionment,  and  appears  to  sup- 
pose our  views  rest  upon  the  injustice  of  such  a  proceeding.  This  is  not  strictly 
correct ;  it  may  or  may  not  be  just  in  any  particular  case  ;  but  taxation  necessa- 
rily implies  apportionment,  and  even  a  just  burden  cannot  be  imposed  as  a  tax 
without  it. 

[600] 


CH.  XIV.]  THE   POWER   OF   TAXATION.  *  513 

decide  for  itself  how  nearly  it  is  possible  to  approximate  so  desir- 
able a  result.  It  must  happen  under  any  tax  law  that  some  prop- 
erty will  be  taxed  twice,  while  other  property  will  escape  taxation 
altogether.  Instances  will  also  occur  where  persons  will  be  taxed 
as  owners  of  property  which  has  ceased  to  exist.  The  system  in 
vogue  for  taking  valuations  of  property  fixes  upon  a  certain  time 
for  that  purpose,  and  a  party  becomes  liable  to  be  taxed  upon 
what  he  possesses  at  the  time  the  valuing  officer  calls  upon  him. 
Yet  changes  of  property  from  person  to  person  are  occurring  while 
the  valuation  is  going  on,  and  the  same  parcel  of  property  is  found 
by  the  assessor  in  the  hands  of  two  different  persons,  and  is  twice 
assessed,  while  another  parcel  for  similar  reasons  is  not  assessed 
at  all.  Then  the  man  who  owns  property  when  the  as- 
sessment is  *  taken  may  have  been  deprived  of  it  by  acci-  [*  514] 
dent  or  other  misfortune  before  the  tax  becomes  payable ; 
but  the  tax  is  nevertheless  a  charge  against  him.  And  when  the 
valuation  is  only  made  once  in  a  series  of  years,  the  occasional 
hardships  and  inequalities  in  consequence  of  relative  changes  in 
the  value  of  property  from  various  causes  become  sometimes  very 
glaring.  Nevertheless,  no  question  of  constitutional  law  is  in- 
volved in  these  cases,  and  the  legislative  control  is  complete.1 

The  legislature  must  also,  except  when  an  unbending  rule  has 
been  prescribed  for  it  by  the  constitution,  have  power  to  select  in 
its  discretion  the  subjects  of  taxation.  The  rule  of  uniformity  re- 
quires an  apportionment  among  all  the  subjects  of  taxation  within 
the  districts  ;  but  it  does  not  require  that  every  thing  which  the 

1  In  Shaw  v.  Dennis,  5  Gilm.  418,  objection  was  taken  to  an  assessment  made 
for  a  local  improvement  under  a  special  statute,  that  the  commissioners,  in  deter- 
mining who  should  be  liable  to  pay  the  tax,  and  the  amount  each  should  pay, 
were  to  be  governed  by  the  last  assessment  of  taxable  property  in  the  county. 
It  was  insisted  that  this  was  an  unjust  criterion,  for  a  man  might  have  disposed 
of  all  the  taxable  property  assessed  to  him  in  the  last  assessment  before  this  tax 
was  actually  declared  by  the  commissioners.  The  court,  however,  regarded  the 
objection  as  more  refined  than  practical,  and  one  that,  if  allowed,  would  at  once 
annihilate  the  power  of  taxation.  "  In  the  imposition  of  taxes,  exact  and  critical 
justice  and  equality  are  absolutely  unattainable.  If  we  attempt  it,  we  might  have 
to  divide  a  single  year's  tax  upon  a  given  article  of  property  among  a  dozen  dif- 
ferent individuals  who  owned  it  at  different  times  during  the  year,  and  then  be 
almost  as  far  from  the  desired  end  as  when  we  started.  The  proposition  is  Uto- 
pian. The  legislature  must  adopt  some  practicable  system  ;  and  there  is  no  more 
danger  of  oppression  or  injustice  in  taking  a  former  valuation  than  in  relying 
upon  one  to  be  made  subsequently." 

[601] 


*  514  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

legislature  might  make  taxable  shall  be  made  so  in  fact.  Many 
exemptions  are  usually  made  from  taxation  from  reasons  the  co- 
gency of  which  is  at  once  apparent.  The  agencies  of  the  national 
government,  we  have  seen,  are  not  taxable  by  the  States ;  and  the 
agencies  and  property  of  States,  counties,  cities,  boroughs,  towns, 
and  villages  are  also  exempted  by  law,  because,  if  any  portion  of 
the  public  expenses  was  imposed  upon  them,  it  must  in  some  form 
be  collected  from  the  citizens  before  it  can  be  paid.  No  beneficial 
object  could  therefore  be  accomplished  by  any  such  assessment. 
The  property  of  educational  and  religious  institutions  is  also  gen- 
erally exempted  from  taxation  by  law  upon  very  similar  considera- 
tions, and  from  a  prevailing  belief  that  it  is  the  policy  and  the 

interest  of  the  State  to  encourage  them.1     If  the  State 
[*515]  *  may  cause  taxes  to  be  levied  from  motives  of  charity  or 

gratitude,  so  for  the  like  reasons  it  may  exempt  the  objects 
of  charity  and  gratitude  from  taxation.  Property  is  sometimes 
released  from  taxation  by  contract  with  the  State  and  corporations, 
and  specified  occupations  are  sometimes  charged  with  specific 
taxes  in  lieu  of  all  taxation  of  their  property.  A  broad  field  is  here 
opened  to  legislative  discretion.  As  matter  of  State  policy  it 
might  also  be  deemed  proper  to  make  general  exemption  of  suffi- 
cient of  the  tools  of  trade  or  other  means  of  support  to  enable 
the  poor  man,  not  yet  a  pauper,  to  escape  becoming  a  public  bur- 
den. There  is  still  ample  room  for  apportionment  after  all  such 
exemptions  .have  been  made.  The  constitutional  requirement  of 
equality' and  uniformity  only  extends  to  such  objects  of  taxation 
as  the  legislature  shall  determine  to  be  properly  subject  to  the 
burden.2  The  power  to  determine  the  persons  and  the  objects  to 
be  taxed  is  trusted  exclusively  to  the  legislative  department ; 3 

1  As  in  the  case  of  other  special  privileges,  exemptions  from  taxation  are  to 
be  strictl}'  construed.  Trustees  of  M.  E.  Church  v.  Ellis,  38  Ind.  3  ;  State  v. 
Mills,  34  N.  J.  177.  It  has  been  generally  held  that  an  exemption  from  taxation 
would  not  exempt  the  property  from  being  assessed  for  a  local  improvement. 
Matter  of  Mayor,  &c,  11  Johns.  77;  Baltimore  v.  Cemetery  Co.,  7  Md.  517; 
La  Fayette  v.  Orphan  Asylum,  2  La.  An.  1 ;  Pray  v.  Northern  Liberties,  31  Penn. 
St.  69 ;  Le  Fever  v.  Detroit,  2  Mich.  586 ;  Lockwood  v.  St.  Louis,  21  Mo.  20  ; 
Broadway  Baptist  Church  v.  McAtee,  8  Bush,  508 ;  s.  c.  8  Am.  Rep.  480. 

2  State  v.  North,  27  Mo.  464 ;  People  v.  Colman,  3  Cal.  46  ;  Durach's  Appeal, 
62  Penn.  St,  494. 

3  Wilson  v.  Mayor,  &c,  of  New  York,  4  E.  D.  Smith,  675 ;  Hill  v.  Higdon, 
5  Ohio,  n.  s.  245 ;  State  v.  Parker,  33  N.  J.  313.     Notwithstanding  a  require- 

[602  ] 


CH.  XIV.]  THE   POWER   OP   TAXATION.  *  515 

but  over  all  those  the  burden  must  be  spread,  or  it  will  be 
unequal  and  unlawful  as  to  those  who  are  selected  to  make  the 
payment.1 

ment  that  "  the  rule  of  taxation  shall  be  uniform,"  the  legislature  may  levy 
specific  State  taxes  on  corporations,  and  exempt  them  from  municipal  taxation. 
So  held  on  the  ground  of  stare  decisis.     Kneeland  v.  Milwaukee,  15  Wis.  454. 

1  In  the  case  of  Weeks  v.  Milwaukee,  10  Wis.  242,  a  somewhat  peculiar  exemp- 
tion -was  made.  It  appears  that  several  lots  in  the  city  upon  which  a  new 
hotel  -was  being  constructed,  of  the  value  of  from  $150,000  to  $200,000,  were 
purposely  omitted  to  be  taxed,  under  the  direction  of  the  Common  Council,  "  in 
view  of  the  great  public  benefit  which  the  construction  of  the  hotel  would  be  to 
the  city."  Paine,  J.,  in  delivering  the  opinion  of  the  court,  says:  "I  have  no 
doubt  this  exemption  originated  in  motives  of  generosity  and  public  spirit.  And 
perhaps  the  same  motives  should  induce  the  tax-payers  of  the  city  to  submit  to 
the  slight  increase  of  the  tax  thereby  imposed  on  each,  without  questioning  its 
strict  legality.  But  they  cannot  be  compelled  to.  No  man  is  obliged  to  be 
more  generous  than  the  law  requires,  but  each  may  stand  strictly  upon  his  legal 
rights.  »That  this  exemption  was  illegal,  was  scarcely  contested.  I  shall,  there- 
fore, make  no  effort  to  show  that  the  Common  Council  had  no  authority  to 
suspend  or  repeal  the  general  law  of  the  State,  declaring  what  property  shall  be 
taxable  and  what  exempt.  But  the  important  question  presented  is,  whether, 
conceding  it  to  have  been  entirely  unauthorized,  it  vitiates  the  tax  assessed  upon 
other  property.  And  upon  this  question  I  think  the  following  rule  is  established, 
both  by  reason  and  authority.  Omissions  of  this  character,  arising  from  mistakes 
of  fact,  erroneous  computations,  or  errors  of  judgment  on  the  part  of  those  to 
whom  the  execution  of  the  taxing  laws  is  intrusted,  do  not  necessarily  vitiate 
the  whole  tax.  But  intentional  disregard  of  those  laws,  in  such  manner  as  to 
impose  illegal  taxes  on  those  who  are  assessed,  does.  The  first  part  of  the  rule 
is  necessary  to  enable  taxes  to  be  collected  at  all.  The  execution  of  these  laws 
is  necessarily  intrusted  to  men,  and  men  are  fallible,  liable  to  frequent  mistakes 
of  fact  and  errors  of  judgment.  If  such  errors,  on  the  part  of  those  who  are 
attempting  in  good  faith  to  perform  their  duties,  should  vitiate  the  whole  tax,  no 
tax  could  ever  be  collected.  And,  therefore,  though  they  sometimes  increase 
improperly  the  burdens  of  those  paying  taxes,  that  part  of  the  rule  which  holds 
the  tax  not  thereby  avoided  is  absolutely  essential  to  a  continuance  of  govern- 
ment. But  it  seems  to  me  clear  that  the  other  part  is  equally  essential  to  the 
just  protection  of  the  citizen.  If  those  executing  these  laws  may  deliberately 
disregard  them,  and  assess  the  whole  tax  upon  a  part  only  of  those  who  are 
liable  to  pay  it,  and  have  it  still  a  legal  tax,  then  the  laws  afford  no  protection, 
and  the  citizen  is  at  the  mercy  of  those  officers,  who,  by  being  appointed  to  exe- 
cute the  laws,  would  seem  to  be  thereby  placed  beyond  legal  control.  I  know 
of  no  considerations  of  public  policy  or  necessity  that  can  justify  carrying  the 
rule  to  that  extent.  And  the  fact  that  in  this  instance  the  disregard  of  the  law 
proceeded  from  good  motives  ought  not  to  affect  the  decision  of  the  question. 
It  is  a  rule  of  law  that  is  to  be  established ;  and,  if  established  here  because  the 
motives  were  good,  it  would  serve  as  a  precedent  where  the  motives  were  bad, 

[603] 


*  515  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

In  some  of  the  States  it  has  been  decided  that  the  par- 
[*  516]  ticular  *  provisions  inserted  in  their  constitutions  to  insure 

uniformity  are  so  worded  as  to  forbid  exemptions.  Thus 
the  Constitution  of  Illinois  provided  that  "  the  General  Assembly 
shall  provide  for  levying  a  tax  by  valuation,  so  that  every  person 
and  corporation  shall  pay  a  tax  in  proportion  to  the  value  of  his 
or  her  property."  1  Under  this  it  has  been  held  that  exemption 
by  the  legislature  of  persons  residing  in  a  city  from  a  tax  levied 
to  repair  roads  beyond  the  city  limits,  by  township  authority, — 
the  city  being  embraced  within  the  township  which,  for  that  pur- 
pose, was  the  taxing  district,  —  was  void.2  It  is  to  be  observed  of. 
these    cases,    however,  that   they  would   have   fallen   within    the 

general  principle  laid  down  in  Knowlton  v.  Supervisors  of 
[*  517]  Rock  Co.,3  and  the  legislative  acts  *  under  consideration 

might  perhaps  have  been  declared  void  on  general  prin- 
ciples, irrespective  of  the  peculiar  wording  of  the  constitution. 
These  cases,  notwithstanding,  as  well  as  others  in  Illinois,  recog- 
nize the  power  in  the  legislature  to  commute  for  a  tax,  or  to  con- 
tract for  its  release  for  a  consideration.  The  Constitution  of  Ohio 
provides  4  that  "  laws  shall  be  passed  taxing  by  a  uniform  rule  all 
moneys,  credits,  investments  in  bonds,  stocks,  joint-stock  com- 
panies, or  otherwise  ;  and  also  all  real  and  personal  property, 
according  to  its  true  value  in  money."  Under  this  section  it  was 
held  not  competent  for  the  legislature  to  provide  that  lands  within 
the  limits  of  a  city  should  not  be  taxed  for  any  city  purpose, 
except  roads,  unless  the  same  were  laid  off  into  town  lots  and 

and  the  power  usurped  for  purposes  of  oppression."  pp.  263-265.  See  also 
Henry  v.  Chester,  15  Vt.  460 ;  State  v.  Collector  of  Jersey  City,  4  Zab.  108 ; 
Insurance  Co.  v.  Yard,  17  Penn.  St.  331 ;  Williams  v.  School  District,  21  Pick. 
75 ;  Hersey  v.  Supervisors  of  Milwaukee,  16  Wis.  185 ;  Crosby  v.  Lyon,  37  Cal. 
242.  But  it  seems  that  an  omission  of  property  from  the  tax-roll  by  the  assessor, 
unintentionally,  through  want  of  judgment  and  lack  of  diligence  and  business 
habits,  will  not  invalidate  the  roll.  Dean  v.  Gleason,  16  Wis.  1.  In  Scofield 
v.  Watkins,  22  III.  72,  and  Merritt  v.  Farriss,  ib.  311,  it  appears  to  be  decided 
that  even  in  the  case  of  intentional  omissions,  the  tax-roll  would  not  be  invali- 
dated, but  the  parties  injured  would  be  left  to  their  remedy  against  the  assessor. 
See  also  Dunham  v.  Chicago,  55  111.  361. 

1  Art.  9,  §  2,  of  the  old  Constitution. 

2  O'Kane  v.  Treat,  25  111.  561 ;  Hunsaker  v.  Wright,  30  111.  146.     See  also 
Trustees  v.  McConnell,  12  111.  138. 

3  9  Wis.  410. 

4  Art.  12,  §  2. 

[604] 


CH.  XIV.]  THE   POWER   OF   TAXATION.  *  517 

recorded  as  such,  or  into  out-lots  not  exceeding  five  acres  each.1 
Upon  this  case  we  should  make  the  same  remark  as  upon  the 
Illinois  cases  above  referred  to. 

It  is,  moreover,  essential  to  valid  taxation  that  the  taxing  offi- 
cers be  able  to  show  legislative  authority  for  the  burden  they 
assume  to  impose  in  every  instance.  Taxes  can  only  be  voted  by 
the  people's  representatives.  They  are  in  every  instance  an  appro- 
priation by  the  people  to  the  government,  which  the  latter  is  to 
expend  in  furnishing  the  people  protection,  security,  and  such 
facilities  for  enjoyment  as  it  properly  pertains  to  government  to 
provide.  This  principle  is  a  chief  corner-stone  of  Anglo-Saxon 
liberty ;  and  it  has  operated  not  only  as  an  important  check  on 
government,  in  preventing  extravagant  expenditures,  as  well  as 
unjust  and  tyrannical  action,  but  it  has  been  an  important  guaranty 
of  the  right  of  private  property.  Property  is  secure  from  the  law- 
less grasp  of  the  government,  if  the  means  of  existence  of  the  gov- 
ernment depend  upon  the  voluntary  grants  of  those  who  own  the 
property.  Our  ancestors  coupled  their  grants  with  demands  for 
the  redress  of  grievances ;  but  in  modern  times  the  surest  protec- 
tion against  grievances  has  been  found  to  be  to  vote  specific  taxes 
for  the  specific  purposes  to  which  the  people's  representatives  are 
willing  they  shall  be  devoted ; 2  and  the  persons  exercising  the 
functions  of  government  must  then  become  petitioners  if  they 
desire  money  for  other  objects.  And  then  these  grants  are  only 
made  periodically.  Only  a  few  things,  such  as  the  salaries  of 
officers,  the  interest  upon  the  public  debt,  the  support 
*  of  schools,  and  the  like,  are  provided  for  by  permanent  [*  518] 
laws ;  and  not  always  is  this  done.  The  government  is 
dependent  from  year  to  year  on  the  periodical  vote  of  supplies. 
And  this  vote  will  come  from  representatives  who  are  newly 
chosen  by  the  people,  and  who  will  be  expected  to  reflect  their 
views  regarding  the  public  expenditures.  State  taxation,  there- 
fore, is  not  likely  to  be  excessive  or  onerous,  except  when  the 
people,  in  times  of  financial  ease,  excitement,  and  inflation,  have 
allowed  the  incurring  of  extravagant  debts,  the  burden  of  which 
remains  after  the  excitement  has  passed  away. 

But  it  is  as  true  of  the  political  divisions  of  the  State  as  it  is  of 

1  Zanesville  v.  Auditor  of  Muskingum  County,  5  Ohio,  N.  s.  589. 

2  Hoboken  v.  Phinney,  5  Dutch.  65. 

[  605] 


*  518  CONSTITUTIONAL    LIMITATIONS.  [CH.  XIV. 

the  State  at  large,  that  legislative  authority  must  be  shown  for 
every  levy  of  taxes.1  The  power  to  levy  taxes  by  these  divisions 
conies  from  the  State.  The  State  confers  it,  and  at  the  same  time 
exercises  a  parental  supervision  by  circumscribing  it.  Indeed,  on 
general  principles,  the  power  is  circumscribed  by  the  rule  that  the 
taxation  by  the  local  authorities  can  only  be  for  local  purposes.2 
Neither  the  State  nor  the  local  body  can  authorize  the  imposition 
of  a  tax  on  the  people  of  a  county  or  town  for  an  object  in  which 
the  people  of  the  county  or  town  are  not  concerned.  And  by  some 
of  the  State  constitutions  it  is  expressly  required  that  the  State, 
in  creating  municipal  corporations,  shall  restrict  their  power  of 
taxation  over  the  subjects  within  their  control.  These  require- 
ments, however,  impose  an  obligation  upon  the  legislature  which 
only  its  sense  of  duty  can  compel  it  to  perform.3  It  is  evident 
that  if  the  legislature  fail  to  enact  the  restrictive  legislation,  the 
courts  have  no  power  to  compel  such  action.  Whether  in  any  case 
a  charter  of  incorporation  could  be  held  void  on  the  ground  that 
it  conferred  unlimited  powers  of  taxation,  is  a  question  that  could 
not  well  arise,  as  a  charter  is  probably  never  granted  which  does 
not  impose  some  restrictions  ;  and  where  that  is  the  case,  it  must 
be  inferred  that  those  were  all  the  restrictions  the  legislature 
deemed  important,  and  that  therefore  the  constitutional  duty  of 
the  legislature  has  been  performed.4 

1  Clark  v.  Davenport,  14  Iowa,  494 ;  Burlington  v.  Kellar,  18  Iowa,  59 ; 
Mays  v.  Cincinnati,  1  Ohio,  N.  s.  273. 

2  Foster  v.  Kenosha,  12  Wis.  GIG.     See  ante,  p.  213. 

3  In  Hill  v.  lligdon,  5  Ohio,  N.  s.  248,  Ranney,  J.,  says  of  this  provision: 
*'  A  failure  to  perform  this  duty  may  be  of  very  serious  import,  but  lays  no 
foundation  for  judicial  correction."  And  see  Maloy  v.  Marietta,  11  Ohio,  n.  s. 
G38. 

1  The  Constitution  of  Ohio  requires  the  legislature  to  provide  by  general  laws 
for  the  organization  of  cities  and  incorporated  villages,  and  to  restrict  their 
power  of  taxation,  assessment,  &c.  The  general  law  authorizing  the  expense  of 
grading  and  paving  streets  to  be  assessed  on  the  grounds  bounding  and  abutting 
on  the  street,  in  proportion  to  the  street  front,  was  regarded  as  being  passed  in 
attempted  fulfilment  of  the  constitutional  duty,  and  therefore  valid.  The  chief 
restriction  in  the  case  was,  that  it  did  not  authorize  assessment  in  any  other  or 
different  mode  from  what  had  been  customary.  Northern  Indiana  R.R.  Co.  v. 
Connelly,  10  Ohio,  N.  s.  165.  The  statute  also  provided  that  no  improvement 
or  repair  of  a  street  or  highway,  the  cost  of  which  was  to  be  assessed  upon  the 
owners,  should  be  directed  without  the  concurrence  of  two-thirds  of  the  members 
elected  to  the  municipal  council,  or  unless  two-thirds  of  the  owners  to  be  charged 

[606  J 


CH.  XIV.]  THE   POWER   OF   TAXATION.  *  519 

*  When,  however,  it  is   said  to   be   essential  to  valid  [*  519J 
taxation  that  there  be  legislative  authority  for  every  tax 
that  is  laid,  it  is  not  meant  that  the  legislative  department  of  the 
State  must  have  passed  upon  the  necessity  and  propriety 
of  every  particular  tax  ;  *  but  those  who  assume  to  seize  [*  520] 
the  property  of  the  citizen  for  the  satisfaction  of  the  tax 
must  be  able  to  show  that  that  particular  tax  is  authorized,  either 
by  general  or  special  law.     The  power  inherent  in  the  government 
to  tax  lies  dormant  until  a  constitutional  law  has  been  passed  call 
ing  it  into  action,  and  is  then  vitalized  only  to  the  extent  provided 
by  the  law.     Those,  therefore,  who  act  under  such  law  should  be 
careful  to  keep  within  its  limits,  lest  they  remove  from  their  acts 

should  petition  in  writing  therefor.  In  Maloy  v.  Marietta,  11  Ohio,  N.  s.  639, 
Peck,  J.,  says:  "This  may  be  said  to  be  a  very  imperfect  protection;  and  in 
some  cases  will  doubtless  prove  to  be  so  ;  but  it  is  calculated  and  designed,  by 
the  unanimity  or  the  publicity  it  requires,  to  prevent  any  flagrant  abuses  of  the 
power.  Such  is  plainly  its  object;  and  we 'know  of  no  rights  conferred  upon 
courts  to  interfere  with  the  exercise  of  a  legislative  discretion  which  the  consti- 
tution has  delegated  to  the  law-making  power."  And  see  Weeks  v.  Milwaukee, 
10  Wis.  212.  The  Constitution  of  Michigan  requires  the  legislature,  in  providing 
for  the  incorporation  of  cities  and  villages,  to  "  restrict  their  power  of  taxation," 
&c.  The  Detroit  Metropolitan  Police  Law  made  it  the  duty  of  the  Board  of 
Police  to  prepare  and  submit  to  the  city  controller,  on  or  before  the  first  day  of 
May  in  each  year,  an  estimate  in  detail  of  the  cost  and  expense  of  maintaining 
the  police  department,  and  the  Common  Council  was  required  to  raise  the  same 
by  general  tax.  These  provisions,  it  was  claimed,  were  in  conflict  with  the 
constitution,  because  no  limit  was  fixed  by  them  to  the  estimates  that  might  be 
made.  In  People  v.  Mahaney,  13  Mich.  498,  the  court  say:  "Whether  this 
provision  of  the  constitution  can  be  regarded  as  mandatory  in  a  sense  that  would 
make  all  charters  of  municipal  corporations  and  acts  relating  thereto  which  are 
wanting  in  this  limitation  invalid,  we  do  not  feel  called  upon  to  decide  in  this 
case,  since  it  is  clear  that  a  limitation  upon  taxation  is  fixed  by  the  act  before  us. 
The  constitution  has  not  prescribed  the  character  of  the  restriction  which  shall 
be  imposed,  and  from  the  nature  of  the  case  it  was  impossible  to  do  more  than 
to  make  it  the  duty  of  the  legislature  to  set  some  bounds  to  a  power  so  liable  to 
abuse.  A  provision  which,  like  the  one  complained  of,  limits  the  power  of  tax- 
ation to  the  actual  expenses  as  estimated  by  the  governing  board,  after  first 
limiting  the  power  of  the  board  to  incur  expense  within  narrow  limits,  is  as  much 
a  restriction  as  if  it  confined  the  power  to  a  certain  percentage  upon  taxable 
property,  or  to  a  sum  proportioned  to  the  number  of  inhabitants  in  the  city. 
Whether  the  restriction  fixed  upon  would  as  effectually  guard  the  citizen  against 
abuse  as  any  other  which  might  have  been  established  was  a  question  for  the 
legislative  department  of  the  government,  and  does  not  concern  us  on  this 
inquiry." 

[  607] 


*  520  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

the  shield  of  its  protection.  While  we  do  not  propose  to  enter 
upon  any  attempt  to  point  out  the  various  cases  in  which  a  failure 
to  obey  strictly  the  requirements  of  the  law  will  render  the  pro- 
ceedings void,  and  in  regard  to  which  a  diversity  of  decision  would 
be  met  with,  we  think  we  shall  be  safe  in  saying  that,  in  cases  of 
this  description,  which  propose  to  dispossess  the  citizen  of  his 
property  against  his  will,  not  only  will  any  excess  of  taxation 
beyond  what  the  law  allows  render  the  proceedings  void,  but  any 
failure  to  comply  with  such  requirements  of  the  laws  as  are  made 
for  the  protection  of  the  owner's  interest  will  also  render  them 
void. 

There  are  several  cases  in  which  taxes  have  been  levied  but 
slightly  in  excess  of  legislative  power,  in  which  it  has  been  urged 
in  defence  of  the  proceedings  that  the  law  ought  not  to  take  notice 
of  such  unimportant  matters  ;  but  an  excess  of  jurisdiction  is  never 
unimportant.  In  one  case  in  Maine  the  excess  was  eighty-seven 
cents  only  in  a  tax  of  $225.75,  but  it  was  held  sufficient  to  render 
the  proceedings  void.  We  quote  from  Mellen,  Ch.  J.,  delivering 
the  opinion  of  the  court :  "  It  is  contended  that  the  sum  of  eighty- 
seven  cents  is  such  a  trifle  as  to  fall  within  the  range  of  the  maxim 
de  minimis,  &c. ;  but  if  not,  that  still  this  small  excess  does  not 
vitiate  the  assessment.  The  maxim  is  so  vague  in  itself  as  to 
form  a  very  unsafe  ground  of  proceeding  or  judging  ;  and  it  may 
be  almost  as  difficult  to  apply  it  as  a  rule  in  pecuniary  concerns  as 
to  the  interest  which  a  witness  lias  in  the  event  of  a  cause ;  and 
in  such  case  it  cannot  apply.  Any  interest  excludes  him.  The 
assessment  was  therefore  unauthorized  and  void.  If  the  line 
which  the  legislature  has  established  be  once  passed,  we  know  of 
no  boundary  to  the  discretion  of  the  assessors."  1     The  same  view 

has  been  taken  by  the  Supreme  Court  of  Michigan,  by 
[*  521]  which    the   *  opinion   is   expressed  that   the   maxim   de 

minimis  lex  non  curat  should  be  applied  with  great  caution 
to  proceedings  of  this  character,  and  that  the  excess  could  not  be 
held  unimportant  and  overlooked  where,  as  in  that  case,  each 
dollar  of  legal  tax  was  perceptibly  increased  thereby.2    Perhaps 

1  Huse  v.  Merriam,  2  Greenl.  375.  See  Joyner  v.  School  District,  3  Cush. 
567  ;  Kemper  v.  McClelland,  19  Ohio,  324 ;  School  District  v.  Merrills,  12  Conn. 
437 ;  Elwell  v.  Sbaw,  1  Greenl.  335 ;  Wells  v.  Burbank,  17  N.  H.  393 ;  Kins- 
worthy  v.  Mitchell,  21  Ark.  145. 

2  Case  v.  Dean,  16  Mich.  12. 

[608  ] 


CH.  XIV.]  THE   POWEE   OF  TAXATION.  *  521 

however,  a  slight  excess,  not  the  result  of  intention,  but  of 
erroneous  calculations,  may  be  overlooked,  in  view  of  the  great 
difficulty  in  making  all  such  calculations  mathematically  correct, 
and  the  consequent  impolicy  of  requiring  entire  freedom  from  all 
errors.1 

Wherever  a  tax  is  invalid  because  of  excess  of  authority,  or 
because  the  requisites  in  tax  proceedings  which  the  law  has  pro- 
vided for  the  protection  of  the  tax-payer  are  not  complied  with, 
any  sale  of  property  based  upon  it  will  be  void  also.  The  owner  is 
not  deprived  of  his  property  by  "  the  law  of  the  land,"  if  it  is  taken 
to  satisfy  an  illegal  tax.  And  if  property  is  sold  for  the  satis- 
faction of  several  taxes,  any  one  of  which  is  unauthorized,  or  for 
any  reason  illegal,  the  sale  is  altogether  void.2     And  the  general 

1  This  was  the  view  taken  by  the  Supreme  Court  of  Wisconsin  in  Kelley  v. 
Corson,  8  Wis.  182,  where  an  excess  of  $8.61  in  a  tax  of  $6,654.57  was  held  not 
to  be  fatal ;  it  appearing  not  to  be  the  result  of  intention,  and  the  court  thinking 
that  an  accidental  error  no  greater  than  this  ought  to  be  disregarded. 

2  This  has  been  repeatedly  held.  Elwell  v.  Shaw,  1  Greenl.  335 ;  Lacy  v. 
Davis,  4  Mich.  140 ;  Bangs  v.  Snow,  1  Mass.  188  ;  Thurston  v.  Little,  3  Mass. 
429;  Dillingham  v.  Snow,  5  Mass.  547;  Stetson  v.  Kempton.  13  Mass.  283; 
Libby  v.  Burnham,  15  Mass.  144 ;  Hayden  v.  Foster,  13  Pick.  492 ;  Torrev  r. 
Millbury,  21  Pick.  70 ;  Alvord  v.  Collin,  20  Pick.  418 ;  Drew  v.  Davis,  10  Yt. 
506;  Doe  v.  McQuilkin,  8  Blackf.  335;  Kemper  v.  McClelland,  19  Ohio,  324. 
This  is  upon  the  ground  that  the  sale  being  based  upon  both  the  legal  and  the 
illegal  tax,  it  is  manifestly  impossible  afterwards  to  make  the  distinction,  so  that 
the  act  shall  be  partly  a  trespass  and  partly  innocent.  But  when  a  party  asks 
relief  in  equity  before  a  sale  against  the  collection  of  taxes,  a  part  of  which  are 
legal,  he  will  be  required  first  to  pay  that  part,  or  at  least  to  so  distinguish  them 
from  the  others  that  process  of  injunction  can  be  so  framed  as  to  leave  the  legal 
taxes  to  be  enforced;  and  failing  in  this,  his  bill  will  be  dismissed.  Conway  v. 
Waverley,  15  Mich.  257  ;  Palmer  v.  Napoleon,  16  Mich.  176 ;  Hersey  v.  Super- 
visors of  Milwaukee,  16  Wis.  182;  Bond  v.  Kenosha,  17  Wis.  288;  Myrick  v. 
La  Crosse,  ib.  442. 

As  to  the  character  and  extent  of  the  irregularities  which  should  defeat  the 
proceedings  for  the  collection  of  taxes,  we  could  not  undertake  to  speak  here. 
We  think  the  statement  in  the  text,  that  a  failure  to  comply  with  any  such  re- 
quirements of  the  law  as  are  made  for  the  protection  of  the  owner's  interest  will 
prove  fatal  to  a  tax  sale,  will  be  found  abundantly  sustained  by  the  authorities, 
while  many  of  the  cases  go  still  further  in  making  irregularities  fatal.  It  appears 
to  us  that  where  the  requirement  of  the  law  which  has  failed  of  observance  was 
one  which  had  regard  simply  to  the  due  and  orderly  conduct  of  the  proceedings, 
or  to  the  protection  of  the  public  interest,  as  against  the  officer,  so  that  to  the  tax- 
payer it  is  immaterial  whether  it  .was  complied  with  or  not,  a  failure  to  comply 
ought  not  to  be  recognized  as  a  foundation  for  complaint  by  him.    But  those  safe- 

39  [  609  ] 


*  522  CONSTITUTIONAL    LIMITATIONS.  [CH.  XIV. 

rule  is  applicable  here,  that  where  property  is  taken  under  statu- 
tory authority  in  derogation  of  common  right,  every  requisite  of 
the  statute  having  a  semblance  of  benefit  to  the  owner  must  be 
complied  with  or  the  proceeding  will  be  ineffectual.1 

guards  which  the  legislature  has  thrown  around  the  estates  of  citizens,  to  protect 
them  against  unequal,  unjust,  and  extortionate  taxation,  the  courts  are  not  at 
liberty  to  do  away  with  by  declaring  them  non-essential.  To  hold  the  require- 
ment of  the  law  in  regard  to  them  directoiy  only,  and  not  mandatory,  is  in  effect 
to  exercise  a  dispensing  power  over  the  laws.  Mr.  Blackwell,  in  his  treatise  on 
tax  titles,  has  collected  the  cases  on  this  subject  industriously,  and  perhaps  we 
shall  be  pardoned  for  saying  also  with  a  perceptible  leaning  against  that  species 
of  conveyance.  As  illustrations  how  far  the  courts  will  go,  in  some  cases,  to  sus- 
tain irregular  taxation,  where  officers  have  acted  in  good  faith,  reference  is  made 
to  Kelley  v.  Corson,  11  Wis.  1 ;  Hersey  v.  Supervisors  of  Milwaukee,  16  Wis. 
185.  See  also  Mills  v.  Gleason,  11  Wis.  497,  where  the  court  endeavors  to  lay 
down  a  general  rule  as  to  the  illegalities  which  should  render  a  tax  roll  invalid. 
A  party  bound  to  pay  a  tax,  or  any  portion  thereof,  cannot  get  title  to  the  land 
by  neglecting  payment  and  allowing  a  sale  to  be  made  at  which  he  becomes  the 
purchaser.  McMinn  v.  Whelan,  27  Cal.  300.  See  Butler  v.  Porter,  13  Mich. 
292. 

1  See  ante,  74-78.     Also  Newell  v.  Wheeler,  48  N.  Y.  486 ;    Westfall  v. 
Preston,  49  N.  Y.  353. 

[610] 


CH.  XV.]  THE    EMINENT   DOMAIN.  *  523 


*  CHAPTER  XV.  [*523] 

THE     EMINENT    DOMAIN. 

Every  sovereignty  possesses  buildings,  lands,  and  other  property, 
which  it  holds  for  the  use  of  its  officers  and  agents,  to  enable  them 
to  perform  their  public  functions.  It  may  also  have  property  from 
the  rents,  issues,  and  profits,  or  perhaps  the  sale,  of  which 
it  is  expected  the  State  will  derive  a  revenue.  Such  property 
constitutes  the  ordinary  domain  of  the  State.  In  respect  to  its 
use,  enjoyment,  and  alienation,  the  same  principles  apply  which 
govern  the  management  and  control  of  like  property  of  individuals ; 
and  the  State  is  in  fact  but  an  individual  proprietor,  whose  title 
and  rights  are  to  be  tested,  regulated,  and  governed  by  the  same 
rules  that  would  have  pertained  to  the  ownership  of  the  same 
property  by  any  of  its  citizens.  There  are  also  cases  in  which 
property  is  peculiarly  devoted  to  the  general  use  and  enjoyment  of 
the  individual  citizens  who  compose  the  organized  society,  but  the 
regulation  and  control  of  which  are  vested  in  the  State  by  virtue  of 
its  sovereignty.  The  State  may  be  the  proprietor  of  this  property, 
and  retain  it  for  the  common  use",  as  a  means  of  contributing  to 
the  general  health,  comfort,  or  happiness  of  the  people  ;  but  gener- 
ally it  is  not  strictly  the  owner,  but  rather  the  governing  and 
supervisory  trustee  of  the  public  rights  in  such  property,  vested 
with  the  power  and  charged  with  the  duty  of  so  regulating,  pro- 
tecting, and  controlling  them,  as  to  secure  to  each  citizen  the 
privilege  to  make  them  available  for  his  purposes,  so  far  as  may 
be  consistent  with  an  equal  enjoyment  by  every  other  citizen  of 
the  same  privilege.1     In  some  instances  these  rights  are  of  such 

1  In  The  Company  of  Free  Fishers,  &c.  v.  Gann,  20  C.  B.,  N.  8.  1,  it  was 
held  that  the  ownership  of  the  crown  in  the  bed  of  navigable  waters  is  for  the 
benefit  of  the  subject,  and  cannot  be  used  in  any  such  manner  as  to  derogate 
from  or  interfere  with  the  right  of  navigation,  which  belongs  by  law  to  all  the 
subjects  of  the  realm.  And  that  consequently  the  grantees  of  a  particular  por- 
tion, who  occupied  it  for  a  fishery,  could  not  be  lawfully  authorized  to  charge  and 
collect  anchorage  dues  from  vessels  anchoring  therein.     As  regards  public  and 

[611] 


*  523  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

a  nature,  or  the  circumstances  are  such,  that  the  most  feasible 
mode  of  enabling  every  citizen  to  participate  therein  may  seem  to 
be,  for  the  State  to  transfer  its  control,  wholly  or  partially,  to 
individuals,  either  receiving  by  way  of  augmentation  of  the  pub- 
lic revenues  a  compensation  therefor,  or  securing  in  return  a 
release  to  the  citizens  generally  from  some  tax  or  charge 
[*  524]  which  would  have  rested  upon  them  in  *  respect  to  such 
rights,  had  the  State  retained  the  usual  control  in  its 
own  hands,  and  borne  the  incidental  burdens. 

The  rights  of  which  we  here  speak  are  considered  as  pertaining 
to  the  State  by  virtue  of  an  authority  existing  in  every  sovereignty, 
and  which  is  called  the  eminent  domain.  Some  of  these  are  com- 
plete without  any  action  on  the  part  of  the  State  ;  as  is  the  case 
with  the  rights  of  navigation  in  its  seas,  lakes,  and  public  rivers, 
the  rights  of  fishery  in  public  waters,  and  the  right  of  the  State  to 
the  precious  metals  which  may  be  mined  within  its  limits.1  Others 
only  become  complete  and  are  rendered  effectual  through  the  State 
displacing,  either  partially  or  wholly,  the  rights  of  private  owner- 
ship and  control ;  and  this  it  accomplishes  either  by  contract  with 
the  owner,  by  accepting  his  gift,  or  by  appropriating  his  property 
against  his  will  through  an  exercise  of  its  superior  authority.  Of 
these,  the  common  highway  furnishes  an  example ;  the  public 
rights  therein  being  acquired  either  by  the  grant  or  dedication  of 
the  owner  of  the  land  over  which  they  run,  or  by  a  species  of 
forcible  dispossession  when  the  public  necessity  demands  the  way, 
and  the  private  owner  will  neither  give  nor  sell  it.  All  these 
rights  rest  upon  a  principle  which  in  every  sovereignty  is  essential 
to  its  existence  and  perpetuity,  and  which,  so  far  as  when  called 
into  action  it  excludes  pre-existing  individual  rights,  is  sometimes 
spoken  of  as  being  based  upon  an  implied  reservation  by  the 
government  when  its  citizens  acquire  property  from  it  or  under  its 
protection.  And  as  there  is  not  often  occasion  to  speak  of  the 
eminent  domain  except  in  reference  to  those  cases  in  which  the 

exclusive  rights  of  fishery  in  this  country,  see  Commonwealth  v.  Alger,  7  Cush. 
63 ;  Lakeman  v.  Burnham,  7  Gray,  440 ;  Angell  on  Watercourses,  §  65  a,  and 
cases  cited. 

1  1  Bl.  Com.  294;  3  Kent,  378,  note.  In  California  it  has  been  decided  that 
a  grant  of  public  lands  by  the  government  carries  with  it  to  the  grantee  the  title 
to  all  mines.  Boggs  v.  Merced,  &c,  Co.,  14  Cal.  279;  Moore  v.  Smaw,  17  Cal. 
199.    • 

[612  ] 


CH.  XV.]  THE   EMINENT   DOMAIN.  *  524 

government  is  called  upon  to  appropriate  property  against  the  will 
of  the  owners,  the  right  itself  is  generally  denned  as  if  it  were 
restricted  to  such  cases,  and  is  said  to  be  that  superior  right  of 
property  pertaining  to  the  sovereignty  by  which  the  private  prop- 
erty acquired  by  its  citizens  under  its  protection  may  be  taken  or 
its  use  controlled  for  the  public  benefit  without  regard  to  the 
wishes  of  its  owners.  More  accurately,  it  is  the  rightful  authority, 
which  exists  in  every  sovereignty,  to  control  and  regulate  those 
rights  of  a  public  nature  which  pertain  to  its  citizens  in  common, 
and  to  appropriate  and  control  individual  property  for  the  public 
benefit,  as  the  public  safety,  necessity,  convenience,  or  welfare  may 
demand.1 

*  When  the  existence  of  a  particular  power  in  the  gov-  [*  525] 
eminent  is  recognized  on  the  ground  of  necessity,  no 
delegation  of  the  legislative  power  by  the  people  can  be  held  to 
vest  authority  in  the  department  which  holds  it  in  trust,  to  bargain 
away  such  power,  or  to  so  tie  up  the  hands  of  the  government  as 
to  preclude  its  repeated  exercise,  as  often  and  under  such  circum- 
stances as  the  needs  of  the  government  may  require.  For  if  this 
were  otherwise,  the  authority  to  make  laws  for  the  government  and 
welfare  of  the  State  might  be  so  exercised,  in  strict  conformity 
with  its  constitution,  as  at  length  to  preclude  the  State  performing 

1  Vattel,  c.  20,  §  34;  Bynkershoek,  lib.  2,  c.  15;  Ang.  on  Watercourses, 
§  457;  2  Kent,  338-40;  lledf.  on  Railw.  c.  11,  §  1.  "The  right  which  belongs 
to  the  society  or  to  the  sovereign  of  disposing,  in  case  of  necessity,  and  for  the 
public  safety,  of  all  the  wealth  contained  in  the  State,  is  called  the  eminent 
domain.1'  McKinley,  J.,  in  Pollard's  Lessee  v.  Hogan,  3  How.  223.  "Not- 
withstanding the  grant  to  individuals,  the 'highest  and  most  exact  idea  of  prop- 
erty remains  in  the  government,  or  in  the  aggregate  body  of  the  people  in  their 
sovereign  capacity ;  and  they  have  a  right  to  resume  the  possession  of  the  prop- 
erty, in  the  manner  directed  by  the  constitution  and  laws  of  the  State,  when- 
ever the  public  interest  requires  it.  This  right  of  resumption  may  be  exercised, 
not  only  where  the  safety,  but  also  where  the  interest  or  even  the  expediency 
of  the  State  is  concerned ;  as  where  the  land  of  the  individual  is  wanted  for  a 
road,  canal,  or  other  public  improvement."  Walworth,  Chancellor,  in  Beekman 
v.  Saratoga  and  Schenectady  R.R.  Co.,  3  Paige,  73.  The  right  is  inherent  in 
all  governments,  and  requires  no  constitutional  provision  to  give  it  force.  Brown 
v.  Beatty,  34  Miss.  227  ;  Taylor  v.  Porter,  4  Hill,  143.  "  Title  to  property  is 
always  held  upon  the  implied  condition  that  it  must  be  surrendered  to  the 
government,  either  in  whole  or  in  part,  when  the  public  necessities,  evidenced 
according  to  the  established  forms  of  law,  demand."  Hogeboom,  J.,  in  People 
v.  Mayor,  &c,  of  New  York,  32  Barb.  1125.  And  see  Heyward  v.  Mayor,  &c, 
of  New  York,  7  N.  Y.  314. 

[613] 


*  525  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

its  ordinary  and  essential  functions,  and  the  agent  chosen  to 
govern  the  State  might  put  an  end  to  the  State  itself.  It  must 
follow  that  any  legislative  bargain  in  restraint  of  the  complete, 
continuous,  and  repeated  exercise  of  the  right  of  eminent  domain  is 
unwarranted  and  void  ;  and  that  provision  of  the  Constitution  of 
the  United  States  which  forbids  the  States  violating  the  obligation 
of  contracts  could  not  be  so  construed  as  to  render  valid  and 
effectual  such  a  bargain,  which  originally  was  in  excess  of  proper 
authority.  Upon  this  subject  we  shall  content  ourselves  with 
referring  in  this  place  to  what  has  been  said  in  another  connec- 
tion.1 

As  under  the  peculiar  American  system  the  protection  and 
regulation  of  private  rights,  privileges,  and  immunities  in  general 
properly  pertain  to  the  State  governments,  and  those  governments 
are  expected  to  make  provision  for  those  conveniences  and  neces- 
sities which  are  usually  provided  for  their  citizens  through  the 
exercise  of  the  right  of  eminent  domain,  the  right  itself,  it  would 
seem,  must  pertain  to  those  governments  also,  rather  than  to  the 
government  of  the  nation  ;  and  such  has  been  the  conclusion  of 
the  authorities.  In  the  new  territories,  however,  where  the  gov- 
ernment of  the  United  States  exercises  sovereign  author- 
[*  526]  ity,  it  possesses,  *  as  incident  thereto,  the  right  of  eminent 
domain,  which  it  may  exercise  directly  or  through  the 
territorial  governments  ;  but  this  right  passes  from  the  nation  to 
the  newly  formed  State  whenever  the  latter  is  admitted  into  the 
Union.2     So  far,  however,  as  the  general  government  may  deem  it 

1  See  ante,  p.  281. 

2  Pollard's  Lessee  v.  Hogan,  3  How.  212;  Goodtitle  v.  Kibbee,  9  How.  471  ; 
Doe  v.  Beebe,  13  How.  25  ;  United  States  v.  The  Railroad  Bridge  Co.,  6  McLean, 
517;  Gilmer  v.  Lime  Point,  18  Cal.  229.  The  States  have  sometimes  assumed 
authority,  under  the  eminent  domain,  to  appropriate  the  property  of  individuals 
in  order  to  donate  it  to  the  general  government  for  national  purposes ;  but  the 
right  to  do  this  would  seem  doubtful.  The  authority  of  the  general  government 
to  appropriate  private  property  for  its  needs  is  unquestionable ;  but  every  sov- 
ereignty must  judge  of  its  needs  for  itself,  and  the  right  to  decide  upon  and  sup- 
ply them  by  dispossessing  private  rights  cannot,  as  it  seems  to  us,  be  assumed  by 
any  other  authority  without  the  incorporation  of  some  new  principle  into  the  law 
of  eminent  domain.  The  following  decisions  have  been  made  on  this  subject. 
In  Reddall  v.  Bryan,  14  Md.  478,  proceedings  in  Maryland,  under  its  laws,  to 
appropriate  lands  for  the  purpose  of  supplying  the  city  of  Washington  with 
water,  were  sustained.  The  opinion  affirms  the  right  generally  to  employ  the 
State  eminent  domain  for  the  purposes  of  the  general  government ;  but  the  court 

[614] 


CH.  XV.]  THE   EMINENT    DOMAIN.  *  526 

important  to  appropriate  lands  or  other  property  for  its  own  pur- 
poses, and  to  enable  it  to  perform  its  functions,  —  as  must  some- 
times be  necessary  in  the  case  of  forts,  light-houses,  military  posts 
or  roads,  and  other  conveniences  and  necessities  of  government, — 
the  general  government  may  still  exercise  the  authority,  as  well 
within  the  States  as  within  the  territory  under  its  exclusive 
jurisdiction,  and  its  right  to  do  so  may  be  supported  by  the  same 

attach  importance  to  the  fact  that  in  ceding  its  portion  of  the  District  of  Colum- 
bia to  the  United  States,  "  the  State  never  intended  to  abandon  all  interest  in  the 
District.  The  relation,  therefore,  between  the  District  of  Columbia,  composed 
of  territory  ceded  by  Maryland  for  certain  purposes  only,  and  the  State  of  whose 
soil  it  forms  a  part,  is  more  intimate  and  close  than  that  which  it  bears  to  any 
other  State."  Gilmer  v.  Lime  Point,  18  Cal.  229,  was  a  proceeding  in  the  State 
court,  on  the  application  of  the  United  States  by  its  agent,  to  condemn  lands  for 
the  purposes  of  a  light-house.  The  right  to  maintain  it  was  contested,  but  sus- 
tained. A  similar  decision  was  made  in  Burt  v.  Merchants  Ins.  Co.,  106  Mass. 
356.  Considerable  reliance  is  placed  in  the  opinion  on  the  course  of  legislation 
in  that  State  upon  the  subject,  which  it  was  said  to  be  too  late  to  question ;  and 
it  is  noticeable  that  the  learned  judge  (Chapman,  Ch.  J.)  who  delivered  the  opin- 
ion makes  no  allusion  to  any  necessity  for  State  action  in  such  a  case  ;  an  omission 
that  could  hardly  have  occurred,  had  he  been  considering  the  case  unembarrassed 
by  legislative  precedents.  In  Trombley  v.  Auditor-General,  23  Mich.  471,  an  act 
of  the  legislature  authorizing  the  Governor  to  take  proceedings  to  condemn  lands 
for  the  use  of  the  general  government  was  held  invalid,  on  the  grounds  that  every 
sovereignty  possesses  inherent  authority  to  appropriate  the  property  of  its  citi- 
zens or  subjects  for  public  uses,  and  must  be  the  judge  of  its  own  needs.  The 
facts  in  that  case  would  illustrate  very  forcibly  some  of  the  difficulties  of  any 
other  view.  Those  were  that  after  the  Governor,  at  the  request  of  an  agent  of 
the  general  government,  had  taken  proceedings  to  condemn  lands  for  a  light-house, 
and  had  had  the  damages  assessed,  he  was  notified  by  the  Federal  authorities 
that  they  had  decided  not  to  take  the  land.  .  By  the  terms  of  the  law,  however, 
the  damages,  when  assessed,  were  to  be  paid  from  the  State  treasury,  and  the 
owner  now  demanded  payment ;  so  that  the  aid  of  the  court  was  invoked,  not  to 
enable  the  United  States  to  obtain  lands  it  wanted,  but  to  compel  the  State  to 
pay  for  lands  for  the  United  States  which  were  not  wanted.  The  case  differs 
from  the  others  in  the  important  particular  that  in  this  the  State  authorities  were 
the  acting  parties,  while  in  the  others  the  Federal  authorities  were  the  petitioners. 
In  the  one  the  State  was  seeking  to  condemn  lands  for  the  nation ;  in  the  others 
the  nation  was  employing  State  laws  and  State  courts  to  condemn  lands  for  itself. 
Even  if  the  latter  may  be  done,  some  curious  results  might  follow  in  some  cases. 
Some  of  the  State  constitutions  require  the  necessity  for  the  taking  of  property 
to  be  affirmed  by  a  jury ;  and  it  would  be  singular,  to  say  the  least,  if  the  right 
of  the  United  States  to  take  land's  for  important  national  purposes,  after  the 
taking  had  been  decided  upon  by  the  proper  national  authority,  could  be  made 
to  depend  upon  a  finding  of  its  necessity  by  twelve  men  selected  by  lot  in  one  of 
the  States. 

[615] 


*  526  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

reasons  which  support  the  right  in  any  case  ;  that  is  to  say,  the 
absolute  necessity  that  the  means  in  the  government  for  perform- 
ing its  functions  and  perpetuating  its  existence  should  not  be 
liable  to  be  controlled  or  defeated  by  the  want  of  consent  of 
private  parties,  or  of  any  other  authority. 

What  Property  is  subject  to  the  Right. 

Every  species  of  property  which  the  public  needs  may  require, 
and  which  government  cannot  lawfully  appropriate  under  any  other 
right,  is  subject  to  be  seized  and  appropriated  under  the  right 
of  eminent  domain.1  Lands  for  the  public  ways;  timber,  stone, 
and  gravel  with  which  to  make  or  improve  the  public  ways  ; 2  build- 
ings standing  in  the  way  of  contemplated  improvements,  or  which 
for  any  other  reason  it  becomes  necessary  to  take,  remove,  or 
destroy  for  the  public  good  ; 3  streams  of  water  ; i  corporate  fran- 

1  People  v.  Mayor,  &c.,  of  New  York,  32  Barb.  102 ;  Bailey  v.  Miltenberger, 
31  Penn.  St.  37. 

2  Wheelock  v.  Young,  4  Wend.  647  ;  Lyon  v.  Jerome,  15  Wend.  569  ;  Jerome 
v.  Ross,  7  Jobns.  Ch.  315 ;  Bliss  v.  Hosmer,  15  Ohio,  41 ;  Watkins  v.  Walker 
Co.,  18  Texas,  585.  In  Eldridge  v.  Smith,  34  Vt.  484,  it  was  held  competent 
for  a  railroad  company  to  appropriate  lands  for  piling  the  wood  and  lumber  used 
on  the  road,  and  brought  to  it  to  be  transported  thereon. 

3  Wells  v.  Somerset,  &c,  R.R.  Co.,  47  Me.  345.  But  the  destruction  of  a  pri- 
vate house  during  a  fire  to  prevent  the  spreading  of  a  conflagration  has  been  held 
not  to  be  an  appropriation  under  the  right  of  eminent  domain,  but  an  exercise  of 
the  police  power.  Sorocco  v.  Geary,  3  Cal.  69.  "  The  destruction  was  author- 
ized by  the  law  of  overruling  necessity ;  it  was  the  exercise  of  a  natural  right 
belonging  to  every  individual,  not  conferred  bylaw,  but  tacitly  excepted  from 
all  human  codes."  Per  Sherman,  Senator,  in  Russell  v.  Mayor,  &c,  of  New 
York,  2  Denio,  473.  See  also  Stone  v.  Mayor,  &c,  of  New  York,  25  Wend. 
157  ;  McDonald  v.  Redwing,  13  Minn.  38.  But  see  Hale  v.  Lawrence,  1  Zab. 
714;  Same  v.  Same,  3  Zab.  590. 

4  Gardner  v.  Newburg,  2  Johns.  Ch.  162.  In  this  case  a  stream  was  appro- 
priated in  order  to  supply  a  town  with  water.  The  appropriation  might,  of 
course,  be  made  for  any  other  object  of  public  utility ;  and  a  stream  may  even 
be  diverted  from  its  course  to  remove  it  out  of  the  way  of  a  public  improvement 
when  not  appropriated.  See  Johnson  v.  Atlantic,  &c,  R.R.  Co.,  35  N.  H.  569; 
Baltimore,  &c,  R.R.  Co.  v.  Magruder,  34  Md.  79 ;  s.  c.  6  Am.  Rep.  310. 
But  in  general,  in  constructing  a  public  work,  it  is  the  duty  of  those  concerned 
to  avoid  diverting  streams,  and  to  construct  the  necessary  culverts,  bridges,  &c, 
for  that  purpose.  March  v.  Portsmouth,  &c,  R.R.  Co.,  19  N.  H.  372;  Baugh- 
ton  v.  Carter,  18  Johns.  405 ;  Rowe  v.  Addison,  34  N.  H.  306  ;  Proprietors,  &c. 

[  6163 


CH.  XV.]  THE   EMINENT   DOMAIN.  *  526 

chises  ; 1  and  generally,  it  may  be  said,  legal  and  equitable 
rights  of  *  every  description  are  liable  to  be  thus  appro-  [*  527] 
priated.  From  this  statement,  however,  must  be  excepted 
money,  or  that  which  in  ordinary  use  passes  as  such,  and  which 
the  government  may  reach  by  taxation,  and  also  rights  in  action, 
which  can  only  be  available  when  made  to  produce  money;  neither 
of  which  can  it  be  needful  to  take  under  this  power.2 

v.  Nashua  &  Lowell  R.R.  Co.,  10  Cush.  388;  Haynes  v.  Burlington,  38  Vt.  361. 
And  see  Pettigrew  v.  Janesville,  25  Wis.  23;  Arimond  v.  Green  Bay  Co.,  31 
Wis.  316  ;  Stein  v.  Burden,  24  Ala.  130.  As  to  the  obligation  of  a  railroad 
company  to  compensate  parties  whose  lands  are  Hooded  by  excavations  or  em- 
bankments of  the  company,  see  Brown  v.  Cayuga,  &c,  R.R.  Co.,  12  N.  Y. 
486;  Norris  v.  Vt.  Cent.  R.R.  Co.,  28  Vt.  99.  Compare  Eaton  v.  Boston,  C. 
&  M.  R.R.  Co.,  51  N.  H.  504,  where  it  was  decided  that  a  corporation  which 
flooded  a  man's  land  by  removing  a  natural  protection  in  the  construction  of 
their  road  was  liable  for  the  injury,  even  though  their  road  was  constructed  with 
due  care,  with  Bellinger  v.  N.  Y.  Central  R.R.  Co.,  22  N.  Y.  42,  and  other 
cases  cited,  post,  pp.  570,  571. 

1  Piscataqua  Bridge  v.  New  Hampshire  Bridge,  7  N.  H.  35 ;  Crosby  v.  Han- 
over, 36  N.  H.  420 ;  Boston  Water  Power  Co.  v.  Boston,  and  Worcester  R  R. 
Co.,  23  Pick.  360;  Central  Bridge  Corporation  v.  Lowell,  4  Gray,  474;  West 
River  Bridge  v.  Dix,  6  How.  507  ;  Richmond  R.R.  Co.  v.  Louisa  R.R.  Co.,  13 
How.  81,  per  Orier,  J.  ;  Chesapeake  and  Ohio  Canal  Co.  v.  Baltimore  and  Ohio 
R.R.  Co.,  4  Gill  &  J.  1 ;  State  v.  Noyes,  47  Me.  189 ;  Red  River  Bridge  Co.  v. 
Clarksville,  1  Sneed,  176  ;  Armington  v.  Barnet,  15  Vt.  745  ;  White  River  Turn- 
pike Co.  v.  Vermont  Central  R.R.  Co.,  21  Vt.  594;  Newcastle,  &c,  R.R.  Co.  v. 
Peru  and  Indiana  R.R.  Co.,  3  Ind.  464;  Springfield  v.  Connecticut  River  R.R. 
Co.,  4  Cush.  63;  Forward  v.  Hampshire,  &c,  Canal  Co.,  22  Pick.  462;  Com- 
monwealth v.  Pittsburg,  &c,  R.R. Co.,  58  Penn.  St.  50.  "  The  only  true  rule  of 
polity  as  well  as  of  law  is,  that  a  grant  for  one  public  purpose  must  yield  to 
another  more  urgent  and  important,  and  this  can  be  effected  without  any  infringe- 
ment on  the  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.  The  obligation  of  the  contract  created  by  the  orig- 
inal charter  is  thereby  recognized."  Per  Bigelow,  J.,  in  Central  Bridge  Corpo- 
ration v.  Lowell,  4  Gray,  482.  This  subject  receives  a  very  full  and  satisfactory 
examination  by  Judges  Pearson  and  Sharswood,  in  Commonwealth  v.  Pennsyl- 
vania Canal  Co.,  66  Penn.  St.  41 ;  s.  c.  5  Am.  Rep.  329. 

2  Property  of  individuals  cannot  be  appropriated  by  the  State  under  this 
power  for  the  mere  purpose  of  adding  to  the  revenues  of  the  State.  Thus  it  has 
been  held  in  Ohio,  that  in  appropriating  the  water  of  streams  for  the  purposes 
of  a  canal,  more  could  not  be  taken  than  was  needed  for  that  object,  with  a  view 
to  raising  a  revenue  by  selling  or  leasing  it.  "  The  State,  notwithstanding  the 
sovereignty  of  her  character,  can  take  onlv  sufficient  water  from  private  streams 

[617] 


527  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 


Legislative  Authority  requisite. 

The  right  to  appropriate  private  property  to  public  uses 
[*  528]  lies  *  dormant  in  the  State,  until  legislative  action  is  had, 
pointing  out  the  occasions,  the  modes,  conditions,  and 
agencies  for  its  appropriation.1  Private  property  can  only  be 
taken  pursuant  to  law  ;  but  a  legislative  act  declaring  the  neces- 
sity, being  the  customary  mode  in  which  that  fact  is  determined, 
must  be  held  to  be  for  this  purpose  "  the  law  of  the  land,"  and  no 
further  finding  or  adjudication  can  be  essential,  unless  the  consti- 
tution of  the  State  has  expressly  required  it.2     When,  however, 

for  the  purposes  of  the  canal.  So  far  the  law  authorizes  the  commissioners  to 
invade  private  right  as  to  take  what  may  be  necessary  for  canal  navigation,  and 
to  this  extent  authority  is  conferred  by  the  constitution,  provided  a  compensation 
be  paid  to  the  owner.  The  principle  is  founded  on  the  superior  claims  of  a  whole 
community  over  an  individual  citizen ;  but  then  in  those  cases  only  where  private 
property  is  wanted  for  public  use,  or  demanded  by  the  public  welfare.  We  know 
of  no  instances  in  which  it  has  or  can  be  taken,  even  by  State  authority,  for  the 
mere  purpose  of  raising  a  revenue  by  sale  or  otherwise ;  and  the  exercise  of  such 
a  power  would  be  utterly  destructive  of  individual  right,  and  break  down  all  the 
distinctions  between  meum  and  tuum,  and  annihilate  them  for  ever  at  the  pleasure 
of  the  State."  Wood,  J.,  in  Buckingham  v.  Smith,  10  Ohio,  296.  To  the  same 
effect  is  Cooper  v.  Williams,  5  Ohio,  392. 

Taking  money  under  the  right  of  eminent  domain,  when  it  must  be  compen- 
sated in  money  afterwards,  could  be  nothing  more  nor  less  than  a  forced  loan, 
only  to  be  justified  as  a  last  resort  in  a  time  of  extreme  peril,  where  neither  the 
credit  of  the  government  nor  the  power  of  taxation  could  be  made  available.  It 
is  impossible  to  lay  down  rules  for  such  a  case,  except  such  as  the  law  of  over- 
ruling necessity,  which  for  the  time  being  sets  aside  all  the  rules  and  protections 
of  private  right,  shall  then  prescribe.     See  jjost,  p.  530,  note. 

1  Barrow  v.  Page,  5  Hayw.  97. 

2  "Whatever  may  be  the  theoretical  foundation  for  the  right  of  eminent 
domain,  it  is  certain  that  it  attaches  as  an  incident  to  every  sovereignty,  and 
constitutes  a  condition  upon  which  all  property  is  holden.  When  the  public 
necessity  requires  it,  private  rights  to  property  must  yield  to  the  paramount 
right  of  the  sovereign  power.  We  have  repeatedly  held  that  the  character  of  the 
work  for  which  the  property  is  taken,  and  not  the  means  or  agencies  employed 
for  its  construction,  determines  the  question  of  power  in-the  exercise  of  this  right. 
It  requires  no  judicial  condemnation  to  subject  private  property  to  public  uses. 
Like  the  power  to  tax,  it  resides  in  the  legislative  department  to  whom  the  dele- 
gation is  made.  It  may  be  exercised  directly  or  indirectly  by  that  body ;  and  it 
can  only  be  restrained  by  the  judiciary  when  its  limits  have  been  exceeded,  or  its 
authority  has  been  abused  or  perverted."  Kramer  v.  Cleveland  and  Pittsburg 
R.R.  Co.,  5  Ohio,  N.  s.  146. 

[618] 


CH.  XV.]  THE   EMINENT   DOMAIN.  *  528 

action  is  had  for  this  purpose,  there  must  be  kept  in  view  that 
general  as  well  as  reasonable  and  just  rule,  that,  whenever  in 
pursuance  of  law  the  property  of  an  individual  is  to  be  devested 
by  proceedings  against  his  will,  a  strict  compliance  must  be  had 
with  all  the  provisions  of  law  which  are  made  for  his  protection 
and  benefit,  or  the  proceeding  will  be  ineffectual.1  Those  pro- 
visions must  be  regarded  as  in  the  nature  of  conditions  precedent, 
which  are  not  only  to  be  observed  and  complied  with  before  the 
right  of  the  property  owner  is  disturbed,  but  the  party  claiming 
authority  under  the  adverse  proceeding  must  show  affirmatively 
such  compliance.  For  example,  if  by  a  statute  prescribing  the 
mode  of  exercising  the  right  of  eminent  domain,  the  damages  to 
be  assessed  in  favor  of  the  property  owner  for  the  taking  of  his 
land  are  to  be  so  assessed  by  disinterested  freeholders  of  the  mu- 
nicipality, the  proceedings  will  be  ineffectual  unless  they  show  on 
their  face  that  the  appraisers  were  such  freeholders  and  inhabi- 
tants.2 So  if  a  statute  only  authorizes  proceedings  in  invitum 
after  an  effort  shall  have  been  made  to  agree  with  the  owner  on 
the  compensation  to  be  paid,  the  fact  of  such  effort  and  its  failure 
must  appear.3  So  if  the  statute  vests  the  title  to  lands 
appropriated  in  the  State  or  in  *  a  corporation  on  payment  [*  529] 
therefor  being  made,  it  is  evident  that,  under  the  rule 
stated,  the  payment  is  a  condition  precedent  to  the  passing  of  the 
title.4    And  where  a  general  railroad  law  authorized  routes  to  be 

1  Gillinwater  v.  Mississippi,  &c,  R.R.  Co.,  13  111.  1 ;  Stanford  v.  Worn,  27 
Cal.  171. 

2  Nichols  v.  Bridgeport,  23  Conn.  189  ;  Judson  v.  Bridgeport,  25  Conn.  428  ; 
People  v.  Brighton,  20  Mich.  57. 

3  Reitenbaugh  v.  Chester  Valley  R.R.  Co.,  21  Penn.  St.  100;  West  Va. 
Transportation  Co.  v.  Volcanic  Oil  and  Coal  Co.,  5  W.  Va.  382.  But  it  was 
held  in  this  case  that  if  the  owner  appears  in  proceedings  taken  for  the  assess- 
ment of  damages,  and  contests  the  amount  without  objecting  the  want  of  any- 
such  attempt,  the  court  must  presume  it  to  have  been  made. 

4  Stacy  v.  Vermont  Central  R.R.  Co.,  27  Vt.  44.  By  the  section  of  the  statute 
under  which  the  land  was  appropriated,  it  was  provided  that  when  land  or  other 
real  estate  was  taken  by  the  corporation,  for  the  use  of  their  road,  and  the  parties 
were  unable  to  agree  upon  the  price  of  the  land,  the  same  should  be  ascertained 
and  determined  by  the  commissioners,  together  with  the  costs  and  charges 
accruing  thereon,  and  upon  the  payment  of  the  same,  or  by  depositing  the  amount 
in  a  bank,  as  should  be  ordered  by  the  commissioners,  the  corporation  should  be 
deemed  to  be  seised  and  possessed  of  the  lands.  Held,  that,  until  the  payment 
was  made,  the  company  had  no  right  to  enter  upon  the  land  to  construct  the 

[619] 


*  529  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

surveyed  by  associated  persons  desirous  of  constructing  roads,  and 
provided  that  if  the  legislature,  on  being  petitioned  for  the  purpose, 
should  decide  by  law  that  a  proposed  road  would  be  of  sufficient 
utility  to  justify  its  construction,  then  the  company,  when  organ- 
ized, might  proceed  to  take  land  for  the  way,  it  was  held  that, 
until  the  route  was  approved  by  the  legislature,  no  authority  could 
be  olaimed  under  the  law  to  appropriate  land  for  the  purpose.1 
These  cases  must  suffice  as  illustrations  of  a  general  rule,  which 
indeed  would  seem  to  be  too  plain  and  obvious  to  require  either 

illustration  or  discussion.2 
[*  530]  *  So  the  powers  granted  by  such  statutes  are  not  to  be 
enlarged  by  intendment,  especially  where  they  are  being 
exercised  by  a  corporation  by  way  of  appropriation  of  land  for  its 
corporate  purposes.  "  There  is  no  rule  more  familiar  or  better  set- 
tled than  this  :  that  grants  of  corporate  power,  being  in  derogation 
of  common  right,  are  to  be  strictly  construed  ;  and  this  is  espe- 
cially the  case  where  the  power  claimed  is  a  delegation  of  the  right 
of  eminent  domain,  one  of  the  highest  powers  of  sovereignty  per- 

road,  or  to  exorcise  any  act  of  ownership  over  it ;  and  that  a  court  of  equity 
would  enjoin  them  from  exercising  any  such  right,  or  they  might  be  prosecuted 
in  trespass  at  law.  This  case  follows  Baltimore  and  Susquehanna  R.R.  Co.  v. 
Nesbit,  10  How.  395,  and  Bloodgood  v.  Mohawk  and  Hudson  R.R.  Co.,  18  Wend. 
10,  where  the  statutory  provisions  were  similar.  In  the  case  in  Howard  it  is 
said :  "  It  can  hardly  be  questioned  that  without  acceptance  in  the  mode  pre- 
scribed [t.  e.,  by  payment  of  the  damages  assessed] ,  the  company  were  not  bound  ; 
that  if  they  had  been  dissatisfied  with  the  estimate  placed  on  the  land,  or  could 
have  procured  a  more  eligible  site  for  the  location  of  their  road,  they  would  have 
been  at  liberty,  before  such  acceptance,  wholly  to  renounce  the  inquisition.  The 
proprietors  of  the  land  could  have  no  authority  to  coerce  the  company  into  its 
adoption."     Daniel,  J.,  10  How.  399. 

!  Gillinwater  v.  Mississippi,  &c,  R.R.  Co.,  13  111.  1.  "The  statute  says 
that,  after  a  certain  other  act  shall  have  been  passed,  the  company  may  then 
proceed  to  take  private  property  for  the  use  of  their  road ;  that  is  equivalent  to 
saying  that  that  right  shall  not  be  exercised  without  such  subsequent  act.  The 
right  to  take  private  property  for  public  use  is  one  of  the  highest  prerogatives  of 
the  sovereign  power ;  and  here  the  legislature  has,  in  language  not  to  be  mis- 
taken, expressed  its  intention  to  reserve  that  power  until  it  could  judge  for  itself 
whether  the  proposed  road  would  be  of  sufficient  public  utility  to  justify  the  use 
of  this  high  prerogative.  It  did  not  intend  to  cast  this  power  away,  to  be  gath- 
ered up  and  used  by  any  who  might  choose  to  exercise  it."     Ibid.  p.  4. 

2  See  further  the  cases  of  Atlantic  and  Ohio  R.R.  Co.  v.  Sullivant,  5  Ohio, 
N.  s.  277;  Parsons  v.  Howe,  41  Me.  218;  Atkinson  v.  Marietta  and  Cincinnati 
R.R.  Co.,  15  Ohio,  N.  s.  21. 
[620] 


CH.  XV.]  THE   EMINENT   DOMAIN.  *  530 

taining  to  the  State  itself,  and  interfering  most  seriously  and  often 
vexatiously  with  the  ordinary  rights  of  property."  2  It  has  accord- 
ingly been  held  that  where  a  railroad  company  was  authorized  by 
law  to  "  enter  upon  any  land  to  survey,  lay  down,  and  construct  its 
road,"  "  to  locate  and  construct  branch  roads,"  &c.,to  appropriate 
land  "  for  necessary  side  tracks,"  and  "  a  right  of  way  over  ad- 
jacent lands  sufficient  to  enable  such  company  to  construct  and 
repair  its  road,"  and  the  company  had  located,  and  was  engaged 
in  the  construction  of  its  main  road  along  the  north  side  of  a  town, 
it  was  not  authorized  under  this  grant  of  power  to  appropriate  a 
temporary  right  of  way  for  a  term  of  years  along  the  south  side  of 
the  town,  to  be  used  as  a  substitute  for  the  main  track  whilst  the 
latter  was  in  process  of  construction.2  And  substantially  the  same 
strict  rule  is  applied  when  the  State  itself  seeks  to  appropriate  pri- 
vate property ;  for  it  is  not  unreasonable  that  the  property  owner 
should  have  the  right  to  insist  that  the  State,  which  selects  the 
occasion  and  prescribes  the  conditions  for  the  appropriation  of  his 
property,  should  confine  its  action  strictly  within  the  limits  which 
it  has  marked  out  as  sufficient.  So  high  a  prerogative  as  that  of 
devesting  one's  estate  against  his  will  should  only  be  exercised 
where  the  plain  letter  of  the  law  permits  it,  and  under  a  careful 
observance  of  the  formalities  prescribed  for  the  owner's  protection. 

TJie  Purpose. 

The  definition  given  of  the  right  of  eminent  domain  implies 
that  the  purpose  for  which  it  may  be  exercised  must  not  be  a  mere 
private  purpose  ;  and  it  is  conceded  on  all  hands  that  the  legisla- 
ture has  no  power,  in  any  case,  to  take  the  property  of  one  indi- 
vidual and  pass  it  over  to  another  without  reference  to  some  use 
to  which  it  is  to  be  applied  for  the  public  benefit.3     "  The  right  of 

1  Currier  v.  Marietta  and  Cincinnati  R.R.  Co.,  11  Ohio,  n.  s.  281;  Miami 
Coal  Co.  v.  Wigton,  19  Ohio,  n.  s.  560.     See  ante,  pp.  394-396. 

2  Currier  v.  Marietta  and  Cincinnati  R.R.  Co.,  11  Ohio,  N.  s.  228.  And  see 
Gilmer  v.  Lime  Point,  19  Cal.  47;  Bensley  v.  Mountain  Lake,  &c,  Co.,  13  Cal. 
306  ;  Brunnig  v.  N.  O.  Canal  and  Banking  Co.,  12  La.  An.  541 ;  West  Virginia 
Transportation  Co.  ».  Volcanic  Oil  and  Coal  Co.,  5  W.  Va.  382. 

3  In  a  work  of  this  character,  we  have  no  occasion  to  consider  the  right  of 
the  government  to  seize  and  appropriate  to  its  own  use  the  property  of  individuals 
in  time  of  war,  through  its  military  authorities.  That  is  a  right  which  depends 
on  the  existence  of  hostilities,  and  the  suspension,  partially  or  wholly,  of  the 

[621] 


*  530  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

eminent  domain,"  it  has  been  said,  "  does  not  imply  a  right  in  the 
sovereign  power  to  take  the  property  of  one  citizen  and  transfer  it 
to  another,  even  for  a  full  compensation,  where  the  public  interest 

will  be  in  no  way  promoted  by  such  transfer.1  It  seems 
[*  531]  not  to  be  allowable,  therefore,  to  authorize  *  private  roads 

to  be  laid  out  across  the  lands  of  unwilling  parties  by  an 
exercise  of  this  right.  The  easement  in  such  a  case  would  be  the 
property  of  him  for  whom  it  was  established ;  and  although  the 
owner  would  not  be  deprived  of  the  fee  in  the  land,  the  beneficial 
use  and  exclusive  enjoyment  of  his  property  would  in  greater  or 
less  degree  be  interfered  with.  Nor  would  it  be  material  to  inquire 
what  quantum  of  interest  would  pass  from  him :  it  would  be  suffi- 
cient that  some  interest,  the  appropriation  of  which  detracted  from 
his  right  and  authority,  and  interfered  with  his  exclusive  posses- 
sion as  owner,  had  been  taken  against  his  will ;  and  if  taken  for  a 
purely  private  purpose,  it  would  be  unlawful.2     Nor  could  it  be  of 

civil  laws.  For  recent  cases  in  which  it  has  been  considered,  see  Mitchell  v. 
Harmony,  13  How.  128;  Wilson  v.  Crockett,  43  Mo.  216  ;  Williams  v,  Wicker- 
man,  44  Mo.  484;  Yost  v.  Stout,  4  Cold.  205;  Sutton  v.  Tiller,  6  Cold.  593; 
Taylor  v.  Nashville,  &c,  R.R.  Co.,  ib.  646;  Coolidge  v.  Guthrie,  8  Am.  Law 
Reg.  (n.  s.)  22  ;  Echols  v.  Staunton,  3  W.  Va.  574;  Wilson  v.  Franklin,  63  N.  C. 
259 ;  Ferguson  v.  Loar,  5  Bush,  689. 

1  Beekman  v.  Saratoga  and  Schenectady  R.R.  Co.,  3  Paige,  73;  Hepburn's 
Case,  3  Bland,  95  ;  Sadler  v.  Langham,  34  Ala.  311 ;  Pittsburg  v.  Scott,  1  Penn. 
St.  139;  Matter  of  Albany  Street,  11  Wend.  149;  Matter  of  John  and  Cherry 
Streets,  19  Wend.  659;  Cooper  v.  Williams,  5  Ohio,  393  ;  Buckingham  v.  Smith, 
10  Ohio,  296 ;  Reeves  v.  Treasurer  of  Wood  Co.,  8  Ohio,  n.  s.  333.  See  this 
subject  considered  on  principle  and  authority  by  Senator  Tracy  in  Bloodgood  v. 
Mohawk  and  Hudson  R.R.  Co.,  18  Wend.  55  et  seq.  See  also  Embury  v.  Conner, 
3  N.  Y.  511 ;  Kramer  v.  Cleveland  and  Pittsburgh  R.R.  Co.,  5  Ohio,  n.  s.  146  ; 
Pratt  v.  Brown,  3  Wis.  603;  Concord  R.R.  v.  Greeley,  17  N.  H.  47;  N.  Y. 
and  Harlaem  R.R.  Co.  v.  Kip,  46  N.  Y.  546 ;  s.  c.  7  Am.  Rep.  385. 

2  Taylor  v.  Porter,  4  Hill,  142,  per  Bronson,  J. ;  Clack  v.  White,  2  Swan, 
540 ;  White  v.  White,  5  Barb.  474 ;  Sadler  v.  Langham,  34  Ala.  311 ;  Pittsburg 
v.  Scott,  1  Penn.  St.  139 ;  Nesbitt  v.  Trumbo,  39  111.  110 ;  Osborn  v.  Hart,  24 
Wis.  90 ;  s.  c.  1  Am.  Rep.  161 ;  Tyler  v.  Beacher,  44  Vt.  648  ;  Bankhead  v.  Brown, 
25  Iowa,  540.  A  neighborhood  road  is  only  a  private  road,  and  taking  land  for  it 
would  not  be  for  a  public  use.  Dickey  v.  Tennison,  27  Mo.  373.  To  avoid  this 
difficulty,  it  is  provided  by  the  constitutions  of  some  of  the  States  that  private 
roads  may  be  laid  out  under  proceedings  corresponding  to  those  for  the  establish- 
ment of  highways.  There  are  provisions  to  that  effect  in  the  Constitutions  of 
New  York,  Georgia,  and  Michigan.  But  in  Harvey  v.  Thomas,  10  Watts,  65, 
it  was  held  that  the  right  might  be  exercised  in  order  to  the  establishment  of 
private  ways  from  coal  fields  to  connect  them  with  the  public  improvements, 

[622] 


CH.  XV.]  THE   EMINENT   DOMAIN.  *  531 

importance  that  the  public  would  receive  incidental  benefits,  such 
as  usually  spring  from  the  improvement  of  lands  or  the  establish- 
ment of  prosperous  private  enterprises  :  the  public  use  implies  a 
possession,  occupation,  and  enjoyment  of  the  land  by  the  public  at 
large,  or  by  public  agencies  ; 1  and  a  due  protection  to  the  rights  of 
private  property  will  preclude  the  government  from  seizing  it  in 
the  hands  of  the  owner,  and  turning  it  over  to  another  on  vague 
grounds  of  public  benefit  to  spring  from  the  more  profitable  use  to 
which  the  latter  may  devote  it. 

We  find  ourselves  somewhat  at  sea,  however,  when  we 
undertake  to  define,*  in  the  light  of  the  judicial  decisions,  [*  532] 
what  constitutes  a  public  use.  It  has  been  said  by  a 
learned  jurist  that,  "  if  the  public  interest  can  be  in  any  way  pro- 
there  being  nothing  in  the  constitution  forbidding  it.  See  also  the  Pocopson 
Road,  16  Penn.  St.  15.  But  this  doctrine  is  directly  opposed  to  Young  v. 
McKenzie,  3  Georgia,  44;  Taylor  v.  Porter,  4  Hill,  146;  Buffalo  and  N.  Y. 
R.R.  Co.  v.  Brainerd,  9  N.  Y.  108;  Bradley  v.  N.  Y.  and  N.  H.  R.R.  Co., 
21  Conn.  305 ;  Reeves  v.  Treasurer  of  Wood  Co.,  8  Ohio,  n.  s.  344,  and  many 
other  cases  :  though  possibly  convenient  access  to  the  great  coal  fields  of  the 
State  might  be  held  to  be  so  far  a  matter  of  general  concern  as  to  support  an 
exercise  of  the  power  on  the  ground  of  the  public  benefit.  In  Eldridge  v.  Smith, 
34  Vt.  484,  it  was  held  that  the  manufacture  of  railroad  cars  was  not  so  legit- 
imately and  necessarily  connected  with  the  management  of  a  railroad  that  the 
company  would  be  authorized  to  appropriate  lands  therefor.  So,  also,  of  land 
for  the  erection  of  dwelling-houses  to  rent  by  railroad  companies  to  their  employes. 
But  under  authority  to  a  railroad  company  to  take  land  for  constructing  and 
operating  its  road,  it  may  take  what  is  needful  for  depot  grounds.  N.  Y.  and 
Harlaem  R.R.  Co.  v.  Kip,  46  N.  Y.  546 ;  s.  c.  7  Am.  Rep.  3S5. 

In  the  text  we  have  stated  what  is  unquestionably  the  result  of  the  authorities  ; 
though  if  the  question  were  an  open  one,  it  might  well  be  debated  whether  the 
right  to  authorize  the  appropriation  of  the  property  of  individuals  did  not  rest 
rather  upon  grounds  of  general  public  policy  than  upon  the  public  purpose  to 
which  it  was  proposed  to  devote  it.  There  are  many  cases  in  which  individuals 
or  private  corporations  have  been  empowered  to  appropriate  the  property  of 
others  when  the  general  good  demanded  it,  though  the  purpose  was  no  more 
public  than  it  is  in  any  case  where  benefits  are  to  flow  to  the  community  generally 
from  a  private  enterprise.  The  case  of  appropriations  for  mill-dams,  railroads, 
and  drains  to  improve  lands  are  familiar  examples.  These  appropriations  have 
been  sanctioned  under  an  application  of  the  term  "  public  purpose,"  which  might 
also  justify  the  laying  out  of  private  roads,  when  private  property  could  not 
otherwise  be  made  available.  Upon  this  general  subject,  the  reader  is  referred 
to  an  article  by  Hon.  J.  V.  Campbell  in  the  "  Bench  and  Bar,"  for  July,  1871. 

1  Per  Tracy,  Senator,  in  Bloodgood  v.  Mohawk  and  Hudson  R.R.  Co.,  18 
Wend.  60. 

[623] 


*  532  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

moted  by  the  taking  of  private  property,  it  must  rest  in  the  wis- 
dom of  the  legislature  to  determine  whether  the  benefit  to  the 
public  will  be  of  sufficient  importance  to  render  it  expedient  for 
them  to  exercise  the  right  of  eminent  domain,  and  to  authorize  an 
interference  with  the  private  rights  of  individuals  for  that  pur- 
pose.1 It  is  upon  this  principle  that  the  legislatures  of  several  of 
the  States  have  authorized  the  condemnation  of  the  lands  of  indi- 
viduals for  mill,  sites,  when  from  the  nature  of  the  country  such 
mill  sites  could  not  be  obtained  for  the  accommodation  of  the  in- 
habitants without  overflowing  the  lands  thus  condemned.  Upon 
the  same  principle  of  public  benefit,  not  only  the  agents  of  the 
government,  but  also  individuals  and  corporate  bodies  have  been 
authorized  to  take  private  property  for  the  purpose  of  making  pub- 
lic highways,  turnpike  roads,  and  canals ;  of  erecting  and  con- 
structing wharves  and  basins  ;  of  establishing  ferries  ;  of  draining 
swamps  and  marshes,  and  of  bringing  water  to  cities  and  villages. 
In  all  such  cases  the  object  of  the  legislative  grant  of  power  is  the 
public  advantage  expected  from  the  contemplated  improvement, 
whether  such  improvement  is  to  be  effected  directly  by  the  agents 
of  the  government,  or  through  the  medium  of  corporate  bodies,  or 
of  individual  enterprise."2 

It  would  not  be  entirely  safe,  however,  to  apply  with  much  lib- 
erality the  language  above  quoted,  that,  "  where  the  public  interest 
can  be  in  any  way  promoted  by  the  taking  of  private  property," 
the  taking  can  be  considered  for  a  public  use.  It  is  certain  that 
there  are  very  many  cases  in  which  the  property  of  some  individual 
owners  would  be  likely  to  be  better  employed  or  occupied  to  the 
advancement  of  the  public  interest  in  other  hands  than  in  their 
own  ;  but  it  does  not  follow  from  this  circumstance  alone  that  they 
may  rightfully  be  dispossessed.  It  may  be  for  the  public  benefit 
that  all  the  wild  lands  of  the  State  be  improved  and  cultivated,  all 
the  low  lands  drained,  all  the  unsightly  places  beautified,  all  di- 
lapidated buildings  replaced  by  new ;  because  all  these  things  tend 
to  give  an  aspect  of  beauty,  thrift,  and  comfort  to  the  country,  and 
thereby  to  invite  settlement,  increase  the  value  of  lands,  and  gratify 
the  public  taste ;    but  the  common  law  has  never  sanctioned  an 

1  2  Kent  Com.  340. 

2  Walworth,  Chancellor,  inBeekman  v.  Saratoga  and  Schenectady  R.R.  Co.,  3 
Paige,  73.     And  see  Wilson  v.  Blackbird  Creek  Marsh  Co.,  2  Pet.  251. 

[624] 


CH.  XV.]  THE   EMINENT   DOMAIN.  *  532 

appropriation  of  property  based  upon  these  considerations  alone ; 
and  some  further  element  must  therefore  be  involved  be- 
fore the  appropriation  can  be  regarded  as  sanctioned  *  by  [*  533] 
our  constitutions.  The  reason  of  the  case  and  the  settled 
practice  of  free  governments  must  be  our  guides  in  determining 
what  is  or  is  not  to  be  regarded  a  public  use ;  and  that  only  can 
be  considered  such  where  the  government  is  supplying  its  own 
needs,  or  is  furnishing  facilities  for  its  citizens  in  regard  to  those 
matters  of  public  necessity,  convenience,  or  welfare,  which,  on 
account  of  their  peculiar  character,  and  the  difficulty  —  perhaps 
impossibility  —  of  making  provision  for  them  otherwise,  it  is  alike 
proper,  useful,  and  needful  for  the  government  to  provide. 

Every  government  is  expected  to  make  provision  for  the  public 
ways,  and  for  this  purpose  it  may  seize  and  appropriate  lands. 
And  as  the  wants  of  traffic  and  travel  require  facilities  beyond 
those  afforded  by  the  common  highway,  over  which  any  one  may 
pass  with  his  own  vehicles,  the  government  may  establish  the 
higher  grade  of  highways,  upon  some  of  which  only  its  own  vehi- 
cles can  be  allowed  to  run,  while  others,  differently  constructed, 
shall  be  open  to  use  by  all  on  payment  of  toll.  The  common  high- 
way is  kept  in  repair  by  assessments  of  labor  and  money  ;  the  tolls 
paid  upon  turnpikes,  or  the  fares  on  railways,  are  the  equivalents 
to  these  assessments ;  and  when  these  improved  ways  are  required 
by  law  to  be  kept  open  for  use  by  the  public  impartially,  they  also 
may  properly  be  called  highways,  and  the  use  to  which  land  for 
their  construction  is  put  be  denominated  a  public  use.  The  gov- 
ernment also  provides  court-houses  for  the  administration  of  jus- 
tice ;  buildings  for  its  seminaries  of  instruction  ; 1  aqueducts  to 
convey  pure  and  wholesome  water  into  large  towns  ; 2  it  builds 
levees  to  prevent  the  country  being  overflowed  by  the  rising 
streams  ;3  it  may  cause  drains  to  be  constructed  to  relieve  swamps 
and  marshes  of  their  stagnant  water;4  and  other  measures  of  gen- 

1  Williams  v.  School  District,  33  Vt.  271.  See  Hooper  v.  Bridgewater,  102 
Mass.  512. 

2  Reddall  v.  Bryan,  14  Md.  414 ;  Kane  v.  Baltimore,  15  Md.  210  :  Gardner  v. 
Newburg,  2  Johns.  Ch.  1C2  ;  Ham  v.  Salem,  10  Mass.  350. 

3  Mithoff  v.  Carrollton,  12  La.  An.  185 ;  Cash  v.  Whitworth,  13  La.  An.  401 ; 
Inge  v.  Police  Jury,  14  La.  An.  117. 

4  Anderson  v.  Kerns  Draining  Co.,  14  Ind.  199  ;  Reeves  v.  Treasurer  of  Wood 
County,  8  Ohio,  n.  s.  344.  See  a  clear  statement  of  the  general  principle  and 
its  necessity  in  the  last-mentioned  case.     The  drains,   however,   which  can   be 

40  [  625  ] 


*  533  CONSTITUTIONAL  LIMITATIONS.  [CH.  XV. 

eral  utility,  in  which  the  public  at  large  are  interested,  and  which 
require  the  appropriation  of  private  property,  are  also  within  the 
power,  where  they  fall  within  the  reasons  underlying  the  cases 

mentioned.1 
[*  534]  *  Whether  the  power  of  eminent  domain  can  rightfully 
be  exercised  in  the  condemnation  of  lands  for  manufac- 
turing purposes,  where  the  manufactories  are  to  be  owned  and 
occupied  by  individuals  is  a  question  upon  which  the  authorities 
are  at  variance.  Saw-mills,  grist-mills,  and  various  other  manu- 
factories, are  certainly  a  public  necessity  ;  and  while  the  country 
is  new,  and  capital  not  easily  attainable  for  their  erection,  it  some- 
times seems  to  be  essential  that  government  should  offer  large 
inducements  to  parties  who  will  supply  this  necessity.  Before 
steam  came  into  use,  water  was  almost  the  sole  reliance  for  motive 
power ;  and  as  reservoirs  were  generally  necessary  for  this  pur- 
pose, it  would  sometimes  happen  that  the  owner  of  a  valuable  mill 
site  was  unable  to  render  it  available,  because  the  owners  of  lands 
which  must  be  flowed  to  obtain  a  reservoir  would  neither  consent 
to  the  construction  of  a  dam,  nor  sell  their  lands  except  at  extrav- 
agant and  inadmissible  prices.  The  legislatures  in  some  of  the 
States  have  taken  the  matter  in  hand,  and  have  surmounted  the 
difficulty,  sometimes  by  authorizing  the  land  to  be  appropriated, 
and  at  other  times  by  permitting  the  erection  of  the  dam,  but  re- 
quiring the  mill  owner  to  pay  annually  to   the  proprietor  of  the 

authorized  to  be  cut  across  the  land  of  unwilling  parties,  or  for  which  individuals 
can  be  taxed,  must  not  be  mere  private  drains,  but  must  have  reference  to  the 
public  health,  convenience,  or  welfare.  Reeves  v.  Treasurer,  &c,  supra.  And 
see  People  v.  Nearing,  27  X.  Y.  306.  It  is  competent  under  the  eminent  domain 
to  appropriate  and  remove  a  dam  owned  by  private  parties,  in  order  to  reclaim 
a  considerable  body  of  lands  flowed  by  means  of  it,  paying  the  owner  of  the 
daui  its  value.     Talbot  v.  Hudson,  16  Gray,  417. 

1  Such,  for  instance,  as  the  construction  of  a  public  park,  which,  in  large 
cities,  is  as  much  a  matter  of  public  utility  as  a  railway  or  a  supply  of  pure 
water.  See  Matter  of  Central  Park  Extension,  16  Abb.  Pr.  Rep.  56 ;  Owners 
of  Ground  v.  Mayor,  &c,  of  Albany,  15  Wend.  37-1.  Brooklyn  Park  Com'rs  v. 
Armstrong,  -15  N.  Y.  234 ;  s.  c.  6  Am.  Rep.  70.  Or  sewers  in  cities.  Ilil- 
dreth  v.  Lowell,  11  Gray,  345.  A  city  may  be  authorized  to  appropriate  lands 
in  order  to  fill  them  up,  and  thereby  abate  a  nuisance  upon  them.  Dingley  v. 
Boston,  100  Mass.  544.  A  private  corporation  may  be  empowered  to  exercise 
the  right  of  eminent  domain  to  obtain  a  way  along  which  to  lay  pipe  for  the 
transportation  of  oil  to  a  railroad  or  navigable  water.  West  Va.  Transportation 
Co.  v.  Volcanic  Oil  and  Coal  Co.,  5  W.  Va.  382. 

[626] 


CH.  XV.]  THE    EMINENT    DOMAIN.  *  584 

land  the  damages  caused  by  the  flowing,  to  be  assessed  in  some 
impartial  mode.1  The  reasons  for  such  statutes  have  been  grow- 
ing weaker  with  the  introduction  of  steam  power  and  the  progress 
of  improvement,  but  their  validity  has  repeatedly  been  recognized 
in  some  of  the  States,  and  probably  the  same  courts  would  con- 
tinue still  to  recognize  it,  notwithstanding  the  public  necessity  may 
no  longer  appear  to  demand  such  laws.2  The  rights  granted  by 
these  laws  to  mill  owners  are  said  by  Chief  Justice  Shaw,  of  Massa- 
chusetts, to  be  "  granted  for  the  better  use  of  the  water  power, 
upon  considerations  of  general  policy  and  the  general  good  ;  "  3  and 
in  this  view,  and  in  order  to  render  available  a  valuable  property 
which  might  otherwise  be  made  of  little  use  by  narrow, 
selfish,  and  *  unfriendly  conduct  on  the  part  of  individuals,  [*  boo] 
such  laws  may  perhaps  be  sustained  on  the  same  grounds 
which  support  an  exercise  of  the  right  of  eminent  domain  to  pro- 
tect, drain,  and  render  valuable  the  lands  which,  by  the  overflow 
of  a  river,  might  otherwise  be  an  extensive  and  worthless  swamp.4 

1  See  Angell  on  Watercourses,  c.  12,  for  references  to  the  statutes  on  this 
subject. 

2  "The  encouragement  of  mills  has  always  been  a  favorite  object  with  the 
legislature  ;  and  though  the  reasons  for  it  may  have  ceased,  the  favor  of  the 
legislature  continues."  Wolcott  Woollen  Manufacturing  Co.  v.  Upham,  5  Pick. 
294. 

3  French  v.  Braintree  Manufacturing  Co.,  23  Pick.  220. 

4  Action  on  the  case  for  raising  a  dam  across  the  Merrimac  River,  by  which  a 
mill  stream  emptying  into  that  river,  above  the  site  of  said  dam,  was  set  back 
and  overflowed,  and  a  mill  of  the  plaintiff  situated  thereon,  and  the  mill  privi- 
lege, were  damaged  and  destroyed.  Demurrer  to  the  declaration.  The  defend- 
ant company  were  chartered  for  the  purpose  of  constructing  a  dam  across  the 
Merrimac  River,  and  constructing  one  or  more  locks  and  canals,  in  connection 
with  said  dam,  to  remove  obstructions  in  said  river  by  falls  and  rapids,  and  to 
create  a  water  power  to  be  used  for  mechanical  and  manufacturing  purposes. 
The  defendants  claimed  that  they  were  justified  in  what  they  had  done,  by  an 
act  of  the  legislature  exercising  the  sovereign  power  of  the  State,  in  the  right  of 
eminent  domain ;  that  the  plaintiff's  property  in  the  mill  and  mill  privilege  was 
taken  and  appropriated  under  this  right  ;  and  that  his  remedy  was  by  a  claim  of 
damages  under  the  act,  and  not  by  action  at  common  law  as  for  a  wrongful  and 
unwarrantable  encroachment  upon  his  right  of  property.  Shaw,  Cb.  J. :  "  It  is 
contended  that  if  this  act  was  intended  to  authorize  the  defendant  company  to 
take  the  mill  power  and  mill  of  the  plaintiff,  it  was  void  because  it  was  not  taken 
for  public  use,  and  it  was  not  within  the  power  of  the  government  in  the  exercise 
of  the  right  of  eminent  domain.  This  is  the  main  question.  In  determining-  it, 
we  must  look  to  the  declared  purposes  of  the  act ;  and  if  a  public  use  is  declared, 

[627] 


*  536  CONSTITUTIONAL    LIMITATIONS.  [CH.  XV. 

[*  536]       *  On  the  other  hand,  it  is  said  that  the  legislature  of  New 

York  has  never  exercised  the  right  of  eminent  domain  in 

favor  of  mills  of  any  kind,  and  that  "  sites  for  steam-engines,  hotels, 

it  will  be  so  held,  unless  it  manifestly  appears  by  the  provisions  of  the  act  that 
they  can  have  no  tendency  to  advance  and  promote  such  public  use.  The 
declared  purposes  are  to  improve  the  navigation  of  the  Merrimac  River,  and  to 
create  a  large  mill  power  for  mechanical  and  manufacturing  purposes.  In  general, 
whether  a  particular  structure,  as  a  bridge,  or  a  lock,  or  canal,  or  road,  is  for 
the  public  use,  is  a  question  for  the  legislature,  and  which  may  be  presumed  to 
have  been  correctly  decided  by  them.  Commonwealth  v.  Breed,  4  Pick.*163. 
That  the  improvement  of  the  navigation  of  a  river  is  done  for  the  public  use 
has  been  too  frequently  decided  and  acted  upon  to  require  authorities.  And  so 
to  create  a  wholly  artificial  navigation  by  canals.  The  establishment  of  a  great 
mill  power  for  manufacturing  purposes,  as  an  object  of  great  public  interest, 
especially  since  manufacturing  has  come  to  be  one  of  the  great  industrial  pur- 
suits of  the  commonwealth,  seems  to  have  been  regarded  by  the  legislature,  and 
sanctioned  by  the  jurisprudence  of  the  Commonwealth,  and  in  our  judgment 
rightly  so,  in  determining  what  is  a  public  use,  justifying  the  exercise  of  right  of 
eminent  domain.  See  St.  1825,  c.  148,  incorporating  the  Salem  Mill  Dam  Cor- 
poration ;  Boston  and  Roxbury  Mill  Dam  Corporation  v.  Newman,  12  Pick.  467. 
The  acts  since  passed,  and  the  cases  since  decided  on  this  ground,  are  very 
numerous.  That  the  erection  of  this  dam  would  have  a  strong  and  direct  ten- 
dency to  advance  both  these  public  objects,  there  is  no  doubt.  We  are,  therefore, 
of  opinion  that  the  powers  conferred  on  the  corporation  by  this  act  were  so  done 
within  the  scope  of  the  authority  of  the  legislature,  and  were  not  a  violation  of 
the  Constitution  of  the  Commonwealth."  Hazen  v.  Essex  Company,  12  Cush. 
477.  See  also  Boston  and  Roxbury  Mill  Corporation  v.  Newman,  12  Pick.  467  ; 
Fiske  v.  Framingham  Manufacturing  Co.,  ib.  67  ;  Harding  v.  Goodlett,  3  Yerg. 
41.  The  courts  of  Wisconsin  have  sustained  such  laws.  Newcome  v.  Smith, 
1  Chand.  71 ;  Thien  v.  Voegtlander,  3  Wis.  465  ;  Pratt  v.  Brown,  ib.  603.  But 
with  some  hesitation  of  late.  See  Fisher  v.  Horricon  Co.,  10  Wis.  351 ;  Curtis  v. 
Whipple,  24  Wis.  350.  And  see  the  note  of  Judge  Redfield  to  Allen  v.  Inhabi- 
tants of  Jay,  Law  Reg.,  Aug.,  1873,  p.  493.  And  those  of  Connecticut.  Olmstead 
v.  Camp,  33  Conn.  532.  And  of  Maine.  Jordan  v.  Woodward,  40  Me.  317. 
And  of  Minnesota.  Miller  v.  Troost,  14  Minn.  365.  And  they  have  been 
enforced  elsewhere  without  question.  Burgess  v.  Clark,  13  Ired.  109  ;  McAfee's 
Heirs  v.  Kennedy,  1  Lit.  92  ;  Smith  v.  Connelly,  1  T.  B.  Monr.  58  ;  Shackleford 
v.  Coffey,  4  J.  J.  Marsh.  40;  Crenshaw  v.  Slate  River  Co.,  6  Rand.  245.  The 
whole  subject  was  very  fully  considered  and  the  validity  of  such  legislation 
affirmed  in  Great  Falls  Manuf.  Co.  v.  Fernald,  47  N.  H.  444.  And  see  Ash 
v.  Cummings,  50  N.  H.  591.  In  Loughbridge  v.  Harris,  42  Geo.  500,  an  act 
for  the  condemnation  of  land  for  a  grist  mill  was  held  unconstitutional,  though 
the  tolls  were  regulated  and  discrimination  forbidden.  In  Newell  v.  Smith,  15 
Wis.  101,  it  was  held  not  constitutional  to  authorize  the  appropriation  of  the 
property,  and  leave  the  owner  no  remedy  except  to  subsequently  recover  its 
value  in  an  action  of  trespass. 

[628] 


CH.  XV.]  THE  EMINENT  DOMAIN.  *  536 

churches,  and  other  public  conveniences,  might  as  well  be  taken  by 
the  exercise  of  this  extraordinary  power."  J  A  somewhat  similar 
view  has  been  taken  by  the  Supreme  Court  of  Alabama.2  It  is  quite 
possible  that,  in  any  State  in  which  this  question  would  be  entirely 
a  new  one,  and  where  it  would  not  be  embarrassed  by  long  acqui- 
escence, or  by  either  judicial  or  legislative  precedents,  it  might  be 
held  that  these  laws  are  not  sound  in  principle,  and  that  there  is 
no  such  necessity,  and  consequently  no  such  imperative  reasons 
of  public  policy,  as  would  be  essential  to  support  an  exercise  of  the 
right  of  eminent  domain.3  But  accepting  as  correct  the  decisions 
which  have  been  made,  it  must  be  conceded  that  the  term  "  public 
use,"  as  employed  in  the  law  of  eminent  domain,  has  a  meaning 
much  controlled  by  the  necessity,  and  somewhat  different  from 
that  which  it  bears  generally.4 

1  Hay  v.  Colioes  Company,  3  Barb.  47. 

2  Sadler  v.  Langbam,  34  Ala.  311.  In  this  case,  however,  it  was  assumed 
that  lands  for  the  purposes  of  grist-mills  which  grind  for  toll,  and  were  required 
to  serve  the  public  impartially,  might,  under  proper  legislation,  be  taken  under 
the  right  of  eminent  domain.  The  case  of  Lougbbridge  v.  Harris,  42  Geo. 
500,  is  contra.  In  Tyler  v.  Beacher,  44  Vt.  648,  it  was  held  not  competent, 
where  the  mills  were  subject  to  no  such  requirement.  See  the  case,  8  Am. 
Rep.  398.     And  see  note  by  Redfield,  Am.  Law  Reg.  Aug.  1873,  p.  493. 

3  See  this  subject  in  general  discussed  in  a  review  of  Angell  on  Watercourses, 
2  Am.  Jurist,  p.  25. 

4  In  People  v.  Township  Board  of  Salem,  20  Mich.,  the  court  consider  the 
question  whether  a  use  which  is  regarded  as  public  for  the  purposes  of  an  exer- 
cise of  the  right  of  eminent  domain,  is  necessarily  so  for  the  purposes  of  taxation. 
They  say :  "  Reasoning  by  analogy  from  one  of  the  sovereign  powers  of  gov- 
ernment to  another  is  exceedingly  liable  to  deceive  and  mislead.  An  object  may 
be  public  in  one  sense  and  for  one  purpose,  when  in  a  general  sense  and  for 
other  purposes  it  would  be  idle  or  misleading  to  apply  the  same  term.  All 
governmental  powers  exist  for  public  purposes,  but  they  are  not  necessarily 
to  be  exercised  under  the  same  conditions  of  public  interest.  The  sovereign 
police  power  which  the  State  possesses  is  to  be  exercised  only  for  the  general 
public  welfare,  but  it  reaches  to  every  person,  to  every  kind  of  business,  to 
every  species  of  property  within  the  Commonwealth.  The  conduct  of  every 
individual,  and  the  use  of  all  property  and  of  all  rights  is  regulated  by  it,  to 
any  extent  found  necessary  for  the.  preservation  of  the  public  order,  and  also 
for  the  protection  of  the  private  rights  of  one  individual  against  encroachment 
by  others.  The  sovereign  power  of  taxation  is  employed  in  a  great  many  cases 
where  the  power  of  eminent  domain  might  be  made  more  immediately  efficient 
and  available,  if  constitutional  principles  could  suffer  it  to  be  resorted  to  ;  but 
each  of  these  has  its  own  peculiar  and  appropriate  sphere,  and  the  object  which 

[  629] 


536  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 


The   Talcing  of  Property. 

Although  property  can  only  be  taken  for  a  public  use,  and  the 
legislature  must  determine  in  what  cases,  it  has  been  long  settled 
that  it  is  not  essential  the  taking  should  be  to  or  by  the  State 

is  public  for  the  demands  of  the  one  is  not  necessarily  of  a  character  to  permit 
the  exercise  of  the  other. 

"  If  we  examine  the  subject  critically,  we  shall  find  that  the  most  important 
consideration  in  the  case  of  eminent  domain  is  the  necessity  of  accomplishing 
some  public  good  which  is  otherwise  impracticable ;  and  we  shall  also  find  that 
the  law  does  not  so  much  regard  the  means  as  the  need.  The  power  is  much 
nearer  akin  to  that  of  the  public  police  than  to  that  of  taxation ;  it  goes  but  a 
step  farther,  and  that  step  is  in  the  same  direction.  Every  man  has  an  abstract 
right  to  the  exclusive  use  of  his  own  property  for  his  own  enjoyment  in  such 
manner  as  he  shall  choose ;  but  if  he  should  choose  to  create  a  nuisance  upon  it, 
or  to  do  any  thing  which  would  preclude  a  reasonable  enjoyment  of  adjacent 
property,  the  law  would  interfere  to  impose  restraints.  He  is  said  to  own  his 
private  lot  to  the  pentre  of  the  earth,  but  he  would  not  be  allowed  to  excavate 
it  indefinitely,  lest  his  neighbor's  lot  should  disappear  in  the  excavation.  The 
abstract  right  to  make  use  of  his  own  property  in  his  own  way  is  compelled  to 
yield  to  the  general  comfort  and  protection  of  the  community,  and  to  a  proper 
regard  to  relative  rights  in  others.  The  situation  of  his  property  may  even  be 
such  that  he  is  compelled  to  dispose  of  it  because  the  law  will  not  suffer  his 
regular  business  to  be  carried  on  upon  it.  A  needful  and  lawful  species  of 
manufacture  may  so  injuriously  affect  the  health  and  comfort  of  the  vicinity  that 
it  cannot  be  tolerated  in  a  densely  settled  neighborhood,  and  therefore  the  owner 
of  a  lot  in  that  neighborhood  will  not  be  allowed  to  engage  in  that  manufacture 
upon  it,  even  though  it  be  his  regular  and  legitimate  business.  The  butcher  in 
the  vicinity  of  whose  premises  a  village  has  grown  up,  finds  himself  compelled 
to  remove  his  business  elsewhere,  because  his  right  to  make  use  of  his  lot  as  a 
place  for  the  slaughter  of  cattle  has  become  inconsistent  with  the  superior  right 
of  community  to  the  enjoyment  of  pure  air  and  the  accompanying  blessings 
and  comforts.  The  owner  of  a  lot  within  the  fire  limits  of  a  city  may  be  com- 
pelled to  part  with  the  property,  because  he  is  unable  to  erect  a  brick  or  stone 
structure  upon  it,  and  the  local  regulations  will  not  permit  one  of  wood.  Eminent 
domain  only  recognizes  and  enforces  the  superior  right  of  the  community  against 
the  selfishness  of  individuals  in  a  similar  way.  Every  branch  of  needful  industry 
has  a  right  to  exist,  and  community  has  a  right  to  demand  that  it  be  permitted 
to  exist ;  and  if  for  that  purpose  a  peculiar  locality  already  in  possession  of 
an  individual  is  essential,  the  owner's  right  to  undisturbed  occupancy  must  yield 
to  the  superior  interest  of  the  public.  A  railroad  cannot  go  around  the  farm  of 
every  unwilling  person,  and  the  business  of  transporting  persons  and  property 
for  long  distances  by  rail,  which  has  been  found  so  essential  to  the  general 
enjoyment  and  welfare,  could  never  have  existed  if  it  were  in  the  power  of  any 
unwilling  person  to  stop  the  road  at  his  boundary,  or  to  demand  unreasonable 

[  630] 


CH.  XV.]  THE  EMINENT  DOMAIN.  *  536 

itself,  if  by  any  other  agency,  in  the  opinion  of  the  legislature,  the 
use  can  be  made  equally  effectual  for  the  public  benefit.  There 
are  many  cases  in  which  the  appropriation  consists  simply  in 
throwing  the  property  open  to  use  by  such  persons  as  may  see  fit 
to  avail  themselves  of  it;  as  in  the  case  of  common  highways  and 
public  parks.  In  these  cases  the  title  of  the  owner  is  not  dis- 
turbed, except  as  it  is  charged  with  this  burden  ;  and  the  State 
defends  the  easement,  not  by  virtue  of  any  title  in  the  property, 
but  by  means  of  criminal  proceedings  when  the  general 
right  is  disturbed.*  But  in  other  cases  it  seems  impor-  [*  537] 
tant  to  take  the  title ;  and  in  many  of  these  it  is  conven- 
ient, if  not  necessary,  that  the  taking  be,  not  by  the  State,  but  by 
the  municipality  for  which  the  use  is  specially  designed,  and  to 
whose  care  and  government  it  will  be  confided.  When  property  is 
needed  for  a  district  school-house,  it  is  proper  that  the  district 
appropriate  it ;  and  it  is  strictly  in  accordance  with  the  general 
theory  as  well  as  with  the  practice  of  our  government  for  the  State 
to  delegate  to  the  district  the  exercise  of  the  power  of  eminent 
domain  for  this  special  purpose.  So  a  county  may  be  authorized 
to  take  lands  for  its  court-house  or  jail ;  a  city,  for  its  town  hall,  its 
reservoirs  of  water,  its  sewers,  and  other  public  works  of  like  im- 
portance. In  these  cases  no  question  of  power  arises  ;  the  taking 
is  by  the  public ;  the  use  is  by  the  public  ;  and  the  benefit  to  ac- 
crue therefrom  is  shared  in  greater  or  less  degree  by  the  whole 
public. 

If,  however,  it  be  constitutional  to  appropriate  lands  for  mill 
dams  or  mill  sites,  it  ought  also  to  be  constitutional  that  the  tak- 

terms  as  a  condition  of  passing  him.  The  law  interferes  in  these  cases,  and 
regulates  the  relative  rights  of  the  owner  and  of  the  community  with  as  strict 
regard  to  justice  and  equity  as  the  circumstances  will  permit.  It  does  not 
deprive  the  owner  of  his  property,  but  it  compels  him  to  dispose  of  so  much  of 
it  as  is  essential  on  equitable  terms.  While,  therefore,  eminent  domain  estab- 
lishes no  industry,  it  so  regulates  the  relative  rights  of  all  that  no  individual 
shall  have  it  in  his  power  to  preclude  its  establishment."  On  this  genei-al  subject 
see  Olmstead  v.  Camp,  33  Conn.  532,  in  which  it  was  very  fully  and  carefully 
considered. 

What  is  a  public  use  is  a  question  for  the  courts ;  though  where  a  use  has 
been  declared  public  by  the  legislature,  the  courts  will  hold  it  to  be  such  unless 
the  contrary  clearly  appears.  Bankhead  v.  Brown,  25  111.  540.  See  Olmstead  v. 
Camp,  33  Conn.  551 ;  Tyler  v.  Beacher,  44  Vt.  648 ;  Loughbridge  v.  Harris,  42 
Geo.  500. 

[  631  ] 


*  537  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

ing  be  by  individuals  instead  of  by  the  State  or  any  of  its  organized 
political  divisions ;  since  it  is  no  part  of  the  business  of  the  gov- 
ernment to  engage  in  manufacturing  operations  which  come  in 
competition  with  private  enterprise ;  and  the  cases  must  be  very 
peculiar  and  very  rare  where  a  State  or  municipal  corporation 
could  be  justified  in  any  such  undertaking.  And  although  the 
practice  is  not  entirely  uniform  on  the  subject,  the  general  senti- 
ment is  adverse  to  the  construction  of  railways  by  the  State,  and 
the  opinion  is  quite  prevalent,  if  not  general,  that  they  can  be 
better  managed,  controlled,  and  operated  for  the  public  benefit  in 
the  hands  of  individuals  than  by  State  or  municipal  officers  or 
agencies. 

And  while  there  are  unquestionably  some  objections  to  compel- 
ling a  citizen  to  surrender  his  property  to  a  corporation,  whose  cor- 
porators, in  receiving  it,  are  influenced  by  motives  of  private  gain 
and  emolument,  so  that  to  them  the  purpose  of  the  appropriation 
is  altogether  private,  yet  conceding  it  to  be  settled  that  these  facil- 
ities for  travel  and  commerce  are  a  public  necessity,  if  the  legisla- 
ture, reflecting  the  public  sentiment,  decide  that  the  general  benefit 
is  better  promoted  by  their  construction  through  individuals  or 
corporations  than  by  the  State  itself,  it  would  clearly  be  pressing  a 
constitutional  maxim  to  an  absurd  extreme  if  it  were  to  be  held 

that  the  public  necessity  should  only  be  provided  for  in  the 
[*  538]   way  which  is  least  consistent  with  the  public  *  interest. 

Accordingly,  on  the  principle  of  public  benefit,  not  only 
the  State  and  its  political  divisions,  but  also  individuals  and  cor- 
porate bodies,  have  been  authorized  to  take  private  property  for  the 
construction  of  works  of  public  utility,  and  when  duly  empowered 
by  the  legislature  so  to  do,  their  private  pecuniary  interest  does 
not  preclude  their  being  regarded  as  public  agencies  in  respect  to 
the  public  good  which  is  sought  to  be  accomplished.1 

1  Beekman  v.  Saratoga  and  Schenectady  R.R.  Co.,  3  Paige,  73 ;  Wilson  v. 
Blackbird  Creek  Marsh  Co.,  2  Pet.  251;  Buonaparte  v.  Camden  and  Amboy 
R.R.  Co.,  1  Bald.  205 ;  Bloodgootl  v.  Mohawk  and  Hudson  R.R.  Co.,  18  Wend. 
1  ;  Lebanon  v.  Olcott,  1  N.  H.  339  ;  Petition  of  Mount  Washington  Road  Co., 
35  N.  H.  141;  Pratt  v.  Brown,  3  Wis.  603;  Swan  v.  Williams,  2  Mich.  427; 
Stevens  v.  Middlesex  Canal,  12  Mass.  466 :  Boston  Mill  Dam  v.  Newman,  12 
Pick.  467  ;  Gilmer  v.  Lime  Point,  18  Cal.  229  ;  Armington  v.  Barnet,  15  Vt. 
750;  White  River  Turnpike  v.  Central  Railroad,  21  Vt.  590;  Raleigh,  &c, 
R.R.  Co.  v.  Davis,  2  Dev.  &  Bat.  451;  Whiteman's  Ex'r  v.  Wilmington,  &c, 
R.R.  Co.,  2  Harr.  514;  Bradley  v.  N.  Y.  and  N.  H.  R.R.  Co.,  21  Conn.  294; 

[632] 


CH.  XV.]  THE   EMINENT   DOMAIN.  *  538 

The   Necessity  for   the    Talcing. 

The  authority  to  determine  in  any  case  whether  it  is  needful  to 
permit  the  exercise  of  this  power  must  rest  with  the  State  itself; 
and  the  question  is  always  one  of  strictly  political  character,  not 
requiring  any  hearing  upon  the  facts  or  any  judicial  determination. 
Nevertheless,  when  a  work  or  improvement  of  local  importance 
only  is  contemplated,  the  need  of  which  must  be  determined  upon 
a  view  of  the  facts  which  the  people  of  the  vicinity  may  be  sup- 
posed best  to  understand,  the  question  of  necessity  is  generally 
referred  to  some  local  tribunal,  and  it  may  even  be  submitted  to  a 
jury  to  decide  upon  evidence.1  But  parties  interested  have  no  con- 
stitutional right  to  be  heard  upon  the  question,  unless  the  State 
constitution  clearly  and  expressly  recognizes  and  provides  for  it. 
On  general  principles,  the  final  decision  rests  with  the  legislative 
department  of  the  State ;  and  if  the  question  is  referred  to  any 
tribunal  for  trial,  the  reference  and  the  opportunity  for  being  heard 
are  matters  of  favor  and  not  of  right.  The  State  is  not  under  any 
obligation  to  make  provision  for  a  judicial  contest  upon  that  ques- 
tion. And  where  the  case  is  such  that  it  is  proper  to  delegate  to 
individuals  or  to  a  corporation  the  power  to  appropriate  property, 
it  is  also  competent  to  delegate  the  authority  to  decide  upon  the 
necessity  for  the  taking.2 

Olmstead  v.  Camp,  33  Conn.   532  ;  Eaton  v.  Boston,  C.   &  M.  R.R.   Co.,  51 
N.  H.  504. 

1  Iron  R.R.  Co.  v.  Ironton,  19  Ohio,  N.  s.  299.  The  constitutions  of  some  of 
the  States  require  the  question  of  the  necessity  of  any  specific  appropriation  to 
be  submitted  to  a  jury;  and  this  requirement  cannot  be  dispensed  with.  Mans- 
field, &c,  R.R.  Co.  v.  Clark,  23  Mich.  519. 

2  People  v.  Smith,  21  N.  Y.  597;  Ford  v.  Chicago  and  N.  W.  R.R,  Co.,  14 
Wis.  617;  Matter  of  Albany  St.,  11  Wend.  152;  Lyon  v.  Jerome,  2G  Wend. 
484;  Hays  v.  Risher,  32  Penn.  St.  169;  North  Missouri  R.R.  Co.  v.  Lackland, 
25  Mo.  515;  Same  v.  Gott,  ib.  540;  Bankhead  v.  Brown,  25  Iowa,  540.  In  the 
case  first  cited,  Denio,  J.,  says:  "The  question  is,  whether  the  State,  in. the 
exercise  of  the  power  to  appropriate  the  property  of  individuals  to  a  public  use, 
where  the  duty  of  judging  of  the  expediency  of  making  the  appropriation,  in  a 
class  of  cases,  is  committed  to  public  officers,  is  obliged  to  afford  to  the  owners 
of  the  property  an  opportunity  to  be  heard  before  those  officers  when  they  sit  for 
the  purpose  of  making  the  determination.  I  do  not  speak  now  of  the  process  for 
arriving  at  the  amount  of  compensation  to  be  paid  to  the  owners,  but  of  the 
determination  whether,  under  the  circumstances  of  a  particular  case,  the  prop- 
erty required  for  the  purpose  shall  be  taken  or  not ;  and  I  am  of  opinion  that  the 

[633] 


*  539  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

[*  539]  *  How  much  Property  may  be  taken. 

The  taking  of  property  must  always  be  limited  to  the 

necessity  of  the  ease,  and  consequently  no  more  can  be 
[*  540]  appropriated  in  any  *  instance  than  the  proper  tribunal 

shall  adjudge  to  be  needed  for  the  particular  use  for  which 

State  is  not  under  any  obligation  to  make  provision  for  a  judicial  contest  upon 
that  question.      The  only  part  of  the  constitution  which  refers  to  the  subject  is 
that  which  forbids  private  property  to  be  taken  for  public  use  without  compen- 
sation, and  that  which  prescribes  the  manner  in  which  the  compensation  shall  be 
ascertained.     It  is  not  pretended  that  the  statute  under  consideration  violates 
either  of  those  provisions.      There  is,  therefore,  no  constitutional  injunction  on 
the  point  under  consideration.     The  necessity  for  appropriating  private  property 
for  the  use  of  the   public  or  of  the  government  is  not  a  judicial  question.     The 
power  resides  in  the  legislature.     It  may  be  exercised  by  means  of  a  statute 
which  shall  at  once  designate  the  property  to  be  appropriated  and  the  purpose  of 
the  appropriation ;  or  it  may  be  delegated  to  public  officers,  or,  as  it  has  been 
repeatedly  held,  to  private  corporations  established  to   carry  on  enterprises  in 
which  the  public  are  interested.      There  is  no  restraint  upon  the   power,  except 
that  requiring  compensation  to  be  made.      And  where  the  power  is  committed  to 
public  officers,  it  is  a  subject  of  legislative  discretion  to  determine  what  pruden- 
tial regulations  shall  be  established  to  secure  a  discreet  and  judicious  exercise  of 
the  authority.     The   constitutional  provision   securing  a  trial  by  jury  in  certain 
cases,  and  that  which  declares  that  no  citizen  shall  be  deprived  of  his  property 
without  due  process  of  law,  have  no  application  to  the  case.      The  jury  trial  can 
only  be  claimed  as  a  constitutional  right  where  the  subject  is  judicial  in  its  char- 
acter.     The  exercise  of  the  right  of  eminent  domain  stands  on  the  same  ground 
with  the  power  of  taxation.      Both  are  emanations  from  the  law-making  power. 
They  are  attributes  of  political  sovereignty,  for  the  exercise  of  which  the  legis- 
lature is  under  no  necessity  to  address  itself  to  the  courts.     In  imposing  a  tax, 
or  in  appropriating  the  property  of  a  citizen,  or  of  a  class  of  citizens,  for  a  public 
purpose,  with  a  proper  provision  for  compensation,  the   legislative  act  is  itself 
due  process  of  law ;  though  it  would  not  be  if  it  should  undertake  to  appropriate 
the  property  of  one  citizen  for  the  use  of  another,  or  to  confiscate  the  property 
of  one  person  or  class  of  persons,  or  a  particular  description  of  property  upon 
some  view  of  public  policy,  where  it  could  not  be  said  to  be  taken  for  a  public 
use.     It  follows  from  these  views  that  it  is   not  necessary  for  the  legislature,  in 
the-exercise  of  the  right  of  eminent  domain,  either  directly,  or  indirectly  through 
public  officers   or  agents,  to  invest  the  proceedings  with  the  forms  or  substance 
of  judicial  process.     It  may  allow  the  owner  to  intervene  and  participate  in  the 
discussion  before  the  officer  or  board  to  whom  the  power  is  given  of  determining 
whether  the  appropriation  shall  be  made  in  a  particular  case,  or  it  may  provide 
that  the  officers  shall  act  upon  their  own  views  of  propriety  and  duty,  without  the 
aid  of  a  forensic  contest.     The  appropriation  of  the  propriety  is  an  act  of  public 
administration,  and  the  form  and  manner  of  its  performance  is  such  as  the  legis- 
lature in  its  discretion  shall  prescribe." 

[634] 


CH.  XV.]  THE   EMINENT   DOMAIN. 


540 


the  appropriation  is  made.  When  a  part  only  of  a  man's  premises 
is  needed  by  the  public,  the  necessity  for  the  appropriation  of  that 
part  will  not  justify  the  taking  of  the  whole,  even  though  com- 
pensation be  made  therefor.  The  moment  the  appropriation  goes 
beyond  the  necessity  of  the  case,  it  ceases  to  be  justified  on  the 
principles  which  underlie  the  right  of  eminent  domain.1 
If,  *  however,  the  statute  providing  for  such  appropriation  [*  541] 
is  acted  upon,  and  the  property  owner  accepts  the  compen- 
sation awarded  to  him  under  it,  he  will  be  precluded  by  this 
implied  assent  from  afterwards  objecting  to  the  excessive  appro- 
priation.2    And  where  land  is  taken  for  a  public  work,  there  is 

1  By  a  statute  of  New  York  it  was  enacted  that  whenever  a  part  only  of  a  lot 
or  parcel  of  land  should  be  required  for  the  purposes  of  a  city  street,  if  the  com- 
missioners for  assessing  compensation  should  deem  it  expedient  to  include  the 
whole  lot  in  the  assessment,  they  should  have  power  so  to  do;  and  the  part  not 
wanted  for  the  particular  street  or  improvement  should,  upon  the  confirmation  of 
the  report,  become  vested  in  the  corporation,  and  might  be  appropriated  to  pub- 
lic uses,  or  sold  in  case  of  no  such  appropriation.  Of  this  statute  it  was  said  by 
the  Supreme  Court  of  New  York  :  "  If  this  provision  was  intended  merely  to 
give  to  the  corporation  capacity  to  take  property  under  such  circumstances  with 
the  consent  of  the  owner,  and  then  to  dispose  of  the  same,  there  can  be  no  objec- 
tion to  it ;  but  if  it  is  to  be  taken  literally,  that  the  commissioners  may,  against 
the  consent  of  the  owner,  take  the  whole  lot,  when  only  a  part  is  required  for 
public  use,  and  the  residue  to  be  applied  to  private  use,  it  assumes  a  power 
which,  with  all  respect,  the  legislature  did  not  possess.  The  constitution,  by 
authorizing  the  appropriation  of  property  to  public  use,  impliedly  declares  that 
for  any  other  use  private  property  shall  not  be  taken  from  one  and  applied  to  the 
private  use  of  another.  It  is  in  violation  of  natural  right ;  and  if  it  is  not  in 
violation  of  the  letter  of  the  constitution,  it  is  of  its  spirit,  and  cannot  be  sup- 
ported. This  power  has  been  supposed  to  be  convenient  when  the  greater  part 
of  a  lot  is  taken,  and  only  a  small  part  left,  not  required  for  public  use,  and  that 
small  part  of  but  little  value  in  the  hands  of  the  owner.  In  such  case  the  cor- 
poration has  been  supposed  best  qualified  to  take  and  dispose  of  such  parcels,  or 
goers,  as  they  have  sometimes  been  called ;  and  probably  this  assumption  of 
power  has  been  acquiesced  in  by  the  proprietors.  I  know  of  no  case  where  the 
power  has  been  questioned,  and  where  it  has  received  the  deliberate  sanction  of 
this  court.  Suppose  a  case  where  only  a  few  feet,  or  even  inches,  are  wanted, 
from  one  end  of  a  lot  to  widen  a  street,  and  a  valuable  building  stands  upon  the 
other  end  of  such  lot ;  would  the  power  be  conceded  to  exist  to  take  the  whole 
lot,  whether  the  owner  consented  or  not?  The  quantity  of  the  residue  of  any 
lot  cannot  vary  the  principle.  The  owner  may  be  very  unwilling  to  part  with 
only  a  few  feet ;  and  I  hold  it  equally  incompetent  for  the  legislature  to  dispose 
of  private  property,  whether  feet  or  acres  are  the  subject  of  this  assumed  power." 
Matter  of  Albany  St.,  11  Wend.  151,  per  Savage,  Ch.  J. 

2  Embury  v.  Conner,  3  N.  Y.  511.     There  is  clearly  nothing  in  constitutional 

[635] 


*  541  CONSTITUTIONAL    LIMITATIONS.  [CH.  XV. 

nothing  in  the  principle  we  have  stated  which  will  preclude  the 
appropriation  of  whatever  might  be  necessary  for  incidental  con- 
veniences ;  such  as  the  workshops  or  depot  buildings  of  a  railway 
company,1  or  materials  to  be  used  in  the  construction  of  their  road, 
and  so  on.  Express  legislative  power,  however,  is  needed  for 
these  purposes ;  it  will  not  follow  that,  because  such  things  are 
convenient  to  the  accomplishment  of  the  general  object,  the  public 
may  appropriate  them  without  express  authority  of  law  ;  but  the 
power  to  appropriate  must  be  expressly  conferred,  and  the  public 
agencies  seeking  to  exercise  this  high  prerogative  must  be  careful 
to  keep  within  the  authority  delegated,  since  the  public  necessity 
cannot  be  held  to  extend  beyond  what  has  been  plainly  declared 
on  the  face  of  the  legislative  enactment. 

What  constitutes  a   Taking  of  Property. 

Any  proper  exercise  of  the  powers  of  government,  which  does 
not  directly  encroach  upon  the  property  of  an  individual,  or  disturb 
him  in  its  possession  or  enjoyment,  will  not  entitle  him  to  compen- 
sation, or  give  him  a  right  of  action.2  If,  for  instance,  the 
[*  542]  *  State,  under  its  power  to  provide  and  regulate  the  public 
highways,  should  authorize  the  construction  of  a  bridge 
across  a  navigable  river,  it  is  quite  possible  that  all  proprietary 
interests  in  land  upon  the  river  might  be  injuriously  affected  ;  but 

principles  which  would  preclude  the  legislature  from  providing  that  a  man's  prop- 
erty might  be  taken  with  his  assent,  whether  the  assent  was  evidenced  by  deed  or 
not;  and  if  he  accepts  payment,  he  must  be  deemed  to  assent.  The  more  recent 
case  of  House  v.  Rochester,  15  Barb.  517,  is  not,  we  think,  opposed  to  Embury 
V.  Conner,  of  which  it  makes  no  mention. 

1  Chicago  B.  and  Q.  R.R.  Co.  v.  Wilson,  17  111.  123  ;  Low  v.  Galena  and  C.  U. 
R.R.  Co.,  18  111.  324;  Giesy  v.  Cincinnati,  W.  and  Z.  R.R.  Co.,  4  Ohio,  N.  s. 
308. 

2  Zimmerman  v.  Union  Canal  Co.,  1  W.  &  S.  340  ;  Shrunk  v.  Schuylkill  Nav- 
igation Co.,  14  S.  &  R.  71;  Monongahela  Navigation  Co.  v.  Coons,  6  W.  &  S. 
101 ;  Davidson  v.  Boston  &  Maine  R.R.  Co.,  3  Gush.  91 ;  Gould  v.  Hudson 
River  R.R.  Co.,  12  Barb.  GIG,  and  6  N.  Y.  522;  Radcliff  v.  Mayor,  &c,  of 
Brooklyn,  4  N.  Y.  195  ;  Murray  v.  Menifee,  20  Ark.  561 ;  Hooker  v.  New 
Haven  and  Northampton  Co.,  14  Conn.  146;  People  v.  Kerr,  27  N.  Y.  193; 
Fuller  v.  Eddings,  11  Rich.  Law,  239  ;  Eddings  v.  Seabrook,  12  Rich.  Law,  504; 
Richardson  W.Vermont  Central  R.R.  Co.,  25  Vt.  465;  Kennett's  Petition,  4 
Fost.  139;  Alexander  v.  Milwaukee,  16  Wis.  247;  Richmond,  &c,  Co.  v.  Rog- 
ers, 1  Duvall,  135;  Harvey  v.  Lackawana,  &c,  R.R.  Co.,  47  Penn.  St.  428; 
Tinicum  Fishing  Co.  v.  Carter,  61  Penn.  St.  21. 

[636] 


CH.  XV.]  THE    EMINENT    DOMAIN.  *  542 

such  injury  could  no  more  give  a  valid  claim  against  the  State  for 
damages,  than  could  any  change  in  the  general  laws  of  the  State, 
which,  while  keeping  in  view  the  general  good,  might  injuriously 
affect  particular  interests.1  So  if,  by  the  erection  of  a  dam  in  order 
to  improve  navigation,  the  owner  of  a  fishery  finds  it  diminished  in 
value,2  or  if  by  deepening  the  channel  of  a  river  to  improve  the 
navigation  a  spring  is  destroyed,3  or  by  a  change  in  the  grade  of 
a  city  street  the  value  of  adjacent  lots  is  diminished,4 — in  these 

1  Davidson  v.  Boston  and  Maine  R.R.  Co.,  3  Cusli.  91. 

s  Shrunk  v.  Schuylkill  Navigation  Co.,  14  S.  &  R.  71. 

3  Commonwealth  v.  Richter,  1  Penn.  St.  467.  It  is  justly  said  by  Mr.  Justice 
Miller,  in  Pumpelly  v.  The  Green  Bay  Co.,  13  Wall.  180,  that  the  decisions  "  that 
for^the  consequential  injury  to  the  property  of  an  individual  from  the  prosecution 
of  improvement  of  roads,  streets,  rivers,  and  other  highways  for  the  public  good, 
there  is  no  redress,"  "  have  gone  to  the  extreme  and  limit  of  sound  judicial  con- 
struction in  favor  of  this  principle,  and  in  some  cases  beyond  it ;  and  it  remains 
true  that  where  real  estate  is  actually  invaded  by  superinduced  additions  of 
water,  earth,  sand,  or  other  material,  or  by  having  any  artificial  structure  placed 
on  it,  so  as  effectually  to  destroy  or  impair  its  usefulness,  it  is  a  taking  within  the 
meaning  of  the  constitution."  This  whole  subject  is  most  elaborately  considered 
by  Smith,  J.,  in  Eaton  v.  Boston,  C.  &  M.  R.R.  Co.,  51  N.  H.  504.  It  was 
decided  in  that  case  that,  notwithstanding  a  party  had  received  compensation  for 
the  taking  of  his  land  for  a  railroad,  he  was  entitled  to  a  further  remedy  at  the 
common  law  for  the  flooding  of  his  land  in  consequence  of  the  road  being  cut 
through  a  ridge  on  the  land  of  another  ;  and  that  this  flooding  was  a  taking  of  his 
property  within  the  meaning  of  the  constitution.  The  cases  to  the  contrary  are 
all  considered  by  the  learned  judge,  who  is  able  to  adduce  very  forcible  reasons 
for  his  conclusions.  Compare  Aldrich  v.  Cheshire  R.R.  Co.,  21  N.  H.  359  ;  West 
Branch,  &c,  Canal  Co.  v.  Mulliner,  68  Penn.  St.  357;  Bellinger  v.  N.  Y.  Cen- 
tral R.R.  Co.,  23  N.  Y.  42 ;  Hatch  v.  Vt.  Central  R.R.  Co.,  25  Vt.  49. 

4  British  Plate  Manufacturing  Co.  v.  Meredith,  4  T.  R.  794;  Matter  of  Fur- 
man  Street,  17  Wend.  649  ;  Radcliff 's  Ex'rs  v.  Mayor,  &c,  of  Brooklyn,  4  N.  Y. 
195;  Graves  v.  Otis,  2  Hill,  466;  Wilson  v.  Mayor,  &c,  of  New  York,  1  Denio, 
595;  Murphyv.  Chicago,  29  111.  279;  Roberts  v.  Chicago,  26  111.  249;  Charlton 
v.  Alleghany  City,  1  Grant,  208;  La  Fayette  v.  Bush,  19  Ind.  326;  Macy  v. 
Indianapolis,  17  Ind.  267  ;  Vincennes  v.  Richards,  23  Ind.  381 ;  Green  v.  Read- 
ing, 9  Watts,  382;  O'Conner  v.  Pittsburg,  18  Penn.  St.  187;  In  re  Ridge 
Street,  29  Penn.  St.  391;  Callendar  v.  Marsh,  1  Pick.  417  ;  Creal  v.  Keokuk,  4 
Greene  (Iowa),  47;  Smith  v.  Washington,  20  How.  135;  Skinner  v.  Hartford 
Bridge  Co.,  29  Conn.  523  ;  Benden  v.  Nashua,  17  N.  H.  477 ;  Goszler  v.  George- 
town, 6  Wheat.  703.  The  cases  of  McComb  v.  Akron,  15  Ohio,  474,  and  18 
Ohio,  229  ;  and  Crawford  ?>.  Delaware,  7  Ohio,  N.  8.  459,  are  contra.  Those 
cases,  however,  admit  that  a  party  whose  interests  are  injured  by  the  original 
establishment  of  a  street  grade  can  have  no  claim  to  compensation  ;  but  they  hold 
that  when  the  grade  is  once  established,  and  lots  are  improved  in  reference  to  it, 

[637] 


*  542  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

and  similar  cases  the  law  affords  no  redress  for  the  injury.  So 
if,  in  consequence  of  the  construction  of  a  public  work,  an  injury 
occurs,  but  the  work  was  constructed  on  proper  plan  and  without 
negligence,  and  the  injury  is  caused  by  accidental  and  extraor- 
dinary circumstances,  the  injured  party  cannot  demand  com- 
pensation.1 
[*  543]  *  This  principle  is  peculiarly  applicable  to  those  cases 
where  property  is  appropriated  under  the  right  of  eminent 
domain.  It  must  frequently  occur  that  a  party  will  find  his  rights 
seriously  affected  though  no  property  to  which  he  has  lawful  claim 
is  actually  appropriated.  As  where  a  road  is  laid  out  along  the  line 
of  a  man's  land  without  taking  any  portion  of  it,  in  consequence  of 
which  he  is  compelled  to  keep  up  the  whole  of  what  before  was  a 
partition  fence,  one-half  of  which  his  neighbor  was  required  to  sup- 
port.2 No  property  being  taken  in  this  case,  the  party  has  no  relief, 
unless  the  statute  shall  give  it.  The  loss  is  damnum  absque  injuria. 
So  a  turnpike  company,  whose  profits  will  be  diminished  by  the 
construction  of  a  railroad  along  the  same  general  line  of  travel,  is 
not  entitled  to  compensation.3  So  where  a  railroad  company,  in 
constructing  their  road  in  a  proper  manner  on  their  own  land, 
raised  a  high  embankment  near  to  and  in  front  of  the  plaintiff's 

tbe  corporation  has  no  right  to  change  the  grade  afterwards,  except  on  payment 
of  the  damages. 

1  As  in  Sprague  v.  Worcester,  13  Gray,  193,  where,  in  consequence  of  the 
erection  of  a  bridge  over  a  stream  on  which  a  mill  was  situated,  the  mill  was 
injured  by  an  extraordinary  rise  in  the  stream  ;  the  bridge,  however,  being  in  all 
respects  properly  constructed.  And  in  Brouse  v.  Cayuga,  &c,  R.R.  Co.,  12 
N.  Y.  48G,  where  bridge  proprietoi-s  were  held  liable  for  similar  injuries  on  the 
ground  of  negligence.  And  compare  Norris  v.  Vt.  Central  R.R.  Co.,  28  Vt. 
102,  with  Mellen  v.  Western  R.R.  Corp.,  4  Gray,  301.     And  see  note  1,  supra. 

2  Kennett's  Petition,  4  Fost.  139.  See  Eddings  v.  Seabrook,  12  Rich.  Law, 
504  ;  Slatter  v.  Des  Moines  Valley  R.  R.  Co.  29  Iowa,  154. 

3  Troy  and  Boston  R.R.  Co.  v.  Northern  Turnpike  Co.,  1G  Barb.  100.  See 
La  Fayette  Plank  Road  Co.  v.  New  Albany  and  Salem  R.R.  Co.,  13  Ind.  90  • 
Richmond,  &c,  Co.  v.  Rogers,  1  Duvall,  135.  So  an  increased  competition  with 
a  party's  business  caused  by  the  construction  or  extension  of  a  road  is  not  a  ground 
of  claim.  Harvey  v.  Lackawana,  &c,  R.R.  Co.,  47  Penn.  St.  428.  "  Every 
great  public  improvement  must,  almost  of  necessity,  more  or  less,  affect  individ- 
ual convenience  and  property ;  and  when  the  injury  sustained  is  remote  and  con- 
sequential, it  is  damnum  absque  injuria,  and  is  to  be  borne  as  a  part  of  the  price 
to  be  paid  for  the  advantages  of  the  social  condition.  This  is  founded  upon  the 
principle  that  the  general  good  is  to  prevail  over  partial  individual  convenience." 
Lansing  v.  Smith,  8  Cow.  149. 

[638] 


CH.  XV.]  THE    EMINENT   DOMAIN.  *  543 

house,  so  as  to  prevent  his  passing  to  and  from  the  same  with  the 
same  convenience  as  before,  this  consequential  injury  was  held  to 
give  no  claim  to  compensation.1  So  the  owner  of  dams  erected 
by  legislative  authority  is  without  remedy,  if  they  are  after- 
wards rendered  valueless  by  the  construction  of  a  canal.2 
*  And  in  New  York  it  has  been  held  that,  as  the  land  [*  544] 
where  the  tide  ebbs  and  flows,  between  high  and  low 
water  mark,  belongs  to  the  public,  the  State  may  lawfully  authorize 
a  railroad  company  to  construct  their  road  along  the  water  front 
below  high-water  mark,  and  that  the  owner  of  the  adjacent  bank 

1  Richardson  v.  Vermont  Central  R.R.  Co.,  25  Vt.  465.  But  quaere  if  this 
could  be  so,  if  the  effect  were  to  prevent  access  from  the  lot  to  the  highway.  In 
certain  Indiana  cases  it  is  said  that  the  right  of  the  owner  of  adjoining  land  to 
the  use  of  the  highway  is  as  much  property  as  the  land  itself;  that  it  is  appurte- 
nant to  the  land,  and  is  protected  by  the  constitution.  Haynes  v.  Thomas,  7  Ind. 
88;  Protzman  v.  Indianapolis,  &c,  R.R.  Co.,  9  Ind.  469;  New  Albany  and 
Salem  R.R.  Co.  v.  O'Dailey,  13  Ind.  463.  The  same  doctrine  is  recognized  in 
Crawford  v.  Delaware,  7  Ohio,  N.  s.  459,  and  Street  Railway  v.  Cumminsville, 
14  Ohio,  N.  s.  523.  In  the  Vermont  case  above  cited  it  was  held  that  an  exca- 
vation by  the  company  on  their  own  land,  so  near  the  line  of  the  plaintiff's  that 
his  land,  without  any  artificial  weight  thereon,  slid  into  the  excavation,  would 
render  the  company  liable  for  the  injury  ;  the  plaintiff  being  entitled  to  the 
.lateral  support  for  his  land. 

2  Susquehanna  Canal  Co.  v.  Wright,  9  W.  &  S.  9  ;  Monongahela  Navigation 
Co.  v.  Coons,  6  W.  &  S.  101.  In  any  case,  if  parties  exercising  the  right  of 
eminent  domain  shall  cause  injury  to  others  by  a  negligent  or  improper  construc- 
tion of  their  work,  they  may  be  liable  in  damages.  Rowe  v.  Granite  Bridge 
Corporation,  21  Pick.  348 ;  Sprague  v.  Worcester,  13  Gray,  193.  And  if  a 
public  work  is  of  a  character  to  necessarily  disturb  the  occupation  and  enjoyment 
of  his  estate  by  one  whose  land  is  not  taken,  he  may  have  an  action  on  the  case 
for  the  injury,  notwithstanding  the  statute  makes  no  provision  for  compensation. 
As  where  the  necessary,  and  not  simply  the  accidental,  consequence  was,  to  flood 
a  man's  premises  with  water,  thereby  greatly  diminishing  their  value.  Hooker  v. 
New  Haven  and  Northampton  Co.,  14  Conn.  146  ;  s.  c.  15  Conn.  312  ;  Evansville, 
&c,  R.R.  Co.  v.  Dick,  9  Ind.  433;  Robinson  v.  N.  Y.  and  Erie  R.R.  Co.,  27 
Barb.  512  ;  Trustees  of  Wabash  and  Erie  Canal  v.  Spears,  16  Ind.  441 ;  Eaton 
v.  Boston,  C.  &  M.  R.R.  Co.,  51  N.  H.  504.  So  where,  by  blasting  rock  in 
making  an  excavation,  the  fragments  are  thrown  upon  adjacent  buildings  so  as 
to  render  their  occupation  unsafe.  Hay  v.  Cohoes  Co.,  2  N.  Y.  159  ;  Tremain 
v.  Same,  ib.  163;  Carman  v.  Steubenville  and  Indiana  R.R.  Co.,  4  Ohio,  n.  s. 
399 ;  Sunbury  and  Erie  R.R.  Co.  v.  Hummel,  27  Penn.  St.  99.  There  has  been 
some  disposition  to  hold  private  corporations  liable  for  all  incidental  damages 
caused  by  their  exercise  of  the  right  of  eminent  domain.  See  Tinsman  v.  Bel- 
videre  and  Delaware  R.R.  Co.,  2  Dutch.  148;  Alexander  v.  Milwaukee,  16  Wis. 
255. 

[639] 


*  544  CONSTITUTIONAL    LIMITATIONS.  [CH.  XV. 

could  claim  no  compensation  for  the  consequential  injury  to  his 
interests.1  So  the  granting  of  a  ferry  right  with  a  landing  on 
private  property  within  a  highway  terminating  on  a  private  stream 
is  not  an  appropriation  of  property,2  the  ferry  being  a  mere 
continuation  of  the  highway,  and  the  landing  place  upon  the 
private  property  having  previously  been  appropriated  to  public 
uses. 

These  cases  must  suffice  as  illustrations  of  the  principle  stated, 
though  many  others  might  be  referred  to.  On  the  other  hand,  any 
injury  to  the  property  of  an  individual  which  deprives  the  owner  of 
the  ordinary  use  of  it  is  equivalent  to  a  taking,  and  entitles  him  to 
compensation.3  Water  front  on  a  stream  where  the  tide  does  not 
ebb  and  flow  is  property,  and  if  taken  must  be  paid  for  as  such.4 
So  with  an  exclusive  right  of  wharfage  upon  tide  water.5    So  with 

the  right  of  the  owner  of  land  to  use  an  adjoining  street, 
[*  545]   whether  he  is  owner  of  the  land  over  which  the  *  street  is 

laid  out  or  not.G    So  with  the  right  of  pasturage  in  streets, 
which  belongs  to  the  owners  of  the  soil.7     So  a  partial  destruction 

1  Gould  v.  Hudson  River  R.R.  Co.,  6  N.  Y.  522.  And  see  Stevens  v.  Pater- 
son,  &c,  R.R.  Co.,  34  N.  J.  532;  Tomlin  v.  Dubuque,  &c.,  R.R.  Co.,  32 
Iowa,  106;  s.  c.  7  Ain.  Rep.  176.  So  far  as  these  cases  hold  it  competent  to- 
cut  off  a  riparian  proprietor  from  access  to  the  navigable  water,  they  seem  to  us 
to  justify  an  appropriation  of  his  property  without  compensation ;  for  even  those 
courts  which  hold  the  fee  in  the  soil  under  navigable  waters  to  be  in  the  State 
admit  valuable  riparian  rights  in  the  adjacent  proprietor.  See  Yates  v.  Milwau- 
kee, 10  Wall.  497. 

2  Murray  v.  Menifee,  20  Ark.  561. 

3  Hooker  v.  New  Haven  and  Northampton  Co.,  14  Conn.  146. 

4  Varick  v.  Smith,  9  Paige,  547.     See  Yates  v.  Milwaukee,  10  Wall.  497. 
6  Murray  v.  Sharp,  1  Bosw.  539. 

6  Lackland  v.  North  Missouri  R.R.  Co.,  31  Mo.  180.  See  supra,  p.  543, 
note. 

7  Tonawanda  R.R.  Co.  v.  Hunger,  5  Denio,  255  ;  Woodruff  v.  Neal,  28  Conn. 
165.  In  this  case  it  was  held  that  a  by-law  of  a  town  giving  liberty  to  the  inhab- 
itants to  depasture  their  cows  in  the  public  highways  under  certain  regulations, 
passed  under  the  authority  of  a  general  statute  empowering  towns  to  pass  such 
by-laws,  was  of  no  validity,  because  it  appropriated  the  pasturage,  which  was 
private  property,  to  the  public  use,  without  making  compensation.  The  contrary 
has  been  held  in  New  York  as  to  all  highways  laid  out  while  such  a  statute  was 
in  existence ;  the  owner  being  held  to  be  compensated  for  the  pasturage  as  well 
as  for  the  use  of  the  land  for  other  purposes,  at  the  time  the  highway  was  laid 
out.  Griffin  v.  Martin,  7  Barb.  297 ;  Hardenburgh  v.  Lockwood,  25  Barb.  9. 
See  also  Kerwhacker  v.  Cleveland  C.  and  C.  R.R.  Co.,  3  Ohio,  N.  s.  177;  where 

[  640] 


CH.  XV.]  THE    EMINENT    DOMAIN.  *  545 

or  diminution  of  value  of  property  by  an  act  of  the  government 
which  directly  and  not  merely  incidentally  affects  it,  is  to  that 
extent  an  appropriation.1 

It  sometimes  becomes  important,  where  a  highway  has  been 
laid  out  and  opened,  to  establish  a  different  and  higher  grade  of 
way  upon  the  same  line,  with  a  view  to  accommodate  an  increased 
public  demand.  The  State  may  be  willing  to  surrender  the  control 
of  the  streets  in  these  cases,  and  authorize  turnpike,  plank-road,  or 
railroad  corporations  to  occupy  them  for  their  purposes  ;  and  if  it 
shall  give  such  consent,  the  control,  so  far  as  is  necessary  to  the 
purposes  of  the  turnpike,  plank-road,  or  railway,  is  thereby  passed 
over  to  the  corporation,  and  their  structure  in  what  was  before  a 
common  highway  cannot  be  regarded  as  a  public  nuisance.2  But 
the  municipal  organizations  in  the  State  have  no  power  to  give 
such  consent,  without  express  legislative  permission  ;  the  general 
control  of  their  streets  which  is  commonly  given  by  municipal 
charters  not  being  sufficient  authority  for  this  purpose.3     When 

it  was  held  that  by  ancient  custom  in  that  State  there  was  a  right  of  pasturage 
by  the  public  in  the  highways. 

1  See  Glover  v.  Powell,  2  Stockt.  211 ;  Eaton  v.  Boston,  C.  &  M.  R.R.  Co., 
51  N.  H.  504. 

2  See  Commonwealth  v.  Erie,  &  N.  E.  R.R.  Co.,  27  Penn.  St.  339;  Ten- 
nessee, &c,  R.R.  Co.  v.  Adams,  3  Head,  596. 

3  Lackland  v.  North  Missouri  R.R.  Co.,  31  Mo.  180;  New  York  and  Harlem 
R.R.  Co.  v.  Mayor,  &c,  of  New  York,  1  Hilt.  562;  Milhau  v.  Sharp,  27  N.  Y. 
611 ;  State  v.  Cincinnati,  &c,  Gas  Co.,  18  Ohio,  x.  s.  262.  In  inhabitants  of  Spring- 
field v.  Connecticut  River  R.R.  Co.,  4  Cush.  71,  it  was  held  that  legislative  author- 
ity to  construct  a  railroad  between  certain  termini,  without  prescribing  its  precise 
course  and  direction,  would  not  prima  facie  confer  power  to  lay  out  the  road  on 
and  along  an  existing  public  highway.  Per  Shaw,  Ch.  J.  :  "  The  whole  course 
of  legislation  on  the  subject  of  railroads  is  opposed  to  such  a  construction.  The 
crossing  of  public  highways  by  railroads  is  obviously  necessary,  and  of  course 
warranted  ;  and  numerous  provisions  are  industriously  made  to  regulate  such 
crossings,  by  determining  when  they  shall  be  on  the  same  and  when  on  different 
levels,  in  order  to  avoid  collision,  and  when  on  the  same  level  what  gates,  fences, 
and  barriers  shall  be  made,  and  what  guards  shall  be  kept  to  insure  safety. 
Had  it  been  intended  that  railroad  companies,  under  a  general  grant,  should 
have  power  to  lay  a  railroad  over  a  highway  longitudinally,  which  ordina- 
rily is  not  necessary,  we  think  that  would  have  been  done  in  express  terms, 
accompanied  with  full  legislative  provisions  for  maintaining  such  barriers  and 
modes  of  sepai-ation  as  would  tend  to  make  the  use  of  the  same  road,  for  both 
modes  of  travel,  consistent  with  the  safety  of  travellers  on  both.  The  absence 
of  any  such  provision  affords  a  strong  inference  that,  under  general  terms,  it  was 

41  [  641  ] 


*  545  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

[*  546]  however,  the  *  public  authorities  have  thus  assented,  it 
may  be  found  that  the  owners  of  the  adjacent  lots,  who 
are  also  owners  of  the  fee  in  the  highway  subject  to  the  public 
easement,  may  be  unwilling  to  assent  to  the  change,  and  may  find 
or  believe  their  interests  seriously  and  injuriously  affected  thereby. 
The  question  may  then  arise,  Is  the  owner  of  the  land,  who  has 
been  once  compensated  for  the  injury  he  has  sustained  in  the 
appropriation  of  his  land  as  a  highway  entitled  to  a  new  assess- 
ment for  any  further  injury  he  may  sustain  in  consequence  of  the 
street  being  subjected  to  a  change  in  the  use  not  contemplated  at 
the  time  of  the  original  taking,  but  nevertheless  in  furtherance  of 
the  same  general  purpose  ? 

When  a  common  highway  is  made  a  turnpike  or  a  plank-road, 
upon  which  tolls  are  collected,  there  is  much  reason  for  holding 
that  the  owner  of  the  soil  is  not  entitled  to  any  further  compensa- 
tion. The  turnpike  or  the  plank-road  is  still  an  avenue  for  public 
travel,  subject  to  be  used  in  the  same  manner  as  the  ordinary  high- 
way was  before,  and  if  properly  constructed  is  generally  expected 
to  increase  rather  than  diminish  the  value  of  property  along  its 
line ;  and  though  the  adjoining  proprietors  are  required  to  pay 
toll,  they  are  supposed  to  be,  and  generally  are,  fully  compensated 
for  this  burden  by  the  increased  excellence  of  the  road,  and  by 
their  exemption  from  highway  labor  upon  it.1  But  it  is  different 
when  a  highway  is  appropriated  for  the  purposes  of  a  railroad. 
"  It  is  quite  apparent  that  the  use  by  the  public  of  a  high- 
[*  547]  way,  and  the  use  thereof  by  a  *  railroad  company,  is  essen- 
tially different.  In  the  one  case  every  person  is  at  liberty 
to  travel  over  the  highway  in  any  place  or  part  thereof,  but  he 
has  no  exclusive  right  of  occupation  of  any  part  thereof  except 
while  he  is  temporarily  passing  over  it.  It  would  be  trespass  for 
him  to  occupy  any  part  of  the  highway  exclusively  for  any  longer 

not  intended  that  such  a  power  should  be  given."  See  also  Commonwealth  v. 
Erie  and  N.  E.  R.R.  Co.,  27  Penn.  St.  339;  Attorney-General  v.  Morris  and 
Essex  R.R.  Co.,  4  C.  E.  Green,  586. 

1  See  Commonwealth  v.  Wilkinson,  16  Pick.  175 ;  Benedict  v.  Goit,  3  Barb. 
459 ;  Wright  v.  Carter,  3  Dutch.  76 ;  State  v.  Laverack,  34  N.  J.  207  ;  Chagrin 
Falls  and  Cleveland  Plank-Road  Co.  v.  Cane,  2  Ohio,  n.  s.  419;  Douglass 
V.  Turnpike  Co.,  22  Md.  219.  But  see-  Williams  v.  Natural  Bridge  Plank 
Road  Co.,  21  Mo.  580.  In  Murray  v.  County  Commissioners  of  Berkshire, 
12  Met.  455,  it  was  held  that  owners  of  lands  adjoining  a  turnpike  were  not 
entitled  to  compensation  when  a  turnpike  was  changed  to  a  common  highway. 

[  642  ] 


CH.  XV.]  THE   EMINENT   DOMAIN.  *  547 

period  of  time  than  was  necessary  for  that  purpose,  and  the  stop- 
pages incident  thereto.  But  a  railroad  company  takes  exclusive 
and  permanent  possession  of  a  portion  of  the  street  or  highway. 
It  lays  down  its  rails  upon,  or  imbeds  them  in,  the  soil,  and  thus 
appropriates  a  portion  of  the  street  to  its  exclusive  use,  and  for 
its  own  particular  mode  of  conveyance.  In  the  one  case,  all 
persons  may  travel  on  the  street  or  highway  in  their  own  com- 
mon modes  of  conveyance.  In  the  other,  no  one  can  travel  on  or 
over  the  rails  laid  down,  except  the  railroad  company  and  with 
their  cars  specially  adapted  to  the  tracks.  In  one  case  the  use  is 
general  and  open  alike  to  all.  In  the  other,  it  is  peculiar  and 
exclusive. 

"  It  is  true  that  the  actual  use  of  the  street  by  the  railroad  may 
not  be  so  absolute  and  constant  as  to  exclude  the  public  also  from 
its  use.  With  a  single  track,  and  particularly  if  the  cars  tised 
upon  it  were  propelled  by  horse-power,  the  interruption  of  the  pub- 
lic easement  in  the  street  might  be  very  trifling  and  of  no  prac- 
tical consequence  to  the  public  at  large.  But  this  consideration 
cannot  affect  the  question  of  the  right  of  property,  or  of  the  in- 
crease of  the  burden  upon  the  soil.  It  would  present  simply 
a  question  of  degree  in  respect  to  the  enlargement  of  the  ease- 
ment,, and  would  not  affect  the  principle,  that  the  use  of  a 
street  for  the  purposes  of  a  railroad  imposed  upon  it  a  new 
burden."  i 

1  Wager  v.  Troy  Union  R.R.  Co.,  25  N.  Y.  532,  approving  Williams  v.  New 
York  Central  R.R.  Co.,  1G  N.  Y.  97;  Carpenter  v.  Oswego  and  Syracuse  R.R. 
Co.,  24  N.  Y.  655;  Malum  v.  New  York  Central  R.R.  Co.,  ib.  658;  Starr  v. 
Camden  and  Atlantic  R.R.  Co.,  4  Zab.  592.  In  inhabitants  of  Springfield  v. 
Connecticut  River  R.R.  Co.,  4  Cush.  71,  where,  however,  the  precise  question 
here  discussed  was  not  involved,  Chief  Justice  Shaw,  in  comparing  railroads 
with  common  highways,  says:  "The  two  uses  are  almost,  if  not  wholly,  incon- 
sistent with  each  other,  so  that  taking  the  highway  for  a  railroad  will  nearly 
supersede  the  former  use  to  which  it  had  been  legally  appropriated."  See  also 
Presbyterian  Society  of  Waterloo  v.  Auburn  and  Rochester  R.R.  Co.,  3  Hill, 
567;  Craig  v.  Rochester,  &c,  R.R.  Co.,  39  Barb.  494;  Schurmeier  v.  St.  Paul, 
&c,  R.R.  Co.,  10  Minn.  82;  Gray  v.  First  Division,  &c,  13  Minn.  365;  Cen- 
tral R.R.  Co.  v.  Hetfield,  5  Dutch.  206  ;  South  Carolina  R.R.  Co.  v.  Steiner,  44 
Geo.  546.  The  cases  of  Philadelphia  and  Trenton  R.R.  Co.,  6  VVhart.  25,  and 
Morris  and  Essex  R.R.  Co.  v.  Newark,  2  Stockt.  352,  are  opposed  to  the  New 
York  cases.  And  see  Wolfe  v.  Covington,  &c,  R.R.  Co.,  15  B.  Monr.  404;  Com. 
v.  Erie  and  N.  E.  R.R.  Co.,  27  Penn.  St.  339;  Snyder  v.  Pennsylvania  R.R. 
Co.,  55  Penn.  St.  344;  Peddicord  v.  Baltimore,  &c,  R.R.  Co..  34  Md.  463. 

[643] 


*  548  CONSTITUTIONAL    LIMITATIONS.  [CH.  XV. 

[*  548]  *  The  case  from  which  we  here  quote  is  approved  in 
recent  cases  in  Wisconsin,  where  importance  is  attached 
to  the  different  effect  the  common  highway  and  the  railroad  will 
have  upon  the  value  of  adjacent  property.  "  The  dedication  to  the 
public  as  a  highway,"  it  is  said,  "  enhances  the  value  of  the  lot, 
and  renders  it  more  convenient  and  useful  to  the  owner.  The  use 
by  the  railroad  company  diminishes  its  value,  and  renders  it  incon- 
venient and  comparatively  useless.  It  would  be  a  most  unjust  and 
oppressive  rule  which  would  deny  the  owner  compensation  under 
such  circumstances."  1 

It  is  not  always  the  case,  however,  that  the  value  of  a  lot  of 
land  will  be  enhanced  by  the  laying  out  of  a  common  highway 
across  it,  or  diminished  by  the  construction  of  a  railway  over  the 
same  line  afterwards.  The  constitutional  question  cannot  depend 
upon  the  accidental  circumstance  that  the  new  road  will  or  will 
not  have  an  injurious  effect ;  though  that  circumstance  is  properly 
referred  to,  since  it  is  difficult  to  perceive  how  a  change  of  use 
which  may  possibly  have  an  injurious  effect  not  contemplated  in 
the  original  appropriation  can  be  considered  any  thing  else  than 
the  imposition  of  a  new  burden  upon  the  owner's  estate.  In  Con- 
necticut, where  the  authority  of  the  legislature  to  authorize  a  rail- 
road to  be  constructed  in  a  common  highway  without  compensation 
to  land  owners  is  also  denied,  importance  is  attached  to  the  terms 
of  the  statute  under  which  the  original  appropriation  was  made, 
and  which  are  regarded  as  permitting  the  taking  for  the  purposes 
of  a  common  highway,  and  for  no  other.  The  reasoning  of  the 
court  appears  to  us  sound ;  and  it  is  applicable  to  the  statutes  of 
the  States  generally.2 

1  Ford  v.  Chicago  and  Northwestern  R.R.  Co.,  14  Wis.  616;  followed  in 
Pomeroy  v.  Chicago  and  M.  R.R.  Co.,  16  Wis.  640. 

2  Imlay  v.  Union  Branch  R.R.  Co.,  26  Conn.  255.  "  When  land  is  condemned 
for  a  special  purpose,"  say  the  court,  "on  the  score  of  public  utility,  the  seques- 
tration is  limited  to  that  particular  use.  Land  taken  for  a  highway  is  not  thereby 
converted  into  a  common.  As  the  property  is  not  taken,  but  the  use  only,  the 
right  of  the  public  is  limited  to  the  use,  the  specific  use,  for  which  the  proprietor 
has  been  devested  of  a  complete  dominion  over  his  own  estate.  These  are  propo- 
sitions which  are  no  longer  open  to  discussion.  But  it  is  contended  that  land 
once  taken  and  still  held  for  highway  purposes  may  be  used  for  a  railway  without 
exceeding  the  limits  of  the  easement  already  acquired  by  the  public.  If  this  i ; 
true,  if  the  new  use  of  the  land  is  within  the  scope  of  the  original  sequestration 
or  dedication,  it  would  follow  that  the  railway  privileges  are  not  an  encroach- 

[644] 


CH.  XV.]  THE    EMINENT    DOMAIN.  *  549 

*It  would  appear  from  the  cases  cited  that  the  weight  [*  549] 
of  judicial  authority  is  against  the  power  of  the  legislat- 

ment  on  the  estate  remaining  in  the  owner  of  the  soil,  and  that  the  new  mode  of 
enjoying  the  public  easement  will  not  enable  him  rightfully  to  assert  a  claim  to 
damages  therefor.  On  the  contrary,  if  the  true  intent  and  efficacy  of  the  original 
condemnation  was  not  to  subject  the  land  to  such  a  burden  as  will  be  imposed 
upon  it  when  it  is  confiscated  to  the  uses  and  control  of  a  railroad  corporation,  it 
cannot  be  denied  that  in  such  a  case  the  estate  of  the  owner  of  the  soil  is  injuri- 
ously affected  by  the  supervening  servitude;  that  his  rights  are  abridged,  and 
that  in  a  legal  sense  his  land  is  again  taken  for  public  uses.  Thus  it  appears  that 
the  court  have  simply  to  decide  whether  there  is  such  an  identity  between  a  high- 
way and  a  railway,  that  statutes  conferring  a  right  to  establish  the  former  include 
an  authority  to  construct  the  latter. 

"The  term  '  public  highway,1  as  employed  in  such  of  our  statutes  as  convey 
the  right  of  eminent  domain,  has  certainly  a  limited  import.  Although,  as  sug- 
gested at  the  bar,  a  navigable  river  or  a  canal  is,  in  some  sense,  a  public  highway, 
yet  an  easement  assumed  under  the  name  of  a  highway  would  not  enable  the 
public  to  convert  a  street  into  a  canal.  The  highway,  in  the  true  meaning  of 
the  word,  would  be  destroyed.  But  as  no  such  destruction  of  the  highway  is 
necessarily  involved  in  the  location  of  a  railroad  track  upon  it,  we  are  pressed 
to  establish  the  legal  proposition  that  a  highway,  such  as  is  referred  to  in 
these  statutes,  means  or  at  least  comprehends  a  railroad.  Such  a  construction 
is  possible  only  when  it  is  made  to  appear  that  there  is  a  substantial  practical 
or  technical  identity  between  the  uses  of  land  for  highway  and  for  railway 
purposes. 

"  Xo  one  can  fail  to  see  that  the  terms  '  railway  '  and  '  highway  '  are  not  con- 
vertible, or  that  the  two  uses,  practically  considered,  although  analogous,  are 
not  identical.  Land  as  ordinarily  appropriated  by  a  railroad  company  is  incon- 
venient, and  even  impassable,  to  those  who  would  use  it  as  a  common  highway. 
Such  a  corporation  does  not  hold  itself  bound  to  make  or  to  keep  its  embank- 
ments and  bridges  in  a  condition  which  will  facilitate  the  transitus  of  such  vehi- 
cles as  ply  over  an  ordinary  road.  A  practical  dissimilarity  obviously  exists 
between  a  railway  and  a  common  highway,  and  is  recognized  as  the  basis  of  a 
legal  distinction  between  them.  It  is  so  recognized  on  a  large  scale  when 
railway  privileges  are  sought  from  legislative  bodies,  and  granted  by  them. 
If  the  terms  '  highway  '  and  '  railway '  are  synonymous,  or  if  one  of  them  includes 
the  other  by  legal  implication,  no  act  could  be  more  superfluous  than  to  require 
or  to  grant  authority  to  construct  railways  over  localities  already  occupied  as 
highways. 

"  If  a  legal  identity  does  not  subsist  between  a  highway  and  a  railway,  it  is 
illogical  to  argue  that,  because  a  railway  may  be  so  constructed  as  not  to  inter- 
fere with  the  ordinary  uses  of  a  highway,  and  so  as  to  be  consistent  with  the 
highway  right  already  existing,  therefore  such  a  new  use  is  included  within  the 
old  use.  It  might  as  well  be  urged,  that  if  a  common,  or  a  canal,  laid  out  over 
the  route  of  a  public  road,  could  be  so  arranged  as  to  leave  an  ample  road- 
way for  vehicles  and  passengers  on   foot,  the  land  should  be  held  to  be  origi- 

[645] 


*  549  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

[*  550]  ure  to  appropriate  a  *  common  highway  to  the  purposes 
of  a  railroad,  unless  at  the  same  time  provision  is  made 

nally  condemned  for  a  canal  or  a  common,  as  properly  incident  to  the  highway 
use. 

"  There  is  an  important  practical  reason  why  courts  should  be  slow  to  recog- 
nize a  legal  identity  between  the  two  uses  referred  to.  They  are  by  no  'means 
the  same  thing  to  the  proprietor  whose  land  is  taken  ;  on  the  contrary,  they  sug- 
gest widely  different  standards  of  compensation.  One  can  readily  conceive  of 
cases  where  the  value  of  real  estate  would  be  directly  enhanced  by  the  opening 
of  a  highway  through  it ;  while  its  confiscation  for  a  railway  at  the  same  or  a  sub- 
sequent time  would  be  a  gross  injury  to  the  estate,  and  a  total  subversion  of  the 
mode  of  enjoyment  expected  by  the  owner  when  he  yielded  his  private  rights  to 
the  public  exigency. 

"  But  essential  distinctions  also  exist  between  highway  and  railway  powers,  as 
conferred  by  statute,  —  distinctions  which  are  founded  in  the  very  nature  of  the 
powers  themselves.  In  the  case  of  the  highway,  the  statute  provides  that,  after 
the  observance  of  certain  legal  forms,  the  locality  in  question  shall  be  forever 
subservient  to  the  right  of  every  individual  in  the  community  to  pass  over  the 
thoroughfare  so  created  at  all  times.  This  right  involves  the  important  implica- 
tion that  he  shall  so  use  the  privilege  as  to  leave  the  privilege  of  all  others  as 
unobstructed  as  his  own,  and  that  he  is  therefore  to  use  the  road  in  the  manner 
in  which  such  roads  are  ordinarily  used,  with  such  vehicles  as  will  not  obstruct, 
or  require  the  destruction  of  the  ordinary  modes  of  travel  thereon.  He  is  not 
anthorized  to  lay  down  a  railway  track,  and  run  his  own  locomotive  and  car  upon 
it.  No  one  ever  thought  o  regarding  highway  acts  as  conferring  railway  privi- 
leges, involving  a  right  in  every  individual,  not  only  to  break  up  ordinary  travel, 
but  also  to  exact  tolls  from  the  public  for  the  privilege  of  using  the  peculiar  con- 
veyances adapted  to  a  railroad.  If  a  right  of  this  description  is  not  conferred 
when  a  highway  is  authorized  by  law,  it  is  idle  to  pretend  that  any  proprietor  is 
devested  of  such  a  right.  It  would  seem  that,  under  such  circumstances,  the 
true  construction  of  highway  laws  could  hardly  be  debatable,  and  that  the  ab- 
sence of  legal  identity  between  the  two  uses  of  which  we  speak  was  patent  and 
entire. 

"  Again,  no  argument  or  illustration  can  strengthen  the  self-evident  proposi- 
tion that,  when  a  railway  is  authorized  over  a  public  highway,  a  right  is  created 
against  the  proprietor  of  the  fee,  in  favor  of  a  person,  an  artificial  person,  to 
whom  he  before  bore  no  legal  relation  whatever.  It  is  understood  that  when 
such  an  easement  is  sought  or  bestowed,  a  new  and  independent  right  will  accrue 
to  the  railroad  corporation  as  against  the  owner  of  the  soil,  and  that,  without  any 
reference  to  the  existence  of  the  highway,  his  land  will  forever  stand  charged 
with  the  accruing  servitude.  Accordingly,  if  such  a  highway  were  to  be  discon- 
tinued according  to  the  legal  forms  prescribed  for  that  purpose,  the  railroad  cor- 
poration would  still  insist  upon  the  express  and  independent  grant  of  an  easement 
to  itself,  enabling  it  to  maintain  its  own  road  on  the  site  of  the  abandoned  road- 
way. We  are  of  opinion,  therefore,  as  was  distinctly  intimated  by  this  court  in 
a  former  case  (see  opinion  of  Hinman,  J.,  in  Nicholson  v.  N.  Y.  and  N.  H. 

[646  ] 


CH.  XV.]  THE   EMINENT   DOMAIN.  *  550 

for  compensation  to  the  owners  of  the  fee.  *  These  cases,  [*  551] 
however,  have  had  reference  to  the  common  railroad,  oper- 
ated by  steam.  In  one  of  the  New  York  cases *  it  is  intimated, 
and  in  another  case  in  the  same  State  it  was  directly  decided,  that 
the  ruling  should  be  the  same  in  the  case  of  the  street  railway 
operated  by  horse-power.2  There  is  generally,  however,  a  very 
great  difference  in  the  two  cases,  and  some  of  the  considerations 
to  which  the  courts  have  attached  importance  could  have  no  appli- 
cation in  many  cases  of  common  horse  railways.  A  horse  railway, 
as  a  general  thing,  will  interfere  very  little  with  the  ordinary  use 
of  the  way  by  the  public,  even  upon  the  very  line  of  the  road  ;  and 
in  many  cases  it  would  be  a  relief  to  an  overburdened  way,  rather 
than  an  impediment  to  the  previous  use.  In  Connecticut,  after  it 
had  been  decided,  as  above  shown,  that  the  owner  of  the  fee  sub- 
ject to  a  perpetual  highway  was  entitled  to  compensation  when  the 
highway  was  appropriated  for  an  ordinary  railroad,  it  was  also  held 
that  the  authority  to  lay  and  use  a  horse-railway  track  in  a  public 
street  was  not  a  new  servitude  imposed  upon  the  land  for  which 
the  owner  of  the  fee  would  be  entitled  to  damages,  but  that  it  was 
a  part  of  the  public  use  to  which  the  land  was  originally  subjected 
when  taken  for  a  street.3  The  same  distinction  between  horse  rail- 
ways and  those  operated  by  steam  is  also  taken  in  recent  New  York 
cases.4  But  whether  the  mere  difference  in  the  motive-power  will 
make  different  principles  applicable,  is  a  question  which  the  courts 
will  probably  have  occasion  to  consider  further.  Conceding  that 
the  interests  of  individual  owners  will  not  generally  suffer,  or  their 
use  of  the  highway  be  incommoded  by  the  laying  down  and  use  of 
the  track  of  a  horse  railway  upon  it,  there  are  nevertheless  cases 
where  it  might  seriously  impede,  if  not  altogether  exclude,  the 
general  travel  and  use  by  the  ordinary  modes,  and  very  greatly 
reduce  the  value  of  all  the  property  along  the  line.     Suppose,  for 

R.R.  Co.,  22  Conn.  85),  that  to  subject  the  owner  of  the  soil  of  a  highway  to  a 
further  appropriation  of  his  land  to  railway  uses  is  the  imposition  of  a  new  ser- 
vitude upon  his  estate,  and  is  an  act  demanding  the  compensation  which  the  law 
awards  when  land  is  taken  for  public  purposes."  And  see  South  Carolina  R.R. 
Co.  v.  Steiner,  44  Geo.  546. 

1  Wager  v.  Troy  Union  R.R.  Co.,  25  N.  Y.  532. 

2  Craig  v.  Rochester  City  and  Brighton  R.R.  Co.,  39  Barb.  449. 

3  Elliott  v.  Fair  Haven  and  Westville  R.R.  Co.,  32  Conn.  586. 

4  Brooklyn  Central,  &c,  R.R.  Co.  v.  Brooklyn  City  R.R.  Co.,  33  Barb.  422; 
People  v.  Kerr,  37  Barb.  357 ;  s.  c.  27  N.  Y.  188. 

[647] 


*  551  CONSTITUTIONAL    LIMITATIONS.  [CH.  XV. 

instance,  a  narrow  street  in  a  city,  occupied  altogether  by  whole- 
sale houses,  which  require  constantly  the  use  of  the  whole  street 
in  connection  with  their  business,  and  suppose  this  to  be  turned 
over  to  a  street-railway  company,  whose  line  is  such  as  to  make 

the  road  a  principal  avenue  of  travel,  and  to  require  such 
[*  552]   *  constant  passage  of  cars  as  to  drive  all  drayage  from  the 

street.  The  corporation,  under  these  circumstances,  will 
substantially  have  a  monopoly  in  the  use  of  the  street ;  their 
vehicles  will  drive  the  business  from  it,  and  the  business  property 
will  become  comparatively  worthless.  And  if  property  owners  are 
without  remedy  in  such  case,  it  is  certainly  a  very  great  hardship 
upon  them,  and  a  very  striking  and  forcible  instance  and  illustra- 
tion of  damage  without  legal  injury. 

When  property  is  appropriated  for  a  public  way,  and  the  pro- 
prietor is  paid  for  the  public  easement,  the  compensation  is  gen- 
erally estimated,  in  practice,  at  the  value  of  the  land  itself.1  If, 
therefore,  no  other  circumstances  were  to  be  taken  into  the  ac- 
count in  these  cases,  the  owner,  who  has  been  paid  the  value  of 
his  land,  could  not  reasonably  complain  of  any  use  to  which  it 
might  afterwards  be  put  by  the  public.  But,  as  pointed  out  in  the 
Connecticut  case,2  the  compensation  is  always  liable  either  to  ex- 
ceed or  to  fall  below  the  value  of  the  land  taken,  in  consequence 
of  incidental  injuries  or  benefits  to  the  owner  as  proprietor  of  the 
land  which  remains.  These  injuries  or  benefits  will  be  estimated 
with  reference  to  the  identical  use  to  which  the  property  is  appro- 
priated ;  and  if  it  is  afterwards  put  to  another  use,  which  causes 
greater  incidental  injury,  and  the  owner  is  not  entitled  to  further 
compensation,  it  is  very  evident  that  he  has  suffered  a  wrong  by 
the  change  which  could  not  have  been  foreseen  and  provided 
against.  And  if,  on  the  other  hand,  he  is  entitled  in  any  case  to 
an  assessment  of  damages  in  consequence  of  such  an  appropriation 
of  the  street  affecting  his  rights  injuriously,  then  he  must  be  enti- 
tled to  such  an  assessment  in  every  case,  and  the  question  involved 
will  be,  not  as  to  the  right,  but  only  of  the  quantum  of  damages. 
The  horse  railway  either  is  or  is  not  the  imposition  of  a  new  bur- 
den upon  the  estate.  If  it  is  not,  the  owner  of  the  fee  is  entitled 
to  compensation  in  no  case  ;  if  it  is,  he  is  entitled  to  have  an 
assessment  of  damages  in  every  case. 

1  Murray  v.  County  Commissioners,  12  Met.  457,  per  Shaw,  Ch.  J. 

2  Imlay  v.  Union  Branch  R.R.  Co.,  26  Conn.  257. 

[6-18] 


CH.  XV.]  THE    EMINENT    DOMAIN.  *  552 

In  New  York,  where,  by  law,  when  a  public  street  is  laid  out  or 
dedicated,  the  fee  in  the  soil  becomes  vested  in  the  city,  it  has 
been  held  that  the  legislature  might  authorize  the  construction  of 
a  horse  railway  in  a  street,  and  that  neither  the  city  nor  the  owners 
of  lots  were  entitled  to  compensation,  notwithstanding  it 
was  *  found  as  a  fact  that  the  lot  owners  would  suffer  in-  [*  553] 
jury  from  the  construction  of  the  road.  The  city  was  not 
entitled,  because,  though  it  held  the  fee,  it  held  it  in  trust  for  the 
use  of  all  the  people  of  the  State,  and  not  as  corporate  or  munici- 
pal property  ;  and  the  land  having  been  originally  acquired  under 
the  right  of  eminent  domain,  and  the  trust  being  publiei  juris,  it 
was  under  the  unqualified  control  of  the  legislature,  and  any 
appropriation  of  it  to  public  use  by  legislative  authority  could  not 
be  regarded  as  an  appropriation  of  the  private  property  of  the  city. 
And  so  far  as  the  adjacent  lot  owners  were  concerned,  their  inter- 
est in  the  streets,  as  distinct  from  that  of  other  citizens,  was  only 
as  having  a  possibility  of  reverter  after  the  public  use  of  the  land 
should  cease ;  and  the  value  of  this,  if  any  thing,  was  inappreci- 
able, and  could  not  entitle  them  to  compensation.1 

So  in  Indiana,  where  the  title  in  fee  to  streets  in  cities  and 
villages  is  vested  in  the  public,  it  is  held  that  the  adjacent  land 
owners  are  not  entitled  to  the  statutory  remedy  for  an  assessment 
of  damages  in  consequence  of  the  street  being  appropriated  to  the 
use  of  a  railroad ;  and  this  without  regard  to  the  motive  power  by 
which  the  road  is  operated.  At  the  same  time  it  is  also  held  that 
the  lot  owners  may  maintain  an  action  at  law  if,  in  consequence  of 
the  railroad,  they  are  cut  off  from  the  ordinary  use  of  the  street.2 

1  People  v.  Kerr,  37  Barb.  857 ;  s.  c.  27  N.  Y.  188.  The  same  ruling  as  to 
the  right  of  the  city  to  compensation  was  had  in  Savannah,  &c,  R.R.  Co.  v. 
Mayor,  &c,  of  Savannah,  45  Geo.  602:  And  see  Brooklyn  Central,  &c, 
R.R.  Co.  v.  Brooklyn  City  R.R.  Co.,  "33  Barb.  420;  Brooklyn  and  Newtown 
R.R.  Co.  v.  Coney  Island  R.R.  Co.,  35  Barb.  364;  New  York  v.  Kerr, 
38  Barb.  369;  Chapman  v.  Albany  and  Schenectady  R.R.  Co.,  10  Barb. 
360  Although,  in  the  case  of  People  v.  Kerr,  the  several  judges  seem  gener- 
ally to  have  agreed  on  the  principle  as  stated  in  the  text,  it  is  not  very  clear 
how  much  importance  was  attached  to  the  fact  that  the  fee  to  the  street  was  in 
the  city,  nor  that  the  decision  would  have  been  different  if  that  had  not  been  the 
case. 

?  Protzman  v.  Indianapolis  and  Cincinnati  R.R.  Co.,  9  Ind.  467  ;  New  Albany 
and  Salem  R.R.  Co.  v.  O'Daily,  13  Ind.  353;  Same  v.  Same,  12  Ind.  551.  See 
also  Street  Railway  v.  Cumminsville,  14  Ohio,  n.  s.  523 ;  State  v.  Cincinnati  Gas, 
&c,  Co.,  18  Ohio,  n.  s.  292. 

[649] 


*  553  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

So  in  Iowa  it  is  held  that  where  the  title  to  city  streets  is  in  the 
corporation  in  trust  for  the  public,  the  legislature  may  authorize 
the  construction  of  an  ordinary  railroad  through  the  same,  with  the 
consent  of  the  city,  and  without  awarding  compensation  to  lot 
owners  ; 1  or  even  without  the  consent  of  the  municipal  authorities, 
and  without  entitling  the  city  to  compensation.2  So  in  Illinois,  in 
a  case  where  a  lot  owner  had  filed  a  bill  in  equity  to  restrain  the 
laying  down  of  the  track  of  a  railroad,  by  consent  of  the  common 
council,  to  be  operated  by  steam  in  one  of  the  streets  of  Chicago, 
it  was  held  that  the  bill  could  not  be  maintained  ;  the  title  to  the 
street  being  in  the  city,  which  might  appropriate  it  to  any  proper 
city  purpose.3 

1  Millburn  v.  Cedar  Rapids,  &c,  R.R.  Co.,  12  Iowa,  246. 

2  Clinton  v.  Cedar  Rapids,  &c,  R.R.  Co.,  24  Iowa,  455. 

3  Moses  v.  Pittsburgh,  Fort  Wayne,  and  Chicago  R.R.  Co.,  21  111.  522.  "We 
quote  from  the  opinion  o{  Caton,  Ch.  J.:  "By  the  city  charter,  the  common 
council  is  vested  with  the  exclusive  control  and  regulation  of  the  streets  of  the 
city,  the  fee-simple  title  to  which  we  have  already  decided  is  vested  in  the  munic- 
ipal corporation.  The  city  charter  also  empowers  the  common  council  to  direct 
and  control  the  location  of  railroad  tracks  within  the  city.  In  granting  this 
permission  to  locate  the  track  in  Beach  Street,  the  common  council  acted  under 
an  express  power  granted  by  the  legislature.  So  that  the  defendant  has  all  the 
right  which  both  the  legislature  and  the  common  council  could  give  it,  to  occupy 
the  street  with  its  track.  But  the  complainant  assumes  higher  ground,  and 
claims  that  any  use  of  the  street,  even  under  the  authority  of  the  legislature 
and  the  common  council,  which  tends  to  deteriorate  the  value  of  his  property  on 
the  street,  is  a  violation  of  that  fundamental  law  which  forbids  private  property 
to  be  taken  for  public  use  without  just  compensation.  This  is  manifestly  an 
erroneous  view  of  the  constitutional  guaranty  thus  invoked.  It  must  necessarily 
happen  that  streets  will  be  used  for  various  legitimate  purposes,  which  will,  to  a 
greater  or  less  extent,  incommode  persons  residing  or  doing  business  upon  them, 
and  just  to  that  extent  damage  their  property ;  and  yet  such  damage  is  incident 
to  all  city  property,  and  for  it  a  party  can  claim  no  remedy.  The  common 
council  may  appoint  certain  localities  where  hacks  and  drays  shall  stand  waiting 
for  employment,  or  where  wagons  loaded  with  hay  or  wood,  or  other  commodi- 
ties, shall  stand  waiting  for  purchasers.  This  may  drive  customers  away  from 
shops  or  stores  in  the  vicinity,  and  yet  there  is  no  remedy  for  the  damage.  A 
street  is  made  for  the  passage  of  persons  and  property ;  and  the  law  cannot 
define  what  exclusive  means  of  transportation  and  passage  shall  be  used.  Uni- 
versal experience  shows  that  this  can  best  be  left  to  the  determination  of  the 
municipal  authorities,  who  are  supposed  to  be  best  acquainted  with  the  wants 
and  necessities  of  the  citizens  generally.  To  say  that  a  new  mode  of  passage 
shall  be  banished  from  the  streets,  no  matter  how  much  the  general  good  may 
require  it,  simply  because  streets  were  not  so  used  in  the  days  of  Blackstone, 

[2650  ] 


CH.  XV.]  THE   EMINENT   DOMAIN.  *  554 

*  It  is  not  easy,  as  is  very  evident,  to  trace  a  clear  line  [*  554] 
of  authority  running  through  the  various  decisions  bear- 
ing upon  the  *  appropriation  of  the  ordinary  highways  and  [*  555] 
streets  to  the  use  of  railroads  of  any  grade  or  species ; 
but  a  strong  inclination  is  apparent  to  hold  that,  when  the  fee  in 
the  public  way  is  taken  from  the  former  owner,  it  is  taken  for  any 
public  use  whatever  to  which  the  public  authorities,  with  the  legis- 
lative assent,  may  see  fit  afterwards  to  devote  it,  in  furtherance 

would  hardly  comport  with  the  advancement  and  enlightenment  of  the  present 
age.  Steam  has  but  lately  taken  the  place,  to  any  extent,  of  animal  power  for 
land  transportation,  and  for  that  reason  alone  shall  it  be  expelled  the  streets? 
For  the  same  reason  camels  must  be  kept  out,  though  they  might  be  profitably 
employed.  Some  fancy  horse  or  timid  lady  might  be  frightened  by  such  uncouth 
objects.  Or  is  the  objection  not  in  the  motive-power,  but  because  the  carriages 
are  larger  than  were  formerly  used,  and  run  upon  iron,  and  are  confined  to  a 
given  track  in  the  street  ?  Then  street  railroads  must  not  be  admitted ;  they 
have  large  carriages  which  run  on  iron  rails,  and  are  confined  to  a  given  track. 
Their  momentum  is  great,  and  may  do  damage  to  ordinary  vehicles  or  foot  pas- 
sengers. Indeed  we  may  suppose  or  assume  that  streets  occupied  by  them  are 
not  so  pleasant  for  other  carriages  or  so  desirable  for  residences  or  business 
stands,  as  if  not  thus  occupied.  But  for  this  reason  the  property  owners  along 
the  street  cannot  expect  to  stop  such  improvements.  The  convenience  of  those 
who  live  at  a  greater  distance  from  the  centre  of  a  city  requires  the  use  of  such 
improvements,  and  for  their  benefit  the  owners  of  property  upon  the  street  must 
submit  to  the  burden,  when  the  common  council  determine  that  the  public  good 
requires  it.  Cars  upon  street  railroads  are  now  generally,  if  not  universally,  pro- 
pelled by  horses,  but  who  can  say  how  long  it  will  be  before  it  will  be  found  safe 
and  profitable  to  propel  them  with  steam,  or  some  other  power  besides  horses  ? 
Should  we  say  that  this  road  should  be  enjoined,  we  could  advance  no  reason  for 
it  which  would  not  apply  with  equal  force  to  street  railroads  ;  so  that  consistency 
would  require  that  we  should  stop  all.  Nor  would  the  evil  which  would  result 
from  the  rule  we  must  lay  down  stop  here.  We  must  prohibit  every  use  of  a 
street  which  discommodes  those  who  reside  or  do  business  upon  it,  because  their 
property  will  else  be  damaged.  This  question  has  been  presented  in  other 
States,  and  in  some  instances,  where  the  public  have  only  an  easement  in  the 
street,  and  the  owner  of  the  adjoining  property  still  holds  the  fee  in  the  street, 
it  has  been  sustained ;  but  the  weight  of  authority,  and  certainly,  in  our  appre- 
hension, all  sound  reasoning,  is  the  other  way." 

All  the  cases  from  which  we  have  quoted  assume  that  the  use  of  the  street  by 
the  railroad  company  is  still  a  public  use  ;  and  probably  it  would  not  be  held  that 
an  appropriation  of  a  street,  or  of  any  part  of  it,  by  an  individual  or  company, 
for  his  or  their  own  private  use,  unconnected  with  any  accommodation  of  the 
public,  was  consistent  with  the  purpose  for  which  it  was  originally  acquired.  See 
Brown  v.  Duplessis,  14  La.  An.  842 ;  Green  v.  Portland,  32  Me.  431. 

[  651  ] 


*  555  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

of  the  general  purpose  of  the  original  appropriation  ; 1  and  if  this 
is  so,  the  owner  must  be  held  to  be  compensated  at  the  time  of  the 
original  taking  for  any  such  possible  use  ;  and  he  takes  his  chances 
of  that  use,  or  any  change  in  it,  proving  beneficial  or  deleterious 
to  any  remaining  property  he  may  own,  or  business  he  may  be 
engaged  in  ;  and  it  must  also  be  held  that  the  possibility  that  the 
land  may,  at  some  future  time,  revert  to  him,  by  the  public  use 
ceasing,  is  too  remote  and  contingent  to  be  considered  as  property 
at  all.2  At  the  same  time  it  must  be  confessed  that  it  is  difficult 
to  determine  precisely  how  far  some  of  the  decisions  made  have 
been  governed  by  the  circumstance  that  the  fee  was  or  was  not  in 
the  public,  or,  on  the  other  hand,  have  proceeded  on  the  theory 

that  a  railway  was  only  in  furtherance  of  the  original  pur- 
[*  556]  pose  of  the  appropriation,  and  not  *  to  be  regarded  as  the 

imposition  of  any  new  burden,  even  where  an  easement 
only  was  originally  taken.3 

1  On  this  subject  see,  in  addition  to  the  other  cases  cited,  West  v.  Bancroft, 
32  Vt.  367;  Kelsey  v.  King,  32  Barb.  410;  Ohio  and  Lexington  R.R.  Co.  v. 
Applegate,  8  Dana,  289  ;  Hinchman  v.  Paterson  Horse  R.  Co.,  2  C.  E.  Green,  76. 
When,  however,  land  is  taken  or  dedicated  specifically  for  a  street,  it  would  seem, 
although  the  fee  is  taken,  it  is  taken  for  the  restricted  use  only ;  that  is  to  say, 
for  such  uses  as  streets  in  cities  are  commonly  put  to.  See  State  v.  Laverack, 
34  N.  J.  201 ;  Railroad  Co.  v.  Shurmeir,  7  Wall.  272. 

2  As  to  whether  there  is  such  possibility  of  reverter,  see  Heyward  v.  Mayor, 
&c,  of  New  York,  7  N.  Y.  314 ;  People  v.  Kerr,  27  N.  Y.  211,  per  Wright,  J. ; 
Plitt  v.  Cox,  43  Penn.  St.  486. 

3  There  is  great  difficulty,  as  it  seems  to  us,  in  supporting  important  dis- 
tinctions upon  the  fact  that  the  fee  was  originally  taken  for  the  use  of  the 
public  instead  of  a  mere  easement.  If  the  fee  is  appropriated  or  dedicated,  it  is 
for  a  particular  use  only;  and  it  is  a  conditional  fee,  —  a  fee  on  condition  that 
the  land  continue  to  be  occupied  for  that  use.  The  practical  difference  in  the 
cases  is,  that  when  the  fee  is  taken,  the  possession  of  the  original  owner  is 
excluded ;  and  in  the  case  of  city  streets  where  there  is  occasion  to  devote  them 
to  many  other  purposes  besides  those  of  passage,  but  nevertheless  not  incon- 
sistent, such  as  for  the  laying  of  water  and  gas  pipes,  and  the  construction  of 
sewers,  this  exclusion  of  any  private  right  of  occupation  is  important,  and  will 
sometimes  save  controversies  and  litigation.  But  to  say  that  when  a  man  has 
declared  a  dedication  for  a  particular  use,  under  a  statute  which  makes  a  dedi- 
cation the  gift  of  a  fee,  he  thereby  makes  it  liable  to  be  appropriated  to  other 
purposes,  when  the  same  could  not  be  done  if  a  perpetual  easement  had  been 
dedicated,  seems  to  be  basing  important  distinctions  upon  a  difference  which 
after  all  is  more  technical  than  real,  and  which  in  any  view  does  not  affect  the 
distinction  made.  The  same  reasoning  which  has  sustained  the  legislature  in 
authorizing  a  railroad  track  to  be  laid  down  in  a  city  street  would  support  its 

[652] 


CH.  XV.]  THE   EMINENT    DOMAIN.  *  556 

Perhaps  the  true  distinction  in  these  cases  relates,  not  to  the 
motive-power  of  the  railway,  or  to  the  question  whether  the  fee- 
simple  or  a  mere  easement  was  taken  in  the  original  appropria- 
tion, but  depends  upon  the  question  whether  the  railway  constitutes 
a  thoroughfare,  or,  on  the  other  hand,  is  a  mere  local  convenience. 
When  land  is  taken  or  dedicated  for  a  town  street,  it  is  unques- 
tionably appropriated  for  all  the  ordinary  purposes  of  a  town 
street ;  not  merely  the  purposes  to  which  such  streets  were  for- 
merly applied,  but  those  demanded  by  new  improvements  and  new 
wants.  Among  these  purposes  is  the  use  for  carriages  which  run 
upon  a  grooved  track  ;  and  the  preparation  of  important  streets  in 
large  cities  for  their  use  is  not  only  a  frequent  necessity,  which  must 
be  supposed  to  have  been  contemplated,  but  it  is  almost  as  much  a 
matter  of  course  as  the  grading  and  paving.  The  appropriation  of 
a  country  highway  for  the  purposes  of  a  railway,  on  the  other  hand, 
is  neither  usual  nor  often  important ;  and  it  cannot  with  any  justice 
be  regarded  as  within  the  contemplation  of  the  parties  when 
*  the  highway  is  first  established.  And  if  this  is  so,  it  is  [*  557] 
clear  that  the  owner  cannot  be  considered  as  compensated 
for  the  new  use  at  the  time  of  the  original  appropriation. 

The  cases  thus  far  considered  are  those  in  which  the  original  use 
is  not  entirely  foreign  to  the  purpose  of  the  new  appropriation  ;  and 
it  is  the  similarity  that  permits  the  question  which  has  been  dis- 
cussed.   Were  the  uses  totally  different,  there  could  be  no  question 

action  in  authorizing  it  to  be  made  into  a  canal ;  and  the  purpose  of  the  original 
dedication  or  appropriation  would  thereby  be  entirely  defeated.  Is  it  not  more 
consistent  with  established  rules  to  hold  that  a  dedication  or  appropriation  to  one 
purpose  confines  the  use  to  that  purpose  ;  and  when  it  is  taken  for  any  other,  the 
original  owner  has  not  been  compensated  for  the  injury  he  may  sustain  in  conse- 
quence, and  is  therefore  entitled  to  it  now  ?  Notwithstanding  a  dedication  which 
vests  the  title  in  the  public,  it  must  be  conceded  that  the  interest  of  the  adjacent 
lot  owners  is  still  property.  "  They  have  a  peculiar  interest  in  the  street,  which 
neither  the  local  nor  the  general  public  can  pretend  to  claim ;  a  private  right  of 
the  nature  of  an  incorporeal  hereditament,  legally  attached  to  their  contiguous 
grounds  and  the  erections  thereon ;  an  incidental  title  to  certain  facilities  and 
franchises  assured  to  them  by  contracts  and  by  law,  and  without  which  their 
property  would  be  comparatively  of  little  value.  This  easement,  appurtenant  to 
the  lots,  unlike  any  right  of  one  lot  owner  in  the  lot  of  another,  is  as  much 
property  as  the  lot  itself."  Crawford  v.  Delaware,  7  Ohio,  N.  s.  459.  See  some 
very  pertinent  and  sensible  remarks  on  the  same  subject  by  Banney,  J.,  in  Street 
Railway  v.  Cummin  sville,  14  Ohie,  n.  s.  541. 

[653] 


*  557  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

whatever  that  a  new  assessment  of  compensation  must  be  made 
before  the  appropriation  could  be  lawful.1 

1  Where  lands  were  appropriated  by  a  railroad  company  for  their  purposes, 
and  afterwards  leased  out  for  private  occupation,  it  was  held  that  the  owner  of 
the  fee  was  entitled  to  maintain  a  writ  of  entry  to  establish  his  title  and  recover 
damages  for  the  wrongful  use.  Proprietors  of  Locks,  &c.  v.  Nashua  and  Lowell 
R.R.  Co.,  104  Mass.  1 ;  s.  c.  6  Am.  Rep.  181.  Where  land  has  been  taken 
for  a  street,  it  cannot  be  appropriated  for  the  erection  of  a  market  building  with- 
out making  compensation.  State  v.  Mayor,  &c,  of  Mobile,  5  Port.  279 ;  State 
v.  Laverack,  34  N.  J.,  201.  The  opinion  of  Beasley,  Ch.  J.,  in  the  New  Jersey 
case,  will  justify  liberal  quotations.  He  says  (p.  204)  :  "  I  think  it  undeniable 
that  the  appropriation  of  this  land  to  the  purposes  of  a  market  was  an  additional 
burthen  upon  it.  Clearly  it  was  not  using  it  as  a  street.  So  far  from  that,  what 
the  act  authorized  to  be  done  was  incongruous  with  such  use ;  for  the  market  was 
an  obstruction  to  it,  considered  merely  as  a  highway.  .  .  .  When,  therefore,  the 
legislature  declared  that  these  streets  in  the  city  of  Paterson  might  be  used  for 
market  purposes,  the  power  which  was  conferred  in  substance  was  an  authority 
to  place  obstructions. in  these  public  highways.  The  consequence  is  that  there  is 
no  force  in  the  argument,  which  was  the  principal  one  pressed  upon  our  attention, 
that  the  use  of  these  streets  for  the  purpose  now  claimed  is  as  legitimate  as  the 
use  of  a  public  highway  by  a  horse-railroad,  which  latter  use  has  been  repeatedly 
sanctioned  by  the  courts  of  the  State.  The  two  cases,  so  far  as  relates  to  prin- 
ciple, stand  precisely  opposite.  I  have  said  that  a  market  is  an  obstruction  to  a 
street,  that  it  is  not  a  use  of  it  as  a  street,  but,  if  unauthorized,  is  a  nuisance. 
To  the  contrary  of  this,  a  horse-railroad  is  a  new  mode  of  using  a  street  as  such, 
and  it  is  precisely  upon  this  ground  that  it  has  been  held  to  be  legal.  The  cases 
rest  upon  this  foundation.  That  a  horse-railway  was  a  legitimate  use  of  a  highway 
was  decided  in  Hinchman  v.  Paterson  Horse  Railroad  Co.,  2  C.  E.  Greene,  76 ; 
ind,  in  his  opinion,  Chancellor  Greene  assigns  the  following  as  the  reasons  of  his 
judgment :  '  The  use  of  the  road  is  nearly  identical  with  that  of  the-  ordinary 
highway.  The  motive  power  is  the  same.  The  noise  and  jarring  of  the  street 
by  the  cars  is  not  greater,  and  ordinarily  less  than  that  produced  by  omnibuses 
and  other  vehicles  in  ordinary  use.  Admit  that  the  nature  of  the  use,  as  respects 
the  travelling  public,  is  somewhat  variant,  how  does  it  prejudice  the  land-owner  ? 
Is  his  property  taken  ?  Are  his  rights  as  a  land-owner  affected  ?  Does  it  interfere 
with  the  use  of  his  property  any  more  than  the  ordinary  highway  ?  '  It  is  clear 
that  this  reasoning  can  have  no  appropriate  application  to  a  case  in  which  it 
appears  that  the  use  of  the  street  is  so  far  from  being  nearly  identical  with  that 
of  the  ordinary  highway  that  in  law  it  has  always  been  regarded  as  an  injury 
to  such  public  easement,  and  on  that  account  an  indictable  offence. 

"  I  regard,  then,  a  right  to  hold  a  market  in  a  street  as  an  easement  additional 
to,  and  in  a  measure  inconsistent  with,  its  ordinary  use  as  a  highway.  The  question 
therefore  is  presented,  Can  such  easement  be  conferred  by  the  legislature  on  the 
public  without  compensation  to  the  land-owner?  I  have  already  said  that  from 
the  first  it  has  appeared  to  me  this  question  must  be  answered  in  the  negative.  I 
think  the  true  rule  is,  that  land  taken  by  the  public  for  a  particular  use  cannot  be 

[654] 


CH.  XV.]  THE   EMINENT   DOMAIN.  *  557 

Although  the  regulation  of  a  navigable  stream  will  give  to  the 
persons  incidentally  affected  no  right  to  compensation,  yet  if  the 
stream  is  diverted  from  its  natural  course,  so  that  those  entitled  to 
its  benefits  are  prevented  from  making  use  of  it  as  before,  the 

applied  under  such  a  sequestration  to  any  other  use  to  the  detriment  of  the  land- 
owner.    This  is  the  only  rule  which  will  adequately  protect  the  constitutional 
right  of  the  citizen.     To  permit  land  taken  for  one  purpose,  and  for  which  the 
land-owner  has  been  compensated,  to  be  applied  to  another  and  additional  pur- 
pose, for  which  he  has  received  no  compensation,  would  be  a  mere  evasion  of  the 
spirit  of  the  fundamental  law  of  the  State.     Land  taken  and  applied  for  the 
ordinary  purpose  of  a  street  would   often  be  an  improvement  of  the  adjacent 
property :  an  appropriation  of  it  to  the  uses  of  a  market  would,  perhaps,  as  often 
be  destructive  of  one  half  the  value  of  such  property.     Compensation  for  land, 
therefore,  to  be  used  as  a  highway,  might,  and  many  times  would  be,  totally 
inadequate  compensation  if  such  land  is  to  be  used  as  a  public  market  place. 
Few  things  would  be  more  unjust  than,  when  compensation  has  been  made  for 
land  in  view  of  one  of  these  purposes,  to  allow  it  to  be  used  without  compensa- 
tion for  the  other.    The  right  of  the  public  in  a  highway  consists  in  the  privilege 
of  passage,  and  such  privileges  as  are  annexed  as  incidents  by  usage  or  custom, 
as   the   right   to   make    sewers   and   drains   and   to   lay   gas  and   water   pipes. 
These  subordinate  privileges  are  entirely  consistent  with  the  primary  use  of  the 
highway,  and  are  no  detriment  to  the  land-owner.     But  I  am  not  aware  of  any 
case  in  which  it  has  been  held  that  the  public  has  any  right  in  a  highway  which 
is  incongruous  with  the  purpose  for  which  it  was  originally  created,  and  which 
at  the  same  time  is  injurious  to  the  proprietor  of  the  soil.     Such  certainly  has 
not  been  the  course  of  judicial  decision  in  our  own  courts.     Indeed  the  cases 
appear  to  be  all  ranged  on  the  opposite  side.     I  have  shown  that  the  legalization 
of  the  use  of  a  street  by  a  horse-railroad  has  been  carefully  placed  on  the  ground 
that  such  an  appropriation  of  the  street  was  merely  a  new  mode  of  its  legitimate 
and  ordinary  use.     The  rationale  adopted  excludes  by  necessary  implication  the 
hypothesis  that  the  dedication  of  a  street  to  a  new  purpose,  inconsistent  with  its 
original  nature,  would  be  legal  with  respect  to  the  uncompensated  land-owner. 
But  beyond  this  it  has  been  expressly  declared  that  such  superadded  use  would 
be  illegal.    In  the  opinion  of  Mr.  Justice  Haines,  in  Starr  v.  Camden  and  Atlan- 
tic R.R.  Co.,  4  Zab.  592,  it  is  very  explicitly  held  that  the  constitution  of  this 
State  would  prevent  the  legislature  from  granting  to  a  railroad  company  a  right 
to  use  a  public  highway  as  a  bed  for  their  road  without  first  making  compensation 
to  the  owner  of  the  soil.     And  in  the  case  of  Hinchman  0.  The  Paterson  Horse- 
Railroad  Co.  already  cited,  Chancellor  Greene  quotes  these  views,  and  gives  the 
doctrine  the  high  sanction  of  his  own  approval.     See  also  the  Central  R.R.  Co. 
v.  Hetfield,  5  Dutch.  206." 

The  learned  judge  then  distinguishes  Carter  v.  Wright,  3  Dutch.  76,  and 
quotes,  as  sustaining  his  own  views,  State  v.  Mayor,  &c,  of  Mobile,  5  Porter, 
279  ;  Trustees  of  Presbyterian  Society  v.  Auburn  and  Rochester  R.R.  Co., 
3  Hill,  569;  Williams  v.  N.  Y.  C.  R.R.  Co.,  16  N.  Y.  Ill;  Angell  on  High- 
ways, §-243  et  seq.,  and  cases  cited. 

[655] 


*  557  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

deprivation  of  this  right  is  a  taking  which  entitles  them  to  compen- 
sation, notwithstanding  the  taking  may  be  for  the  purpose  of 
creating  another  and  more  valuable  channel  of  navigation.1  The 
owners  of  land  over  which  such  a  stream  flows,  although  they  do 
not  own  the.  flowing  water  itself,  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  of  the  other  purposes  for  which 
they  can  make  it  available,  without  depriving  those  below  them 
of  the  like  use,  or  encroaching  upon  the  rights  of  those  above ; 
and  this  property  is  equally  protected  with  any  of  a  more  tangible 
character.2 

What  Interest  in  Land  can  be  taken  under  the  Right  of  Eminent 

Domain. 

Where  land  is  appropriated  to  the  public  use  under  the  right  of 
eminent  domain,  and  against  the  will  of  the  owner,  we  have  seen 
how  careful  the  law  is  to  limit  the  public  authorities  to  their  pre- 
cise needs,  and  not  to  allow  the  dispossession  of  the  owner  from 
any  portion  of  his  freehold  which  the  public  use  does  not  require. 
This  must  be  so  on  the  general  principle  that  the  right  being  based 
on  necessity  cannot  be  any  broader  than  the  necessity  which  sup- 
ports it.  For  the  same  reason,  it  would  seem  that,  in  respect  to 
the  land  actually  taken,  if  there  can  be  any  conjoint  occupation  of 
the  owner  and  the  public,  the  former  should  not  be  altogether  ex- 
cluded, but  should  be  allowed  to  occupy  for  his  private  purposes 
to  any  extent  not  inconsistent  with  the  public  use.  As  a  general 
rule,  the  laws  for  the  exercise  of  the  right  of  eminent  domain 

do  not  assume  to  go  further  than  to  appropriate  the  use, 
[*  558]   and  the  title  *  in  fee  still  remains  in  the  original  owner. 

In  the  common  highways,  the  public  have  a  perpetual 
easement,  but  the  soil  is  the  property  of  the  adjacent  owner,  and 
he  may  make  any  use  of  it  which  does  not  interfere  with  the  public 
right  of  passage,  and  the  public  can  use  it  only  for  the  purposes 
usual  with  such  ways.3     And  when  the  land  ceases  to  be  used  by 

1  People  v.  Canal  Appraisers,  13  Wend.  355.  And  see  Hatch  v.  Vermont 
Central  R.R.  Co.,  25  Vt.  49  ;  Bellinger  v.  New  York  Central  R.R.  Co.,  23 
N.  Y.  42  ;  Gardner  v.  Newburg,  2  Johns.  Ch.  162. 

2  Morgan  v.  King,  18  Barb.  284 ;  s.  c.  35  N.  Y.  454 ;  Gardner  v.  Newburg, 
2  Johns.  Ch.  162. 

3  In  Adams  v.  Rivers,  11  Barb.  390,  a  person  who  stood  in  the  public  way 

[656] 


Cff.  XV.]  THE   EMINENT   DOMAIN.  *  558 

the  public  as  a  way,  the  owner  will  again  become  restored  to  his 
complete  and  exclusive  possession,  and  the  fee  will  cease  to  be 
encumbered  with  the  easement.1 

It  seems,  however,  to  be  competent  for  the  State  to  appropriate 
the  title  to  the  land  in  fee,  and  so  to  altogether  exclude  any  use  by 
the  former  owner,  except  that  which  every  individual  citizen  is  en- 
titled to  make,  if  in  the  opinion  of  the  legislature  it  is  needful  that 
the  fee  be  taken.2  The  judicial  decisions  to  this  effect  proceed 
upon  the  idea  that,  in  some  cases,  the  public  purposes  cannot  be 
fully  accomplished  without  appropriating  the  complete  title  ;  and 
where  this  is  so  in  the  opinion  of  the  legislature,  the  same  reasons 
which  support  the  legislature  in  their  right  to  decide  absolutely 
and  finally  upon  the  necessity  of  the  taking  will  also  support  their 
decision  as  to  the  estate  to  be  taken.  The  power,  it  is  said  in  one 
case,  "  must  of  necessity  rest  in  the  legislature,  in  order  to  secure 
the  useful  exercise  and  enjoyment  of  the  right  in  question.  A 
case  might  arise  where  a  temporary  use  would  be  all  that  the  public 
interest  required.  Another  case  might  require  the  permanent  and 
apparently  the  perpetual  occupation  and  enjoyment  of  the  property 
by  the  public ;  and  the  right  to  take  it  must  be  coextensive  with 
the  necessity  of  the  case,  and  the  measure  of  compensation  should 
of  course  be  graduated  by  the  nature  and  the  duration  of  the 
estate  or  interest  of  which  the  owner  is  deprived."3  And  it  was 
therefore  held,  where  the  statute  provided  that  lands  might  be 
compulsorily  taken  in  fee-simple  for  the  purposes  of  an  almshouse 
extension,  and  they  were  taken  accordingly,  that  the  title  of  the 
original   owner  was  thereby  entirely  devested,  so  that  when  the 

and  abused  the  occupant  of  an  adjoining  lot  was  held  liable  in  trespass  as  being 
unlawfully  there,  because  not  using  the  highway  for  the  purpose  to  which  it  was 
appropriated. 

1  Dean  v.  Sullivan  R.R.  Co.,  2  Fost.  321;  Blake  v.  Rich,  34  N.  H.  282; 
Henry  v.  Dubuque  and  Pacific  R.R.  Co.,  2  Iowa,  288 ;  Weston  v.  Foster,  7  Met. 
299;  Quimby  v.  Vermont  Central  R.R.  Co.,  23  Vt.  387;  Giesy  v.  Cincinnati, 
&c,  R.R.  Co.,  4  Ohio,  n.  s.  327. 

2  This,  however,  is  forbidden  by  the  Constitution  of  Illinois  of  1870,  in  the 
case  of  land  taken  for  railroad  tracks.  Art.  2,  §  13.  And  we  think  it  would  be 
difficult  to  demonstrate  the  necessity  for  appropriating  the  fee  in  case  of  any 
thoroughfare ;  and  if  never  needful,  it  ought  to  be  held  incompetent. 

3  Heyward  v.  Mayor,  &c,  of  New  York,  7  N.  Y.  314.  See  also  Dingley  v. 
Boston,  100  Mass.  544  ;  Brooklyn  Park  Com'rs  v.  Armstrong,  2  Lans.  429  ;  s.  c. 
on  appeal,  45  N.  Y.  234 ;  and  6  Am.  Rep.  70. 

42  [  657  ] 


*  558  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

[*  559]  land  ceased  to  *  be  used  for  the  public  purpose,  the 
title  remained  in  the  municipality  which  had  appropriated 
it,  and  did  not  revert  to  the  former  owner  or  his  heirs.1  And  it 
does  not  seem  to  be  uncommon  to  provide  that,  in  the  case  of 
some  classes  of  public  ways,  and  especially  of  city  and  village 
streets,  the  dedication  or  appropriation  to  the  public  use  shall  vest 
the  title  to  the  land  in  the  State,  county,  or  city  ;  the  purposes  for 
which  the  land  may  be  required  by  the  public  being  so  numerous 
and  varied,  and  so  impossible  of  complete  specification  in  advance, 
that  nothing  short  of  a  complete  ownership  in  the  public  is  deemed 
sufficient  to  provide  for  them.  In  any  case,  however,  an  easement 
only  would  be  taken,  unless  the  statute  plainly  contemplated  and 
provided  for  the  appropriation  of  a  larger  interest.2 

Compensation  for  Property  taken. 

It  is  a  primary  requisite,  in  the  appropriation  of  lands  for  public 
purposes,  that  compensation  shall  be  made  therefor.  Eminent 
domain  differs  from  taxation  in  that,  in  the  former  case,  the  citizen 
is  compelled  to  surrender  to  the  public  something  beyond  his  due 
proportion  for  the  public  benefit.  The  public  seize  and  appropriate 
his  particular  estate,  because  it  has  special  need  for  it,  and  not 
because  it  is  right,  as  between  him  and  the  government,  that  he 
should  surrender  it.3  To  him,  therefore,  the  benefit  and  protection 
he  receives  from  the  government  are  not  sufficient  compensation  ; 
for  those  benefits  are  the  equivalent  for  the  taxes  he  pays,  and  the 
other  public  burdens  he  assumes  in  common  with  the  community  at 
large.  And  this  compensation  must  be  pecuniary  in  its  character, 
because  it  is  in  the  nature  of  a  payment  for  a  compulsory  purchase.4 

1  Heyward  v.  Mayor,  &c,  of  New  York,  7  N.  Y.  314.  And  see  Baker  v. 
Johnson,  2  Hill,  348;  Wheeler  v.  Rochester,  &c.,  R.R.  Co.,  12  Barb.  227; 
Hunger  v.  Tonawanda  R.R.  Co.,  4  N.  Y.  349;  Rexford  v.  Knight,  11  N.  Y. 
308;  Commonwealth  v.  Fisher,  1  Pen.  &  Watts,  462;  De  Varaigne  v.  Fox,  2 
Blatch.  95;  Coster  v.  N.  J.  R.R.  Co.,  3  Zab.  227;  Plitt  v.  Cox,  43  Penn.  St. 
486 ;  Brooklyn  Park  Com'rs  v.  Armstrong,  45  N.  Y.  234 ;  s.  c.  6  Am.  Rep.  70. 

2  Barclay  v.  Howell's  Lessee,  6  Pet.  498 ;  Rust  v.  Lowe,  6  Mass.  90 ;  Jack- 
son v.  Rutland  and  B.  R.R.  Co.,  25  Vt.  151;  Jackson  v.  Hathaway,  15 
Johns.  447. 

3  People  v.  Mayor,  &c.,  of  Brooklyn,  4  N.  S.  419;  Woodbridge  v.  Detroit, 
8  Mich.  278 ;  Booth  v.  Woodbury,  32  Conn.  130. 

4  The  effect  of  the  right  of  eminent  domain  against  the  individual  "  amounts 
to  nothing  more  than  a  power  to  oblige  him  to  sell  and  convey  when  the  public 

[658  ] 


CH.   XV.]  THE    EMINENT    DOMAIN.  *  560 

*  The  time  when  the  compensation  must  be  made  may  [*  560] 
d  epend  upon  the  peculiar  constitutional  provisions  of  the 
State.  In  some  of  the  States,  by  express  constitutional  direction, 
compensation  must  be  made  before  the  property  is  taken.  No 
constitutional  principle,  however,  is  violated  by  a  statute  which 
all  ows  private  property  to  be  entered  upon  and  temporarily  occu- 
pied for  the  purpose  of  a  survey  and  other  incipient  proceedings^ 
with  a  view  to  judging  and  determining  whether  the  public  needs 
require  the  appropriation  or  not,  and,  if  so,  what  the  proper  loca- 
tion shall  be;  and  the  party  acting  under  this  statutory  author- 
ity would  neither  be  bound  to  make  compensation  for  the  temporary 
possession,  nor  be  liable  to  action  of  trespass.1  When,  however, 
the  land  has  been  viewed,  and  a  determination  arrived  at  to  ap- 
propriate it,  the  question  of  compensation  is  to  be  considered  ;  and 
in  the  absence  of  any  express  constitutional  provision  fixing  the 
time  and  the  manner  of  making  it,  the  question  who  is  to  take  the 
property  —  whether  the  State,  or  one  of  its  political  divisions  or 
municipalities,  or,  on  the  other  hand,  some  private  corporation  — 
may  be  an  important  consideration. 

When  the  property  is  taken  directly  by  the  State,  or  by  any 
municipal  corporation  by  State  authority,  it  has  been  repeatedly 
held  not  to  be  essential  to  the  validity  of  a  law  for  the  exercise  of 
the  right  of  eminent  domain,  that  it  should  provide  for  making 
compensation  before  the  actual  appropriation.  It  is  sufficient  if 
provision  is  made  by  the  law  by  which  the  party  can  obtain  com- 
pensation, and  that  an  impartial  tribunal  is  provided  for  assess- 
ing it.2     The  decisions  upon  this  point  assume  that,  when  the 

necessities  require  it."  Johnson,  J.,  in  Fletcher  v.  Peck,  6  Cranch,  145.  And 
see  Bradshaw  v.  Rogers,  20  Johns.  103,  per  Spencer,  Ch.  J. ;  People  v.  Mayor, 
&c,  of  Brooklyn,  4  N.  Y.  419;  Carson  v.  Coleman,  3  Stockt.  106;  Young  v. 
Harrison,  6  Geo.  131;  United  States  v.  Minnesota,  &c,  R.R.  Co.,  1  Minn.  127  ; 
Railroad  Co.  v.  Ferris,  26  Texas,  603  ;  Curran  v.  Shattuck,  24  Cal.  427  ;  State 
v.  Graves,  19  Md.  351. 

1  Bloodgood  v.  Mohawk  and  Hudson  R.R.  Co.,  14  Wend.  51,  and  18  Wend. 
9  ;  Cushman  v.  Smith,  34  Me.  217  ;  Nichols  v.  Somerset,  &c,  R.R.  Co.,  43  Me. 
356;  Mercer  v.  McWilliams,  Wright  (Ohio),  132;  Walther  v.  Warner,  25  Mo. 
277;  Fox  v.  W.  P.  R.R.  Co.,  31  Cal.  538. 

2  Bloodgood  v.  Mohawk  and  Hudson  R.R.  Co.,  18  Wend.  9  ;  Rogers  ».  Brad- 
shaw, 20  Johns.  744;  Calking  v.  Baldwin,  4  Wend.  667;  Case  v.  Thompson,  6 
Wend.  634  ;  Fletcher  v.  Auburn  and  Syracuse  R.R.  Co.,  25  Wend.  462;  Rex- 
ford  v.  Knight,  11  N.  Y.  308  ;  Taylor  v.  Marcy,  25  111.  518  ;  Callison  e.  Hedrick, 

[  659] 


*  560  CONSTITUTIONAL    LIMITATIONS.  [CH.  XV. 

[*  561]  State  *  has  provided  a  remedy  by  resort  to  which  the  party 
can  have  his  compensation  assessed,  adequate  means  are 
afforded  for  its  satisfaction  ;  since  the  property  of  the  municipality, 
or  of  the  State,  is  a  fund  to  which  he  can  resort  without  risk  of 
loss.1  It  is  essential,  however,  that  the  remedy  be  one  to  which 
the  party  can  resort  on  his  own  motion  ;  if  the  provision  be  such 
that  only  the  public  authorities  appropriating  the  land  are  author- 
ized to  take  proceedings  for  the  assessment,  it  must  be  held  to  be 
void.2  But  if  the  remedy  is  adequate,  and  the  party  is  allowed  to 
pursue  it,  it  is  not  unconstitutional  to  limit  the  period  in  which  he 

15  Grat.  244;  Jackson  v.  Winn's  Heirs,  4  Lit.  323;  People  v.  Green,  3  Mich. 
496  ;  Lyon  v.  Jerome,  26  Wend.  497,  per  Verplanck,  Senator;  Gardner  v.  New- 
burg,  2  Johns.  Ch.  162 ;  Charlestown  Branch  R.R.  Co.  v.  Middlesex,  7  Met.  78 ; 
Harper  v.  Richardson,  22  Cal.  251 ;  Baker  v.  Johnson,  2  Hill,  342 ;  People  v. 
Harden,  6  Hill,  359  ;  Long  v.  Fuller,  68  Penn.  St.  170  (case  of  a  school  district). 
"Although  it  may  not  be  necessary,  within  the  constitutional  provision,  that  the 
amount  of  compensation  should  be  actually  ascertained  and  paid  before  property 
is  thus  taken,  it  is,  I  apprehend,  the  settled  doctrine,  even  as  against  the  State 
itself,  that  at  least  certain  and  adequate  provision  must  first  be  made  by  law 
(except  in  cases  of  public  emergency),  so  that  the  owner  can  coerce  payment 
through  the  judicial  tribunals  or  otherwise,  without  any  unreasonable  or  unneces- 
sary delay ;  otherwise  the  law  making  the  appropriation  is  no  better  than  blank 
paper.  Bloodgood  v.  Mohawk  and  Hudson  R.R.  Co.,  18  Wend.  9.  The  pro- 
visions of  the  statute  prescribing  the  mode  of  compensation  in  eases  like  the 
present,  when  properly  understood  and  administered,  come  fully  up  to  this 
great  fundamental  principle  ;  and  even  if  any  doubt,  could  be  entertained  about 
the  true  construction,  it  should  be  made  to  lean  in  favor  of  the  one  that  is  found 
to  be  most  in  conformity  with  the  constitutional  requisite."  People  v.  Hayden, 
6  Hill,  359.  "  A  provision  for  compensation  is  an  indispensable  attendant  upon 
the  due  and  constitutional  exercise  of  the  power  of  depriving  an  individual  of 
his  property."  Gardner  v.  Newburg,  2  Johns.  Ch.  168;  Buffalo,  &c,  R.R.  Co. 
v.  Ferris,  26  Texas,  588;  Ash  v.  Cummings,  50  N.  H.  613;  Haverhill  Bridge 
Proprietors  v.  County  Com'rs,  103  Mass.  120;  S.  c.  4  Am.  Rep.  518;  Langford 
v.  Com'rs  of  Ramsay  Co.,  16  Minn.  380;  Southwestern  R.R.  Co.  v.  Telegraph 
Co.,  46 'Geo.  43. 

1  In  Commissioners,  &c.  v.  Bowie,  34  Ala.  461,  it  was  held  that  a  provision 
by  law  that  compensation  when  assessed  should  be  paid  to  the  owner  by  the 
county  treasurer  sufficiently  secured  its  payment.     And  see  Talbot  v.  Hudson, 

16  Gray,  417. 

2  Shepardson  v.  Milwaukee  and  Beloit  R.R.  Co.,  6  Wis.  605  ;  Powers  v.  Bears, 
12  Wis.  220.  See  McCann  v.  Sierra  Co.,  7  Cal.  121;  Colton  v.  Rossi,  9  Cal. 
595;  Ragatz  v.  Dubuque,  4  Iowa,  343.  But  in  People  v.  Hayden,  6  Hill,  359, 
where  the  statute  provided  for  appraisers  who  were  to  proceed  to  appraise  the 
land  as  soon  as  it  was  appropriated,  the  proper  remedy  of  the  owner,  if  they 
failed  to  perform  this  duty,  was  held  to  be  to  apply  for  a  mandamus. 

[660] 


CH.  XV.]  THE   EMINENT   DOMAIN.  *  561 

shall  resort  to  it,  and  to  provide  that,  unless  he  shall  take  pro- 
ceedings for  the  assessment  of  damages  within  a  specified  time,  all 
right  thereto  shall  be  barred.1  The  right  to  compensation,  when 
property  is  appropriated  by  the  public,  may  always  be 
waived ; 2  and  a  failure  to  apply  for  and  *  have  the  com-  [*  562] 
pensation  assessed,  when  reasonable  time  and  opportunity 
and  a  proper  tribunal  are  afforded  for  the  purpose,  may  well  be 
considered  a  waiver. 

Where,  however,  the  property  is  not  taken  by  the  State,  or  by  a 
municipality,  but  by  a  private  corporation  which,  though  for  this 
purpose  to  be  regarded  as  a  public  agent,  appropriates  it  for  the 
benefit  and  profit  of  its  members,  and  which  may  or  may  not  be 
sufficiently  responsible  to  make  secure  and  certain  the  payment, 
in  all  cases,  of  the  compensation  which  shall  be  assessed,  it  is  cer- 
tainly proper,  and  it  has  sometimes  been  questioned  whether  it 
was  not  absolutely  essential,  that  payment  be  actually  made  before 
the  owner  could  be  devested  of  his  freehold.3  Chancellor  Kent  has 
expressed  the  opinion,  that  compensation  and  appropriation  should 
be  concurrent.  "  The  settled  and  fundamental  doctrine  is,  that 
government  has  no  right  to  take  private  property  for  public  pur- 
poses, without  giving  just  compensation  ;  and  it  seems  to  be  neces- 
sarily implied  that  the  indemnity  should,  in  cases  which  will  admit 
of  it,  be  previously  and  equitably  ascertained,  and  be  ready  for 
reception,  concurrently  in  point  of  time  with  the  actual  exercise  of 
the  right  of  eminent  domain."  4  And  while  this  is  not  an  inflex- 
ible rule  unless  in  terms  established  by  the  constitution,  it  is  so 
just  and  reasonable  that  statutory  provisions  for  taking  private 
property  very  generally  make  payment  precede  or  accompany  the 
appropriation,  and  by  several  of  the  State  constitutions  this  is 
expressly  required.5      And  on  general  principles,  it  is  essential 

1  People  v.  Green,  3  Mich.  496  ;  Charlestown  Branch  R.R.  Co.  v.  Middlesex, 
7  Met.  78;  Rexford  v.  Knight,  11  N.  Y.  308;  Taylor  v.  Marcy,  25  111.  518; 
Callison  v.  Hedrick,  15  Grat.  241:;  Gilmer  v.  Lime  Point,  18  Cal.  229;  Harper 
v.  Richardson,  22  Cal.  251;  Cupp  v.  Commissioners  of  Seneca,  19  Ohio, 
N.  s.   173. 

8  Matter  of  Albany  St.,  11  Wend.  149 ;  Brown  v.  Worcester,  13  Gray,  31.     . 

3  This  is  the  intimation  in  Shepardson  v.  Milwaukee  and  Beloit  R.R.  Co.,  6 
Wis.  605;  Powers  v.  Bears,  12  Wis.  220  ;  State  v.  Graves,  19  Md.  351 ;  Dron- 
berger  v.  Reed,  11  Ind.  420.     But  see  Calking  v.  Baldwin,  4  Wend.  667. 

4  2  Kent,  339,  note. 

5  The  Constitution  of  Florida  provides  "  that  private  property  shall  not  be 

[  661  ] 


*  562  CONSTITUTIONAL    LIMITATIONS.  [CH.  XV. 

that  an  adequate  fund  be  provided  from  which  the  owner  of  the 
property  can  certainly  obtain  compensation  ;  it  is  not  competent  to 
deprive  him  of  his  property,  and  turn  him  over  to  an  action  at  law 
against  a  corporation  which  may  or  may  not  prove  respon- 
[*  563]  sible,  *  and  to  a  judgment  of  uncertain  efficacy.1  For 
the  consequence  would  be,  in  some  cases,  that  the  party 
might  lose  his  estate  without  redress,  in  violation  of  the  inflexible 
maxim  upon  which  the  right  is  based. 

What  the  tribunal  shall  be  which  is  to  assess  the  compensation 
must  be  determined  either  by  the  constitution  or  by  the  statute 
which  provides  for  the  appropriation.  The  case  is  not  one  where, 
as  a  matter  of  right,  the  party  is  entitled  to  a  trial  by  jury,  un- 
less the  constitution  has  provided  that  tribunal  for  the  purpose.2 
Nevertheless,  the  proceeding  is  judicial  in  its  character,  and  the 
party  in  interest  is  entitled  to  have  an  impartial  tribunal,  and  the 
usual  rights  and  privileges  which  attend  judicial  investigations. 
It  is  not  competent  for  the  State  itself  to  fix  the  compensation 
through  the  legislature,  for  this  would  make  it  the  judge  in  its 
own  cause.3  And,  if  a  jury  is  provided,  the  party  must  have  the 
ordinary  opportunity  to  appear  when  it  is  to  be  impanelled,  that 
he  may  make  any  legal  objections.4  And  he  has  the  same  right  to 
notice  of  the  time  and  place  of  assessment  that  he  would  have  in 


taken  or  applied  to  public  use,  unless  just  compensation  be  first  made  therefor." 
Art.  1,  §  14.  See  also,  to  the  same  effect,  Constitution  of  Georgia,  art.  1,  §  17  ; 
Constitution  of  Iowa,  art.  1,  §  18;  Constitution  of  Kansas,  art.  12,  §  4;  Consti- 
tution of  Kentucky,  art.  13,  §  14;  Constitution  of  Minnesota,  art.  1,  §  13; 
Constitution  of  Mississippi,  art.  1,  §  13;  Constitution  of  Nevada,  art.  1,  §  8; 
Constitution  of  Ohio,  art.  1,  §  19.  The  Constitution  of  Indiana,  art.  1,  §  21, 
and  that  of  Oregon,  art.  1,  §  19,  require  compensation  to  be  first  made,  except 
when  the  property  is  appropriated  by  the  State. 

1  Shepardson  v.  Milwaukee  and  Beloit  R.R.  Co.,  6  Wis.  605;  Walther  ». 
Warner,  25  Mo.  277  ;  Gilmer  v.  Lime  Point,  18  Cal.  229  ;  Curran  v.  Shattuck, 
24  Cal.  427;  Memphis  and  Charleston  R.R.  Co.  v.  Payne,  37  Miss.  700; 
Henry  v.  Dubuque  and  Pacific  R.R.  Co.,  10  Iowa,  540;  Ash  v.  Cummings,  50 
N.  II.  591 ;  Carr  v.  Georgia  R.R.  Co.,  1  Kelly,  532 ;  Southwestern  R.R.  Co.  v. 
Telegraph  Co.,  46  Geo.  43. 

2  Petition  of  Mount  Washington  Co.,  35  N.  II.  134. 

3  Charles  River  Bridge  v.  Warren  Bridge,  7  Pick.  344;  s.  c.  11  Pet.  571, 
per  McLean,  J. 

4  People  v.  Tallman,  36  Barb.  222  ;  Booneville  v.  Ormrod,  26  Miss.  193.  A 
jury,  without  further  explanation  in  the  law,  must  be  understood  as  one  of  twelve 
persons.     Lamb  v.  Lane,  4  Ohio,  n.  s.  167. 

[662] 


CH.  XV.]  THE    EMINENT    DOMAIN.  *  563 

any  other  case  of  judicial  proceedings,  and  the  assessment  will 
be  invalid  if  no  such  notice  is  given.1  These  are  just  as  well  as 
familiar  rules,  and  they  are  perhaps  invariably  recognized  in  legis- 
lation. 

It  is  not  our  purpose  to  follow  these  proceedings,  and  to  attempt 
to  point  out  the  course  of  practice  to  be  observed,  and  which  is  so 
different  under  the  statutes  of  different  States.  An  inflexible  rule 
should  govern  them  all,  that  the  interest  and  exclusive  right  of  the 
owner  is  to  be  regarded  and  protected  so  far  as  may  be  consistent 
with  a  recognition  of  the  public  necessity.  While  the  owner  is 
not  to  be  disseised  until  compensation  is  provided,  neither,  on  the 
other  hand,  when  the  public  authorities  have  taken  such  steps  as 
to  finally  settle  upon  the  appropriation,  ought  he  to  be  left 
in  a  *  state  of  uncertainty,  and  compelled  to  wait  for  com-  [*  564] 
pensation  until  some  future  time,  when  they  may  see  fit 
to  occupy  it.  The  land  should  either  be  his  or  he  should  be  paid 
for  it.  Whenever,  therefore,  the  necessary  steps  have  been  taken 
on  the  part  of  the  public  to  select  the  property  to  be  taken,  locate 
the  public  work,  and  declare  the  appropriation,  the  owner  becomes 
absolutely  entitled  to  the  compensation,  whether  the  public  pro- 
ceed at  once  to  occupy  the  property  or  not.  If  a  street  is  legally 
established  over  the  land  of  an  individual,  he  is  entitled  to  demand 
payment  of  his  damages,  without  waiting  for  the  street  to  be 
opened.2  And  if  a  railway  line  is  located  across  his  land,  and  the 
damages  are  appraised,  his  right  to  payment  is  complete,  and  be 
cannot  be  required  to  wait  until  the  railway  company  shall  actu- 
ally occupy  his  premises,  or  enter  upon  the  construction  of  the 
road  at  that  point.  It  is  not  to  be  forgotten,  however,  that  the 
proceedings  for  the  assessment  and  collection  of  damages  are  stat- 
utory, and  displace  the  usual  remedies  ;  that  the  public  agents  who 

1  Hood  o.  Finch,  8  Wis.  381 ;  Dickey  v.  Tennison,  27  Mo.  373. 

2  Philadelphia  v.  Dickson,  38  Penn.  St.  247 ;  Philadelphia  v.  Dyer,  41  Penn. 
St.  463 ;  Hallock  v.  Franklin  County,  2  Met.  559 ;  Harrington  v.  County  Com- 
missioners, 22  Pick.  268;  Blake  v.  Dubuque,  13  Iowa,  66;  Higgins  v.  Chicago, 
18  111.  276  ;  County  of  Peoria  v.  Harvey,  ib.  364 ;  Shaw  v.  Charlestown,  3  Allen, 
538;  Hampton  v.  Coffin,  4  N.  H.  517;  Clough  v.  Unity,  18  N.  H.  77.  And 
where  a  city  thus  appropriates  land  for  a  street,  it  would  not  be  allowed  to  set 
up  in  defence  to  a  demand  for  compensation  its  own  irregularities  in  the  pro- 
ceedings taken  to  condemn  the  land.  Higgins  v.  Chicago,  18  III.  276  ;  Chicago 
v.  Wheeler,  25  111.  478. 

[663] 


*  564  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

keep  within  the  statute  are  not  liable  to  common-law  action  ; l  that 
it  is  only  where  they  fail  to  follow  the  statute  that  they  render 
themselves  liable  as  trespassers;2  though  if  they  construct  their 
work  in  a  careless,  negligent,  and  improper  manner,  by  means  of 
which  carelessness,  negligence,  or  improper  construction  a  party  is 
injured  in  his  rights,  he  may  have  an  action  at  the  common  law  as 

in  other  cases  of  injurious  negligence.3 
[*565]       *  The   principle   upon    which  the  damages   are  to  be 

assessed  is  always  an  important  consideration  in  these 
cases  ;  and  the  circumstances  of  different  appropriations  are  some- 
times so  peculiar  that  it  has  been  found  somewhat  difficult  to 
establish  a  rule  that  shall  always  be  just  and  equitable.  If  the 
whole  of  a  man's  estate  is  taken,  there  can  generally  be  little  diffi- 
culty in  fixing  upon  the  measure  of  compensation  ;  for  it  is  appar- 
ent that,  in  such  a  case,  he  ought  to  have  the  whole  market  value 
of  his  premises,  and  he  cannot  reasonably  demand  more.  The 
question  is  reduced  to  one  of  market  value,  to  be  determined  upon 
the  testimony  of  those  who  have  knowledge  upon  that  subject, 
or  whose  business  or  experience  entitles  their  opinions  to  weight. 
It  may  be  that,  in  such  a  case,  the  market  value  may  not  seem  to 
the  owner  an  adequate  compensation  ;  for  he  may  have  reasons 
peculiar  to  himself,  springing  from  association,  or  other  cause, 
which  make  him  unwilling  to  part  with  the  property  on  the  esti- 
mate of  his  neighbors  ;  but  such  reasons  are  incapable  of  being 
taken  into  account  in  legal  proceedings,  where  the  question  is  one 
of  compensation  in  money,  inasmuch  as  it  is  manifestly  impossible 
to  measure  them  by  any  standard  of  pecuniary  value.  Concede 
to  the  government  a  right  to  appropriate  the  property  on  paying 
for  it,  and  we  are  at  once  remitted  to  the  same  standards  for  esti- 
mating values  which  are  applied  in  other  cases,  and  which  neces- 

1  East  and  West  India  Dock,  &c,  Co.  v.  Gattke,  15  Jur.  61 ;  Kimble  v. 
White  Water  Valley  Canal,  1  Ind.  285;  Mason  v.  Kennebec,  &c.,  R.R.  Co.,  31 
Me.  215 ;  Aldrich  v.  Cheshire  R.R.  Co.,  1  Fost.  359  ;  Brown  v.  Beatty,  34  Miss. 
227 ;  Pettibone  v.  La  Crosse  and  Milwaukee  R.R.  Co.,  14  Wis.  443 ;  Vilas  v. 
Milwaukee  and  Mississippi  R.R.  Co.,  15  Wis.  233. 

2  Dean  v.  Sullivan  R.R.  Co.,  2  Fost.  310  ;  Furniss  v.  Hudson  River  R.R.  Co., 
5  Sandf.  551. 

8  Lawrence  v.  Great  Northern  R.  Co.,  20  L.  J.  Rep.  Q.  B.  293  ;  Bagnall  v. 
London  and  N.  W.  R.,  7  H.  &  N.  423;   Brown  v.  Cayuga  and  Susquehanna 
R.R.  Co.,  12  N.  Y.  487. 
[664] 


CH.  XV.]  THE   EMINENT   DOMAIN.  *  565 

sarily  measure  the  worth  of  property  by  its  value  as  an  article  of 
sale,  or  as  a  means  of  producing  pecuniary  returns. 

When,  however,  only  a  portion  of  a  parcel  of  land  is  appropri- 
ated, just  compensation  may  perhaps  depend  upon  the  effect  which 
the  appropriation  may  have  on  the  owner's  interest  in  the  remain- 
der, to  increase  or  diminish  its  value,  in  consequence  of  the  use  to 
which  that  taken  is  to  be  devoted,  or  in  consequence  of  the  con- 
dition in  which  it  may  leave  the  remainder  in  respect  to  conven- 
ience of  use.  If,  for  instance,  a  public  way  is  laid  out  through  a 
tract  of  land  which  before  was  not  accessible,  and  if  in  conse- 
quence it  is  given  a  front,  or  two  fronts,  upon  the  street,  which 
furnish  valuable  and  marketable  sites  for  building  lots,  it  may  be 
that  the  value  of  that  which  remains  is  made,  in  consequence  of 
taking  a  part,  vastly  greater  than  the  whole  was  before,  and  that 
the  owner  is  benefited  instead  of  damnified  by  the  appropriation. 
Indeed,  the  great  majority  of  streets  in  cities  and  villages  are 
dedicated  to  the  public  use  by  the  owners  of  lands,  with- 
out any  other  *  compensation  or  expectation  of  compensa-  [*  566] 
tion  than  the  increase  in  market  value  which  is  expected 
to  be  given  to  such  lands  thereby  ;  and  this  is  very  often  the  case 
with  land  for  other  public  improvements,  which  are  supposed  to  be 
of  peculiar  value  to  the  locality  in  which  they  are  made.  But 
where,  on  the  other  hand,  a  railroad  is  laid  out  across  a  man's 
premises,  running  between  his  house  and  his  outbuildings,  neces- 
sitating, perhaps,  the  removal  of  some  of  them,  or  upon  such  a 
grade  as  to  render  deep  cuttings  or  high  embankments  necessary, 
and  thereby  greatly  increasing  the  inconveniences  attending  the 
management  and  use  of  the  land,  as  well  as  the  risks  of  accidental 
injuries,  it  will  often  happen  that  the  pecuniary  loss  which  he 
would  suffer  by  the  appropriation  of  the  right  of  way  would  greatly 
exceed  the  value  of  the  land  taken,  and  to  pay  him  that  value  only 
would  be  to  make  very  inadequate  compensation. 

It  seems  clear  that,  in  these  cases,  it  is  proper  and  just  that  the 
injuries  suffered  and  the  benefits  received,  by  the  proprietor,  as 
owner  of  the  remaining  portion  of  the  land,  should  be  taken  into 
account  in  measuring  the  compensation.  This,  indeed,  is  generally 
conceded  ;  but  what  injuries  shall  be  allowed  for,  or  what  benefits 
estimated,  is  not  always  so  apparent.  The  question,  as  we  find  it 
considered  by  the  authorities,  seems  to  be,  not  so  much  what  the 
value  is  of  that  which  is  taken,  but  whether  what  remains  is 

[665] 


*  566  CONSTITUTIONAL    LIMITATIONS.  [CH.  XV. 

reduced  in  value  by  the  appropriation,  and,  if  so,  to  what  extent ; 
in  other  words,  what  pecuniary  injury  the  owner  sustains  by  a  part 
of  his  land  being  appropriated.  But,  in  estimating  either  the 
injuries  or  the  benefits,  those  which  the  owner  sustains  or  receives 
in  common  with  the  community  generally,  and  which  are  not 
peculiar  to  him  and  connected  with  his  ownership,  use,  and  enjoy- 
ment of  the  particular  parcel  of  land,  should  be  altogether  ex- 
cluded, 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 
incidental  benefits  and  injuries  with  other  citizens  who  receive- or 
feel  them  equally  with  himself,  but  whose  lands  do  not  chance  to 
be  taken.1 

1  In  Somerville  and  Easton  R.R.  Co.  ads.  Doughty,  2  Zab.  495,  a  motion  was 
made  for  a  new  trial  on  an  assessment  of  compensation  for  land  taken  by  a  rail- 
road company,  on  the  ground  that  the  judge  in  his  charge  to  the  jury  informed 
them  "  that  they  were  authorized  by  law  to  ascertain  and  assess  the  damages  sus- 
tained by  the  plaintiff  to  his  other  lands  not  taken  and  occupied  by  the  defend- 
ants ;  to  his  dwelling-house,  and  other  buildings  and  improvements,  by  reducing 
their  value,  changing  their  character,  obstructing  their  free  use,  by  subjecting  his 
buildings  to  the  hazards  of  fire,  his  family  and  stock  to  injury  and  obstruction  in 
their  necessary  passage  across  the  road,  the  inconvenience  caused  by  embank- 
ments or  excavations,  and,  in  general,  the  effect  of  the  railroad  upon  his  adjacent 
lands,  in  deteriorating  their  value,  in  the  condition  they  were  found,  whether 
adapted  for  agricultural  purposes  only,  or  for  dwellings,  stores,  shops,  or  other 
like  purposes." 

"  On  a  careful  review  of  this  charge,"  says  the  judge,- delivering  the  opinion 
of  the  court,  "  I  cannot  see  that  any  legal  principle  was  violated,  or  any  unsound 
doctrine  advanced.  .  The  charter  provides  that  the  jury  shall  assess  the  value  of 
the  land  and  materials  taken  by  the  company,  and  the  damages.  The  damages 
here  contemplated  are  not  damages  to  the  land  actually  occupied  or  covered  by 
the  road,  but  such  damages  as  the  owner  may  sustain  in  his  other  and  adjacent 
lands  not  occupied  by  the  company's  road.  His  buildings  may  be  reduced  in 
value  by  the  contiguity  of  the  road,  and  the  use  of  engines  upon  it.  His  lands 
and  buildings,  before  adapted  and  used  for  particular  purposes,  may,  from  the 
same  cause,  become  utterly  unfitted  for  such  purposes.  The  owner  may  be  in- 
commoded by  high  embankments  or  deep  excavations  on  the  line  of  the  road,  his 
buildings  subjected  to  greater  hazard  from  fire,  his  household  and  stock  to  injury 
or  destruction,  unless  guarded  with  more  than  ordinary  care.  It  requires  no 
special  experience  or  sagacity  to  perceive  that  such  are  the  usual  and  natural 
effects  of  railroads  upon  the  adjoining  lands,  and  which  necessarily  deteriorate 
not  only  their  marketable  but  their  intrinsic  value.  The  judge,  therefore,  did 
not  exceed  his  duty  in  instructing  the  jury  that  these  were  proper  subjects  for 
their  consideration  in  estimating  the  damages  which  the  plaintiff  might  sustain  by 
reason  of  the  location  of  this  road  upon  and  across  his  lands."  And  in  the  same 
•  case  it  was  held  that  the  jury,  in  assessing  compensation,  were  to  adopt  as  the 

[666  ] 


CH.  XV.]  THE   EMINENT   DOMAIN.  *  567 

*  The  question,  then,  in  these  cases,  relates  first  to  the  [*567] 
value  of  the  land  appropriated  ;  which  is  to  be  assessed 
with  reference  to  what  *  it  is  worth  for  sale,  in  view  of  the  [*  568] 
uses  to  which  it  may  be  applied,  and  not  simply  in  refer- 
ence to  its  productiveness  to  the  owner  in  the  condition  in  which 
he  has  seen  fit  to  leave  it.1  Second,  if  less  than  the  whole  estate 
is  taken,  then  there  is  further  to  be  considered  how  much  the  por- 

standard  of  value  for  the  lands  taken,  not  such  a  price  as  they  wonld  bring  at  a 
forced  sale  in  the  market  for  money,  but  such  a  price  as  they  could  be  purchased 
at,  provided  they  were  for  sale,  and  the  owner  asked  such  prices  as,  in  the  opinion 
of  the  community,  they  were  reasonably  worth ;  that  it  was  matter  of  universal 
experience  that  land  would  not  always  bring  at  a  forced  sale  what  it  was  reason- 
ably worth,  and  the  owner,  not  desiring  to  sell,  could  not  reasonably  be  required 
to  take  less.  In  Sater  v.  Burlington  and  Mount  Pleasant  Plank-Road  Co.,  1  Iowa, 
393,  Isbell,  J.,  says:  "  The  terms  used  in  the  constitution,  'just  compensation,' 
are  not  ambiguous.  They  undoubtedly  mean  a  fair  equivalent;  that  the  person 
whose  property  is  taken  shall  be  made  whole.  But  while  the  end  to  be  attained 
is  plain,  the  mode  of  arriving  at  it  is  not  without  its  difficulty.  On  due  consid- 
eration, we  see  no  more  practical  rule  than  to  first  ascertain  the  fair  marketable 
value  of  the  premises  over  which  the  proposed  improvement  is  to  pass,  irrespective 
of  such  improvement,  and  also  a  like  value  of  the  same,  in  the  condition  in  which 
they  will  be  immediately  after  the  land  for  the  improvement  has  been  taken, 
irrespective  of  the  benefit  which  will  result  from  the  improvement,  and  the  dif- 
ference in  value  to  constitute  the  measure  of  compensation.  But  in  ascertaining 
the  depreciated  value  of  the  premises  after  that  part  which  has  been  taken  for 
public  use  has  been  appropriated,  regard  must  be  had  only  to  the  immediate,  and 
not  remote,  consequence  of  the  appropriation  ;  that  is  to  say,  the  value  of  the 
remaining  premises  is  not  to  be  depreciated  by  heaping  consequence  on  conse- 
quence. While  we  see  no  more  practical  mode  of  ascertainment  than  this,  yet 
it  must  still  be  borne  in  mind  that  this  is  but  a  mode  of  ascertainment ;  that, 
after  all,  the  true  criterion  is  the  one  provided  by  the  constitution,  namely,  just 
compensation  for  the  property  taken."  See  this  rule  illustrated  and  applied  in 
Henry  v.  Dubuque  and  Pacific  R.R.  Co.,  2  Iowa,  300,  where  it  is  said:  "  That 
the  language  of  the  constitution  means  that  the  person  whose  property  is  taken 
for  public  use  shall  have  a  fair  equivalent  in  money  for  the  injury  done  him  by 
such  taking ;  in  other  words,  that  he  shall  be  made  whole  so  far  as  money  is  a 
measure  of  compensation,  we  are  equally  clear.  This  just  compensation  should 
be  precisely  commensurate  with  the  injury  sustained  by  having  the  property 
taken  ;  neither  more  nor  less."  And  see  the  recent  Kentucky  cases  of  Richmond, 
&c.,  Co.  v.  Rogers,  1  Duvall,  135;  Robinson  v.  Robinson,  ib.  162. 

1  Matter  of  Fui-man  Street,  17  Wend.  6(39  ;  Tide-Water  Canal  Co.  v.  Archer, 
9  Gill  &  J.  480;  State  v.  Burlington,  &c,  R.R.  Co.,  1  Iowa,  386;  Parks  v. 
Boston,  15  Pick.  206 ;  First  Parish,  &c.  v.  Middlesex,  7  Gray,  106 ;  Dickenson 
v.  Inhabitants  of  Fitchburg,  13  Gray,  516;  Lexington  v.  Long,  31  Mo.  369. 

[667] 


*  568  CONSTITUTIONAL    LIMITATIONS.  [CH.  XV. 

tion  not  taken  is  increased  or  diminished  in  value  in  consequence 
of  the  appropriation.1 

1  Denton  v.  Polk,  9  Iowa,  594;  Parks  v.  Boston,  15  Pick.  198;  Dickenson  v. 
Fitchburg,  13  Gray,  546  ;  Harvey  v.  Lackawana,  &c,  K.R.  Co.,  47  Penn.  St.  428  ; 
Newby  v.  Platte  County,  25  Mo.  258 ;  Pacific  R.R.  Co.  v.  Chrystal,  ib.  544 ; 
Somerville  and  Easton  R.R.  Co.  ads.  Doughty,  2  Zab.  495 ;  Carpenter  v.  Lan- 
dau0, 42  N.  H.  218;  Troy  and  Boston  R.R.  Co.  v.  Lee,  13  Barb.  169;  Tide- 
Water  Canal  Co.  v.  Archer,  9  Gill  and  J.  480;  Winona  and  St.  Paul  R.R.  Co. 
v.  Waldron,  11  Minn.  515;  Nicholson  v.  N.  Y.  and  N.  H.  R.R.  Co.,  22  Conn. 
74 ;  Nichols  v.  Bridgeport,  23  Conn.  189.  "  Compensation  is  an  equivalent  for 
property  taken,  or  for  an  injury.  It  must  be  ascertained  by  estimating  the 
actual  damage  the  party  has  sustained.  That  damage  is  the  sum  of  the  actual 
value  of  the  property  taken,  and  of  the  injury  done  to  the  residue  of  the  property 
by  the  use  of  that  part  which  is  taken.  The  benefit  is,  in  part,  an  equivalent,  to 
the  loss  and  damage.  The  loss  and  damage  of  the  defendant  is  the  value  of  the 
land  the  company  has  taken,  and  the  injury  which  the  location  and  use  of  the 
road  through  his  tract  may  cause  to  the  remainder.  The  amount  which  may  be 
assessed  for  these  particulars  the  company  admits  that  it  is  bound  to  pay.  But 
as  a  set-off,  it  claims  credit  for  the  benefit  the  defendant  has  received  from  the 
construction  of  the  road.  That  benefit  may  consist  in  the  enhanced  value  of  the. 
residue  of  his  tract.  When  the  company  has  paid  the  defendant  the  excess  of 
his  loss  or  damage  over  and  above  the  benefit  and  advantage  he  has  derived  from 
the  road,  he  will  have  received  a  just  compensation.  It  is  objected  that  the 
enhanced  salable  value  of  the  land  should  not  be  assessed  as  a  benefit  to  the 
defendant,  because  it  is  precarious  and  uncertain.  The  argument  admits  that 
the  enhanced  value,  if  permanent,  should  be  assessed.  But  whether  the  appreci- 
ation is  permanent  and  substantial,  or  transient  and  illusory,  is  a  subject  about 
which  the  court  is  not  competent  to  determine.  It  must  be  submitted  to  a  jury, 
who  will  give  credit  to  the  company  according  to  the  circumstances.  The  argu- 
ment is  not  tenable,  that  an  increased  salable  value  is  no  benefit  to  the  owner  of 
land  unless  he  sells  it.  This  is  true  if  it  be  assumed  that  the  price  will  decline. 
The  chance  of  this  is  estimated  by  the  jury,  in  the  amount  which  they  may  assess 
for  that  benefit.  The  sum  assessed  is  therefore  (so  far  as  human  foresight  can 
anticipate  the  future)  the  exponent  of  the  substantial  increase  of  the  value  of  the 
land.  This  is  a  benefit  to  the  owner,  by  enlarging  his  credit  and  his  ability  to 
pay  his  debts  or  provide  for  his  family,  in  the  same  manner  and  to  the  same  extent 
as  if  his  fortune  was  increased  by  an  acquisition  of  property."  Greenville  and 
Columbia  R.R.  Co.  v.  Partlow,  5  Rich.  437.  And  see  Pennsylvania  R.R.  Co. 
v.  Reiley,  8  Penn.  St.  445;  Matter  of  Albany  Street,  11  Wend.  153;  Upton  v. 
South  Reading  Branch  R.R.,  8  Cush.  600  ;  Proprietors,  &c.  v.  Nashua  and  Lowell 
R.R.  Co.,  10  Cush.  385;  Mayor,  &c,  of  Lexington  v.  Long,  31  Mo.  369;  St. 
Louis,  &c,  R.R.  Co.  v.  Richardson,  45  Mo.  468;  Little  Miami  R.R.  Co.  v. 
Collett,  6  Ohio,  n.  s.  182;  Bigelow  v.  West  Wisconsin  R.R.  Co.,  27  Wis.  487. 
In  Newby  v.  Platte  County,  25  Mo.  358,  the  right  to  assess  benefits  was  referred 
to  the  taxing  power;  but  this  seems  not  necessary,  and  indeed  somewhat  difficult 
on  principle.     See  Sutton's  Heirs  v.  Louisville,  5  Dana,  30-34. 

[668] 


CH.  XV.]  THE    EMINENT    DOMAIN.  *  569 

*  But,  in  making  this  estimate,  there  must  be  excluded  [*  500] 
from  consideration  those  benefits  which  the  owner  receives 
only  in  common  with  the  community  at  large  in  conse- 
quence of  his  ownership  of  other  property,1  *  and  also  those  [*  570] 
incidental  injuries  to  other  property,  such  as  would  not 
give  to  other  persons  a  right  to  compensation,2  while  allowing  those 

1  Dickenson  v.  Inhabitants  of  Fitchburg,  13  Gray,  546 ;  Newby  v.  Platte 
County,  25  Mo.  258 ;  Pacific  R.R.  Co.  v.  Chrystal,  ib.  544 ;  Carpenter  v.  Lan- 
daff,  42  N.  H.  218;  Mount  Washington  Co.'s  Petition,  35  N.  H.  134;  Penrice 
v.  Wallis,  37  Miss.  172 ;  Palmer  Co.  v.  Ferrill,  17  Pick.  58  ;  Meacbam  v.  Fitch- 
burg R.R.  Co.,  4  Cush.  291,  where  the  jury  were  instructed  that,  if  they  were 
satisfied  that  the  laying  out  and  constructing  of  the  railroad  had  occasioned  any 
benefit  or  advantage  to  the  lands  of  the  petitioner  through  which  the  road  passed, 
or  lands  immediately  adjoining  or  connected  therewith,  rendering  the  part  not 
taken  for  the  railroad  more  convenient  or  useful  to  the  petitioner,  or  giving  it 
some  peculiar  increase  in  value  compared  with  other  lands  generally  in  the 
vicinity,  it  would  be  the  duty  of  the  jury  to  allow  for  such  benefit,  or  increase  of 
value,  by  way  of  set-off,  in  favor  of  the  railroad  company ;  but,  on  the  other 
hand,  if  the  construction  of  the  railroad,  by  increasing  the  convenience  of  the 
people  of  the  town  generally  as  a  place  for  residence,  and  by  its  anticipated  and 
probable  effect  in  increasing  the  population,  business,  and  general  prosperity  of 
the  place,  had  been  the  occasion  of  an  increase  in  the  salable  value  of  real  estate 
generally  near  the  station,  including  the  petitioner's  land,  and  thereby  occasion- 
ing a  benefit  or  advantage  to  him,  in  common  with  other  owners  of  real  estate  in 
the  vicinity,  this  benefit  was  too  contingent,  indirect,  and  remote  to  be  brought 
into  consideration  in  settling  the  question  of  damages  to  the  petitioner  for  taking 
his  particular  parcel  of  land.  Upton  v.  South  Reading  Branch  R.R.  Co.,  8  Cush. 
600.  It  has  sometimes  been  objected,  with  great  force,  that  it  was  unjust  and 
oppressive  to  set  off  benefits  against  the  loss  and  damage  which  the  owner  of  the 
property  sustains,  because  thereby  he  is  taxed  for  such  benefits,  while  his  neigh- 
bors, no  part  of  whose  land  is  taken,  enjoy  the  same  benefits  without  the  loss ; 
and  the  courts  of  Kentucky  have  held  it  to  be  unconstitutional,  and  that  full  com- 
pensation for  the  land  taken  must  be  made  in  money  Sutton  v.  Louisville,  5 
Dana,  28;  Rice  v.  Turnpike  Co.,  7  Dana,  81 ;  Jacob  v.  Louisville,  9  Dana,  114. 
And  some  other  States  have  established,  by  their  constitutions,  the  rule  that  ben- 
efits shall  not  be  deducted.  See  Deaton  v.  County  of  Polk,  9  Iowa,  596  ;  Giesy 
v.  Cincinnati,  W.  and  Z.  R.R.  Co.,  4  Ohio,  n.  s.  308 ;  Woodfolk  v.  Nashville 
R.R.  Co.,  2  Swan,  422.  But  the  cases  generally  adopt  the  doctrine  stated  in 
the  text;  and  if  the  owner  is  paid  his  actual  damages,  he  lias  no  occasion  to 
complain  because  his  neighbors  are  fortunate  enough  to  receive  a  benefit.  Green- 
ville and  Columbia  R.R.  Co.  v.  Partlow,  5  Rich.  438;  Mayor,  &c,  of  Lexington 
v.  Long,  31  Mo.  369. 

2  Somerville,  &c,  R.R.  Co.  ads.  Doughty,  2  Zab.  495;  Dorian  v.  East  Bran- 
dywine,  &c,  R.R.  Co.,  46  Penn.  St.  520;  Proprietors,  &c.  v.  Nashua  and  Lowell 
R.R.  Co.,  10  Cush.  385;  Louisville  and  Nashville  R.R.  Co.  r.  Thompson,  18  B. 
Monr.  735 ;  Winona  and  St.  Peter's  R.R.  Co.  v.  Dentnan,  10  Minn.  267. 

[  669  ] 


*  570  CONSTITUTIONAL    LIMITATIONS.  [CH.  XV. 

which  directly  affect  the  value  of  the  remainder  of  the  land  not 
taken  ;  such  as  the  necessity  for  increased  fencing,  and  the  like.1 
And  if  an  assessment  on  these  principles  makes  the  benefits  equal 
the  damages,  and  awards  the  owner  nothing,  he  is  nevertheless  to 
be  considered  as  having  received  full  compensation,  and  conse- 
quently as  not  being  in  position  to  complain.2 

The  statutory  assessment  of  compensation  will  cover  all  conse- 
quential damages  which  the  owner  of  the  land  sustains  by  means 

of  the  construction  of  the  work,  except  such  as  may  result 
[*  571]  from  *  negligence  or  improper  construction,3  and  for  which 

an  action  at  the  common  law  will  lie,  as  already  stated. 

1  Pennsylvania  R.R.  Co.  v.  Reiley,  8  Penn.  St.  445  ;  Greenville  and  Columbia 
R.R.  Co.  v.  Partlow,  5  Rich.  439;  Dearborn  v.  Railroad  Co.,  4  Fost.  179;  Car- 
penter v.  Landaff,  42  N.  H.  220;  Dorian  v.  East  Brandywine,  &c.,  R.R.  Co., 
46  Penn.  St.  520;  Winona  and  St.  Peter's  R.R.  Co.  v.  Denman,  10  Minn.  267; 
Mount  Washington  Co.'s  Petition,  35  N.  H.  134.  Where  a  part  of  a  meeting- 
house lot  was  taken  for  a  highway,  it  was  held  that  the  anticipated  annoyance  to 
worshippers  by  the  use  of  the  way  by  noisy  and  dissolute  persons  on  the  Sabbath 
could  form  no  basis  for  any  assessment  of  damages.  First  Parish  in  Woburn  v. 
Middlesex  County,  7  Gray,  106. 

2.  White  v.  County  Commissioners  of  Norfolk,  2  Cush.  361  ;  Whitman  v.  Bos- 
ton and  Maine  R.R.  Co.,  3  Allen,  133 ;  Nichols  v.  Bridgeport,  23  Conn.  189. 
But  it  is  not  competent  for  the  commissioners  who  assess  the  compensation  to 
require  that  which  is  to  be  made  to  be  in  whole  or  in  part  in  any  thing  else  than 
money.  An  award  of  "  one  hundred  and  fifty  dollars,  with  a  wagon-way  and 
stop  for  cattle,"  is  void,  as  undertaking  to  pay  the  owner  in  part  in  conveniences 
to  be  furnished  him,  and  which  he  may  not  want,  and  certainly  cannot  be  com- 
pelled to  take  instead  of  money.  Central  Ohio  R.R.  Co.  v.  Holler,  7  Ohio, 
n.  s.  225. 

3  Philadelphia  and  Reading  R.R.  Co.  v.  Yeiser,  8  Penn.  St.  366  ;  O'Connor 
v.  Pittsburg,  18  Penn.  St.  187;  Aldrich  v.  Cheshire  R.R.  Co.,  1  Fost.  359; 
Dearborn  v.  Boston,  Concord,  and  Montreal  R.R.  Co.,  4  Fost.  179  ;  Eaton  v. 
Boston  R.R.  Co.,  51  N.  H.  504;  Dodge  v.  County  Commissioners,  3  Met.  380; 
Brown  v.  Providence,  W.  and  B.  R.R.  Co.,  5  Gray,  35;  Mason  v.  Kennebec 
and  Portland  R.R.  Co.,  31  Me.  215;  Bellinger  v.  N.  Y.  Central  R.R.  Co.,  23 
N.  Y.  42;  Hatch  v.  Vt.  Central  R.R.  Co.,  25  Vt.  49;  Slatten  v.  Des  Moines 
Valley  R.R.  Co.,  29  Iowa,  154.  A  corporation  appropriating  property  under  the 
right  of  eminent  domain  is  always  liable  for  any  abuse  of  the  privilege  or  neglect 
of  duty  under  the  law  under  which  they  proceed.  Fehr  v.  Schuylkill  Nav.  Co., 
69  Penn.  St.  161;  Eaton  v.  Boston,  C.  and  M.  R.R.  Co.,  51  N.  H.  504;  Terre 
Haute,  &c,  R.R.  Co.  v.  McKinley,  33  Ind.  274. 

[G70] 


CH.  XVI.]  THE   POLICE   POWER   OP   THE   STATES.  *  572 


^CHAPTER    XVI.  [*572] 

THE   POLICE   POWER   OF   THE   STATES. 

Ox  questions  of  conflict  between  national  and  State  authority, 
and  on  questions  whether  the  State  exceeds  its  just  powers  in  deal- 
ing with  the  property  and  restraining  the  actions  of  individuals,  it 
often  becomes  necessary  to  consider  the  extent  and  proper  bounds 
of  a  power  in  the  States,  which,  like  that  of  taxation,  pervades 
every  department  of  business  and  reaches  to  every  interest  and 
every  subject  of  profit  or  enjoyment.  We  refer  to  what  is  known 
as  the  police  power. 

The  police  of  a  State,  in  a  comprehensive  sense,  embraces  its 
system  of  internal  regulation,  by  which  it  is  sought  not  only  to 
preserve  the  public  order  and  to  prevent  offences  against  the  State, 
but  also  to  establish  for  the  intercourse  of  citizen  with  citizen 
those  rules  of  good  manners  and  good  neighborhood  which  are 
calculated  to  prevent  a  conflict  of  rights,  and  to  insure  to  each  the 
uninterrupted  enjoyment  of  his  own,  so  far  as  is  reasonably  con- 
sistent with  a  like  enjoyment  of  rights  by  others.1 

In  the  present  chapter  we  shall  take  occasion  to  speak  of  the 
police  power  principally  as  it  affects  the  use  and  enjoyment  of 
property  ;  the  object  being  to  show  the  universality  of  its  presence, 

1  Biackstone  defines  the  public  police  and  economy  as  "the  due  regulation 
and  domestic  order  of  the  kingdom,  whereby  the  inhabitants  of  a.  State,  like 
members  of  a  well-governed  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."  4  Bl.  Com. 
162.  Jeremy  Bentham,  in  his  General  View  of  Public  Offences,  has  this  defini- 
tion:  "  Police  is  in  general  a  system  of  precaution,  either  for  the  prevention  of 
crimes  or  of  calamities.  Its  business  may  be  distributed  into  eight  distinct 
branches  :  1.  Police  for  the  prevention  of  offences  ;  2.  Police  for  the  prevention 
of  calamities;  3.  Police  for  the  prevention  of  endemic  diseases;  4.  Police  of 
charity  ;  5.  Police  of  interior  communications  ;  6.  Police  of  public  amusements ; 
7.  Police  for  recent  intelligence  ;  8.  Police  for  registration."  Edinburgh  Ed.  of 
Works,  Part  LX.  p.  157. 

[671] 


*  572  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

and  to  indicate,  so  far  as  may  be  practicable,  the  limits  which  set- 
tled principles  of  constitutional  law  assign  to  its  interference. 

"  We  think  it  is  a  settled  principle,"  says  Chief  Justice 
[*  573]  Shaw,  *  "  growing  out  of  the  nature  of  well-ordered  civil 
society,  that  every  holder  of  property,  however  absolute 
and  unqualified  may  be  his  title,  holds  it  under  the  implied  liability 
that  his  use  of  it  shall  not  be  injurious  to  the  equal  enjoyment  of 
others  having  an  equal  right  to  the  enjoyment  of  their  property, 
nor  injurious  to  the  rights  of  the  community.  All  property  in  this 
Commonwealth  is  .  .  .  held  subject  to  those  general  regulations 
which  are  necessary  to  the  common  good  and  general  welfare. 
Eights  of  property,  like  all  other  social  and  conventional  rights, 
are  subject  to  such  reasonable  limitations  in  their  enjoyment  as 
shall  prevent  them  from  being  injurious,  and  to  such  reasonable 
restraints  and  regulations  established  by  law  as  the  legislature, 
under  the  governing  and  controlling  power  vested  in  them  by  the 
constitution,  may  think  necessary  and  expedient.  This  is  very  dif- 
ferent from  the  right  of  eminent  domain, —  the  right  of  a  govern- 
ment to  take  and  appropriate  private  property  whenever  the  public 
exigency  requires  it,  which  can  be  done  only  on  condition  of  pro- 
viding a  reasonable  compensation  therefor.  The  power  we  allude 
to  is  rather  the  police  power ;  the  power  vested  in  the  legislature 
by  the  constitution  to  make,  ordain,  and  establish  all  manner  of 
wholesome  and  reasonable  laws,  statutes,  and  ordinances,  either 
with  penalties  or  without,  not  repugnant  to  the  constitution,  as 
they  shall  judge  to  be  for  the  good  and  welfare  of  the  Common- 
wealth, and  of  the  subjects  of  the  same.  It  is  much  easier  to  per- 
ceive and  realize  the  existence  and  sources  of  this  power  than  to 
mark  its  boundaries,  or  prescribe  limits  to  its  exercise."  1 

"  This  police  power  of  the  State,"  says  another  eminent  judge, 
"  extends  to  the  protection  of  the  lives,  limbs,  health,  comfort,  and 
quiet  of  all  persons,  and  the  protection  of  all  property  within  the 
State.     According;   to   the    maxim,  Sic  utere  tuo  ut  alienum  non 


1  Commonwealth  v.  Alger,  7  Cush.  84.  See  also  Commonwealth  v.  Tewks- 
bury,  11  Met.  57;  Hart  v.  Mayor,  &c,  of  Albany,  9  Wend.  571;  New  Albany 
and  Salem  R.R.  Co.  v.  Tilton,  12  Ind.  3 ;  Indianapolis  and  Cincinnati  R.R.  Co. 
v.  Kercheval,  16  Ind.  8-4 ;  Ohio  and  Mississippi  R.R.  Co.  v.  McClelland,  25 
111.  140;  People  v.  Draper,  25  Barb.  374;  Baltimore  v.  State,  15  Md.  390; 
Police  Commissioners  v.  Louisville,  3  Bush,  597  ;  Wynehamer  v.  People,  13 
N.  Y.  402. 

[672] 


CH.  XVI.]  THE   POLICE   POWER   OF   THE   STATES.  *  573 

Icedas,  which  being  of  universal  application,  it  must,  of  course,  be 
within  the  range  of  legislative  action  to  define  the  mode  and  man- 
ner in  which  every  one  may  so  use  his  own  as  not  to  injure 
others."  And  again:  [By  this]  "general  police  power  of  the 
State,  persons  and  property  are  subjected  to  all  kinds  of  restraints 
and  burdens,  in  order  to  secure  the  general  comfort, 
health,  and  prosperity  of  the  *  State  ;  of  the  perfect  right  [*  574] 
in  the  legislature  to  do  which,  no  question  ever  was,  or, 
upon  acknowledged  general  principles,  ever  can  be  made,  so  far 
as  natural  persons  are  concerned."1 

In  the  American  constitutional  system,  the  power  to  establish 
the  ordinary  regulations  of  police  has  been  left  with  the  individual 
States,  and  cannot  be  assumed  by  the  national  government.2 
Neither  can  the  national  government  through  any  of  its  depart- 
ments or  officers  assume  any  supervision  of  the  police  regulations 
of  the  States,  so  long  as  they  do  not  invade  the  sphere  of  national 
sovereignty,  and  obstruct  or  impede  the  exercise  of  any  authority 
which  the  constitution  has  confided  to  the  nation.3     But  on  the 

1  Redfield,  Ch.  J.,  in  Thorpe  v.  Rutland  and  Burlington  R.R.  Co.,  27  Vt.  149. 
See  the  maxim,  Sic  utere,  &c,  — "  Enjoy  your  own  property  in  such  manner  as 
not  to  injure  that  of  another,"  —  in  Broom,  Legal  Maxims,  5th  Am.  ed.  p.  327. 
See  also  Turbeville  v.  Stampe,  1  Ld.  Raym.  2G4,  and  1  Salk.  13;  Jeffries  v. 
Williams,  5  Exch.  792  ;  Humphries  v.  Brogden,  12  Q.  B.  739 ;  Pixley  v.  Clark 
35  N.  Y.  520. 

2  So  decided  in  United  States  v.  DeWitt,  9  Wall.  41,  in  which  a  section  of  the 
Internal  Revenue  Act  of  1867  —  which  undertook  to  make  it  a  misdemeanor  to 
mix  for  sale  naphtha  and  illuminating  oils,  or  to  sell  oil  of  petroleum  inflammable 
at  a  less  temperature  than  110°  Fahrenheit  —  was  held  to  be  a  mere  police  regu- 
lation, and  as  such  void  within  the  States. 

3  See  this  subject  considered  at  large  in  the  License  Cases,  5  How.  501,  and 
the  Passenger  Cases,  7  How.  283.  Congress  has  no  power  to  authorize  a  busi- 
ness within  a  State  which  is  pi-ohibited  by  the  State.  License  Tax  Cases,  5  Wall. 
471,  per  Chase,  Ch.  J.  A  claim  has  recently  been  advanced  at  New  Orleans, 
that  the  Civil  Rights  Bill,  in  connection  with  the  new  amendments  to  the  national 
Constitution,  has  so  far  enlarged  the  jurisdiction  of  the  Federal  Courts,  as  to 
authorize  them,  at  the  suit  of  citizens  of  a  State,  to  review  one  of  its  statutes 
purporting  to  establish  a  police  regulation,  and  to  adjudge  it  void  if  in  their 
opinion  it  wrongfully  abridged  the  right  of  citizens  to  follow  a  lawful  employ- 
ment ;  but  this  claim  has  not  been  sustained  either  in  the  Supreme  Court  of 
Louisiana,  or  in  the  Federal  Supreme  Court.  See  Live  Stock,  &c,  Association 
v.  Crescent  City,  &c,  Co.,  recently  decided  in  the  latter  court;  Story  on  Const. 
Appendix  to  Vol.  2. 

In  State  v.  Hairston,  63  N.  C.  451,  it  was  decided  that  the  recent  amend- 

43  [  673  ] 


*  574  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

other  hand  it  is  easy  to  see  that  the  power  in  the  States  might  be 
so  employed  as  to  interfere  with  the  jurisdiction  of  the  general 
government ;  and  some  of  the  most  serious  questions  regarding  the 
police  of  the  States  concern  the  cases  in  which  authority  has  been 
conferred  upon  Congress.  In  those  cases  it  has  sometimes  been 
claimed  that  the  ordinary  police  jurisdiction  is  by  necessary  impli- 
cation excluded,  and  that,  if  it  were  not  so,  the  State  would  be 
found  operating  within  the  sphere  of  the  national  powers,  and 
establishing  regulations  which  would  either  abridge  the  rights 
which  the  national  Constitution  undertakes  to  render  absolute,  or 
burden  the  privileges  which  are  conferred  by  law  of  Congress,  and 
which  therefore  cannot  properly  be  subject  to  the  interference  or 
control  of  any  other  authority.  But  any  accurate  statement  of  the 
theory  upon  which  the  police  power  rests  will  render  it  apparent 
that  a  proper  exercise  of  it  by  the  State  cannot  come  in  conflict 
with  the  provisions  of  the  Constitution  of  the  United  States.  If 
the  power  extends  only  to  a  just  regulation  of  rights  with  a  view 
to  the  due  protection  and  enjoyment  of  all,  and  does  not  deprive 
any  one  of  that  which  is  justly  and  properly  his  own,  it  is  obvious 
that  its  possession  by  the  State,  and  its  exercise  for  the  regulation 
of  the  property  and  actions  of  its  citizens,  cannot  well  constitute  an 
invasion  of  national  jurisdiction,  or  afford  a  basis  for  an  appeal  to 
the  protection  of  the  national  authorities. 

The  occasions  to  consider  this  subject  in  its  bearings  upon  the 
clause  of  the  Constitution  of  the  United  States  which  forbids  the 
States  passing  any  laws  violating  the  obligation  of  contracts  have 
been  frequent  and  varied ;  and  it  has  been  held  without  dissent 
that  this  clause  does  not  so  far  remove  from  State  control  the 
rights  and  properties  which  depend  for  their  existence  or  enforce- 
ment upon  contracts,  as  to  relieve  them  from  the  operation  of  such 
general  regulations  for  the  good  government  of  the  State  and  the 
protection  of  the  rights  of  individuals  as  may  be  deemed  important. 
All  contracts  and  all  rights,  it  is  declared,  are  subject  to  this  power  ; 
and  not  only  may  regulations  which  affect  them  be  established  by 
the  State,  but  all  such  regulations  must  be  subject  to  change  from 
time  to  time,  as  the  general  well-being  of  the  community  may 

ments  to  the  national  Constitution  bave  not  bad  the  effect  to  repeal  a  State  law 
forbidding  marriages  between  white  persons  and  negroes.  And  see  ante,  391, 
note. 

[674] 


CH.  XVI.]  THE   POLICE   POWER   OP   THE   STATES.  *  574 

require,  or  as  the  circumstances  may  change,  or  as  experience 
may  demonstrate  the  necessity.1 

1  In  the  case  of  Thorpe  v.  Rutland  and  Burlington  R.R.  Co.,  27  Vt.  140,  a 
question  arose  under  a  provision  in  the  Vermont  General  Railroad  Law  of  1849, 
which  required  each  railroad  corporation  to  erect  and  maintain  fences  on  the  line 
of  their  road,  and  also  cattle  guards  at  all  farm  and  road  crossings,  suitable  and 
sufficient  to  prevent  cattle  and  other  animals  from  getting  upon  the  railroad,  and 
which  made  the  corporation  and  its  agents  liable  for  all  damages  which  should 
be  done  by  their  agents  or  engines  to  cattle,  horses,  or  other  animals  thereon,  if 
occasioned  by  the  want  of  such  fences  and  cattle  guards.  It  was  not  disputed 
that  this  provision  would  be  valid  as  to  such  corporations  as  might  be  afterwards 
created  within  the  State ;  but  in  respect  to  those  previously  in  existence,  and 
whose  charters  contained  no  such  provision,  it  was  claimed  that  this  legislation 
was  inoperative,  since  otherwise  its  effect  would  be  to  modify,  and  to  that  extent 
to  violate,  the  obligation  of  the  charter-contract.  "  The  case,"  say  the  court, 
"  resolyes  itself  into  the  narrow  question  of  the  right  of  the  legislature,  by  gen- 
eral statute,  to  require  all  railways,  whether  now  in  operation  or  hereafter  to  be 
chartered  or  built,  to  fence  their  roads  upon  both  sides,  and  provide  sufficient 
cattle  guards  at  all  farm  and  road  crossings,  under  penalty  of  paying  all  damages 
caused  by  their  neglect  to  comply  with  such  requirements  .  .  .  We  think  the 
power  of  the  legislature  to  control  existing  railways  in  this  respect  may  be  found 
in  the  general  control  over  the  police  of  the  country,  which  resides  in  the  law- 
making power  in  all  free  States,  and  which  is,  by  the  fifth  article  of  the  bill  of 
rights  of  this  State,  expressly  declared  to  reside  perpetually  and  inalienably  in 
the  legislature ;  which  is,  perhaps,  no  more  than  the  enunciation  of  a  general 
principle  applicable  to  all  free  States,  and  which  cannpt  therefore  be  violated  so 
as  to  deprive  the  legislature  of  the  power,  even  by  express  grant  to  any  mere 
public  or  private  corporation.  And  when  the  regulation  of  the  police  of  a  city  or 
town,  by  general  ordinances,  is  given  to  such  towns  and  cities,  and  the  regula- 
tion of  their  own  internal  police  is  given  to  railroads  to  be  carried  into  effect  by 
their  by-laws  and  other  regulations,  it  is  of  course  always,  in  all  such  cases,  sub- 
ject to  the  superior  control  of  the  legislature.  That  is  a  responsibility  which 
legislatures  cannot  devest  themselves  of  if  they  would. 

"  So  far  as  railroads  are  concerned,  this  police  power  which  resides  primarily 
and  ultimately  in  the  legislature  is  twofold:  1.  The  police  of  the  roads,  which, 
in  the  absence  of  legislative  control,  the  corporations  themselves  exercise  over 
their  operatives,  and  to  some  extent  over  all  who  do  business  with  them,  or  come 
upon  their  grounds,  through  their  general  statutes,  and  by  their  officers.  We 
apprehend  there  can  be  no  manner  of  doubt  that  the  legislature  may,  if  they 
deem  the  public  good  requires  it,  of  which  they  are  to  judge,  and  in  all  doubtful 
cases  their  judgment  is  final,  require  the  several  railroads  in  the  State  to  establish 
and  maintain  the  same  kind  of  police  which  is  now  observed  upon  some  of  the 
more  important  roads  in  the  country  for  their  own  security,  or  even  such  a  police 
as  is  found  upon  the  English  railways,  and  those  upon  the  continent  of  Europe. 
No  one  ever  questioned  the  right  of  the  Connecticut  legislature  to  require  trains 
upon  all  of  their  railroads  to  come  to  a  stand  before  passing  draws  in  bridges  ;  or 

[675] 


*  575  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

[*  575]  *  Perhaps  the  most  striking  illustrations  of  the  principle 
here  stated  will  be  found  among  the  judicial  decisions 
[*  576]  which  have  held  *  that  the  rights  insured  to  private  cor- 
porations by  their  charters,  and  the  manner  of  their  exer- 
cise, are  subject  to  such  new  regulations  as  from  time  to  time  may 
be  made  by  the  State  with  a  view  to  the  public  protection,  health, 

of  the  Massachusetts  legislature  to  require  the  same  thing  before  passing  another 
railroad.  And  by  parity  of  reasoning  may  all  railways  be  required  so  to  conduct 
themselves  as  to  other  persons,  natural  or  corporate,  as  not  unreasonably  to  injure 
them  or  their  property.  And  if  the  business  of  railways  is  specially  dangerous, 
they  may  be  required  to  bear  the  expense  of  erecting  such  safeguards  as  will 
render  it  ordinarily  safe  to  others,  as  is  often  required  of  natural  persons  under 
such  circumstances. 

"  There  would  be  no  end  of  illustrations  upon  this  subject.  ...  It  maybe 
extended  to  the  supervision  of  the  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  axle- 
trees,  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  a  thousand  similar  things,  most  of  which  have  been 
made  the  subject  of  legislation  or  judicial  determination,  and  all  of  which  maybe. 
Hegeman  v.  Western  R.  Co.,  1G  Barb.  353. 

"  2.  There  is  also  the  general  police  power  of  the  State,  by  which  persons  and 
property  are  subjected  to  all  kinds  of  restraints  and  burdens,  in  order  to  secure 
the  general  comfort,  healtb,  and  prosperity  of  the  State ;  of  the  perfect  right  in 
the  legislature  to  do  which#no  question  ever  was,  or,  upon  acknowledged  general 
principles,  ever  can  be,  made,  so  far  as  natural  persons  are  concerned.  And  it  is 
certainly  calculated  to  excite  surprise  and  alarm  that  the  right  to  do  the  same  in 
regard  to  railways  should  be  made  a  serious  question."  And  the  court  proceed 
to  consider  the  various  cases  in  which  the  right  of  the  legislature  to  regulate  mat- 
ters of  private  concern  with  reference  to  the  general  public  good  has  been  acted 
upon  as  unquestioned,  or  sustained  by  judicial  decisions,  and  quote,  as  pertinent 
to  the  general  question  of  what  laws  are  prohibited  on  the  ground  of  impairing 
the  obligation  of  contracts,  the  language  of  Chief  Justice  Marshall  in  Dartmouth 
College  v.  Woodward,  4  Wheat.  518,  629,  that  "the  framers  of  the  Constitution 
did  not  intend  to  restrain  the  States  in  the  regulation  of  their  civil  institutions, 
adopted  for  internal  government,  and  that  the  instrument  they  have  given  us  is 
not  to  be  so  construed."  See,  to  the  same  effect,  Suydam  v.  Moore,  8  Barb. 
358;  Waldron  v.  Rensselaer  and  Saratoga  R.R.  Co.,  8  Barb.  390;  Galena  and 
Chicago  U.  R.R.  Co.  v.  Loomis,  13  111.  548;  Fitchburg  R.R.  v.  Grand  Junction 
R.R.  Co.,  1  Allen,  552;  Veazie  v.  Mayo,  45  Me.  560;  Peters  v.  Iron  Mountain 
R.R.  Co.,  23  Mo.  107;  Grannahan  v. 'Hannibal,  &c,  R.R.  Co.,  30  Mo.  546; 
Indianapolis  and  Cincinnati  R.R.  Co.  v.  Kercheval,  16  Ind.  81 ;  Galena  and 
Chicago  U.  R.R.  Co.  v.  Appleby,  28  111.  283;  Blair  v.  Milwaukee,  &c,  R.R. 
Co.,  20  Wis.  254;  State  v.  Mathews,  44  Mo.  523;  Commissioners,  &c.  v.  IIol- 
yoke  Water  Power  Co.,  104  Mass.  446. 

[676] 


CH.  XVI.]  THE   POLICE   POWER   OP   THE   STATES.  *  576 

and  safety,  and  in  order  to  guard  properly  the  rights  of  other  indi- 
viduals and  corporations.  Although  these  charters  are  to  be  re- 
garded as  contracts,  and  the  rights  assured  by  them  are  inviolable, 
it  does  not  follow  that  these  rights  are  at  once,  by  force  of  the 
charter-contract,  removed  from  the  sphere  of  State  regulation,  and 
that  the  charter  implies  an  undertaking,  on  the  part  of  the 
State,  that  in  the  same  way  in  which  their  exercise  is  *  per-  [*  577] 
missible  at  first,  and  under  the  regulations  then  existing, 
and  those  only,  may  the  corporators  continue  to  exercise  their 
rights  while  the  artificial  existence  continues.  The  obligation  of 
the  contract  by  no  means  extends  so  far;  but,  on  the  contrary, 
the  rights  and  privileges  which  come  into  existence  under  it  are 
placed  upon  the  same  footing  with  other  legal  rights  and  privileges 
of  the  citizen,  and  subject  in  like  manner  to  proper  rules  for  their 
due  regulation,  protection,  and  enjoyment. 

The  limit  to  the  exercise  of  the  police  power  in  these  cases  must 
be  this :  the  regulations  must  have  reference  to  the  comfort,  safety, 
or  welfare  of  society  ;  they  must  not  be  in  conflict  with  any  of  the 
provisions  of  the  charter  ;  and  they  must  not,  under  pretence  of 
regulation,  take  from  the  corporation  any  of  the  essential  rights 
and  privileges  which  the  charter  confers.  In  short,  they  must  be 
police  regulations  in  fact,  and  not  amendments  of  the  charter  in 
curtailment  of  the  corporate  franchise.1  The  maxim,  Sic  utere  tuo 
ut  alienum  non  Icedas,  is  that  which  lies  at'  the  foundation  of  the 

1  Washington  Bridge  Co.  v.  State,  18  Conn.  53;  Bailey  v.  Philadelphia,  &c., 
R.R.  Co.,  4  Harr.  389;  State  v.  Noyes,  47  Me.  189;  Pingrey  v.  Washburn, 
1  Aiken,  268;  Miller  v.  N.  Y.  and  Erie  R.R.  Co.,  21  Barb.  513;  People  v. 
Jackson  and  Michigan  Plank  Road  Co.,  9  Mich.  307.  In  Benson  v.  Mayor,  &c., 
of  New  York,  10  Barb.  245,  it  is  said,  in  considering  a  ferry  right  granted  to  a 
city :  "  Franchises  of  this  description  are  partly  of  a  public  and  partly  of  a  pri- 
vate nature.  So  far  as  the  accommodation  of  passengers  is  concerned,  they  are 
publici  juris  :  so  far  as  they  require  capital  and  produce  revenue,  they  are  privati 
juris.  Certain  duties  and  burdens  are  imposed  upon  the  grantees,  who  are  com- 
pensated therefor  by  the  privilege  of  levying  ferriage  and  security  from  spoliation 
arising  from  the  irrevocable  nature  of  the  grant.  The  State  may  legislate  touch- 
ing them,  so  far  as  they  are  publici  juris.  Thus,  laws  may  be  passed  to  punish 
neglect  or  misconduct  in  conducting  the  ferries,  to  secure  the  safety  of  passengers 
from  danger  and  imposition,  &c.  But  the  State  cannot  take'  away  the  ferries 
themselves,  nor  deprive  the  city  of  their  legitimate  rents  and  profits."  And 
see  People  v.  Mayor,  &c,  of  New  York,  32  Barb.  102,  116;  Commonwealth 
v.  Pennsylvania  Canal  Co.,  66  Penn.  St.  41 ;  Hegemen  v.  Western  R.R.,  13 
N.  Y.  1. 

[677] 


*  577  CONSTITUTIONAL  LIMITATIONS.  [CH.  XVI. 

power  ;  and  to  whatever  enactment  affecting  the  management  and 
business  of  private  corporations  it  cannot  fairly  be  applied,  the 
power  itself  will  not  extend.  It  has  accordingly  been  held  that 
where  a  corporation  was  chartered  with  the  right  to  take  toll  from 
passengers  over  their  road,  a  subsequent  statute  authorizing  a 
certain  class  of  persons  to  go  toll  free  was  void.1     This  was  not  a 

regulation  of  existing  rights,  but  it  took  from  the  corpora- 
[*578]  tion  that  *  which  they  before  possessed,  namely,  the  right 

to  tolls,  and  conferred  upon  individuals  that  which  before 
they  had  not,  namely,  the  privilege  to  pass  over  the  road  free  of 
toll.  "  Powers,"  it  is  said  in  another  case,  "  which  can  only  be 
justified  on  this  specific  ground  [that  they  are  police  regulations], 
and  which  would  otherwise  be  clearly  prohibited  by  the  constitu- 
tion, can  be  such  only  as  are  so  clearly  necessary  to  the  safety, 
comfort,  and  well-being  of  society,  or  so  imperatively  required  by 
the  public  necessity,  as  to  lead  to  the  rational  and  satisfactory  con- 
clusion that  the  fraraers  of  the  constitution  could  not,  as  men  of 
ordinary  prudence  and  foresight,  have  intended  to  prohibit  their 
exercise  in  the  particular  case,  notwithstanding  the  language  of 
the  prohibition  would  otherwise  include  it."  2  And  it  was  there- 
fore held  that  an  act  subsequent  to  the  charter  of  a  plank-road 
company,  and  not  assented  to  by  the  corporators,  which  subjected 
them  to  a  total  forfeiture  of  their  franchises  for  that  which  by  the 
charter  was  cause  for  partial  forfeiture  only,  was  void  as  violating 
the  obligation  of  contracts.3  And  even  a  provision  in  a  corporate 
charter,  empowering  the  legislature  to  alter,  modify,  or  repeal  it, 
would  not  authorize  a  subsequent  act  which,  on  pretence  of  amend- 
ment, or  of  a  police  regulation,  would  have  the  effect  to  appropriate 
a  portion  of  the  corporate  property  to  the  public  use.4    And  where 

1  Pingrey  v.  Washburn,  1  Aiken,  268.  Of  course  the  charter  reserved  no 
right  to  make  such  an  amendment. 

8  Christiancy,  J.,  in  People  v.  Jackson  and  Michigan  Plank  Road  Co.,  9 
Mich.  307.    Compare  Commonwealth  v.  Pennsylvania  Canal  Co.,  66  Penn.  St.  41. 

3  Ibid.  And  see  State  v.  Noyes,  47  Me.  189.  Compare  Camden,  &c,  R.R. 
Co.  v.  Briggs,  2  N.  J.  623;  and  the  opinion  of  Bates,  Chancellor,  in  the  case  of 
Philadelphia,  &c,  R.R.  Co.  v.  Bowers,  just  decided  in  the  Delaware  Court  of 
Appeals,  in  which  an  act  regulating  freights  and  fares,  where  no  such  power  was 
reserved  in  the  charter,  was  held  void. 

4  The  reservation  of  a  right  to  amend  or  repeal  would  not  justify  an  act 
requiring  a  railroad  company  to  cause  a  proposed  new  street  or  highway  to  be 
taken  across  their  track,  and  to  cause  the  necessary  embankments,  excavations, 

[678] 


CH.  XVI.]  THE   POLICE   POWER   OF   THE   STATES.  *  578 

by  its  charter  the  corporation  was  empowered  to  construct  over  a 
river  a  certain  bridge,  which  must  necessarily  constitute  an  ob- 
struction to  the  navigation  of  "the  river,  a  subsequent  amendment 
making  the  corporation  liable  for  such  obstruction  was  held  void, 
as  in  effect  depriving  the  corporation  of  the  very  right  which  the 
charter  assured  to  it.1  So  where  the  charter  reserved  to  the  legis- 
lature the  right  of  modification  after  the  corporators  had  been 
reimbursed  their  expenses  in  constructing  the  bridge, 
with  twelve  per  cent  interest  thereon,  *  an  amendment  [*  579] 
before  such  reimbursement,  requiring  the  construction  of 
a  fifty-foot  draw  for  the  passage  of  vessels,  in  place  of  one  of  thirty- 
two  feet,  was  held  unconstitutional  and  void.2  So  a  power  to  a 
municipal  corporation  to  regulate  the  speed  of  railway  carriages 
would  not  authorize  such  regulation  except  in  the  streets  and  pub- 
lic grounds  of  the  city  ;  such  being  the  fair  construction  of  the 
power,  and  the  necessity  for  this  police  regulation  not  extending 
further.3 

On  the  other  hand,  the  right  to  require  existing  railroad  corpo- 
rations to  fence  their  track,  and  to  make  them  liable  for  all  beasts 
killed  by  going  upon  it,  has  been  sustained  on  two  grounds :  first, 
as  regarding  the  division  fence  between  adjoining  proprietors,  and 
in  that  view  being  but  a  reasonable  provision  for  the  protection  of 
domestic  animals  ;  and  second,  and  chiefly,  as  essential  to  the  pro- 
tection of  persons  being  transported   in  the  railway  carriages.4 

and  other  work  to  be  done  for  that  purpose  at  their  own  expense  ;  thus  not  only 
appropriating  a  part  of  their  property  to  another  public  use,  but  compelling  them 
to  fit  it  for  such  use.    Miller  v.  N.  Y.  and  Erie  R.R.  Co.,  21  Barb.  513. 

1  Bailey  v.  Philadelphia,  &c,  R.R.  Co.,  4  Harr.  389.  Compare  Common- 
wealth v.  Penn.  Canal  Co.,  66  Penn.  St.  41 ;  s.  c.  5  Am.  Rep.  329. 

2  Washington  Bridge  Co.  v.  State,  18  Conn.  53. 

3  State  v.  Jersey  City,  5  Dutch.  170.  In  Buffalo  and  Niagara  Falls  R.R.  Co. 
v.  Buffalo,  5  Hill,  209,  it  was  held  that  a  statutory  power  in  a  city  to  regulate  the 
running  of  cars  within  the  corporate  limits  would  justify  an  ordinance  entirely 
prohibiting  the  use  of  steam  for  propelling  cars  through  any  part  of  the  city. 
And  see  Great  Western  R.R.  Co.  v.  Decatur,  33  111.  381 ;  Branson  v.  Philadel- 
phia, 47  Penn.  St.  329  ;  Whitson  v.  Franklin,  34  Ind.  396. 

4  Thorpe  v.  Rutland  and  Burlington  R.R.  Co.,  27  Vt.  156;  New  Albany  and 
Salem  R.R.  Co.  v.  Tilton,  12  Ind.  3 ;  Same  v.  Maiden,  ib.  10 ;  Same  v.  McNam- 
ara,  11  Ind.  543;  Ohio  and  Mississippi  R.R.  Co.  v.  McClelland,  25  111.  145; 
Madison  and  Indianapolis  R.R.  Co.  v.  Whiteneck,  8  Ind.  230 ;  Indianapolis  and 
Cincinnati  R.R.  Co.  v.  Townsend,  10  Ind.  38;  Same  v.  Kercheval,  16  Ind.  84; 
Corwin  v.  N.  Y.  and  Erie  R.R.  Co.,  13  N.  Y.  42 ;  Horn  v.  Atlantic  and  St.  Law- 

[679] 


*  579  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

Having  this  double  purpose  in  view,  the  owner  of  beasts  killed  or 
injured  may  maintain  an  action  for  the  damage  suffered,  notwith- 
standing he  may  not  himself  be  free  from  negligence.1  But  it 
would,  perhaps,  require  an  express  legislative  declaration  that  the 

corporation  should  be  liable  for  the  beasts  thus  destroyed 
[*  580]  to  *  create  so  great  an  innovation  in  the  common  law.  The 

general  rule,  where  a  corporation  has  failed  to  obey  the 
police  regulations  established  for  its  government,  would  not  make 
the  corporation  liable  to  the  party  injured,  if  his  own  negligence 
contributed  with  that  of  the  corporation  in  producing  the  injury.2 

rence  R.R.  Co.,  35  N.  H.  169,  and  36  ib.  440;  Fawcett  v.  York  and  North  Mid- 
land R.  Co.,  15  Jur.  173 ;  Smith  v.  Eastern  R.R.  Co.,  35  N.  H.  356 ;  Bulkier  v. 
N.  Y.  and  N.  H.  R.R.  Co.,  27  Conn.  479;  Jones  v.  Galena,  &c.,R.R.  Co.,  16 
Iowa,  6;  Winona,  &c,  R.R.  Co.  v.  Waldron,  11  Minn.  515;  Bradley  v.  Buffalo, 
&c,  R.R.  Co.,  34  N.  Y.  429;  Sawyer  v.  Vermont,  &c,  R.R.  Co.,  105  Mass. 
196;  Pennsylvania  R.R.  Co.  v.  Riblet,  66  Penn.  St.  164;  s.  c.  5  Am.  Rep. 
860.  As  to  the  degree  of  care  required  of  railroad  companies  in  keeping  up  their 
fences,  compare  Antisdel  v.  Chicago,  &c,  R.R.  Co.,  26  Wis.  145  ;  Lemmon  v.  Chi- 
cago, &c,  R.R.  Co.,  32  Iowa,  151  ;  Chicago,  &c,  R.R.  Co.  v.  Barrie,  55  111.  226, 
and  cases  cited  therein.  A  statute  making  railroad  companies  liable  for  injuries 
by  fire  communicated  by  their  locomotive  engines  was  sustained  as  to  companies 
previously  in  existence,  in  Lyman  v.  Boston  and  Worcester  R.R.  Co.,  4  Cush. 
288.  And  see  Camden  and  Amboy  R.R.  Co.  v.  Briggs,  2  Zab.  623;  Trice  v. 
Hannibal,  &c,  R.R.  Co.,  49  Mo.  188. 

1  Corwin  v.  N.  Y.  and  Erie  R.R.  Co.,  13  N.  Y.  42;  Indianapolis  and  Cincin- 
nati R.R.  Co.  v.  Townsend,  10  Ind.  38;  Jeffersonville,  &c,  R.R.  Co.  v.  Nich- 
ols, 30  Ind.  321 ;  Same  v.  Parkhurst,  34  Ind.  501 ;  Suydam  v.  Moore,  8  Barb. 
358;  Fawcett  v.  York  and  North  Midland  R.  Co.,  15  Jur.  173;  Waldron  v. 
Rensselaer  and  Schenectady  R.R.  Co.,  8  Barb.  390 ;  Home  v.  Atlantic  and 
St.  Lawrence  R.R.  Co.,  35  N.  H.  169;  O'Bannon  v.  Louisville,  &c,  R.R.  Co., 
8  Bush,  348 ;  Illinois  Cent.  R.R.  Co.  v.  Arnold,  47  111.  173 ;  Hinman  v.  Chicago, 
&c,  R.R.  Co.,  28  Iowa,  491. 

2  Jackson  v.  Rutland  and  Burlington  R.R.  Co.,  25  Vt.  150.  And  see  Marsh 
v.  N.  Y.  and  Erie  R.R.  Co.,  14  Barb.  364;  Joliet  and  N.  I.  R.R.  Co.  v.  Jones, 
20  111.  221 ;  Tonawanda  R.R.  Co.  v.  Munger,  5  Denio,  255,  and  4  N.  Y.  255; 
Price  v.  New  Jersey  R.R.  Co.,  31  N.  J.  229;  Drake  v.  Philadelphia,  &c,  R.R. 
Co.,  51  Penn.  St.  240.  In  Indianapolis  and  Cincinnati  R.R.  Co.  v.  Kercheval,  16 
Ind.  84,  it  was  held  that  a  clause  in  the  charter  of  a  railroad  corporation  which 
declared  that  when  the  corporators  should  have  procured  a  right  of  way  as  therein 
provided,  they  should  be  seised  in  fee-simple  of  the  right  to  the  land,  and  should 
have  the  sole  use  and  occupation  of  the  same,  and  no  person,  body  corporate  or 
politic,  should  in  any  way  interfere  therewith,  molest,  disturb,  or  injure  any  of 
the  rights  and  privileges  thereby  granted,  &c,  would  not  take  from  the  State  the 
power  to  establish  a  police  regulation  making  the  corporation  liable  for  cattle 
killed  by  their  cars. 

[680] 


CH.  XVI.]  THE    POLICE    POWER   OP   THE   STATES.  *  580 

The  State  may  also  regulate  the  grade  of  railways,  and  prescribe 
how,  and  upon  what  grade,  railway  tracks  shall  cross  each  other  ; 
and  it  may  apportion  the  expense  of  making  the  necessary  cross- 
ings between  the  corporations  owning  the  roads.1  And  it  may 
establish  regulations  requiring  existing  railways  to  ring  the  bell 
or  blow  the  whistle  of  their  engines  immediately  before  passing 
highways  at  grade,  or  other  places  where  their  approach  might  be 
dangerous  to  travel.2  And  it  has  even  been  intimated  that  it 
might  be  competent  for  the  State  to  make  railway  corporations 
liable  as  insurers  for  the  safety  of  all  persons  carried  by  them,  in 
the  same  manner  that  they  are  by  law  liable  as  carriers  of  goods  ; 
though  this  would  seem  to  be  pushing  the  police  power  to 
an  *  extreme.3  But  those  statutes  which  have  recently  [*  581] 
become  common,  and  which  give  an  action  to  the  repre- 

1  Fitchburg  R.R.  Co.  v.  Grand  Junction  R.R.  Co.,  1  Allen,  552,  and  4  Allen, 
198. 

2  "  The  legislature  has  the  power,  by  general  laws,  from  time  to  time,  as  the 
public  exigencies  may  require,  to  regulate  corporations  in  their  franchises,  so  as 
to  provide  for  the  public  safety.  The  provision  in  question  is  a  mere  police 
regulation,  enacted  for  the  protection  and  safety  of  the  public,  and  in  no  manner 
interferes  with  or  impairs  the  powers  conferred  on  the  defendants  in  their  act  of 
incorporation."  Galena  and  Chicago  U.  R.R.  Co.  v.  Loomis,  13  111.  548.  And 
see  Stuvvesantw.  Mayor,  &c,  of  New  York,  7  Cow.  604;  Benson  v.  Mayor,  &c, 
of  New  York,  10  Barb.  240;  Bulkley  v.  N.  Y.  and  N.  H.  R.R.  Co.,  27  Conn. 
486 ;  Veazie  v.  Mayo,  45  Me.  560 ;  s.  c.  49  Me.  156 ;  Galena  and  Chicago  U. 
R.R.  Co.  v.  Dill,  22  111.  264;  Same  v.  Appleby,  28  111.  283;  Ohio  and  Missis- 
sippi R.R.  Co.  v.  McClelland,  25  111.  145;  Clark's  Adm'r  v.  Hannibal  and 
St.  Jo.  R.R.  Co.,  36  Mo.  202;  Chicago,  &c,  R.R.  Co.  v.  Triplett,  38  111. 
482;  Commonwealth  v.  Eastern  R.R.  Co.,  103  Mass.  254;  s.  c.  4  Am.  Rep. 
555. 

3  Thorpe  v.  Rutland  and  Burlington  R.R.  Co.,  27  Vt.  152.  Carriers  of  goods 
are  liable  as  insurers,  notwithstanding  they  may  have  been  guiltless  of  negligence, 
because  such  is  their  contract  with  the  shipper  when  they  receive  his  goods  for 
transportation  ;  but  carriers  of  persons  assume  no  such  obligations  at  the  common 
law ;  and  where  a  company  of  individuals  receive  from  the  State  a  charter  which 
makes  them  carriers  of  persons,  and  chargeable  as  such  for  their  own  default  or 
negligence  only,  it  may  well  be  doubted  if  it  be  competent  for  the  legislature 
afterwards  to  impose  upon  their  contracts  new  burdens,  and  make  them  respond 
in  damages  where  they  have  been  guilty  of  no  default.  In  other  words,  whether 
that  could  be  a  proper  police  regulation  which  did  not  assume  to  regulate  the 
business  of  the  carrier  with  a  view  to  the  just  protection  of  the  rights  and  inter- 
ests of  others,  but  which  imposed  a  new  obligation,  for  the  benefit  of  others,  upon 
a  party  guilty  of  no  neglect  of  duty.  But  perhaps  such  a  regulation  would  not  go 
further  than  that  in  Stanley  v.  Stanley,  26  Me.  191,  where  it  was  held  competent 

[681] 


*  581  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

sentatives  of  persons  killed  by  the  wrongful  act,  neglect,  or  default 
of  another,  may  unquestionably  be  made  applicable  to  corporations 
previously  chartered,  and  may  be  sustained  as  only  giving  a  rem- 
edy for  a  wrong  for  which  the  common  law  had  failed  to  make 
provision.1  And  it  cannot  be  doubted  that  there  is  ample  power 
in  the  legislative  department  of  the  State  to  adopt  all  necessary 
legislation  for  the  purpose  of  enforcing  the  obligations  of  railway 
companies  as  carriers  of  persons  and  goods  to  accommodate  the 
public  impartially,  and  to  make  every  reasonable  provision  for 
carrying  with  safety  and  expedition.2 

Those  statutes  which  regulate  or  altogether  prohibit  the  sale  of 
intoxicating  drinks  as  a  beverage  have  also  been,  by  some  persons, 
supposed  to  conflict  with  the  Federal  Constitution.  Such  of  these, 
however,  as  assume  to  regulate  only,  and  to  prohibit  sales  by  other 
persons  than  those  who  should  be  licensed  by  the  public  author- 
ities, have  not  suggested  any  serious  question  of  constitutional 
power.  They  are  but  the  ordinary  police  regulations,  such  as  the 
State  may  make  in  respect  to  all  classes  of  trade  or  employment.3 
But  those  which  undertake  altogether  to  prohibit  the  manufacture 
and  sale  of  intoxicating  drinks  as  a  beverage  have  been  assailed 

for  the  legislature  to  pass  an  act  making  the  stockholders  of  existing  banks  liable 
for  all  corporate  debts  thereafter  created  ;  or  in  Peters  v.  Iron  Mountain  R.R.  Co., 
23  Mo.  107,  and  Grannahan  v.  Hannibal,  &c,  R.R.  Co.,  30  Mo.  546,  where  an 
act  was  sustained  which  made  companies  previously  chartered  liable  for  the  debts 
of  contractors  to  the  workmen  whom  they  had  employed. 

1  Southwestern  R.R.  Co.  v.  Paulk,  24  Geo.  356  ;  Coosa  River  Steamboat  Co. 
v.  Barclay,  30  Ala.  120.  In  Boston,  Concord,  and  Montreal  R.R.  v.  State,  32 
N.  H.  215,  a  statute  making  railroad  corporations  liable  to  indictment  and  fine, 
in  case  of  the  loss  of  life  by  the  negligence  or  carelessness  of  the  proprietors  or 
their  servants,  was  adjudged  constitutional,  as  applicable  to  corporations  pre- 
viously in  existence. 

2  On  this  subject  in  general,  see  Redf.  on  Railw.  c.  32,  c.  2 ;  Louisville,  &c, 
R.R.  Co.  v.  Burke,  6  Cold.  45;  New  Albany  and  Salem  R.R.  Co.  v.  Tilton,  12 
Ind.  3 ;  Buckley  v.  N.  Y.  &  N.  H.  R.R.  Co.,  27  Conn.  479 ;  Ohio  &  Mississippi 
R.R.  Co.  v.  McClelland,  25  111.  144;  Bradley  v.  Buffalo,  &c,  R.R.  Co.,  34  N.  Y. 
429;  Boston,  C,  &  M.  R.R.  Co.  v.  State,  32  N.  H.  215;  Pennsylvania  R.R. 
Co.  v.  Riblet,  66  Penn.  St.  164 ;  s.  c.  5  Am.  Rep.  360.  And  see  other  cases 
cited,  ante,  p.  578-79,  notes. 

3  Bode  v.  State,  7  Gill,  326;  Bancroft  v.  Dumas,  21  Vt.  456;  Thomasson  v. 
State,  15  Ind.  449  ;  License  Cases,  5  How.  504 ;  Metropolitan  Board  of  Excise 
v.  Barrie,  34  N.  Y.  657  ;  Goddard  v.  Jacksonville,  15  111.  59  ;  Kettering  v.  Jack- 
sonville, 50  111.  39  ;  State  v.  Allmond,  2  Houst.  612. 

[  682] 


CH.  XVI.]  THE   POLICE   POWEE   OF   THE   STATES.  *  581 

as  violating  express  provisions  of  the  national  Constitu- 
tion, and  also  as  *  subversive  of  fundamental  rights,  and  [*  582] 
therefore  not  within  the  grant  of  legislative  power. 

That  legislation  of  this  character  was  void,  so  far  as  it  affected 
imported  liquors,  or  such  as  might  be  introduced  from  one  State 
into  another,  because  in  conflict  with  the  power  of  Congress  over 
commerce,  was  strongly  urged  in  the  License  Cases  before  the  Su- 
preme Court  of  the  United  States  ;  but  that  view  did  not  obtain 
the  assent  of  the  court.  The  majority  of  the  court  expressed  the 
opinion  —  which,  however,  was  obiter  in  those  cases  —  that  the  in- 
troduction of  imported  liquors  into  a  State,  and  their  sale  in  the 
original  packages  as  imported,  could  not  be  forbidden,  because  to 
do  so  would  be  to  forbid  what  Congress,  in  its  regulation  of  com- 
merce, and  in  the  levy  of  imposts,  had  permitted  ; 1  but  it  was 
conceded  by  all,  that  when  the  original  package  was  broken  up  for 
use  or  for  retail  by  the  importer,  and  also  when  the  commodity 
had  passed  from  his  hands  into  the  hands  of  a  purchaser,  it  ceased 
to  be  an  import,  or  a  part  of  foreign  commerce,  and  thereby 
became  subject  to  the  laws  of  the  State,  and  might  be  taxed  for 
State  purposes,  and  the  sale  regulated  by  the  State  like  any  other 
property.2  It  was  also  decided,  in  these  cases,  that  the  power  of 
Congress  to  regulate  commerce  between  the  States  did  not  ex- 
clude regulations  by  the  States,  except  so  far  as  they  might  come 
in  conflict  with  those  established  by  Congress  ;  and  that,  conse- 
quently, as  Congress  had  not  undertaken  to  regulate  commerce  in 
liquors  between  the  States,  a  law  of  New  Hampshire  could  not  be 
held  void  which  punished  the  sale,  in  that  State,  of  gin  purchased 
in  Boston  and  sold  in  New  Hampshire,  notwithstanding  the  sale 
was  in  the  cask  in  which  it  was  imported,  but  by  one  not  licensed 
by  the  selectmen.3 

It  would  seem,  from  the  views  expressed  by  the  several  mem- 
bers of  the  court  in  these  cases,  that  the  State  laws  known  as  Pro- 

1  Taney,  Ch.  J.,  5  How.  574  ;  McLean,  J.,  ib..  589  ;  Catron,  J.,  ib.  608.  And 
see  Brown  v.  Maryland,  12  Wheat.  419  ;  Lincoln  v.  Smith,  27  Vt.  335.  Bradford 
v.  Stevens,  10  Gray,  379 ;  State  v.  Robinson,  49  Me.  285. 

2  Daniel,  J.,  held  that  the  right  to  regulate  was  not  excluded,  even  while  the 
packages  remained  in  the  hands  of  the  importer  unbroken  (p.  612).  See  also  the 
views  of  Orier,  J.  (p.  631). 

3  See  also  Bode  v.  State,  7  Gill,  326 ;  Jones  v.  People,  14  111.  196 ;  State  v. 
Wheeler,  25  Conn.  290 ;  Santo  v.  State,  2  Iowa,  202  ;  Commonwealth  v.  Clapp, 
5  Gray,  97  ;  Metropolitan  Board  v.  Barrie,  34  N.  Y.  657. 

[683] 


*  582  CONSTITUTIONAL  LIMITATIONS.  [CH.  XVI. 

hibitory  Liquor  Laws,  the  purpose  of  which  is  to  prevent 
[*583]  altogether  *  the    manufacture   and    sale    of  intoxicating 

drinks  as  a  beverage,  so  far  as  legislation  can  accomplish 
that  object,  cannot  be  held  void  as  in  conflict  with  the  power  of 
Congress  to  regulate  commerce,  and  to  levy  imposts  and  duties. 
And  it  has  been  held  that  they  were  not  void,  because  tending  to 
prevent  the  fulfilment  of  contracts  previously  made,  and  thereby 
violating  the  obligation  of  contracts.1 

The  same  laws  have  also  been  sustained,  when  the  question  of  con- 
flict with  State  constitutions,  or  with  general  fundamental  princi- 
ples, has  been  raised.  They  are  looked  upon  as  police  regulations 
established  by  the  legislature  for  the  prevention  of  intemperance, 
pauperism,  and  crime,  and  for  the  abatement  of  nuisances.2  It 
has  also  been  held  competent  to  declare  the  liquor  kept  for  sale  a 
nuisance,  and  to  provide  legal  process  for  its  condemnation  and 
destruction,  and  to  seize  and  condemn  the  building  occupied  as  a 
dram  shop  on  the  same  ground.3  And  it  is  only  where,  in  framing 
such  legislation,  care  has  not  been  taken  to  observe  those  principles 
of  protection  which  surround  the  persons  and  dwellings  of  indi- 
viduals, securing  them  against  unreasonable  searches  and  seizures, 
and  giving  them  a  right  to  trial  before  condemnation,  that  the 
courts  have  felt  at  liberty  to  declare  that  it  exceeded  the  proper 

1  People  v.  Hawley,  3  Mich.  330;  Reynolds  v.  Geary,  26  Conn.  179. 

2  Commonwealth  v.  Kendall,  12  Cush.  414;  Commonwealths.  Clapp,  5  Gray, 
97 ;  Commonwealth  v.  Howe,  13  Gray,  26 ;  Santo  v.  State,  2  Iowa,  202 ;  One 
House  v.  State,  4  Greene  (Iowa),  172;  Zunihoff  v.  State,  ib.  526;  State  v. 
Donehey,  8  Iowa,  396;  State  v.  Wheeler,  25  Conn.  290;  Reynolds  v.  Geary,  26 
Conn.  179  ;  Oviatt  v.  Pond.  29  Conn.  479 ;  People  v.  Hawley,  3  Mich.  330 ;  Peo- 
ple v.  Gallagher,  4  Mich.  214 ;  Jones  v.  People,  14  111.  196 ;  State  v.  Prescott,  27 
Vt.  194;  Lincoln  v.  Smith,  ib.  328;  Gill  v.  Parker,  31  Vt.  610.  Compare 
Beebe  v.  State,  6  Ind.  501;  Meshmeier  v.  State,  11  Ind.  484;  Wynehamer  v. 
People,  13  N.  Y.  378.  In  Reynolds  v.  Geary,  26  Conn.  179,  it  was  held  that 
the  State  law  forbidding  suits  for  the  price  of  liquors  sold  was  to  be  applied  to 
contracts  made  out  of  the  State,  and  lawful  where  made. 

3  One  House  v.  State,  4  Greene  (Iowa),  172.  See  also  Lincoln  v.  Smith,  27 
Vt.  328 ;  Oviatt  v.  Pond,  29  Conn.  479 ;  State  v.  Robinson,  33  Maine,  568 ; 
License  Cases,  5  How.  589.  But  see  Wynehamer  v.  People,  13  N.  Y.  378 ; 
Welch  v.  Stowell,  2  Doug.  (Mich.)  332.  A  statute  providing  for  the  appointment 
of  guardians  for  drunkards  is  competent  under  the  police  power,  and  its  oper- 
ation would  not  be  an  unlawful  deprivation  of  property.  Devin  v.  Scott,  34  Ind. 
67. 

[684] 


CH.  XVI.]       THE  POLICE  POWER  OF  THE  STATES.  *  583 

province  of  police  regulation.1  Perhaps  there  is  no  instance  in 
which  the  power  of  the  legislature  to  make  such  regulations  as 
may  destroy  the  value  of  property,  without  compensation  to  the 
owner,  appears  in  a  more  striking  light  than  in  the  case  of  these 
statutes.  The  trade  in  alcoholic  drinks  being  lawful,  and 
the  *  capital  employed  in  it  being  fully  protected  by  law,  [*  584] 
the  legislature  then  steps  in,  and,  by  an  enactment  based 
on  general  reasons  of  public  utility,  annihilates  the  traffic,  destroys 
altogether  the  employment,  and  reduces  to  a  nominal  value  the 
property  on  hand.  Even  the  keeping  of  that,  for  the  purposes  of 
sale,  becomes  a  criminal  offence ;  and,  without  any  change  what- 
ever in  his  own  conduct  or  employment,  the  merchant  of  yesterday 
becomes  the  criminal  of  to-day,  and  the  very  building  in  which  he 
lives  and  conducts  the  business  which  to  that  moment  was  lawful 
becomes  the  subject  of  legal  proceedings,  if  the  statute  shall  so 
declare,  and  liable  to  be  proceeded  against  for  a  forfeiture.2  A 
statute  which  can  do  this  must  be  justified  upon  the  highest  rea- 
sons of  public  benefit ;  but,  whether  satisfactory  or  not,  they  address 
themselves  exclusively  to  the  legislative  wisdom. 

Within  the  last  two  or  three  years,  new  coiestions  have  arisen  in 
regard  to  these  laws,  and  other  State  regulations,  arising  out  of 
the  imposition  of  burdens  on  various  occupations  by  Congress,  with 
a  view  to  raising  revenue  for  the  national  government.  These  bur- 
dens are  imposed  in  the  form  of  what  are  called  license  fees ;  and 
it  has  been  claimed  that,  when  the  party  paid  the  fee,  he  was 
thereby  licensed  to  carry  on  the  business,  despite  the  regulations 
which  the  State  government  might  make  upon  the  subject.  This 
view,  however,  has  not  been  taken  by  the  courts,  who  have  re- 
garded the  congressional  legislation  imposing  a  license  fee  as  only 
a  species  of  taxation,  without  the  payment  of  which  the  business 
could  not  lawfully  be  carried  on,  but  which,  nevertheless,  did  not 
propose  to  make  any  business  lawful  which  was  not  lawful  before, 
or  to  relieve  it  from  any  burdens  or  restrictions  imposed  by  the 

1  Hibbard  v.  People,  4  Mich.  125;  Fisher  v.  McGirr,  1  Gray,  1.  But  see 
Meshmeier  v.  State,  11  Ind.  484 ;  Wynehamer  v.  People,  13  N.  Y.  378. 

2  In  a  number  of  the  States  statutes  have  recently  been  passed  to  make  the 
owners  of  premises  on  which  traffic  in  intoxicating  liquors  is  carried  on  re- 
sponsible for  all  damages  occasioned  by  such  traffic.  It  is  believed  to  be  entirely 
competent  for  the  legislature  to  pass  such  statutes;  but  whether  they  can  apply  in 
cases  where  leases  had  previously  been  made,  must  be  a  serious  question. 

[685] 


*  584  CONSTITUTIONAL  LIMITATIONS.  [CH.  XVI. 

regulations  of  the  State.     The  licenses  give  no  authority,  and  are 
mere  receipts  for  taxes.1 

Numerous  other  illustrations  might  be  given  of  the  power  in 
the  States  to  make  regulations  affecting  commerce,  which  are  sus- 
tainable as  regulations  of  police.  Among  these,  quarantine  regu- 
lations and  health  laws  of  every  description  will  readily  suggest 
themselves,  and  these  are  or  may  be  sometimes  carried  to  the  ex- 
tent of  ordering  the  destruction  of  private  property  when  infected 

with  disease  or  otherwise  dangerous.2     These  regulations 
[*585]   *  have  generally  passed  unchallenged.     The  right  to  pass 

inspection  laws,  and  to  levy  duties  so  far  as  may  be  neces- 

1  License  Tax  Cases,  5  Wall.  462 ;  Parvear  v.  Commonwealth,  ib.  475 ; 
Commonwealth  v.  Holbrook,  10  Allen,  200 ;  Block  v.  Jacksonville,  36  111. 
801.     As  to  when  license  fees  are  taxes,  see  ante,  201  and  note. 

2  See  remarks  of  Orier,  J.,  in  License  Cases,  5  How.  632;  Meeker  v.  Van 
Rensselaer,  15  Wend.  397.  A  liquor  law  may  annul  a  previous  license,  and  not 
be  invalid  on  that  ground.  Metropolitan  Board  of  Excise  v.  Barrie,  34  N.  Y. 
667  ;  ante,  p.  283,  note.  Under  the  police  power,  the  dealing  in  liquors  even  for 
lawful  purposes  may  be  restricted  to  persons  approved  for  moral  character.  In  re 
Ruth,  32  Iowa,  250. 

It  is  usual,  either  by  general  law  or  by  municipal  charters,  to  confer  very  exten- 
sive powers  upon  local  boards  of  health,  under  which,  when  acting  in  good  faith, 
they  may  justify  themselves  in  taking  possession  of,  purifying,  or  even  destroying, 
the  buildings  or  other  property  of  the  citizen,  when  the  public  health  or  comfort 
demands  such  strong  measures.  See  Harrison  v.  Baltimore,  1  Gill,  204 ;  Van 
Wormer  v.  Albany,  15  Wend.  262  ;  Coe  v.  Shultz,  47  Barb.  64. 

They  may  forbid  offensive  trades  being  carried  on  in  populous  districts.  Ex 
parte  Shraden,  33  Cal.  279;  Metropolitan  Board  v.  Heister,  37  N.  Y.  661; 
Live  Stock,  &c,  Association  v.  Crescent  City,  &c,  Co.,  16  Wallace;  Wyne- 
hamer  v.  People,  13  N.  Y.  402;  Coe  v.  Shultz,  47  Barb.  64;  Ashbrook  v.  Com- 
monwealth, 1  Bush,  139 ;  Dillon,  Mun.  Corp.  §  95 ;  Potter's  Dwarris  on  Stat. 
458. 

If  they  forbid  the  keeping  of  swine  in  certain  parts  of  a  city,  their  regulations 
will  be  presumed  reasonable  and  needful.  Commonwealth  v.  Patch,  97  Mass. 
221,  citing  with  approval  Pierce  v.  Bartrum,  Cowp.  269.  And  though  they  can- 
not be  vested  with  authority  to  decide  finally  upon  one's  right  to  property  when 
they  proceed  to  interfere  with  it  as  constituting  a  danger  to  health,  yet  they  are 
vested  with  quasi  judicial  power  in  deciding  upon  what  constitutes  a  nuisance,  and 
all  presumptions  favor  their  action.  See  Van  Wormer  v.  Albany,  15  Wend.  262  ; 
Kennedy  v.  Phelps,  10  La.  An.  227;  Metropolitan  Board  v.  Heister,  37  N.  Y. 
661.  And  they  may  unquestionably  be  vested  with  very  large  power  to  establish 
pest-houses,  and  make  very  stringent  regulations  to  prevent  the  spread  of  con- 
tagious diseases.  As  to  the  power  of  the  public  authorities  to  establish  a  public 
slaughter-house,  or  to  require  .all  slaughtering  of  beasts  to  be  done  at  one  estab- 
lishment, see  Milwaukee  v.  Gross,  21  Wis.  241;  Live  Stock,  &c,  Association  v. 

[686] 


CH.  XVI.]  THE   POLICE    POWER   OF   THE   STATES.  *  585 

sary  to  render  them  effectual,  is  also  undoubted,  and  is  expressly 
recognized  by  the  Constitution.1  But  certain  powers  which  still 
more  directly  affect  commerce  may  sometimes  be  exercised  where 
the  purpose  is  not  to  interfere  with  congressional  legislation,  but 
merely  to  regulate  the  times  and  manner  of  transacting  business 
with  a  view  to  facilitate  trade,  secure  order,  and  prevent  con- 
fusion. 

An  act  of  the  State  of  New  York  declared  that  the  harbor- 
masters appointed  under  the  State  laws  should  have  authority  to 
regulate  and  station  all  ships  and  vessels  in  the  stream  of  the  East 
and  North  rivers,  within  the  limits  of  the  city  of  New  York,  and 
the  wharves  thereof,  and  to  remove  from  time  to  time  such  vessels 
as  were  not  employed  in  receiving  and  discharging  their  cargoes, 
to  make  room  for  such  others  as  required  to  be  more  immediately 
accommodated,  for  the  purpose  of  receiving  and  discharging  theirs  ; 
and  that  the  harbor-masters  or  either  of  them  should  have  author- 
ity to  determine  how  far  and  in  what  instances  it  was  the  duty  of 
the  masters  and  others,  having  charge  of  ships  or  vessels,  to 
accommodate  each  other  in  their  respective  situations  ;  and  it 
imposed  a  penalty  for  refusing  or  neglecting  to  obey  the  directions 
of  the  harbor-masters  or  either  of  them.  In  a  suit  brought  against 
the  master  of  a  steam  vessel,  who  had  refused  to  move  his  vessel 
a  certain  distance  as  directed  by  one  of  the  harbor-masters,  in  order 
to  accommodate  a  new  arrival,  it  was  insisted  on  the  defence  that 
the  act  was  an  unconstitutional  invasion  of  the  power  of  Congress 
over  commerce,  but  it  was  sustained  as  being  merely  a  regulation 
prescribing  the  manner  of  exercising  individual  rights  over  prop- 
erty employed  in  commerce.2 

Crescent  City,  &c,  Co.,  16  Wallace.  Compare  as  to  right  to  establish  monopo- 
lies, Gale  v.  Kalamazoo,  23  Mich.  344. 

A  regulation  forbidding  the  growing  of  rice  within  a  city,  on  the  ground  of 
injurious  effect  upon  health,  was  held  valid  in  Green  v.  Savannah,  6  Geo.  1. 

1  Art.  1,  §  10,  clause  2. 

2  Vanderbilt  v.  Adams,  7  Cow.  351.  Woodworth,  J.,  in  this  case  states  very 
clearly  the  principle  on  which  police  regulations,  in  such  cases,  are  sustainable  : 
"  It  seems  to  me  the  power  exercised  in  this  case  is  essentially  necessary  for  the 
purpose  of  protecting  the  rights  of  all  concerned.  It  is  not,  in  the  legitimate 
sense  of  the  term,  a  violation  of  any  right,  but  the  exercise  of  a  power  indispen- 
sably necessary,  where  an  extensive  commerce  is  carried  on.  If  the  harbor  is 
crowded  with  vessels  arriving  daily  from  foreign  parts,  the  power  is  incident  to 
such  a  state  of  things.     Disorder  and  confusion  would  be  the  consequence,  if 

[687] 


*  586  CONSTITUTIONAL    LIMITATIONS.  [CH.  XVI. 

[*  586]  *  The  line  of  distinction  between  that  which  constitutes 
an  interference  with  commerce,  and  that  which  is  a  mere 
police  regulation,  is  sometimes  exceedingly  dim  and  shadowy,  and 
it  is  not  to  be  wondered  at  that  learned  jurists  differ  when  endeav- 
oring to  classify  the  cases  which  arise.  It  is  not  doubted  that 
Congress  has  the  power  to  go  beyond  the  general  regulations  of 
commerce  which  it  is  accustomed  to  establish,  and  to  descend  to 
the  most  minute  directions,  if  it  shall  be  deemed  advisable  ;  and 
that  to  whatever  extent  ground  shall  be  covered  by  those  directions, 
the  exercise  of  State  power  is  excluded.  Congress  may  establish 
police  regulations,  as  well  as  the  States ;  confining  their  operation 
to  the  subjects  over  which  it  is  given  control  by  the  Constitution. 
But  as  the  general  police  power  can  better  be  exercised  under  the 
supervision  of  the  local  authority,  and  mischiefs  are  not  likely  to 
spring  therefrom  so  long  as  the  power  to  arrest  collision  resides  in 
the  national  courts,  the  regulations  which  are  made  by  Congress 
do  not  often  exclude  the  establishment  of  others  by  the  State 
covering  very  ma'ny  particulars.  Moreover,  the  regulations  of 
commerce  are  usually,  and  in  some  cases  must  be,  general  and 
uniform  for  the  whole  country ;  while  in  some  localities,  State  and 
local  policy  will  demand  peculiar  regulations  with  reference  to 
special  and  peculiar  circumstances. 

there  was  no  control.  .  .  .  The  right  assumed  under  the  law  would  not  be  upheld,  if 
exerted  beyond  what  may  be  considered  a  necessary  police  regulation.  The  line 
between  what  would  be  a  clear  invasion  of  right  on  the  one  hand,  and  regulations 
not  lessening  the  value  of  the  right,  and  calculated  for  the  benefit  of  all,  must  be 
distinctly  marked.  .  .  .  Police  regulations  are  legal  and  binding,  because  for  the 
general  benefit,  and  do  not  proceed  to  the  length  of  impairing  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  enjoyment  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  regulations  ;  so  that,  on  the  whole,  the  benefit  of 
all  is  promoted.  Every  public  regulation  in  a  city  may,  and  does  in  some  sense, 
limit  and  restrict  the  absolute  right  that  existed  previously.  But  this  is  no,t 
considered  as  an  injury.  So  far  from  it,  the  individual,  as  well  as  others,  is 
supposed  to  be  benefited.  It  may,  then,  be  said  that  such  a  power  is  incident  to 
every  well-regulated  society,  and  without  which  it  could  not  well  exist."  See 
Cooley  v.  Board  of  Wardens,  12  How.  289 ;  Owners  of  James  Gray  v.  Owners 
of  The  John  Frazer,  21  How.  184;  Benedict  v.  Vanderbilt,  1  Robertson,  194; 
Steamship  Co.  v.  Joliffe,  2  Wall.  450 ;  Port  Wardens  v.  The  Ward,  14  La.  An. 
289 ;  Gilman  v.  Philadelphia,  3  Wall.  726,  731 ;  Cisco  v.  Roberts,  36  N.  Y. 
292. 

[  688] 


CH.  XVI.]  THE   POLICE   POWER   OF   THE   STATES.  *  586 

The  State  of  Maryland  passed  an  act  requiring  all  importers  of 
foreign  goods,  by  the  bale  or  package,  <fec,  to  take  out  a  license, 
for  which  they  should  pay  fifty  dollars,  and,  in  case  of  neglect  or 
refusal  to  take  out  such  license,  subjected  them  to  certain  forfeit- 
ures and  penalties.     License  laws  are  of  two  kinds :  those  which 
require  the  payment  of  a  license  fee  by  way  of  raising  a  revenue, 
and  are  therefore  the  exercise  of  the  power  of  taxation  ; 
and  those  *  which  are  mere  police  regulations,  and  which  [*  587] 
require  the  payment  only  of  such  license  fee  as  will  cover 
the  expense  of  the  license  and  of  enforcing  the  regulation.1     The 
Maryland  act  seems  to  fall  properly  within  the  former  of  these 
classes,  and  it  was  held  void  as  in  conflict  with  that  provision  of 
the  Constitution  which  prohibits  a  State  from  laying  any  impost, 
&c,  and  also  with  the  clause  which  declares  that  Congress  shall 
have  the  power  to  regulate  commerce.    The  reasoning  of  the  court 
was  this  :  Sale  is  the  object  of  all  importation  of  goods,  and  the 
power  to  allow  importation  must  therefore  imply  the  power  to  au- 
thorize the  sale  of  the  thing  imported  ;  that  consequently  a  penalty 
inflicted  for  selling  an  article  in  the  character  of  importer  was  in 
opposition  to  the  act  of  Congress,  which  authorized  importation ; 
that  a  power  to  tax  an  article  in  the  hands  of  the  importer  the 
instant  it  was  landed  was  the  same  in  effect  as  a  power  to  tax 
it  whilst  entering  the  port ;  that  consequently  the  law  of  Maryland 
was  obnoxious  to  the  charge  of  unconstitutionality,  on  the  ground 
of  its  violating  the  two  provisions  referred  to.2     And  a  State  law 
which    required  the  master  of  every   vessel  engaged    in    foreign 
commerce  to  pay  a  certain  sum  to  a  State  officer,  on  account  of 
every  passenger  brought  from  a  foreign  country  into  the  State, 
or  before  landing  any  alien  passenger,  was  held  void  for  similar 
reasons.3 

On  the  other  hand,  a  law  of  the  State  of  New  York  was  sus- 
tained which  required,  under  a  penalty,  that  the  master  of  every 
vessel  arriving  from  a  foreign  port  should  report  to  the  mayor  or 

1  Ash  v.  People,  11  Mich.  347.  See  ante,  p.  201.  Also  Dillon,  Mun.  Corp. 
§§  291-294  and  notes. 

*  Brown  v.  Maryland,  12  Wheat.  419. 

a  Passenger  Cases,  7  How.  283 ;  see  also  Lin  Sing  v.  Washburn,  20  Cal.  534, 
where  a  State  law  imposing  a  special  tax  on  every  Chinese  person  over  eighteen 
years  of  age  for  each  month  of  his  residence  in  the  State  was  held  unconstitu- 
tional, as  in  conflict  with  the  power  of  Congress  over  commerce. 

44  [  689  ] 


*  587  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

recorder  of  the  city  of  New  York  an  account  of  his  passengers ; 
the  object  being  to  prevent  New  York  from  being  burdened  by  an 
influx  of  persons  brought  thither  in  ships  from  foreign  countries 
and  the  other  States,  and  for  that  purpose  to  require  a  report  of 
the  names,  places  of  birth,  &c,  of  all  passengers,  that  the  neces- 
sary steps  might  be  taken  by  the  city  authorities  to  prevent  them 
from  becoming  chargeable  as  paupers.1  And  a  State  regulation  of 
pilots  and  pilotage  was  held  unobjectionable,  though  it  was  con- 
ceded that  Congress  had  full  power  to  make  regulations 
[*  588]  on  the  same  *  subject,  which,  however,  it  had  not  exer- 
cised.2 These  several  cases,  and  the  elaborate  discussions 
with  which  the  decisions  in  each  were  accompanied,  together  with 
the  leading  case  of  Gibbons  v.  Ogden,3  may  be  almost  said  to  ex- 
haust the  reasoning  upon  the  subject,  and  to  leave  little  to  be  done 
by  those  who  follow  beyond  the  application  of  such  rules  for  classi- 
fication as  they  have  indicated. 

We  have  elsewhere  referred  to  cases  in  which  laws  requiring  all 
persons  to  refrain  from  their  ordinary  callings  on  the  first  day  of 
the  week  have  been  held  not  to  encroach  upon  the  religious  liberty 
of  those  citizens  who  do  not  observe  that  day  as  sacred.  Neither 
are  they  unconstitutional  as  a  restraint  upon  trade  and  commerce, 
or  because  they  have  the  effect  to  destroy  the  value  of  a  lease  of 
property  to  be  used  on  that  day,  or  to  make  void  a  contract  for 
Sunday  services.4 

The  highways  within  and  through  a  State  are  constructed  by  the 
State  itself,  which  has  full  power  to  provide  all  proper  regulations 
of  police  to  govern  the  action  of  persons  using  them,  and  to  make 
from  time  to  time  such  alterations  in  these  ways  as  the  proper 
authorities  shall  deem  proper.5  A  very  common  regulation  is  that 
parties  meeting  shall  turn  to  the  right ;  the  propriety  of  which 
none  will  question.     So  the  speed  of  travel  may  be  regulated  with 

1  City  of  New  York  v.  Miln,  11  Pet.  102.  See  also  State  v.  The  Constitution, 
42  Cal.  581. 

2  Cooley  m.  Board  of  Wardens,  12  How.  299.  See  Barnaby  v.  State,  21  Ind. 
450 ;  Steamship  Co.  v.  Joliflfe,  2  Wall.  450 ;    Cisco  v.  Roberts,  36  N.  Y.  292. 

3  9  Wheat.  1.     And  see  Gilinan  v.  Philadelphia,  3  Wall.  713. 

4  Lindenmuller  v.  People,  33  Barb.  576.  And  see  Ex  parte  Andrews,  18  Cal. 
678;  Ex  parte  Bird,  19  Cal.  130;  ante,  477,  and  notes;  ])ost,  596. 

5  As  to  the  right  to  change  the  grade  of  a  street  from  time  to  time  without 
liability  to  parties  incidentally  injured,  see  ante,  207. 

[690  ] 


CH.  XVI.]  THE   POLICE   POWER   OP   THE  STATES.  *  588 

a  view  to  safe  use  and  general  protection,  and  to  prevent  a  public 
nuisance.1  So  beasts  may  be  prohibited  from  running  at  large, 
under  the  penalty  of  being  seized  and  sold.2  And  it  has  been  held 
competent  under  the  same  power  to  require  the  owners  of  urban 
property  to  construct  and  keep  in  repair  and  free  from  obstructions 
the  sidewalks  in  front  of  it,  and  in  case  of  their  failure  to  do  so  to 
authorize  the  public  authorities  to  do  it  at  the  expense  of  the  prop- 
erty,3 the  courts  distinguishing  this  from  taxation,  on  the 
*  ground  of  the  peculiar  interest  which  those  upon  whom  [*  589] 
the  duty  is  imposed  have  in  its  performance,  and  their 
peculiar  power  and  ability  to  perform  it  with  the  promptness  which 
the  good  of  the  community  requires.4  For  the  like  reasons  it  has 
been  held  competent,  where  a  district  of  country  was  liable  to  be 
inundated  by  the  overflow  of  a  large  river,  to  require  the  owners 
of  lands  lying  upon  the  river  to  construct  levees  on  the  river  front 
at  their  own  expense,  and,  on  their  failure  to  comply  with  this 
regulation,  to  cause  such  levees  to  be  constructed  under  the  direc- 
tion of  the  public  authorities,  and  the  expense  assessed  upon  the 
land  of  such  owners.5  And  the  right  of  eminent  domain  is  some- 
times exercised  in  order  to  drain  considerable  tracts  of  country, 

1  Commonwealth  v.  Worcester,  3  Pick.  473 ;  Commonwealth  v.  Stodder, 
2  Cush.  562 ;  Day  v.  Green,  4  Cush.  433 ;  People  v.  Jenkins,  1  Hill,  469 ; 
People  v.  Roe,  ib.  470 ;  Washington  v.  Nashville,  1  Swan,  177 ;  State  v.  Foley, 
31  Iowa,  527. 

2  McKee  v.  McKee,  8  B.  Monr.  433;  Municipality  v.  Blanc,  1  La.  An.  385; 
Whitfield  v.  Longest,  6  Ired.  2G8 ;  Gooselink  v.  Campbell,  4  Iowa,  296 ; 
Roberts  v.  Ogle,  30  111.  459 ;  Commonwealth  v.  Curtis,  9  Allen,  266. 

J  Godard,  Petitioner,  16  Pick.  504;  Bonsall  v.  Major  of  Lebanon,  19  Ohio, 
418;  Paxson  v.  Sweet,  1  Green  (N.  J.),  196;  Lowell  v.  Hadley,  8  Met.  180; 
Washington  v.  Mayor,  &c,  of  Nashville,  1  Swan,  177  ;  Mayor,  &c.  v.  Medbury,  6 
Humph.  368 ;  Woodbridge  v.  Detroit,  8  Mich.  309.  per  Christlancy,  J. ;  Matter 
of  Dorrance  St.,  4  R.  I.  230;  Deblois  v.  Barker,  ib.  445;  Hart  v.  Brooklyn,  36 
Barb.  226.  So  in  Pennsylvania  it  has  been  held  competent  to  require  the  owners 
of  city  lots,  in  front  of  which  sewers  are  constructed,  to  pay  the  expense  thereof 
in  proportion  to  the  street  front.  Philadelphia  v.  Tryon,  35  Penn.  St.  400 ; 
Stroud  v.  Philadelphia,  61  Penn.  St.  255.  And  see  Boston  v.  Shaw,  1  Met.  130; 
Hildreth  v.  Lowell,  11  Gray,  345;  Cone  v.  Hartford,  28  Conn.  363;  State  v. 
Jersey  City,  5  Dutch.  441. 

4  See  especially  the  case  of  Godard,  Petitioner,  16  Pick.  504,  for  a  clear  and 
strong  statement  of  the  grounds  on  which  such  legislation  can  be  supported.  Also 
Dillon,  Mun.  Corp.  §  637. 

5  Crowley  v.  Copley,  2  La.  An.  329.  Compare  Sessions  v.  Crunklinton,  20 
Ohio,  N.  s.  349. 

[691] 


*  589  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

for  the  twofold  reason,  that  the  standing  water  threatens  the  pub- 
lic health,  and  also  precludes  the  cultivation  and  improvement  of 
the  soil.1 

Navigable  waters  are  also  a  species  of  public  highway,  and  as 
such  come  under  the  control  of  the  States.  The  term  "  navi- 
gable," at  the  common  law,  was  only  applied  to  those  waters  where 
the  tide  ebbed  and  flowed,  but  all  streams  which  were  of  sufficient 
capacity  for  useful  navigation,  though  not  called  navigable,  were 
public,  and  subject  to  the  same  general  rights  which  the  public 
exercised  in  highways  by  land.2  In  this  country  there  has  been  a 
very  general  disposition  to  consider  all  streams  public  which  are 
useful  as  channels  for  commerce,  wherever  they  are  found  of  suf- 
ficient capacity  to  float  the  products  of  the  mines,  the  forests,  or 
the  tillage  of  the  country  through  which  they  flow,  to  market.3 
And  if  a  stream  is  of  sufficient  capacity  for  the  floating  of  rafts 
and  logs  in  the  condition  in  which  it  generally  appears  by  nature, 

it  will  be  regarded  as  public,  notwithstanding  there  may 
[*  590]  be  times  when  it  becomes  too  dry  and  *  shallow  for  the 

purpose.  "  The  capacity  of  a  stream,  which  generally 
appears  by  the  nature,  amount,  importance,  and  necessity  of  the 
business  done  upon  it,  must  be  the  criterion.  A  brook,  although 
it  might  carry  down  saw-logs  for  a  few  days,  during  a  freshet,  is 
not  therefore  a  public  highway.  But  a  stream  upon  which  and  its 
tributaries  saw-logs  to  an  unlimited  amount  can  be  floated  every 
spring,  and  for  the  period  of  from  four  to  eight  weeks,  and  for  the 
distance  of  one  hundred  and  fifty  miles,  and  upon  which  unques- 
tionably many  thousands  will  be  annually  transported  for  many 
years  to  come,  if  it  be  legal  so  to  do,  has  the  character  of  a  public 

1  See1  Reeves  v.  Treasurer,  &c.,  8  Ohio,  N.  s.  333;  ante,  510,  511,  533,  and 
notes. 

2  Lorraan  v.  Benson,  8  Mich.  26 ;  Morgan  v.  King,  18  Barb.  283. 

8  Brown  v.  Chadbourne,  31  Me.  9;  Knox  v.  Chaloner,  42  Me.  150;  Lancey 
v.  Clifford,  54  Me.  489 ;  Gerrish  v.  Brown,  51  Me.  256 ;  Scott  v.  Willson,  3 
N.  H.  321 ;  Shaw  v.  Crawford,  10  Johns.  236 ;  Munson  v.  Hungerford,  6  Barb. 
265 ;  Browne  v.  Scofield,  8  Barb.  239  ;  Morgan  v.  King,  18  Barb.  284,  30  Barb. 
9,  and  35  N.  Y.  454;  Gates  v.  Wadlington,  1  McCord,  580;  Commonwealth  v. 
Chapin,  5  Pick.  199  ;  Moore  v.  Sanbourne,  2  Mich.  519 ;  Lorman  v.  Benson,  8 
Mich.  18  ;  Depew  v.  Board  of  Commissioners,  &c,  5  Ind.  8;  Board  of  Commis- 
sioners v.  Pidge,  ib.  13 ;  Stuart  v.  Clark,  2  Swan,  9 ;  Elder  v.  Barrus,  6  Humph. 
364 ;  Dalrymple  v.  Mead,  1  Grant's  Cases,  197 ;  Commissioners  of  Homochitto 
River  v.  Withers,  29  Miss.  21 ;  Rhodes  v.  Otis,  33  Ala.  578 ;  McManus  v.  Car- 
michael,  3  Iowa,  1 ;  Weise  v.  Smith,  3  Oregon,  445 ;  s.c.  8  Am.  Rep.  621. 
[692] 


CH.  XVI.]  THE   POLICE   POWER   OF   THE   STATES.  *  590 

stream  for  that  purpose.  So  far  the  purpose  is  useful  for  trade 
and  commerce,  and  to  the  interests  of  the  community.  The  float- 
ing of  logs  is  not  mentioned  by  Lord  Hale  [in  De  Jure  Maris], 
and  probably  no  river  in  Great  Britain  was,  in  his  day,  or  ever 
will  be,  put  to  that  use.  But  here  it  is  common,  necessary,  and 
profitable,  especially  while  the  country  is  new  ;  and  if  it  be  con- 
sidered a  lawful  mode  of  using  the  river,  it  is  easy  to  adapt  well- 
settled  principles  of  law  to  the  case.  And  they  are  not  the  less 
applicable  because  this  particular  business  may  not  always  con- 
tinue;  though  if  it  can  of  necessity  last  but  a  short  time,  and  the 
river  can  be  used  for  no  other  purpose,  that  circumstance  would 
have  weight  in  the  consideration  of  the  question."  x  But  if  the 
stream  was  not  thus  useful  in  its  natural  condition,  but  has  been 
rendered  susceptible  of  use  by  the  labors  of  the  owner  of  the  soil, 
the  right  of  passage  will  be  in  the  nature  of  a  private  way,  and  the 
public  do  not  acquire  a  right  to  the  benefit  of  the  owner's  labor, 
unless  he  sees  fit  to  dedicate  it  to  their  use.2 

All  navigable  waters  are  for  the  use  of  all  the  citizens ;  and 
there  cannot  lawfully  be  any  exclusive  private  appropriation  of  any 
portion  of  them.3  The  question  what  is  a  navigable  stream  would 
seem  to  be  a  mixed  question  of  law  and  fact ; 4  and  though  it  is 
said  that  the  legislature  of  the  State  may  determine 
whether  a  *  stream  shall  be  considered  a  public  highway  [*  591] 
or  not,5  yet  if  in  fact  it  is  not  one,  the  legislature  cannot 
make  it  so  by  simple  declaration,  since,  if  it  is  private  property, 

1  Morgan  v.  King,  18  Barb.  288 ;  Moore  v.  Sanbourne,  2  Mich.  519 ;  Brown 
v.  Chadbourne,  31  Me.  9 ;  Treat  v.  Lord,  42  Me.  552 ;  Weise  ».  Smith,  3  Or. 
445 ;  s.  c.  8  Am.  Rep.  621 ;  contra,  Hubbard  v.  Bell,  54  111.  110. 

2  Wadswortk's  Adm'r  v.  Smith,  11  Me.  278;  Ward  v.  Warner,  8  Mich.  521. 

3  Commonwealth  v.  Charlestown,  1  Pick.  180;  Kean  v.  Stetson,  5  Pick.  492; 
Arnold  i\  Mundy,  1  Halst.  1;  Bird  v.  Smith,  8  Watts,  434.  They  are  equally 
for  the  use  of  the  public  in  the  winter  when  covered  with  ice ;  and  one  who  cuts 
a  hole  in  the  ice  in  an  accustomed  way,  by  means  of  which  one  passing  upon 
the  ice  is  injured,  is  liable  to  an  action  for  the  injury.  French  v.  Camp,  6 
Shep.  433.  An  obstruction  to  a  navigable  stream  is  a  nuisance  which  any 
one  having  occasion  to  use  it  may  abate.  Inhabitants  of  Arundel  v.  McCulloch, 
10  Mass.  70;  State  v.  Moffett,  1  Greene  (Iowa),  247;  Selman  v.  Wolfe,  27 
Texas,  68. 

4  See  Treat  v.  Lord,  42  Me.  552 ;  Weise  v.  Smith,  3  Or.  445 ;  s.  c.  8  Am. 
Rep.  621. 

5  Glover  v.  Powell,  2  Stockt.  211  ;  American  River  Water  Co.  v.  Amsden, 
6  Cal.  443  ;  Baker  v.  Lewis,  33  Penn.  St.  301. 

[693] 


*  591  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

the  legislature  cannot  appropriate  it  to  a  public  use  without  pro- 
viding for  compensation.1 

The  general  right  to  control  and  regulate  the  public  use  of  nav- 
igable waters  is  unquestionably  in  the  State  ;  but  there  are  certain 
restrictions  upon  this  right  growing  out  of  the  power  of  Congress 
over  commerce.  Congress  is  empowered  to  regulate  commerce 
with  foreign  nations  and  among  the  several  States ;  and  wherever 
a  river  forms  a  highway  upon  which  commerce  is  conducted  with 
foreign  nations  or  between  States,  it  must  fall  under  the  control 
of  Congress,  under  this  power  over  commerce.  The  circumstance, 
however,  that  a  stream  is  navigable,  and  capable  of  being  used  for 
foreign  or  inter-State  commerce,  does  not  exclude  regulation  by 
the  State,  if  in  fact  Congress  has  not  exercised  its  power  in  regard 
to  it ;  2  or  having  exercised  it,  the  State  law  does  not  come  in  con- 
flict with  the  congressional  regulations,  or  interfere  with  the  rights 
which  are  permitted  by  them. 

The  decisions  of  the  Federal  judiciary  in  regard  to  navigable 
waters  seem  to  have  settled  the  following  points :  — 

1.  That  no  State  can  grant  an  exclusive  monopoly  for  the  navi- 
gation of  any  portion  of  the  waters  within  its  limits  upon  which 
commerce  is  carried  on  under  coasting  licenses  granted  under  the 
authority  of  Congress,3  since  such  a  grant  would  come  directly  in 
conflict  with  the  power  which  Congress  has  exercised.  But  a  State 
law  granting  to  an  individual  an  exclusive  right  to  navigate  the 
upper  waters  of  a  river,  lying  wholly  within  the  limits  of  the  State, 
separated  from  tide  water  by  falls  impassable  for  purposes 
[*  592]  of  *  navigation,  and  not  forming  a  part  of  any  continuous 
track  of  commerce  between  two  or  more  States,  or  with  a 

1  Morgan  v.  King,  18  Barb.  284 ;  s.  c.  35  N.  Y.  454. 

2  Wilson  v.  Black  Bird  Creek  Marsh  Co.,  2  Pet.  245.  In  this  ease  it  was 
held  that  a  State  law  permitting  a  creek  navigable  from  the  sea  to  be  dammed  so 
as  to  exclude  vessels  altogether  was  not  opposed  to  the  Constitution  of  the  United 
States,  there  being  no  legislation  by  Congress  with  which  it  would  come  in  con- 
flict.    And  see  Wheeling  Bridge  Case,  13  How.  518;  and  18  How.  421. 

3  Gibbons  v.  Ogden,  9  Wheat.  1.  The  case  was  the  well-known  historical 
one,  involving  the  validity  of  the  grant  by  the  State  of  New  York  to  Robert 
Fulton  and  his  associates  of  the  exclusive  right  to  navigate  the  waters  of  that 
State  with  vessels  propelled  by  steam.  This  subject  is  further  considered  in  Gil- 
man  v.  Philadelphia,  3  Wall.  713;  and  in  The  Daniel  Ball,  10  Wall.  557,  in 
which  the  meaning  of  the  term  "  navigable  waters  of  the  United  States  "  is  defined. 
And  see  Craig  v.  Kline,  Co  Penn.  St.  399  ;  s.  c.  3  Am.  Rep.  C36. 

[694] 


CH.  XVI.]  THE   POLICE   POWER   OF  THE   STATES.  *  592 

foreign  country,  does  not  come  within  the  reason  of  this  decision, 
and  cannot  be  declared  void  as  opposed  to  the  Constitution  of  the 
United  States.1 

2.  The  States  have  the  same  power  to  improve  navigable  waters 
which  they  possess  over  other  highways  ; 2  and  where  money  has 
been  expended  in  making  such  improvement,  it  is  competent  for 
the  State  to  impose  tolls  on  the  commerce  which  passes  through 
and  has  the  benefit  of  the  improvement,  even  where  the  stream  is 
one  over  which  the  regulations  of  commerce  extend.3 

3.  The  States  may  authorize  the  construction  of  bridges  over 
navigable  waters,  for  railroads  as  well  as  for  every  other  species  of 
highway,  notwithstanding  they  may  to  some  extent  interfere  with 
the  right  of  navigation.4  If  the  stream  is  not  one  which  is  subject 
to  the  control  of  Congress,  the  State  law  permitting  the  erection 
cannot  be  questioned  on  any  ground  of  public  inconvenience.  The 
legislature  must  always  have  power  to  determine  what  public  ways 
are  needed,  and  to  what  extent  the  accommodation  of  travel  over 
one  way  must  yield  to  the  greater  necessity  for  another.  But  if  the 
stream  is  one  over  which  the  regulations  of  Congress  extend,  the 
question  is  somewhat  complicated,  and  it  becomes  necessary  to 
consider  whether  such  bridge  will  interfere  with  the  regulations  or 
not.  But  the  bridge  is  not  necessarily  unlawful,  because  it  may 
constitute,  to  some  degree,  an  obstruction  to  commerce,  if  it  is 
properly  built,  and  upon  a  proper  plan,  and  if  the  general  traffic 
of  the  country  will  be  aided  rather  than  impeded  by  its  construc- 
tion. There  are  many  cases  where  a  bridge  over  a  river  may  be 
vastly  more  important  than  the  navigation ;  and  there  are  other 

1  Veazie  v.  Moor,  14  How.  568.  The  exclusive  right  granted  in  this  case  was 
to  the  navigation  of  the  Penobscot  River  above  Old  Town,  which  was  to  continue 
for  twenty  years,  in  consideration  of  improvements  in  the  navigation  to  be  made 
by  the  grantees.  Below  Old  Town  there  were  a  fall  and  several  dams  on  the 
river,  rendering  navigation  from  the  sea  impossible.  And  see  McReynolds  v. 
Smallhouse,  8  Bush,  447. 

2  The  improvement  of  a  stream  by  State  authority  will  give  no  right  of  action 
to  an  individual  incidentally  injured  by  the  improvement.  Zimmerman  v.  Union 
Chnal  Co.,  1  W.  &  S.  346. 

3  Palmer  v.  Cuyahoga  Co.,  3  McLean,  226  ;  Kellogg  v.  Union  Co.,  12  Conn.  7  ; 
Thames  Bank  v.  Lovell,  18  Conn.  500;    McReynolds  v.  Smallhouse,  8  Bush, 

447. 

4  See  Commonwealth  v.  Breed,  4  Pick.  460  ;  Depew  v.  Trustees  of  W.  and  E. 
Canal,  5  Ind.  8;  Dover  v.  Portsmouth  Bridge,  17  N.  H.  200;  Illinois,  &c,  Co. 
v.  Peoria,  &c,  Association,  38  111.  467. 

[695] 


*  592  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

cases  where,  although  the  traffic  upon  the  river  is  impor- 
[*  593]   tant,  yet  an  *  inconvenience  caused  by  a  bridge  with  draws 

would  be  much  less  seriously  felt  by  the  public,  and  be  a 
much  lighter  burden  upon  trade  and  travel  than  a  break  in  a  line 
of  railroad  communication  necessitating  the  employment  of  a  ferry. 
In  general  terms  it  may  be  said  that  the  State  may  authorize  such 
constructions,  provided  they  do  not  constitute  material  obstructions 
to  navigation  ;  but  whether  they  are  to  be  regarded  as  material 
obstructions  or  not  is  to  be  determined  in  each  case  upon  its  own 
circumstances.  The  character  of  the  structure,  the  facility  afforded 
for  vessels  to  pass  it,  the  relative  amount  of  traffic  likely  to  be 
done  upon  the  stream  and  over  the  bridge,  and  whether  the  traffic 
by  rail  would  be  likely  to  be  more  incommoded  by  the  want  of  the 
bridge  than  the  traffic  by  water  with  it,  are  all  circumstances  to  be 
taken  into  account  in  determining  this  question.  It  is  quite  evi- 
dent that  the  same  structure  might  constitute  a  material  obstruc- 
tion on  the  Ohio  or  the  Mississippi,  where  vessels  are  constantly 
passing,  which  would  be  unobjectionable  on  a  stream  which  a  boat 
only  enters  at  intervals  of  weeks  or  months.  The  decision  of  the 
State  legislature  that  the  erection  is  not  an  obstruction  is  not  con- 
clusive ;  but  the  final  determination  will  rest  with  the  Federal 
courts,  who  have  jurisdiction  to  cause  the  structure  to  be  abated, 
if  it  be  found  to  obstruct  unnecessarily  the  traffic  upon  the  water. 
Parties  constructing  the  bridge  must  be  prepared  to  show,  not 
only  the  State  authority,  and  that  the  plan  and  construction  are 
proper,  but  also  that  it  accommodates  more  than  it  impedes  the 
general  commerce.1 

4.  The  States  may  lawfully  establish  ferries  over  navigable 
waters,  and  grant  licenses  for  keeping  the  same,  and  forbid  un- 
licensed persons  from  running  boats  or  ferries  without  such 
license.  This  also  is  only  the  establishment  of  a  public  way, 
and  it  can  make  no  difference  whether  or  not  the  water  is  entirely 
within  the  State,  or,  on  the  other  hand,  is  a  highway  for  inter- 
State  or  foreign  commerce.2 

1  See  this  subject  fully  considered  in  the  Wheeling  Bridge  Case,  13  How.  518. 
See  also  Columbus  Insurance  Co.  v.  Peoria  Bridge  Co.,  6  McLean,  72  ;  Same  v. 
Curtenius,  ib.  209;  Jolly  v.  Terre  Haute  Draw-Bridge  Co.,  ib.  237;  U.  S.  v. 
New  Bedford  Bridge,  1  W.  &  M.  401 ;  Commissioners  of  St.  Joseph  Co. 
v.  Pidge,  5  Ind.   13. 

2  Conway  v.  Taylor's  Ex'r,  1  Black,  603;  Quivers  v.  People,  11  Mich.  43. 

[  696] 


CH.  XVI.]  THE    POLICE   POWER    OF   THE   STATES.  *  593 

5.  The  State  may  also  authorize  the   construction  of 

dams  across  *  navigable  waters ;  and  where  no  question  [*  594] 
of  Federal  authority  is  involved,  the  legislative  permission 
to  erect  a  dam  will  exempt  the  structure  from  being  considered  a 
nuisance,1  and  it  would  seem  also  that  it  must  exempt  the  party 
constructing  it  from  liability  to  any  private  action  for  injury  to 
navigation,  so  long  as  he  keeps  within  the  authority  granted,  and 
is  guilty  of  no  negligence.2 

6.  To  the  foregoing  it  may  be  added  that  the  State  has  the  same 
power  of  regulating  the  speed  and  general  conduct  of  ships  or 
other  vessels  navigating  its  water  highways,  that  it  has  to  regulate 
the  speed  and  conduct  of  persons  and  vehicles  upon  the  ordinary 
highway  ;  subject  always  to  the  restriction  that  its  regulations 
must  not  come  in  conflict  with  any  regulations  established  by  Con- 
gress for  the  foreign  commerce  or  that  between  the  States.3 

It  would  be  quite  impossible  to  enumerate  all  the  instances  in 
which  police  power  is  or  may  be  exercised,  because  the  various  cases 
in  which  the  exercise  by  one  individual  of  his  rights  may  conflict 
with  a  similar  exercise  by  others,  or  may  be  detrimental  to  the  pub- 
lic order  or  safety,  are  infinite  in  number  and  in  variety.  And 
there  are  other  cases  where  it  becomes  necessary  for  the  public 
authorities  to  interfere  with  the  control  by  individuals  of  their 
property,  and  even  to  destroy  it,  where  the  owners  themselves  have 

In  both  these  cases  the  State  license  law  was  sustained  as  against  a  vessel  enrolled 
and  licensed  under  the  laws  of  Congress.  And  see  Fanning  v.  Gregorie,  16  How. 
534.  Ferry  rights  may  be  so  regulated  as  to  rates  of  ferriage,  and  ferry  fran- 
chises and  privileges  so  controlled  in  the  hands  of  grantees  and  lessees,  that 
they  sball  not  be  abused  to  the  serious  detriment  or  inconvenience  of  the  public. 
Where  this  power  is  given  to  a  municipality,  it  may  be  recalled  at  any  time. 
People  v.  Mayor,  &c,  of  New  York,  82  Barb.  102. 

1  Wilson  v.  Black  Bird  Creek  Marsh  Co.,  2  Pet.  245;  Brown  v.  Common- 
wealth, 3  S.  &  R.  273  ;  Bacon  v.  Arthur,  4  Watts,  437  ;  Hogg  v.  Zanesville  Co., 
5  Ohio,  410 ;  Neaderhouser  v.  State,  28  Ind.  257.  And  see  Flanagan  v.  Phil- 
adelphia, 42  Penn.  St.  219 ;  Depew  v.  Trustees  of  W.  and  E.  Canal,  5  Ind.  8; 
Woodburn  v.  Kilbourne  Manuf.  Co.,  1  Bissell,  546;  Hinchman  v.  Patterson,  &c, 
R.R.  Co.,  2  Green  (N.  J.),  75. 

2  See  Bailey  v.  Philadelphia,  &c,  R.R.  Co.,  4  Harr.  389;  Roush  v.  Walter, 
10  Watts,  86;  Parker  ».  Cutler  Mill  Dam  Co.,  7  Shep.  353;  Zimmerman  v. 
Union  Canal  Co.,  1  W.  &  S.  346;  Depew  v.  Trustees  of  W.  and  E.  Canal,  5 
Ind.  8. 

3  People  v.  Jenkins,  1  Hill,  469 ;  People  v.  Roe,  1  Hill,  470.  As  to  the  right 
to  regulate  fisheries  in  navigable  waters,  see  Gentile  v.  State,  29  Ind.  409  ;  Phipps 
v.  State,  22  Md.  380 ;  People  v.  Reed,  47  Barb.  235. 

[697  J 


*  594  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

fully  observed  all  their  duties  to  their  fellows  and  to  the  State,  but 
where,  nevertheless,  some  controlling  public  necessity  demands  the 
interference  or  destruction.  A  strong  instance  of  this  description 
is  where  it  becomes  necessary  to  take,  use,  or  destroy  the  private 
property  of  individuals  to  prevent  the  spreading  of  a  fire,  the 
ravages  of  a  pestilence,  the   advance  of  a  hostile  army,  or  any 

other  great  public  calamity.1    Here  the  individual  is  in  no 
[*  595]  degree  in  *  fault,  but   his   interest   must  yield   to   that 

"  necessity  "  which  "  knows  no  law."  The  establishment 
of  limits  within  the  denser  portions  of  cities  and  villages,  within 
which  buildings  constructed  of  inflammable  materials  shall  not 
be  erected  or  repaired,  may  also,  in  some  cases,  be  equivalent  to 
a  destruction  of  private  property  ;  but  regulations  for  this  purpose 
have  been  sustained  notwithstanding  this  result.2  Wharf  lines 
may  also  be  established  for  the  general  good,  even  though  they 
prevent  the  owners  of  water-fronts  from  building  out  on  that  which 
constitutes  private  property.3  And,  whenever  the  legislature  deem 
it  necessary  to  the  protection  of  a  harbor  to  forbid  the  removal  of 
stones,  gravel,  or  sand  from  the  beach,  they  may  establish  regula- 
tions to  that  effect  under  penalties,  and  make  them  applicable  to 
the  owners  of  the  soil  equally  with  other  persons.  Such  regula- 
tions are  only  "  a  just  restraint  of  an  injurious  use  of  property, 
which  the  legislature  have  authority  "  to  impose.4 

So  a  particular  use  of  property  may  sometimes  be  forbidden, 
where,  by  a  change  of  circumstances,  and  without  the  fault  of  the 

1  Saltpetre  Case,  12  Coke,  13;  Mayor,  &c.,  of  New  York  v.  Lord,  18  Wend. 
129;  Russell  v.  Mayor,  &c.,  of  New  York,  2  Denio,  461 ;  Sorocco  v.  Geary,  3 
Cal.  69 ;  Hale  v.  Lawrence,  1  Zab.  714 ;  American  Print  Works  v.  Lawrence,  ib. 
248 ;  Meeker  v.  Van  Rensselaer,  15  Wend.  397  ;  McDonald  v.  Redwing,  13  Minn. 
38  ;  Dillon,  Mun.  Corp.  §§  756-759.  And  see  Jones  v.  Richmond,  18  Grat.  517, 
for  a  case  where  the  municipal  authorities  purchased  and  took  possession  of  the 
liquors  of  a  city  about  to  be  occupied  by  a  capturing  military  force,  and  destroyed 
it  to  prevent  the  disorders  that  might  be  anticipated  from  free  access  to  intox- 
icating drinks  under  the  circumstances.  And  as  to  appropriation  by  military 
authorities,  see  Harmony  v.  Mitchell,  1  Blatch.  549 ;  s.  c.  in  error,  13  How. 
115. 

2  Respublica  v.  Duquet,  2  Yeates,  493 ;  Wadleigh  v.  Gilman,  3  Fairf.  403 ; 
Brady  v.  Northwestern  Ins.  Co.,  11  Mich.  425:  Vanderbilt  v.  Adams,  7  Cow. 
352,  per  Woodworth,  J. 

3  Commonwealth  v.  Alger,  7  Cush.  53.  See  Hart  v.  Mayor,  &c,  of  Albany, 
9  Wend.  571. 

4  Commonwealth  v.  Tewksbury,  11  Met.  55. 

[698] 


CH.  XVI.]  THE   POLICE   POWER   OF   THE   STATES.  *  595 

owner,  that  which  was  once  lawful,  proper,  and  unobjectionable 
has  now  become  a  public  nuisance,  endangering  the  public  health 
or  the  public  safety.  Mill-dams  are  sometimes  destroyed  upon  this 
ground  ;  l  and  churchyards  which  prove,  in  the  advance  of  urban 
population,  to  be  detrimental  to  the  public  health,  or  in  danger  of 
becoming  so,  are  liable  to  be  closed  against  further  use  for  cemetery 
purposes.2  The  keeping  of  gunpowder  in  unsafe  quantities  in 
cities  or  villages ; 3  the  sale  of  poisonous  drugs,  unless  labelled; 
allowing  unmuzzled  dogs  to  be  at  large  when  danger  of  hydropho- 
bia is  apprehended  ;4  or  the  keeping  for  sale  unwholesome 
*  provisions,  or  other  deleterious  substances, —  are  all  sub-  [*  596] 
ject  to  be  forbidden  under  this  power.  And,  generally,  it 
may  be  said  that  each  State  has  complete  authority  to  provide 
for  the  abatement  of  nuisances,  whether  they  exist  by  the  fault  of 
individuals  or  not,5  and  even  though  in  their  origin  they  may  have 
been  permitted  or  licensed  by  law.6 

The  preservation  of  the  public  morals  is  peculiarly  subject  to 
legislative  supervision,  which  may  forbid  the  keeping,  exhibition, 
or  sale  of  indecent  books  or  pictures,  and  cause  their  destruction 
if  seized  ;    or  prohibit  or  regulate  the  places  of  amusement  that 

1  Miller  v.  Craig,  3  Stockt.  175.  And  offensive  manufactures  may  be  stopped. 
Coe  v.  Schultz,  47  Barb.  64.  See  League  v.  Journeay,  26  Texas,  172 ;  ante, 
584,  and  cases  cited  in  note. 

2  Brick  Presbyterian  Church  v.  Mayor,  &c,  of  New  York,  5  Cow.  538; 
Coates  v.  Mayor,  &c,  of  New  York,  7  Cow.  604;  Kineaid's  Appeal,  66  Penn. 
St.  411 ;  s.  c.  5  Am.  Rep.  377.     And  see  ante,  584,  note. 

3  Foote  v.  Fire  Department,  5  Hill,  99  ;  Williams  v.  Augusta,  4  Geo.  509. 
And  see  License  Cases,  5  How.  589,  per  McLean,  J. ;  Fisher  v.  McGirr,  1  Gray, 
27,  per  Shaw,  Ch.  J. 

4  Morey  v.  Brown,  42  N.  H.  373.  Dogs,  which  are  animals  in  which  the 
owner  has  no  absolute  property,  are  subject  to  such  regulations  as  the  legislature 
may  prescribe,  and  it  is  not  unconstitutional  to  authorize  their  destruction,  with- 
out previous  adjudication,  when  found  at  large  without  being  licensed  and  collared 
according  to  the  statutory  regulation.  Blair  v.  Forehand,  100  Mass.  136.  And 
see  Carter  v.  Dow,  16  Wis.  298 ;  Morey  v.  Brown,  supra.  As  a  measure  of 
internal  police,  the  State  has  the  power  to  encourage  the  keeping  of  sheep,  and 
to  discourage  the  keeping  of  dogs,  by  imposing  a  penalty  upon  the  owner  of  a 
dog  for  keeping  the  same.     Mitchell  v.  Williams,  27  Ind.  62. 

5  See  Miller  v.  Craig,  3  Stockt.  175 ;  Weeks  v.  Milwaukee,  10  Wis.  242. 
But  under  this  power  it  would  not  be  competent  for  a  city  to  tax  a  lot  owner  for 
the  expense  of  abating  a  nuisance  on  his  lot  which  the  city  itself  had  created. 
Weeks  v.  Milwaukee,  ib.     See  Barring  v.  Commonwealth,  2  Duv.  95. 

6  See  cases  of  repealing  licenses,  ante,  p.  283  and  note. 

[  699] 


*  596  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

may  be  resorted  to  for  the  purpose  of  gaming ; 1  or  forbid  altogether 
the  keeping  of  implements  made  use  of  for  unlawful  games;  or 
prevent  the  keeping  and  exhibition  of  stallions  in  public  places.2 
And  the  power  to  provide  for  the  compulsory  observance  of  the 
first  day  of  the  week  is  also  to  be  referred  to  the  same  authority.3 

So  the  markets  are  regulated,  and  particular  articles  allowed  to 
be  sold  in  particular  places  only,  or  after  license  ; 4  weights  and 
measures  are  established,  and  dealers  compelled  to  conform  to  the 
fixed  standards  under  penalty,5  and  persons  following  particular 
occupations  of  a  nature  requiring  special  public  supervision,  such 
as  auctioneers,  draymen,  hackmen,  hucksters,  victuallers,  and  the 
like,  are  required  to  take  out  licenses,  and  to  conform  to  such  rules 
and  regulations  as  are  deemed  important  for  the  public  convenience 
and  protection.6  These  instances  are  more  than  sufficient  to  illus- 
trate the  pervading  nature  of  this  power,  and  we  need  not  weary 

1  Tanner  v.  Trustees  of  Albion,  5  Hill,  121  ;  Commonwealth  v.  Colton, 
8  Gray,  488;  State  v.  Hay,  29  Me.  457;  State  v.  Freeman,  38  N.  H.  42(3. 

2  Nolin  v.  Mayor  of  Franklin,  4  Yerg.  163.  A  city  may  forbid  the  keeping 
of  swine,  within  its  densely  settled  portions.  Commonwealth  v.  Patch,  97 
Mass.   221. 

3  Specht  v.  Commonwealth,  8  Penn.  St.  312;  City  Council  v.  Benjamin,  2 
Strobh.  L.  508;  State  v.  Ambs,  20  Mo.  214;  St.  Louis  v.  Cafferata,  24  Mo.  94; 
Adams  v.  Hamel,  2  Doug.  (Mich.)  73;  Vogelsong  v.  State,  9  Ind.  112;  Shover 
v.  State,  5  Eng.  259;  Bloom  v.  Richards,  2  Ohio,  N.  s.  387;  Lindenmuller  v. 
People,  33  Barb.  548  ;  Ex  parte  Andrews,  18  Cal.  678  ;  Ex  parte  Bird,  19  Cal. 
130;  Hudson  v.  Geary,  4  R.  I.  485;  Frolickstein  v.  Mobile,  40  Ala.  725. 

4  Nightingale's  Case,  11  Pick.  168 ;  Buffalo  v.  Webster,  10  Wend.  99 ;  Bush 
v.  Seabury,  8  Johns.  418  ;  Ash  v.  People,  11  Mich.  347;  State  v.  Leiber,  11 
Iowa,  407  ;  Le  Claire  v.  Davenport,  13  Iowa,  210;  White  v.  Kent,  11  Ohio,  n.  8. 
550.  The  power  is  continuing,  and  markets  once  established  may  be  changed  at 
the  option  of  tie  authorities,  and  they  cannot  even  by  contract  deprive  themselves 
of  this  power.  Gale  v.  Kalamazoo,  23  Mich.  344 ;  Gall  v.  Cincinnati,  18  Ohio, 
N.  s.  563;  Cougot  v.  New  Orleans,  16  La.  An.  21. 

5  Guillotte  v.  New  Orleans,  12  La.  An.  432 ;  Page  v.  Fazackerly,  36  Barb. 
392 ;  Raleigh  v.  Sorrell,  1  Jones,  L.  49 ;  Dillon,  Mun.  Corp.  §§  323,  324,  and 
cases  cited. 

6  Commonwealth  v.  Stodder,  2  Cush.  562;  Dillon,  Mun.  Corp.  §§  291-296. 
As  to  license  fees,  and  when  they  are  taxes,  see  ante,  201,  495;  Mayor,  &c,  of 
Mobile  v.  Yuille,  3  Ala.  139.  The  sale  of  pure  milk  and  pure  water  mixed  may 
be  made  a  penal  offence.  Commonwealth  v.  Waite,  11  Allen,  264.  As  to  market, 
regulations  in  general,  see  Wartman  v.  Philadelphia,  33  Penn.  St.  202 ;  Spauld- 
ing  v.  Lowell,  23  Pick.  71;  Gall  v.  Cincinnati,  18  Ohio,  N.  s.  563;  Municipality 
v.  Cutting,  4  La.  An.  335 ;  Dillon,  Mun.  Corp.  §§  313-318. 

[  700] 


CH.  XVI.]  THE   POLICE   POWER   OF   THE   STATES.  *  596 

the  reader  with  further  enumeration.     Many  of  them  have  been 
previously  referred  to  under  the  head  of  municipal  by-laws. 

Whether  the  prohibited  act  or  omission  shall  be  made  a  criminal 
offence,  punishable  under  the  general  laws,  or  subject  to  punish- 
ment under  municipal  by-laws,  or,  on  the  other  hand,  the  party  be 
deprived  of  all  remedy  for  any  right  which,  but  for  the 
*  regulation,  he  might  have  had  against  other  persons,  are  [*  597] 
questions  which  the  .legislature  must  decide.  It  is  suffi- 
cient for  us  to  have  pointed  out  that,  in  addition  to  the  power  to 
punish  misdemeanors  and  felonies,  the  State  has  also  the  authority 
to  make  extensive  and  varied  regulations  as  to  the  time,  mode,  and 
circumstances  in  and  under  which  parties  shall  assert,  enjoy,  or 
exercise  their  rights,  without  coming  in  conflict  with  any  of  those 
constitutional  principles  which  are  established  for  the  protection  of 
private  rights  or  private  property. 

[  701  ] 


598  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVJI. 


[*598]  *CH AFTER    XVII. 

THE    EXPRESSION    OF    THE    POPULAR   WILL. 

Although  by  their  constitutions  the  people  have  delegated  the 
exercise  of  sovereign  powers  to  the  several  departments,  they  have 
not  thereby  divested  themselves  of  the  sovereignty.  They  retain 
in  their  own  hands  a  power  to  control  the  governments  they  create 
so  far  as  they  have  thought  it  needful  to  do  so,  and  the  three  de- 
partments are  responsible  to  and  subject  to  be  ordered,  directed, 
changed,  or  abolished  by  them.  But  this  control  and  direction 
must  be  exercised  in  the  legitimate  mode  previously  agreed  upon. 
The  voice  of  the  people,  in  their  sovereign  capacity,  can  only  be  of 
legal  force  when  expressed  at  the  times  and  under  the  conditions 
which  they  themselves  have  prescribed  and  pointed  out  by  the 
constitution,  or  which,  consistently  with  the  constitution,  have 
been  prescribed  and  pointed  out  for  them  by  the  legislature ;  and 
if  by  any  portion  of  the  people,  however  large,  an  attempt  should 
be  made  to  interfere  with  the  regular  working  of  the  agencies  of 
government  at  any  other  time  or  in  any  other  mode  than  as  allowed 
by  existing  law,  either  constitutional  or  statutory,  it  would  be 
revolutionary  in  character,  and  must  be  resisted  and  repressed  by 
the  officers  who,  for  the  time  being,  represent  legitimate  govern- 
ment.1 

1  "  The  maxim  which  lies  at  the  foundation  of  our  government  is  that  all 
political  power  originates  with  the  people.  But  since  the  organization  of  gov- 
ernment it  cannot  be  claimed  that  either  the  legislative,  executive,  or  judicial 
powers,  either  wholly  or  in  part,  can  be  exercised  by  them.  By  the  institution 
of  government,  the  people  surrender  the  exercise  of  all  these  sovereign  func- 
tions of  government  to  agents  chosen  by  themselves,  who  at  least  theoretically 
represent  the  supreme  will  of  their  constituents.  Thus  all  power  possessed 
by  the  people  themselves  is  given  and  centred  in  their  chosen  representatives." 
Davis,  Ch.  J.,  in  Gibson  v.  Mason,  5  Nev.  291. 

Under  some  of  the  constitutions  certain  votes  can  only  be  carried  by  a  major- 
ity of  the  electors  voting  favorably.  This  must  be  understood  to  mean,  a  majority 
of  those  voting  at  the  election  on  any  question.  Taylor  v.  Taylor,  10  Minn.  107. 
Compare  Gillespie  v.  Palmer,  20  Wis.  544;  State  v.  Mayor,  &c,  37  Mo.  270; 
State  v.  Binder,  38  Mo.  450;  Bayard  v.  Klinge,  16  Minn.  249. 

[702] 


CH.  XVII.]  THE    EXPRESSION   OF   THE   POPULAR   WILL.  *  598 

The  authority  of  the  people  is  exercised  through  elections,  by 
means  of  which  they  choose  legislative,  executive,  and  judicial 
officers,  to  whom  are  to  be  intrusted  the  exercise  of  powers  of  gov- 
ernment. In  some  cases  also  they  pass  upon  other  questions  spe- 
cially submitted  to  them,  and  adopt  or  reject  a  measure  according 
as  a  majority  vote  for  or  against  it.  It  is  obviously  impossible 
that  any  considerable  people  should  in  general  meeting  consider, 
mature,  and  adopt  their  own  laws ;  but  when  a  law  has  been  per- 
fected, and  it  is  deemed  desirable  to  take  the  expression  of  public 
sentiment  upon  it,  or  upon  any  other  single  question,  the  ordinary 
machinery  of  elections  is  adequate  to  the  end,  and  the  expression 
is  easily  and  without  confusion  obtained  by  submitting  such  law  or 
such  question  for  an  affirmative  or  negative  vote.  In  this  manner 
constitutions  and  amendments  thereof  are  adopted  or  rejected,  and 
matters  of  local  importance  in  many  cases,  like  the  location  of  a 
county  seat,  the  contracting  of  a  local  debt,  the  erection  of  a  public 
building,  the  acceptance  of  a  municipal  charter,  and  the  like,  are 
passed  upon  and  determined  by  the  people  whom  they 
concern,  *  under  constitutional  or  statutory  provisions  [*  599] 
which  require  or  permit  it. 

The  Rigid  to  participate  in  Elections. 

In  another  place  we  have  said  that,  though  the  sovereignty  is  in 
the  people,  as  a  practical  fact  it  resides  in  those  persons  who  by 
the  constitution  of  the  State  are  permitted  to  exercise  the  elective 
franchise.1  Each  State  establishes  its  own  regulations  on  this 
subject ;  subject  only  to  the  fifteenth  amendment  to  the  national 
Constitution,  which  forbids  that  the  right  of  citizens  to  vote  shall 
be  denied  or  abridged  on  account  of  race,  color,  or  previous 
condition  of  servitude.  Participation  in  the  elective  franchise  is 
a  privilege  rather  than  a  right,  and  it  is  granted  or  denied  on 
grounds  of  general  policy  ;  the  prevailing  view  being  that  it  should 
be  as  general  as  possible  consistent  with  the  public  safety.  Aliens 
are  generally  excluded,  though  in  some  States  they  are  allowed  to 
vote  after  residence  for  a  specified  period,  provided  they  have 
declared  their  intention  to  become  citizens  in  the  manner  pre- 
scribed by  law.  The  fifteenth  amendment,  it  will  be  seen,  does 
not  forbid  denying  the  franchise  to  citizens  except  upon  certain 

1  Ante,  p.  29. 

[  703] 


*  599  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVII. 

specified  grounds,  and  it  is  matter  of  public  history  that  its  pur- 
pose was  to  prevent  discriminations  in  this  regard  as  against  the 
newly  enfranchised  slaves.  Minors,  who  equally  with  adult  per- 
sons are  citizens,  are  still  excluded,  as  are  also  women,  and  some- 
times persons  who  have  been  convicted  of  infamous  crimes.1  In 
some  States  laws  will  be  found  in  existence  which,  either  generally 
or  in  particular  cases,  deny  the  right  to  vote  to  those  persons  who 
lack  a  specified  property  qualification,  or  who  do  not  pay  taxes.  In 
some  States  idiots  and  lunatics  are  also  expressly  excluded  ;  and 
it  has  been  supposed  that  these  unfortunate  classes,  by  the  common 
political  law  of  England  and  of  this  country,  were  excluded  with 
women,  minors,  and  aliens  from  exercising  the  right  of  suffrage, 
even  though  not  prohibited  therefrom  by  any  express  constitutional 
or  statutory  provision.2  Wherever  the  constitution  has  prescribed 
the  qualifications  of  electors,  they  cannot  be  changed  or  added  to 
by  the  legislature,3  or  otherwise  than  by  an  amendment  of  the 
constitution. 

One  of  the  most  common  requirements  is,  that  the  party  offer- 
ing to  vote  shall  reside  within  the  district  which  is  to  be  affected 
by  the  exercise  of  the  right.  If  a  State  officer  is  to  be  chosen, 
the  voter  should  be  a  resident  of  the  State ;  and  if  a  county,  city, 
or  township  officer,  he  should  reside  within  such  county,  city,  or 

1  Story  on  Const.  4th.  ed.  §  1972. 

2  See  Cushing's  Legislative  Assemblies,  §  24.  Also  §  27,  and  notes  referring 
to  legislative  cases.  Drunkenness  is  regarded  as  temporary  insanity.  Ibid. 
Idiots  and  lunatics  are  expressly  excluded  by  the  Constitutions  of  Delaware, 
Iowa,  Kansas,  Maryland,  Minnesota,  Nevada,  New  Jersey,  Ohio,  Oregon, 
Florida,  Alabama,  Arkansas,  California,  Georgia,  Mississippi,  South  Carolina, 
Texas,  Rhode  Island,  West  Virginia,  and  Wisconsin.  Paupers  are  excluded  in 
New  York,  California,  Maine,  Massachusetts,  New  Hampshire,  New  Jersey, 
Rhode  Island,  South  Carolina,  Delaware,  Texas,  Wisconsin,  and  West  Virginia. 
Persons  under  guardianship  are  excluded  in  Kansas,  Maine,  Massachusetts, 
Minnesota,  Florida,  Maryland,  Rhode  Island,  and  Wisconsin.  Persons  under 
interdiction  are  excluded  in  Louisiana  ;  and  persons  excused  from  paying  taxes  at 
their  own  request,  in  New  Hampshire.  Capacity  to  read  is  required  in  Connecti- 
cut, and  capacity  to  read  and  write  in  Massachusetts. 

3  See  Green  v.  Shumway,  39  N.  Y.  418  ;  Brown  v.  Grover,  6  Bush,  1 ;  Quinn 
v.  State,  35  Ind.  485;  Huber  v.  Reiley,  53  Penn.  St.  112;  ante,  64,  note  3. 
Compare  State  v.  Neal,  42  Mo.  119.  Where  a  disqualification  to  vote  is  made 
to  depend  upon  the  commission  of  crime,  the  election  officers  cannot  be  made 
the  triers  of  the  offence.  Huber  v.  Reiley,  supra ;  State  v.  Symonds,  59  Me. 
151. 

[704] 


CH.  XVII.]  THE   EXPRESSION  OF   THE   POPULAR    WILL.  *  599 

township.  This  is  the  general  rule  ;  and  for  the  more  convenient 
determination  of  the  right  to  vote,  and  to  prevent  fraud,  it  is  now 
generally  required  that  the  elector  shall  only  exercise 
within  the  municipality  where  he  has  *  his  residence  his  [*  600J 
right  to  participate  in  either  local  or  general  elections. 
Requiring  him  to  vote  among  his  neighbors,  by  whom  he  will  be 
likely  to  be  generally  known,  the  opportunities  for  illegal  or  fraud- 
ulent voting  will  be  less  than  if  the  voting  were  allowed  to  take 
place  at  a  distance  and  among  strangers.  And  wherever  this  is 
the  requirement  of  the  constitution,  any  statute  permitting  voters 
to  deposit  their  ballots  elsewhere  must  necessarily  be  void.1 

A  person's  residence  is  the  place  of  his  domicile,  or  the  place 
where  his  habitation  is  fixed,  without  any  present  intention  of 
removing  therefrom.2  The  words  "  inhabitant,"  "  citizen,"  and 
"  resident,"  as  employed  in  different  constitutions  to  define  the 
qualifications  of  electors,  mean  substantially  the  same  thing ;  and 
one  is  an  inhabitant,  resident,  or  citizen  at  the  place  where  he 
has  his  domicile  or  home.3  Every  person  at  all  times  must  be 
considered  as  having  a  domicile  somewhere,  and  that  which  he 
has  acquired  at  one  place  is  considered  as  continuing  until 
another  is  acquired  at  a  different  place.  It  has  been  held  that 
a  student  in  an  institution  of  learning,  who  has  residence  there 
for  purposes  of  instruction,  may  vote  at  such  place,  provided  he 

1  Opinions  of  Judges,  30  Conn.  591 ;  Hulseman  v.  Rems,  41  Penn.  St  396 ; 
Chase  v.  Miller,  ib.  403 ;  Opinions  of  Judges,  44  N.  H.  633  ;  Bourland  v.  Hil- 
dreth,  26  Cal.  161 ;  People  v.  Blodgett,  13  Mich.  127  ;  Opinions  of  Judges, 
37  Vt.  665;  Day  v.  Jones,  31  Cal.  261.  The  case  of  Morrison  v.  Springer,  15 
Iowa,  304,  is  not  in  harmony  with  those  above  cited.  So  far  as  the  election  of 
representatives  in  Congress  and  electors  of  president  and  vice-president  is  con- 
cerned, the  State  constitutions  cannot  preclude  the  legislature  from  prescribing 
the  "  times,  places,  and  manner  of  holding"  the  same,  as  allowed  by  the  national 
Constitution,  —  art.  1,  §  4,  and  art.  2,  §  1,  —  and  a  statute  permitting  such 
election  to  be  held  out  of  the  State  would  consequently  not  be  invalid.  Opinions 
of  Justices,  45  N.  H.  595  ;  Opinions  of  Judges,  37  Vt.  665.  There  are  now  con- 
stitutional provisions  in  New  York,  Michigan,  Missouri,  Connecticut,  Maryland, 
Kansas,  Mississippi,  Nevada,  Rhode  Island,  and  Pennsylvania,  which  permit 
soldiers  in  actual  service  to  cast  their  votes  where  they  may  happen  to  be  sta- 
tioned at  the  time  of  voting.  It  may  also  be  allowed  in  Ohio.  Lehman  v. 
McBride,  15  Ohio,  n.  s.  573. 

2  Putnam  v.  Johnson,  10  Mass.  488;  Rue  High's  Case,  2  Doug.  (Mich.)  523; 
Story,  Conn.  Laws,  §  43. 

3  Cushing's  Law  and  Practice , of  Legislative  Assemblies,  §  36. 

45  [  705  J 


*  600  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVII. 

is  emancipated  from  his  father's  family,  and  for  the  time  has  no 
home  elsewhere.1 


1  Putnam  v.  Johnson,  10  Mass.  488;  Lincoln  v.  Hapgood,  11  Mass.  350; 
Wilbraham  v.  Ludlow,  99  Mass.  587.  "  The  questions  of  residence,  inhabitancy, 
or  domicile  —  for  although  not  in  all  respects  precisely  the  same,  they  are  nearly 
so,  and  depend  much  upon  the  same  evidence  —  are  attended  with  more  difficulty 
than  almost  any  other  which  are  presented  for  adjudication.  No  exact  definition 
can  be  given  of  domicile  ;  it  depends  upon  no  one  fact  or  combination  of  circum- 
stances ;  but,  from  the  whole  taken  together,  it  must  be  determined  in  each  par- 
ticular case.  It  is  a  maxim  that  every  man  must  have  a  domicile  somewhere,  and 
also  that  he  can  have  but  one.  Of  course  it  follows  that  his  existing  domicile 
continues  until  he  acquires  another ;  and  vice  versa,  by  acquiring  a  new  domicile  he 
relinquishes  his  former  one.  From  this  view  it  is  manifest  that  very  slight  circum- 
stances must  often  decide  the  question.  It  depends  upon  the  preponderance 
of  the  evidence  in  favor  of  two  or  more  places  ;  and  it  may  often  occur  that  the 
evidence  of  facts  tending  to  establish  the  domicile  in  one  place  would  be  entirely 
conclusive,  were  it  not  for  the  existence  of  facts  and  circumstances  of  a  still  more 
conclusive  and  decisive  character,  which  fix  it  beyond  question  in  another.  So, 
on  the  contrary,  very  slight  circumstances  may  fix  one's  domicile,  if  not  con- 
trolled by  more  conclusive  facts  fixing  it  in  another  place.  If  a  seaman,  without 
family  or  property,  sails  from  the  place  of  his  nativity,  which  may  be  con- 
sidered his  domicile  of  origin,  although  he  may  return  only  at  long  intervals, 
or  even  be  absent  many  years,  yet  if  he  does  not  by  some  actual  residence  or 
other  means  acquire  a  domicile  elsewhere,  he  retains  his  domicile  of  origin." 
Shaw,  Ch.  J.,  Thorndike  v.  City  of  Boston,  1  Met.  245.  And  see  Alston 
v.  Newcomer,  42  Miss.  186.  In  Inhabitants  of  Abington  v.  Inhabitants  of 
North  Bridgewater,  23  Pick.  170,  it  appeared  that  a  town  line  ran  through  the 
house  occupied  by  a  party,  leaving  a  portion  on  one  side  sufficient  to  form  a 
habitation,  and  a  portion  on  the  other  not  sufficient  for  that  purpose.  Held, 
that  the  domicile  must  be  deemed  to  be  on  the  side  first  mentioned.  It  was 
intimated  also  that  where  a  house  was  thus  divided,  and  the  party  slept  habitually 
on  one  side,  that  circumstance  should  be  regarded  as  a  preponderating  one  to  fix 
his  residence  there,  in  the  absence  of  other  proof.  And  see  Rex  v.  St.  Olave's, 
1  Strange,  51. 

By  the  constitutions  of  several  of  the  States,  it  is  provided,  in  substance,  that 
no  person  shall  be  deemed  to  have  gained  or  lost  a  residence  by  reason  of  his 
presence  or  absence,  while  employed  in  the  service  of  the  United  States  ;  nor 
while  a  student  in  any  seminary  of  learning ;  nor  while  kept  at  any  almshouse 
or  asylum  at  public  expense,  nor  while  confined  in  any  public  prison.  See  Const. 
of  New  York,  Illinois,  Indiana,  California,  Michigan,  Rhode  Island,  Minnesota, 
Missouri,  Nevada,  Oregon,  and  Wisconsin.  In  several  of  the  other  States  there 
are  provisions  covering  some  of  these  cases,  but  not  all.  A  provision  that  no 
person  shall  be  deemed  to  have  gained  or  lost  a  residence  by  reason  of  his  pres- 
ence or  absence  in  the  service  of  the  United  States,  does  not  preclude  one  (rom 
acquiring  a  residence  in  the  place  where,  and  in  the  time  while  he  is  present  in 
such  service.     People  v.  Holden,  28  Cal.  123.     If  a  man  takes  up  his  permanent 

[706] 


CH.  XVII.]  THE   EXPRESSION   OF   THE   POPULAR   WILL.  *  601 


*  Conditions  to   the  Exercise   of  the   Elective  Franchise.   [*601] 

While  it  is  true  that  the  legislature  cannot  add  to  the  constitu- 
tional qualifications  of  electors,  it  must  nevertheless  devolve  upon 
that  body  to  establish  such  regulations  as  will  enable  all  persons 
entitled  to  the  privilege  to  exercise  it  freely  and  securely,  and  ex- 
clude all  who  are  not  entitled  from  improper  participation  therein. 
For  this  purpose  the  times  of  holding  elections,  the  manner  of 
conducting  them  and  of  ascertaining  the  result,  are  prescribed, 
and  heavy  penalties  are  imposed  upon  those  who  shall  vote  ille- 
gally, or  instigate  others  to  do  so,  or  who  shall  attempt  to  preclude 
a  fair  election  or  to  falsify  the  result.  The  propriety,  and  indeed 
the  necessity,  of  such  regulations  is  undisputed.  In  some  of  the 
States  it  has  also  been  regarded  as  important  that  lists  of  voters 
should  be  prepared  before  the  day  of  election,  in  which  should  be 
registered  the  name  of  every  person  qualified  to  vote.  Under 
such  a  regulation,  the  officers  whose  duty  it  is  to  administer  the 
election  laws  are  enabled  to  proceed  with  more  deliberation  in  the 
discharge  of  their  duties,  and  to  avoid  the  haste  and  confusion 
that  must  attend  the  determination  upon  election  day  of  the  vari- 
ous and  sometimes  difficult  questions  concerning  the  right  of  indi- 
viduals to  exercise  this  important  franchise.  Electors,  also,  by 
means  of  this  registry,  are  notified  in  advance  what  persons  claim 
the  right  to  vote,  and  are  enabled  to  make  the  necessary  examina- 
tion to  determine  whether  the  claim  is  well  founded,  and  to  exer- 
cise the  right  of  challenge  if  satisfied  any  person  registered  is 
unqualified.  When  the  constitution  has  established  no  such  rule, 
and  is  entirely  silent  on  the  subject,  it  has  sometimes  been  claimed 
that  the  statute  requiring  voters  to  be  registered  before  the  day  of 
election,  and  excluding  from  the  right  all  whose  names  do  not 
appear  upon  the  list,  was  unconstitutional  and  void,  as  adding 

abode  at  the  place  of  an  institution  of  learning,  the  fact  of  his  entering  it  as  a 
student  will  not  preclude  his  acquiring  a  legal  residence  there ;  but  if  he  is  domi- 
ciled at  the  place  for  the  purposes  of  instruction  only,  it  is  deemed  proper  and 
right  that  he  should  neither  lose  his  former  residence  nor  gain  a  new  one  in  con- 
sequence thereof. 

That  persons  residing  upon  lands  within  a  State,  but  set  apart  for  some  national 
purpose,  and  subjected  to  the  exclusive  jurisdiction  of  the  United  States,  are  not 
voters,  see  Sinks  v.  Reese,  19  Ohio,  N.  s.  306. 

[707] 


*  601  CONSTITUTIONAL  LIMITATIONS.  [CH.  XVII. 

another  test  to  the  qualifications  of  electors  which  the 
[*  602]   constitution   *has    prescribed,  and  as  having  the  effect, 

where  electors  are  not  registered,  to  exclude  from  voting 
persons  who  have  an  absolute  right  to  that  franchise  by  the  funda- 
mental law.1  This  position,  however,  has  not  been  generally  ac- 
cepted as  sound  by  the  courts.  The  provision  for  a  registry 
deprives  no  one  of  his  right,  but  is  only  a  reasonable  regulation 
under  which  the  right  may  be  exercised.2  Such  regulations  must 
always  have  been  within  the  power  of  the  legislature,  unless  for- 
bidden. Many  resting  upon  the  same  principle  are  always  pre- 
scribed, and  have  never  been  supposed  to  be  open  to  objection. 
Although  the  constitution  provides  that  all  male  citizens  twenty- 
one  years  of  age  and  upwards  shall  be  entitled  to  vote,  it  would 
not  be  seriously  contended  that  a  statute  which  should  require  all 
such  citizens  to  go  to  the  established  place  for  holding  the  polls, 
and  there  deposit  their  ballots,  and  not  elsewhere,  was  a  violation 
of  the  constitution,  because  prescribing  an  additional  qualification, 
namely,  the  presence  of  the  elector  at  the  polls.  All  such  reason- 
able regulations  of  the  constitutional  right  which  seem  to  the  legis- 
lature important  to  the  preservation  of  order  in  elections,  to  guard 
against  fraud,  undue  influence,  and  oppression,  and  to  preserve 
the  purity  of  the  ballot-box,  are  not  only  within  the  constitutional 
power  of  the  legislature,  but  are  commendable,  and  at  least  some 
of  them  absolutely  essential.  And  where  the  law  requires  such  a 
registry,  and  forbids  the  reception  of  votes  from  any  persons  not 
registered,  an  election  in  a  township  where  no  such  registry  has 
ever  been  made  will  be  void,  and  cannot  be  sustained  by  making 
proof  that  none  in  fact  but  duly  qualified  electors  have  voted.  It 
is  no  answer  that  such  a  rule  may  enable  the  registry  officers,  by 
neglecting  their  duty,  to  disfranchise  the  electors  altogether  ;  the 
remedy  of  the  electors  is  by  proceedings  to  compel  the  perform- 
ance of  the  duty ;  and  the  statute,  being  imperative  and  manda- 
tory, cannot  be  disregarded.3     The  danger,  however,  of  any  such 

1  See  Page  v.  Allen,  58  Penn.  St.  338. 

2  Capen  v.  Foster,  12  Pick.  485;  People  v.  Kopplekom,  16  Mich.  3-12;  State 
v.  Bond,  38  Mo.  425;  State  v.  Hilmantel,  21  Wis.  566;  Byler  v.  Asher,  47  111. 
101 ;  Edmonds  v.  Banbury,  28  Iowa,  270;  Ensworth  v.  Albin,  46  Mo.  450.  As 
to  the  conclusiveness  of  the  registry,  see  Hyde  v.  Brush,  34  Conn.  454. 

3  People  v.  Kopplekom,  16  Mich.  342.  The  law  does  not  become  unconstitu- 
tional, because  of  the  fact  that,  by  the  neglect  of  the  officers  to  attend  to  the 
registry,  voters  may  be  disfranchised.     Ibid. ;  Ensworth  v.  Albin,  46  Mo.  450. 

[708] 


CH.  XVII.]  THE   EXPRESSION   OP   THE   POPULAR   WILL.  *  602 

misconduct  on  the  part  of  officers  is  comparatively  small,  when  the 
duty  is  intrusted  to  those  who  are  chosen  in  the  locality  where  the 
registry  is  to  be  made,  and  who  are  consequently  immediately 
responsible  to  those  who  are  interested  in  being  registered. 

All  regulations  of  the  elective  franchise,  however,  must  be  rea- 
sonable, uniform,  and  impartial  ;  they  must  not  have  for  their 
purpose  directly  or  indirectly  to  deny  or  abridge  the  constitutional 
right  of  citizens  to  vote,  or  unnecessarily  to  impede  its  exercise ; 
if  they  do,  they  must  be  declared  void.1 

In  some  other  cases  preliminary  action  by  the  public  authorities 
may  be  requisite  before  any  legal  election  can  be  held. 
If  an  *  election  is  one  which  a  municipality  may  hold  or  [*  603] 
not  at  its  option,  and  the  proper  municipal  authority  de- 
cides against  holding  it,  it  is  evident  that  individual  citizens  must 
acquiesce,  and  that  any  votes  which  may  be  cast  by  them  on  the 
assumption  of  right  must  be  altogether  nugatory.2  The  same 
would  be  true  of  an  election  to  be  held  after  proclamation  for  that 
purpose,  and  which  must  fail  if  no  such  proclamation  has  been 
made.3  Where,  however,  both  the  time  and  the  place  of  an  elec- 
tion are  prescribed  by  law,  every  voter  has  a  right  to  take  notice  of 
the  law,  and  to  deposit  his  ballot  at  the  time  and  place  appointed, 
notwithstanding  the  officer,  whose  duty  it  is  to  give  notice  of  the 

1  Capen  v.  Foster,  12  Pick.  488 ;  Monroe  v.  Collins,  17  Ohio,  n.  s.  665. 
Under  the  Constitution  of  Ohio,  the  right  of  suffrage  is  guaranteed  to  "  white 
male  citizens  "  ;  and  by  a  long  series  of  decisions  it  was  settled  that  persons  hav- 
ing a  preponderance  of  white  blood  were  "  white  "  within  its  meaning.  It  was 
also  settled  that  judges  of  election  were  liable  to  an  action  for  refusing  to  receive 
the  vote  of  a  qualified  elector.  A  legislature  unfriendly  to  the  construction  of 
the  constitution  above  stated,  passed  an  act  which,  while  prescribing  penalties 
against  judges  of  election  who  should  refuse  to  receive  or  sanction  the  rejection 
of  a  ballot  from  any  person  knowing  him  to  have  the  qualifications  of  an  elector, 
concluded  with  a  proviso  that  the  act  and  the  penalties  thereto  "  shall  not  apply 
to  clerks  or  judges  of  election  for  refusing  to  receive  the  votes  of  persons  having 
a  distinct  and  visible  admixture  of  African  blood,  nor  shall  they  be  liable  to 
damages  by  reason  of  such  rejection."  Other  provisions  of  the  act  plainly  dis- 
criminated against  the  class  of  voters  mentioned,  and  it  was  held  to  be  clearly 
unreasonable,  partial,  calculated  to  subvert  or  impede  the  exercise  of  the  right 
of  suffrage  by  this  class,  and  therefore  void.     Monroe  v.  Collins,  supra. 

2  Opinions  of  Judges,  7  Mass.  525  ;  Opinions  of  Judges.  15  Mass.  537. 

3  People  v.  Porter,  6  Cal.  26;  McKune  v.  Weller,  11  Cal.  49;  People  v. 
Martin,  12  Cal.  409;  Jones  v.  State,  1  Kansas,  273;  Barry  v.  Lauck,  5  Cold. 
588. 

[709  ] 


*  603  CONSTITUTIONAL  LIMITATIONS.  [CH.  XVII. 

election,  has  failed  in  that  duty.  The  notice  to  be  thus  given  is 
only  additional  to  that  which  the  statute  itself  gives,  and  is  pre- 
scribed for  the  purpose  of  greater  publicity  ;  but  the  right  to  hold 
the  election  comes  from  the  statute,  and  not  from  the  official  notice. 
It  has  therefore  been  frequently  held  that  when  a  vacancy  exists  in 
an  office,  which  the  law  requires  shall  be  filled  at  the  next  general 
election,  the  time  and  place  of  which  are  fixed,  and  that  notice  of 
the  general  election  shall  also  specify  the  vacancy  to  be  filled,  an 
election  at  that  time  and  place  to  fill  the  vacancy  will  be  valid,  not- 
withstanding the  notice  is  not  given  ;  and  such  election  cannot  be 
defeated  by  showing  that  a  small  portion  only  of  the  electors  were 
actually  aware  of  the  vacancy  or  cast  their  votes  to  fill  it.1  But 
this  would  not  be  the  case  if  either  the  time  or  the  place  were 
not  fixed  by  law,  so  that  notice  became  essential  for  that  pur- 
pose.2 

1  People  v.  Cowles,  13  N.  Y.  350;  People  v.  Brenahm,  3  Cal.  477;  State  v. 
Jones,  19  Ind.  356;  People  v.  Hartwell,  12  Mich.  508;  Dislion  v.  Smith,  10 
Iowa,  212;  State  v.  Orvis,  20  Wis.  235;  State  v.  Goetze,  22  Wis.  363.  The 
Case  of  Foster  v.  Scarff,  15  Ohio,  n.  s.  532,  would  seem  to  be  contra.  A  gen- 
eral election  was  to  be  held,  at  which  by  law  an  existing  vacancy  in  the  office  of 
Judge  of  Probate  was  required  to  be  filled.  The  sheriff,  however,  omitted  all 
mention  of  this  office  in  his  notice  of  election,  and  the  voters  generally  were  not 
aware  that  a  vacancy  was  to  be  filled.  Nominations  were  made  for  the  other 
offices,  but  none  for  this,  but  a  candidate  presented  himself  for  whom  less  than  a 
fourth  of  the  voters  taking  part  in  the  election  cast  ballots.  It  was  held  that  the 
election  to  fill  the  vacancy  was  void. 

2  State  v.  Young,  4  Iowa,  561.  An  act  had  been  passed  for  the  incorporation 
of  the  city  of  Washington,  and  by  its  terms  it  was  to  be  submitted  to  the  people 
on  the  16th  of  the  following  February,  for  their  acceptance  or  rejection,  at  an 
election  to  be  called  and  holden  in  the  same  manner  as  township  elections  under 
the  general  law.  The  time  of  notice  for  the  regular  township  elections  was,  by 
law,  to  be  determined  by  the  trustees,  but  for  the  first  township  meeting  fifteen 
days'  notice  was  made  requisite.  An  election  was  holden,  assumed  to  be  under 
the  act  in  question;  but  no  notice  was  given  of  it,  except  by  the  circulation,  on 
the  morning  of  the  election,  of  an  extra  newspaper  containing  a  notice  that  an 
election  would  be  held  on  that  day  at  a  specified  place.  It  was  held  that  the 
election  was  void.  The  act  contemplated  some  notice  before  any  legal  vote 
could  be  taken,  and  that  which  was  given  could  not  be  considered  any  notice  at 
all.  This  case  differs  from  all  of  those  above  cited,  where  vacancies  were  to  be 
filled  at  a  general  election,  and  where  the  law  itself  would  give  to  the, electors  all 
the  information  which  was  requisite.  In  this  case,  although  the  time  was  fixed, 
the  place  was  not;  and,  if  a  notice  thus  circulated  on  the  morning  of  election 
could  be  held  sufficient,  it  might  well  happen  that. the  electors  generally  would  fail 

[710] 


CH.  XVII.]  THE   EXPRESSION   OF   THE   POPULAR   WILL. 


G04 


*  TJte  Manner  of  Exercising  the  Rigid.  [*  604] 

The  mode  of  voting  in  this  country,  at  all  general  elections,  is 
almost  universally  by  ballot.1  "  A  ballot  may  be  denned  to  be  a 
piece  of  paper,  or  other  suitable  material,  with  the  name  written  or 
printed  upon  it  of  the  person  to  be  voted  for ;  and  where  the  suf- 
frages are  given  in  this  form,  each  of  the  electors  in  person  depos- 
its such  a  vote  in  the  box,  or  other  receptacle  provided  for  the 
purpose,  and  kept  by  the  proper  officers."2  The  distinguishing 
feature  of  this  mode  of  voting  is,  that  every  voter  is  thus  enabled 
to  secure  and  preserve  the  most  complete  and  inviolable  secrecy  in 
regard  to  the  persons  for  whom  he  votes,  and  thus  escape  the  in- 
fluences which,  under  the  system  of  oral  suffrages,  may  be  brought 
to  bear  upon  him  with  a  view  to  overbear  and  intimidate,  and  thus 
prevent  the  real  expression  of  public  sentiment.3 

to  be  informed,  so  that  tlieir  right  to  vote  might  be  exercised.      See  also  Barry 
v.  Lauck,  5  Cold.  588. 

1  The  ballot  was  also  adopted  in  England  in  1872. 

2  Cush.  Leg.  Assemb.  §  103. 

3  "In  this  country,  and  indeed  in  every  country  where  officers  are  elective, 
different  modes  have  been  adopted  for  the  electors  to  signify  their  choice.  The 
most  common  modes  have  been  either  by  voting  viva  voce,  that  is,  by  the  elector 
openly  naming  the  person  he  designates  for  the  office,  or  by  ballot,  which  is 
depositing  in  a  box  provided  for  the  purpose  a  paper  on  which  is  the  name  of 
the  person  he  intends  for  the  office.  The  principal  object  of  this  last  mode  is  to 
enable  the  elector  to  express  his  opinion  secretly,  without  being  subject  to  be 
overawed,  or  to  any  ill-will  or  persecution  on  account  of  his  vote  for  either  of 
the  candidates  who  may  be  before  the  public.  The  method  of  voting  by  tab- 
lets in  Rome  was  an  example  of  this  manner  of  voting.  There  certain  officers 
appointed  for  that  purpose,  called  Diribitores,  delivered  to  each  voter  as  many 
tablets  as  there  were  candidates,  one  of  whose  names  was  written  upon  every 
tablet.  The  voter  put  into  a  chest  prepared  for  that  purpose  which  of  these 
tablets  he  pleased,  and  they  were  afterwards  taken  out  and  counted.  Cicero 
defines  tablets  to  be  little  billets,  in  which  the  people  brought  their  suffrages. 
The  clause  in  the  constitution  directing  the  election  of  the  several  State  officers 
was  undoubtedly  intended  to  provide  that  the  election  should  be  made  by  this 
mode  of  voting  to  the  exclusion  of  any  other.  In  this  mode  the  freemen  can 
individually  express  their  choice,  without  being  under  the  necessity  of  publicly 
declaring  the  object  of  their  choice ;  their  collective  voice  can  be  easily  ascer- 
tained, and  the  evidence  of  it  transmitted  to  the  place  where  their  votes  are  to 
be  counted,  and  the  result  declared  with  as  little  inconvenience  as  possible." 
Temple  v.  Mead,  4  Vt.  541.  In  this  case  it  was  held  that  a.  printed  ballot  was 
within  the  meaning  of  the  constitution  which  required  all  ballots  for  certain 

[711] 


*  605  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVII. 

[*  605]  *  In  order  to  secure  as  perfectly  as  possible  the  benefits 
anticipated  from  this  system,  statutes  have  been  passed, 
in  some  of  the  States,  which  prohibit  ballots  being  received  or 
counted  unless  the  same  are  written  or  printed  upon  white  paper, 
without  any  marks  or  figures  thereon  intended  to  distinguish  one 
ballot  from  another.1     These  statutes  are  simply  declaratory  of  a 


State  officers  to  be  "  fairly  written."     To  the  same  effect  is  Henshaw  v.  Foster, 
9  Pick.  312. 

1  See  People  v.  Kilduff,  15  111.  500.  In  this  case  it  was  held  that  the  common 
lines  on  ruled  paper  did  not  render  the  ballots  void.  See  also  Druliner  v.  State, 
29  Ind.  308,  in  which  it  was  decided  that  a  caption  to  the  ticket  folded  inside  was 
unobjectionable.  To  the  same  effect  is  Millholland  v.  Bryant,  89  Ind.  363. 
In  the  recent  case  of  Williams  v.  Stein,  38  Ind.  90,  the  Supreme  Court  of 
Indiana  declared  to  be  void  the  following  enactment:  "  It  shall  be  the  duty  of 
the  inspector  of  any  election  held  in  this  State,  on  receiving  the  ballot  of  any 
voter,  to  have  the  same  numbered  with  figures,  on  the  outside  or  back  thereof, 
to  correspond  with  the  number  placed  opposite  the  name  of  such  voter  on  the 
poll  lists  kept  by  the  clerks  of  said  election."  Pettit,  J.,  delivering  the  opinion 
of  the  court,  after  quoting  several  authorities,  among  others  Commonwealth  v. 
Woelper,  3  S.  &  R.  29 ;  People  v.  Pease,  27  N.  Y.  45 ;  People  v.  Cicotte,  16 
Mich.  283  ;  Temple  v.  Mead,  4  Vt.  535,  and  the  text  above,  says  :  "  It  is  believed 
that  these  authorities  establish,  beyond  doubt,  that  the  ballot  implies  absolute  and 
inviolable  secrecy,  and  that  the  principle  is  founded  in  the  highest  considerations 
of  public  policy.  When  our  present  constitution  was  framed,  voting  by  ballot 
was  in  vogue  in  nearly  every  State  in  the  Union.  That  mode  of  voting  had  been 
known  and  understood  for  centuries.  The  term  ballot,  as  designating  a  mode  of 
election,  was  then  well  ascertained  and  clearly  defined.  The  eminent  framers  of 
the  constitution  certainly  employed  this  term  with  a  full  knowledge  of  its  mean- 
ing. Many  of  the  most  distinguished  members  of  the  constitutional  convention 
of  1850  were  members  of  the  legislature  of  1852,  the  first  that  met  under  the 
present  constitution.  That  they  regarded  the  ballot  system  as  securing  inviolable 
secrecy,  is  clearly  shown  by  the  following  law,  which  they  then  helped  to  enact: 
'  If  any  judge,  inspector,  clerk,  or  other  officer  of  an  election,  shall  open  or 
mark,  by  folding  or  otherwise,  any  ticket  presented  by  such  elector  at  such  elec- 
tion, or  attempt  to  find  out  the  names  thereon,  or  suffer  the  same  to  be  done  by 
any  other  person,  before  such  ticket  is  deposited  in  the  ballot-box,  he  shall  be 
fined  in  any  sum  not  exceeding  one  hundred  dollars.1  2  G.  &  H.  473,  sec.  60. 
If  the  constitution  secures  to  the  voter,  in  popular  elections,  the  protection  and 
immunity  of  secrecy,  there  can  be  no  doubt  that  section  2  of  the  act  of  1869, 
which  authorized  the  inspector  to  number  ballots,  is  clearly  in  conflict  with  it  and 
is  void.  I  am  not  unmindful  of  the  rule  that  all  doubts  are  to  be  solved  in 
favor  of  the  constitutionality  of  legislative  enactments.  This  rule  is  well  estab- 
lished, and  is  founded  in  the  highest  wisdom.  But  my  convictions  are  clear  that 
our  constitution  was  intended  to,  and  does,  secure  the  absolute  secrecy  of  a  bal- 
lot, and  that  the  act  in  question,  which  directs  the  numbering  of  tickets,  to  cor- 

[712] 


CH.  XVII.]  THE    EXPRESSION    OF    THE    POPULAR    WILL.  *  605 

constitutional  principle  that  inheres  in  the  system  of  voting  by 
ballot,  and  which  ought  to  be  inviolable  whether  declared  or  not. 
In  the  absence  of  such  a  statute,  all  devices  by  which  party  man- 
agers are  enabled  to  distinguish  ballots  in  the  hand  of  the  voter, 
and  thus  determine  whether  he  is  voting  for  or  against  them,  are 
opposed  to  the  spirit  of  the  Constitution,  inasmuch  as  they  tend  to 
defeat  the  design  for  which  voting  by  ballot  is  established,  and, 
though  they  may  not  render  an  election  void,  they  are  exceedingly 
reprehensible,  and  ought  to  be  discountenanced  by  all  good  citizens. 
The  system  of  ballot-voting  rests  upon  the  idea  that  every  elector 
is  to  be  entirely  at  liberty  to  vote  for  whom  he  pleases  and  with 
what  party  he  pleases,  and  that  no  one  is  to  have  the  right,  or  be 
in  position,  to  question  him  for  it,  either  then  or  at  any  subsequent 
time.1  The  courts  have  held  that  a  voter,  even  in  case  of  a  con- 
tested election,  cannot  be  compelled  to  disclose  for  whom  he 
voted  ;  and  for  the  same  reason  we  think  others  who  may  acci- 
dentally, or  by  trick  or  artifice,  have  acquired  knowledge 
on  the  subject  should  not  be  allowed  to  testify  *  to  such  [*  606] 
knowledge,  or  to  give  any  information  in  the  courts  upon 
the  subject.  Public  policy  requires  that  the  veil  of  secrecy  should 
be  impenetrable,  unless  the  voter  himself  voluntarily  determines 
to  lift  it ; 2  his  ballot  is  absolutely  privileged  ;  and  to  allow  evidence 

respond  with  the  numbers  opposite  the  names  of  the  electors  on  the  poll  lists,  is 
in  palpable  conflict  not  only  with  the  spirit,  but  with  the  substance  of  the  consti- 
tutional provision.  This  act  was  intended  to,  and  does,  clearly  identify  every 
man's  ticket,  and  renders  it  easy  to  ascertain  exactly  how  any  particular  person 
voted.  That  secrecy  which  is  esteemed  by  all  authority  to  be  essential  to  the  free 
exercise  of  suffrage,  is  as  much  violated  by  this  law  as  if  it  had  declared  that  the 
election  should  be  viva  voce.'''1 

1  "  The  right  to  vote  in  this  manner  has  usually  been  considered  an  important 
and  valuable  safeguard  of  the  independence  of  the  humble  citizen  against  the 
influence  which  wealth  and  station  might  be  supposed  to  exercise.  This  object 
would  be  accomplished  but  very  imperfectly  if  the  privacy  supposed  to  be  secured 
was  limited  to  the  moment  of  depositing  the  ballot.  The  spirit  of  the  system 
requires  that  the  elector  should  be  secured  then  and  at  all  times  thereafter  against 
reproach  or  animadversion,  or  any  other  prejudice  on  account  of  having  voted 
according  to  his  own  unbiassed  judgment ;  and  that  security  is  made  to  consist 
in  shutting  up  within  the  privacy  of  his  own  mind  all  knowledge  of  the  manner 
in  which  he  has  bestowed  his  suffrage."  Per  Denio,  Ch.  J.,  in  People  v.  Pease, 
27  N.  Y.  81. 

2  "The  ballot,"  says  Cicero,  "is  dear  to  the  people,  for  it  uncovers  men's 
faces,  and  conceals  their  thoughts.     It  gives  them  the  opportunity  of  doing  what 

[713] 


*  006  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVII. 

of  its  contents  when  he  has  not  waived  the  privilege,  is  to  encour- 
age trickery  and  fraud,  and  would  in  effect  establish  this  remark- 
able anomaly,  that,  while  the  law  from  motives  of  public  policy 
establishes  the  secret  ballot  with  a  view  to  conceal  the  elector's 
action,  it  at  the  same  time  encourages  a  system  of  espionage,  by 
means  of  which  the  veil  of  secrecy  may  be  penetrated  and  the 
voter's  action  disclosed  to  the  public.1 

they  like,  and  of  promising  all  that  they  are  asked."  Speech  in  defence  of 
Plaucius.     Forsyth's  Cicero,  Vol.  I.  p.  339. 

1  See  this  subject  fully  considered  in  People  v.  Cicotte,  16  Mich.  283.  And 
see  also  State  v.  Hilmantel,  23  Wis.  422.  A  very  loose  system  prevails  in  the 
contests  over  legislative  elections,  and  it  has  been  held  that  when  a  voter  refuses 
to  disclose  for  whom  he  voted,  evidence  is  admissible  of  the  general  reputation 
of  the  political  character  of  the  voter,  and  as  to  the  party  to  which  he  belonged 
at  the  time  of  the  election.  Cong.  Globe,  XVI.  App.  456.  This  is  assuming 
that  the  voter  adheres  strictly  to  party,  and  always  votes  the  "  straight  ticket "  ; 
an  assumption  which  may  not  be  a  very  violent  one  in  the  majority  of  cases,  but 
which  is  scarcely  creditable  to  the  manly  independence  and  self-reliance  of  any 
free  people ;  and  however  strongly  disposed  legislative  bodies  may  be  to  act  upon 
it,  we  are  not  prepared  to  see  any  such  rule  of  evidence  adopted  by  the  courts. 
If  a  voter  chooses  voluntarily  to  exhibit  his  ballot  publicly,  perhaps  there  is  no 
reason  why  those  to  whom  it  was  shown  should  not  testify  to  its  contents ;  but  in 
other  cases  the  knowledge  of  its  contents  is  his  own  exclusive  property,  and  he 
can  neither  be  compelled  to  part  with  it,  nor,  as  we  think,  is  any  one  else  who 
accidentally  or  surreptitiously  becomes  possessed  of  it,  or  to  whom  the  ballot 
has  been  shown  with  a  view -to  information,  advice,  or  alteration,  at  liberty  to 
make  the  disclosure.  Such  third  person  might  be  guilty  of  no  legal  offence  if 
he  should  do  so  ;  but  he  is  certainly  invading  the  constitutional  privileges  of  his 
neighbor,  and  we  are  aware  of  no  sound  principle  of  law  which  will  justify  a 
court  in  compelling  or  even  permitting  him  to  testify  to  what  he  has  seen. 
And  as  the  law  does  not  compel  a  voter  to  testify,  "  surely  it  cannot  be  so  incon- 
sistent with  itself  as  to  authorize  a  judicial  inquiry  upon  a  particular  subject,  and 
at  the  same  time  industriously  provide  for  the  concealment  of  the.  only  material 
facts  upon  which  the  results  of  such  an  inquiry  must  depend."  Per  Denio, 
Ch.  J.,  in  People  v.  Pease,  27  N.  Y.  81.  It  was  held  in  People  v.  Cicotte,  16 
Mich.  283,  that  until  it  was  distinctly  shown  that  the  elector  waived  his  privilege 
of  secrecy,  any  evidence  as  to  the  character  or  contents  of  his  ballot  was  inad- 
missible. It  was  also  held  that  where  a  voter's  qualification  was  in  question,  but 
his  want  of  right  to  vote  was  not  conceded,  the  privilege  was  and  must  be  the 
the  same ;  as  otherwise  any  person's  ballot  might  be  inquired  into  by  simply 
asserting  his  want  of  qualification.  In  State  v.  Olin,  23  Wis.  319,  it  was  decided 
that  where  persons  who  had  voted  at  an  election  had  declined  to  testify  concern- 
ing their  qualifications,  and  how  they  had  voted,  it  was  competent  to  prove  their 
declarations  that  they  were  unnaturalized  foreigners,  and  had  voted  a  particular 
way.     Compare  State  v.  Hilmantel,  23  Wis.  422. 

[714] 


CH.  XVII.]         THE    EXPRESSION   OF  THE   POPULAR   WILL.  *  606 

Every  ballot  should  be  complete  in  itself,  and  ought  not  to  re- 
quire extensive  evidence  to  enable  the  election  officer  to 
determine  *  the  voter's  intention.  Perfect  certainty,  how-  [*  607] 
ever,  is  not  required  in  these  cases.  It  is  sufficient  if  an 
examination  leaves  no  reasonable  doubt  upon  the  intention,  and 
technical  accuracy  is  never  required  in  any  case.  The  cardinal 
rule  is  to  give  effect  to  the  intention  of  the  voter,  whenever  it  is  not 
left  in  uncertainty  ; 1  but  if  an  ambiguity  appears  upon  its  face,  the 
elector  cannot  be  received  as  a  witness  to  make  it  good  by  testify- 
ing for  whom  or  for  what  office  he  intended  to  vote.2 

The  ballot  in  no  case  should  contain  more  names  than  are  au- 
thorized to  be  voted  for,  for  any  particular  office  at  that  election  ; 
and,  if  it  should,  it  must  be  rejected  for  the  obvious  impossibility 
of  the  canvassing  officers  choosing  from  among  the  names  on  the 
ballot,  and  applying  the  ballot  to  some  to  the  exclusion  of  others. 
The  choice  must  be  made  by  the  elector  himself,  and  be  expressed 
by  the  ballot.  Accordingly,  where  only  one  supervisor  was  to  be 
chosen,  and  a  ballot  was  deposited  having  upon  it  the  names  of  two 
persons  for  that  office,  it  was  held  that  it  must  be  rejected  for  am- 
biguity.3 It  has  been  decided,  however,  that  if  a  voter  shall  write 
a  name  upon  a  printed  ballot,  in  connection  with  the  title  to  an 
office,  this  is  such  a  designation  of  the  name  written  for  that  office 
as  sufficiently  to  demonstrate  his  intention,  even  though  he  omit  to 
strike  off  the  printed  name  of  the  opposing  candidate.  The  writing 
in  such  a  case,  it  is  held,  ought  to  prevail  as  the  highest  evidence 

1  People  v.  Matteson,  17  111.  169 ;  People  v.  Cook,  8  K  Y.  67 ;  State  v. 
Elwood,  12  Wis.  551 ;  People  v.  Bates,  11  Mich.  362. 

2  People  v.  Seaman,  5  Denio,  409.  The  mental  purpose  of  an  elector  is  not 
provable ;  it  must  be  determined  by  his  acts.  People  v.  Saxton,  22  N.  Y.  309. 
And  where  the  intent  is  to  be  gathered  from  the  ballot,  it  is  a  question  of  law, 
and  cannot  be  submitted  to  the  jury  as  one  of  fact.  People  v.  McManus,  34 
Barb.  620. 

3  People  v.  Seaman,  5  Denio,  409.  See  also  Attorney-General  v.  Ely,  4  Wis. 
420 ;  People  v.  Loomis,  8  Wend.  396  ;  People  v.  Cook,  14  Barb.  259,  and  8  N.  Y. 
67.  Such  a  vote,  however,  could  not  be  rejected  as  to  candidates  for  other  offices 
regularly  named  upon  the  ballot ;  it  would  be  void  only  as  to  the  particular  office 
for  which  the  duplicate  ballot  was  cast.  Attorney-General  v.  Ely,  4  Wis.  420. 
If  the  name  of  a  candidate  for  an  office  is  given  more  than  once,  it  is  proper  to 
count  it  as  one  ballot,  instead  of  rejecting  it  as  illegally  thrown.  People  v. 
Holden,  28  Cal.  123. 

[715] 


*  607  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVII. 

of  the  voter's  intention,  and  the  failure  to  strike  off  the  printed 

name  will  be  regarded  as  an  accidental  oversight.1 
[*608]  *  The  name  on  the  ballot  should  be  clearly  expressed, 
and  ought  to  be  given  fully.  Errors  in  spelling,  however, 
will  not  defeat  the  ballot,  if  the  sound  is  the  same  ;2  nor  abbrevia- 
tions,3 if  such  as  are  in  common  use  and  generally  understood,  so 
that  there  can  be  no  reasonable  doubt  of  the  intent.  And  it  would 
seem  that  where  a  ballot  is  cast  which  contains  only  the  initials  of 
the  Christian  name  of  the  candidate,  it  ought  to  be  sufficient,  as  it 
designates  the  person  voted  for  with  the  same  certainty  which  is 
commonly  met  with  in  contracts  and  other  private  writings,  and 
the  intention  of  the  voter  cannot  reasonably  be  open  to 
[*  609]   any  doubt.4   As  the  law  knows  only  *  one  Christian  name, 

1  People  v.  Saxton,  22  N.  Y.  309.  This  ruling  suggests  this  query:  Suppose 
at  an  election  where  printed  slips  containing  the  names  of  candidates,  with  a 
designation  of  the  office,  are  supplied  to  voters,  to  be  pasted  over  the  names  of 
opposing  candidates,  —  as  is  very  common,  —  a  ballot  should  be  found  in  the  box 
containing  the  names  of  a  candidate  for  one  office,  —  say  the  county  clerk,  —  with 
a  designation  of  the  office  pasted  over  the  name  of  a  candidate  for  some  other 
office,  — say  coroner;  so  that  the  ballot  would  contain  the  names  of  two  persons 
for  county  clerk,  and  of  none  for  coroner.  In  such  a  case,  is  the  slip  the  highest 
evidence  of  the  intention  of  the  voter  as  to  who  should  receive  his  suffrage  for 
county  clerk,  and  must  it,be  counted  for  that  office  ?  And  if  so,  then  does  not 
the  ballot  also  show  the  intention  of  the  elector  to  cast  his  vote  for  the  person  for 
coroner  whose  name  is  thus  accidentally  pasted  over,  and  should  it  not  be  counted 
for  that  person  ?  The  case  of  People  v.  Saxton  would  seem  to  be  opposed  to 
People  v.  Seaman,  5  Denio,  409,  where  the  court  refused  to  allow  evidence  to  be 
given  to  explain  the  ambiguity  occasioned  by  the  one  name  being  placed  upon 
the  ticket,  without  the  other  being  erased.  "  The  intention  of  the  elector  cannot 
be  thus  inquired  into,  when  it  is  opposed  or  hostile  to  the  paper  ballot  which  he 
has  deposited  in  the  ballot-box.  We  might  with  the  same  propriety  permit  it  to 
be  proved  that  he  intended  to  vote  for  one  man,  when  his  ballot  was  cast  for 
another;  a  species  of  proof  not  to  be  tolerated."  Per  Whitilesay,  J.  The 
case  of  People  v.  Cicotte,  1G  Mich.  283,  is  also  opposed  to  People  v.  Saxton. 
In  the  Michigan  case,  a  slip  for  the  office  of  sheriff  was  pasted  over  the  name  of 
the  candidate  for  another  county  office,  so  that  the  ballot  contained  the  names 
of  two  candidates  for  sheriff.  It  was  argued  that  the  slip  should  be  counted  as 
the  best  evidence  of  the  voter's  intention  ;  but  the  court  held  that  the  ballot  could 
be  counted  for  neither  candidate,  because  of  its  ambiguity. 

2  People  v.  Mayworm,  5  Mich.  146;  Attorney-General  v.  Ely,  4  Wis.  430. 

3  People  v.  Furguson,  8  Cow.  102.  See  also  upon  this  subject,  People  v. 
Cook,  14  Barb.  259,  and  8  N.  Y.  67;  and  People  v.  Tisdale,  1  Doug.  (Mich.) 
65. 

4  In  People  v.  Furguson,  8  Cow.  102,  it  was  held,  that,  on  the  trial  of  a  con- 

[716] 


CH.  XVII.]  THE    EXPRESSION    OF    THE    POPULAR    WILL. 


609 


the  giving  of  an  initial  to  a  middle  name  when  the  party 

has  none,  or  the  giving  of  a  wrong  initial,  will  *  not  ren-  [*610] 

tested  election  case  before  a  jury,  ballots  cast  for  H.  F.  Yates  should  be  counted 
for  Henry  F.  Yates,  if,  under  the  circumstances,  the  jury  were  of  the  opinion 
they  were  intended  for  him  ;  and  to  arrive  at  that  intention,  it  was  competent  to 
prove  that  he  generally  signed  his  name  H.  F.  Yates  ;  that  he  had  before  held 
the  same  office  for  which  these  votes  were  cast,  and  was  then  a  candidate  again; 
that  the  people  generally  would  apply  the   abbreviation   to  him,  and   that  no 
other  person  was  known  in  the  county  to  whom  it  would  apply.     This  ruling  was 
followed  in  People  v.  Seaman,  5  Denio,  -±09,  and  in  People  v.  Cook,  14  Barb. 
259,  and  8  N.  Y.  67.     The  courts   also   held,  in   these   cases,  that  the  elector 
voting  the  defective  ballot  might  give  evidence  to  enable  the  jury  to  apply  it,  and 
might  testily  that  he  intended  it  for  the  candidate  the  initials  of  whose  name  he 
had  given.     In  Attorney-General  v.  Ely,  4  Wis.  429,  a  rule  somewhat  different 
was  laid  down.     In  that  case,  Matthew  H.  Carpenter  was  candidate  for  the  office 
of  prosecuting  attorney ;  and  besides  the  perfect  ballots  there  were  others,  cast 
for  "  D.  M.  Carpenter,"  "  M.  D.  Carpenter,"  "  M.  T.  Carpenter,"  and  "Car- 
penter."    The  jury  found  that  there  was  no  lawyer  in  the  county  by  the  name  of 
D.  M.  Carpenter,  M.  D.  Carpenter,  M.  T.  Carpenter,  or  whose  surname  was 
Carpenter,  except  the  relator,  Matthew  H.  Carpenter;   that  the  relator  was  a 
practising  attorney  of  the  county,  and  eligible  to  the  office,   and  that  the  votes 
above  mentioned  were  all  given  and  intended  by  the  electors  for  the  relator. 
The  court  say  :    "  How  was  the  intention  of  the  voter  to  be  ascertained  ?     By 
reading  the  name  on  the  ballot,  and  ascertaining  who  was  meant  and  intended  by 
that  name  ?     Is  no  evidence  admissible  to  show  who  was  intended  to  be  voted 
for  under  the  various  appellations,  except  such  evidence  as  is  contained  in  the 
ballot  itself  ?     Or  may  you  gather  the  intention  of  the  voter  from  the  ballot, 
explained  by  the  surrounding  circumstances,  from  facts  of  a  general  public  nature 
connected  with  the  election,  and  the  different  candidates  which  may  aid  you  in 
coming  to  the  right  conclusion  ?     These  facts  and  circumstances  might,  perhaps, 
be  adduced  so  clear  and  strong  as  to  lead  irresistibly  to  the  inference  that  a  vote 
given  for  Carpenter  was  intended  to  be  cast  for  Matthew  H.  Carpenter.    A  con- 
tract may  be  read  by  the  light  of  the  surrounding  circumstances,  not  to  contra- 
dict it,  but  in  order  more  perfectly  to  understand  the  intent  and  meaning  of  the 
parties  who  made  it.     By  analogous  principles,  we  think  that  these  facts,  and 
others  of  like  nature  connected  with  the  election,  could  be  given  in  evidence,  for 
the  purpose  of  aiding  the  jury  in  determining  who  was  intended  to  be  voted  for. 
In  New  York,  courts  have  gone  even  farther  than  this,  and  held,  that  not  only 
facts  of  public  notoriety  might  be  given  in  evidence  to  show  the  intention  of  the 
elector,  but  that  the  elector  who  cast  the  abbreviated  ballot  may  be  sworn  as  to 
who  was  intended  by  it.     People  v.  Ferguson,  8  Cow.  102.     But  this  is  pushing 
the  doctrine  to  a  great  extent ;  further,  we  think,  than  consideration  of  public 
policy  and  the  well-being  of  society  will  warrant ;  and  to  restrict  the  rule,  and 
say  that  the  jury  must  determine  from  an  inspection  of  the  ballot  itself,  from  the  let- 
ters upon  it,  aside  from  all  extraneous  facts,  who  was  intended  to  be  designated 
by  the  ballot,  is  establishing  a  principle  unnecessarily  cautious  and  limited.     In 

[717] 


*  610  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVII. 

der  the  ballot  nugatory  ; :  nor  will  a  failure  to  give  the  addi- 
tion to  a  name  —  such  as  "  Junior  "  —  render  it  void,  as  that  is  a 
mere  matter  of  description,  not  constituting  a  part  of  the  name, 
and  if   given  erroneously  may  be  treated  as  surplusage.2      But 

the  present  case,  the  jury,  from  the  evidence  before  them,  found  that  the  votes 
[above  described]  were,  when  given  and  cast,  intended,  by  the  electors  who  gave 
and  cast  the  same  respectively,  to  be  given  and  cast  for  Matthew  H.  Carpenter, 
the  relator.  Such  being  the  case,  it  clearly  follows  that  they  should  be  counted 
for  him."  See  also  State  v.  Elwood,  12  Wis.  551 ;  and  People  v.  Pease,  27  N.  Y. 
84,  per  Denio,  Ch.  J. 

On  the  other  hand,  it  was  held,  in  Opinions  of  Judges,  88  Maine,  559,  that 
votes  could  not  be  counted  for  a  person  of  a  different  name  from  that  expressed 
by  the  ballot,  even  though  the  only  difference  consisted  in  the  initial  to  the  mid- 
dle name.  But  see  People  v.  Cook,  14  Barb.  259,  and  8  N.  Y.  67.  And  in 
People  v.  Tisdale,  1  Doug.  (Mich.)  65,  followed  in  People  v.  Higgins,  3  Mich. 
233,  it  was  held  that  no  extrinsic  evidence  was  admissible  in  explanation  or  sup- 
port of  the  ballot;  and  that,  unless  it  showed  upon  its  face  for  whom  it  was 
designed,  it  must  be  rejected.  And  it  was  also  held,  that  a  ballot  for  "J.  A. 
Dyer  "  did  not  show,  upon  its  face,  that  it  was  intended  for  the  candidate  James 
A.  Dyer,  and  therefore  could  not  be  counted  with  the  ballots  cast  for  him  by  his 
full  name.  This  rule  is  convenient  of  application,  but  it  probably  defeat's  the 
intention  of  the  electors  in  every  case  to  which  it  is  applied,  where  the  rejected 
votes  could  influence  the  result,  —  an  intention,  too,  which  we  think  is  so  apparent 
on  the  ballot  itself,  that  no  person  would  be  in  real  doubt  concerning  it.  In 
People  v.  Pease,  27  N.  Y.  64,  in  which  Moses  M.  Smith  was  a  candidate  for 
county  treasurer,  Selden,  J.,  says:  "According  to  well-settled  rules,  the  board 
of  canvassers  erred  in  refusing  to  allow  to  the  relator  the  nineteen  votes  given 
for  Moses  Smith  and  M.  M.  Smith";  and  although  we  think  this  doctrine  cor- 
rect, the  cases  he  cites  in  support  of  it  (8  Cow.  102,  and  5  Denio,  409)  would 
only  warrant  a.  jury,  not  the  canvassers,  in  allowing  them;  or,  at  least,  those  cast 
for  M.  M.  Smith.  The  case  of  People  v.  Tisdale  was  again  followed  in  People 
v.  Cicotte,  16  Mich.  2^3  ;  the  majority  of  the  court,  however,  expressing  the 
opinion  that  it  was  erroneous  in  principle,  but  that  it  had  (for  twenty-five  years) 
been  too  long  the  settled  law  of  the  State  to  be  disturbed,  unless  by  the  legis- 
lature. 

1  People  v.  Cook,  14  Barb.  259,  8  N.  Y.  67.  But  see  Opinions  of  Judges, 
38  Maine,  597. 

2  People  v.  Cook,  14  Barb.  259,  and  8  N.  Y.  67.  In  this  case,  the  jury  found, 
as  matter  of  fact,  that  ballots  given  for  Benjamin  Welch  were  intended  for  Ben- 
jamin Welch,  Jr. ;  and  the  court  held,  that,  as  a  matter  of  law,  they  should 
have  been  counted  for  him.  It  was  not  decided,  however,  that  the  canvassers 
were  at  liberty  to  allow  the  votes  to  Benjamin  Welch,  Jr. ;  and  the  judge,  deliv- 
ering the  prevailing  opinion  in  the  Court  of  Appeals,  says  (p.  81),  that  the  State 
canvassers  cannot  be  charged  with  error  in  refusing  to  add  to  the  votes  for  Ben- 
jamin Welch,  Jr.,  those  which  were  given  for  Benjamin  Welch,  without  the  junior. 
"  They  had  not  the  means  which  the  court  possessed,  on  the  trial  of  this  issue,  of 

[718] 


CH.  XVTI.]  THE   EXPRESSION   OF   THE   POPULAR   WILL.  *  610 

where  the  *  name  upon  the  ballot  is  altogether  different  [*611] 
from  that  of  a  candidate,  and  not  the  same  in  sound  and 
not  a  mere  abbreviation,  the  evidence  of  the  voter  cannot  be  re- 
ceived to  show  for  whom  it  was  intended.1 

Upon  the  question  how  far  extrinsic  evidence  is  admissible  by 
way  of  helping  out  any  imperfections  in  the  ballot,  no  rule  can  be 
laid  down  which  can  be  said  to  have  a  preponderating  weight  of 

obtaining,  by  evidence  aliunde,  the  several  county  returns,  the  intention  of  the 
voters,  and  the  identity  of  the  candidate  with  the  name  on  the  defective  ballots. 
Theii  judicial  power  extends  no  further  than  to  take  notice  of  such  facts  of  pub- 
lic notoriety  as  that  certain  well-known  abbreviations  are  generally  used  to 
designate  particular  names,  and  the  like."  So  far  as  this  case  holds,  that  the 
canvassers  are  not  chargeable  with  error  in  not  counting  the  ballots  with  the  name 
Benjamin  Welch  for  Benjamin  Welch,  Jr.,  it  is,  doubtless,  correct.  But  suppose 
the  canvassers  had  seen  fit  to  do  so,  could  the  court  hold  they  were  guilty  of 
usurpation  in  thus  counting  and  allowing  them  ?  Could  not  the  canvassers  take 
notice  of  such  facts  of  general  public  notoriety  as  everybody  else  would  take 
notice  of?  Or  must  they  shut  their  eyes  to  facts  which  all  other  persons  must 
see?  The  facts  are  these:  Benjamin  Welch,  Jr.,  and  James  M.  Cook  are  the 
candidates,  and  the  only  candidates,  for  State  Treasurer.  These  facts  are  noto- 
rious, and  the  two  political  parties  make  determined  efforts  to  elect  one  or  the 
other.  Certain  votes  are  cast  for  Benjamin  Welch,  with  the  descriptive  word 
"  junior"  omitted.  The  name  is  correct,  but,  as  thus  given,  it  may  apply  to  some 
one  else  ;  but  it  would  be  to  a  person  notoriously  not  a  candidate.  Under  these 
circumstances,  when  the  facts  of  which  it  would  be  necessary  to  take  notice  have 
occurred  under  their  own  supervision,  and  are  universally  known,  so  that  the 
result  of  a  contest  in  the  courts  could  not  be  doubtful,  is  there  any  reason  why 
the  canvassers  should  not  take  notice  of  these  facts,  count  the  votes  which  a  jury 
would  subsequently  be  compelled  to  count,  and  thus  save  the  delay,  expense, 
vexation,  and  confusion  of  a  contest  ?  If  their  judicial  power  extends  to  a  deter- 
mination of  what  are  common  and  well-known  abbreviations,  and  what  names 
6pelled  differently  are  idem  sonans,  why  may  it  not  also  extend  to  the  facts,  of 
which  there  will  commonly  be  quite  as  little  doubt,  as  to  who  are  the  candidates 
at  the  election  over  which  they  preside?  It  seems  to  us,  that,  in  every  case 
where  the  name  given  on  the  ballot,  though  in  some  particulars  imperfect,  is  not 
different  from  that  of  the  candidate,  and  facts  of  general  notoriety  leave  no  doubt 
in  the  minds  of  canvassers  that  it  was  intended  for  him,  the  canvassers  should  be 
at  liberty  to  do  what  a  jury  would  afterwards  be  compelled  to  do,  —  count  it  for 
such  candidate. 

1  A  vote  for  "  Pence"  cannot  be  shown  to  have  been  intended  for  "  Spence." 
Hart  v.  Evans,  8  Penn.  St.  13.  Where,  however,  wrong  initials  were  given  to 
the  Christian  name,  the  ballots  were  allowed  to  the  candidate ;  the  facts  of  public 
notoriety  being  such  as  to  show  that  they  were  intended  for  him.  Attorney-Gen- 
eral v.  Ely,  4  Wis.  420.  This  case  goes  iarther  in  permitting  mistakes  in  ballots 
to  be  corrected  on  parol  evidence  than  any  other  in  the  books. 

[719] 


*  611  CONSTITUTIONAL    LIMITATIONS.  [CH.  XVII. 

authority  in  its  support.  We  think  evidence  of  such  facts  as  may 
be  called  the  circumstances  surrounding  the  election  —  such  as 
who  were  the  candidates  brought  forward  by  the  nominating  con- 
ventions ;  whether  other  persons  of  the  same  names  resided  in  the 
district  from  which  the  officer  was  to  be  chosen,  and  if  so  whether 
they  were  eligible  or  had  been  named  for  the  office  ;  if  a  ballot  was 
printed  imperfectly,  how  it  came  to  be  so  printed,  and  the  like  — 
is  admissible  for  the  purpose  of  showing  that  an  imperfect  ballot 
was  meant  for  a  particular  candidate,  unless  the  name  is  so  differ- 
ent that  to  thus  apply  it  would  be  to  contradict  the  ballot  itself; 
or  unless  the  ballot  is  so  defective  that  it  fails  to  show  any  inten- 
tion whatever:  in  which  cases  it  is  not  admissible.  And 
[*  612]  we  also  *  think  that  in  any  case  to  allow  a  voter  to  testify 
by  way  of  explanation  of  a  ballot  otherwise  fatally  defec- 
tive, that  he  voted  the  particular  ballot,  and  intended  it  for  a  par- 
ticular candidate,  is  exceedingly  dangerous,  invites  corruption  and 
fraud,  and  ought  not  to  be  suffered.  Nothing  is  more  easy  than 
for  reckless  parties  thus  to  testify  to  their  intentions,  without  the 
possibility  of  disproving  their  testimony  if  untrue ;  and  if  one 
falsely  swears  to  having  deposited  a  particular  ballot,  unless  the 
party  really  depositing  it  sees  fit  to  disclose  his  knowledge,  the 
evidence  must  pass  unchallenged,  and  the  temptation  to  suborna- 
tion of  perjury,  when  public  offices  are  at  stake,  and  when  it  may 
be  committed  with  impunity,  is  too  great  to  allow  such  evidence  to 
be  sanctioned.  While  the  law  should  seek  to  give  effect  to  the  in- 
tention of  the  voter,  whenever  it  can  be  fairly  ascertained,  yet  this 
intention  must  be  that  which  is  expressed  in  due  form  of  law,  not 
that  which  remains  hidden  in  the  elector's  breast ;  and  where  the 
ballot,  in  connection  with  such  facts  surrounding  the  election  as 
would  be  provable  if  it  were  a  case  of  contract,  does  not  enable 
the  proper  officers  to  apply  it  to  one  of  the  candidates,  policy,  coin- 
ciding in  this  particular  with  the  general  rule  of  law  as  applicable 
to  other  transactions,  requires  that  the  ballot  shall  not  be  counted 
for  such  candidate.1 

The  ballot  should  also/ sufficiently  show  on  its  face  for  what  office 
the  person  named  upon  it  is  designated  ;  but  here  again  technical 

1  This  is  substantially  the  New  York  rule  as  settled  by  the  later  decisions,  if 
■we  may  accept  the  opinion  of  Denio,  Ch.  J.,  in  People  v.  Pease,  27  N.  Y.  84,  as 
taking  the  correct  view  of  those  decisions.  See  People  v.  Cicotte,  16  Mich.  283, 
for  a  discussion  of  this  point. 

[720] 


CH.  XVII.]  THE   EXPRESSION    OF   THE   POPULAR   WILL.  *  612 

accuracy  is  not  essential,  and  the  office  is  sufficiently  named  if  it 
be  so  designated  that  no  reasonable  doubt  can  exist  as  to  what  is 
meant.  A  great  constitutional  privilege  —  the  highest  under  the 
government  —  is  not  to  be  taken  away  on  a  mere  technicality,  but 
the  most  liberal  intendment  should  be  made  in  support  of  the  elec- 
tor's action  wherever  the  application  of  the  common-sense  rules 
which  are  applied  in  other  cases  will  enable  us  to  understand  and 
render  it  effectual.1 

*  Where  more  than  one  office  is  to  be  filled  at  an  election,  [*  613] 
the  law  may  either  require  all  the  persons  voted  for,  for 
the  several  offices,  to  be  so  voted  for  by  each  elector  on  the  same 
ballot,  or  it  may  provide  a  different  receptacle  for  the  ballots  for 
some  one  office  or  set  of  offices  from  that  which  is  to  receive  the 
others.  In  such  a  case  each  elector  will  place  upon  the  ballot  to 
be  deposited  in  each  the  names  of  such  persons  as  he  desires  to 
vote  for,  for  the  different  offices  to  be  filled  at  the  election  for  which 
that  box  is  provided.  If,  for  instance,  State  and  township  officers 
are  to  be  chosen  at  the  same  election,  and  the  ballots  are  to  be 
kept  separate,  the  elector  must  have  different  ballots  for  each  ;  and 

1  In  People  v.  Matteson,  17  111.  1G7,  it  was  held  that  where  "police  magis- 
trates "  were  to  be  chosen,  votes  cast  for  "  police  justices  "  should  be  counted,  as 
they  sufficiently  showed  upon  their  face  the  intention  of  the  voters.  So  where 
the  question  was' submitted  to  the  people,  whether  a  part  of  one  county  should 
be  annexed  to  another,  and  the  act  of  submission  provided  that  the  electors  might 

express  their  choice  by  voting  "  for  detaching  R ,"  or  "  against  detaching 

R ,"  it  was   held  that  votes   cast  for   "R attached,"  and  for  "R 

detached,"  and  "for  division,"  and  "against  division,"  were  properly  counted 
by  the  canvassers,  as  the  intention  of  the  voters  was  clearly  ascertainable  from 
the  ballots  themselves  with  the  aid  of  the  extrinsic  facts  of  a  public  nature  con- 
nected with  the  election.  State  v.  Elvvood,  12  Wis.  551.  So  where  trustees  of 
common  schools  were  to  be  voted  for,  it  was  held  that  votes  for  trustees  of  public 
schools  should  be  counted;  there  being  no  trustees  to  be  voted  for  at  that  elec- 
tion except  trustees  of  common  schools.  People  v.  McManus,  34  Barb.  020.  In 
Phelps  v.  Goldthwaite,  16  Wis.  146,  where  a  city  and  also  a  county  superinten- 
dent of  schools  were  to  be  chosen  at  the  same  election,  and  ballots  were  cast  for 
"  superintendent  of  schools,"  without  further  designation,  parol  evidence  of  sur- 
rounding circumstances  was  admitted  to  enable  the  proper  application  to  be 
made  of  the  ballots  to  the  respective  candidates.  In  Peck  v.  Weddell,  17  Ohio, 
N.  s.  271,  an  act  providing  for  an  election  on  the  question  of  the  removal  of  a 
county  seat  to  the  "  town  "  of  Bowling  Green,  was  held  not  invalid  by  reason  of 
Bowling  Green  being  in  law  not  a  "town,"  but  an  incorporated  village.  In 
voting  for  a  county  seat  it  was  held  proper  to  count  votes  cast  for  a  town  by  its 
popular,  which  differed  from  its  legal  name.     State  v.  Cavers,  22  Iowa,  343. 

46  [  721  ] 


*  613  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVII. 

if  he  should  designate  persons  for  a  township  office  on  the  State 
ballot,  such  ballot  would,  to  that  extent,  be  void,  though  the  im- 
proper addition  would  not  defeat  the  ballot  altogether,  but  would 
be  treated  as  surplusage,  and  the  ballot  be  held  good  as  a  vote  for 
the  State  officers  designated  upon  it.1  But  an  accidental  error  in 
depositing  the  ballot  should  not  defeat  it.  If  an  elector  should 
deliver  the  State  and  township  ballots  to  the  inspector  of  election, 
who  by  mistake  should  deposit  them  in  the  wrong  boxes  respec- 
tively, this  mistake  is  capable  of  being  corrected  without  confusion 
when  the  boxes  are  opened,  and  should  not  prevent  the  ballots 
being  counted  as  intended.  And  it  would  seem  that,  in  any  case, 
the  honest  mistake,  either  of  the  officer  or  the  elector,  should  not 
defeat  the  intention  of  the  latter,  where  it  was  not  left  in  doubt  by 
his  action.2 

The  elector  is  not  under  obligation  to  vote  for  every  office  to  be 
filled  at  that  election  ;  nor  where  several  persons  are  to  be  chosen 

to  the  same  office  is  he  required  to  vote  for  as  many  as 
[*  614]  are  to  be  *  elected.     He  may  vote  for  one  or  any  greater 

number,  not  to  exceed  the  whole  number  to  be  chosen. 
In  most  of  the  States  a  plurality  of  the  votes  cast  determines  the 
election.  In  others,  as  to  some  elections,  a  majority;  but  in  de- 
termining upon  a  majority  or  plurality,  the  blank  votes,  if  any,  are 
not  to  be  counted ;  and  a  candidate  may  therefore  be  chosen  with- 
out receiving  a  plurality  or  majority  of  voices  of  those  who  actually 
participated  in  the  election.  Where,  however,  two  offices  of  the 
same  name  were  to  be  filled  at  the  same  election,  but  the  notice 
of  election  specified  one  only,  the  political  parties  each  nominated 
one  candidate,  and,  assuming  that  but  one  was  to  be  chosen,  no 
elector  voted  for  more  than  one,  it  was  held  that  the  one  having  a 
majority  was  alone  chosen  ;  the  opposing  candidate  could  not  claim 
to  be  also  elected,  as  having  received  the  second  highest  number  of 
votes,  but  as  to  the  other  office  there  had  been  a  failure  to  hold  an 
election.3 

1  See  People  v.  Cook,  14  Barb.  259,  and  8  N.  Y.  G7. 

*  People  v.  Bates,  11  Mich.  362.     See  Lanier  v.  Gallatas,  13  La.  An.  175; 
McKinney  v.  O'Connor,  26  Texas,  5. 

3  People  v.  Kent  County  Canvassers,  11  Mich.  111. 
[722] 


CH.  XVII.]  THE   EXPRESSION    OF   THE   POPULAR  WILL.  *  614 


The   Freedom  of  Elections. 

To  keep  every  election  free  of  all  the  influences  and  surround- 
ings which  might  bear  improperly  upon  it,  or  might  impel  the 
electors  to  cast  their  suffrages  otherwise  than  as  their  judgments 
would  dictate,  has  always  been  a  prominent  object  in  American 
legislation.  We  have  referred  to  fundamental  principles  which 
protect  the  secrecy  of  the  ballot,  but  in  addition  to  these  there 
are  express  constitutional  and  statutory  provisions  looking  to  the 
accomplishment  of  the  same  general  purpose.  It  is  provided  by 
the  constitutions  of  several  of  the  States  that  bribery  of  an  elector 
shall  constitute  a  disqualification  of  the  right  to  vote  or  to  hold 
office ; l  the  treating  of  an  elector,  with  a  view  to  influence  his 
vote,  is  in  some  States  made  an  indictable  offence  ; 2  courts  are  not 
allowed  to  be  held,  for  the  two  reasons,  that  the  electors  ought  to 
be  left  free  to  devote  their  attention  to  the  exercise  of  this 
high  trust,  and  that  *  suits  if  allowed  on  that  day  might  [*  615] 
be  used  as  a  means  of  intimidation  ; 3  legal  process  in 
some  States,  and  for  the  same  reasons,  is  not  permitted  to  be 
served  on  that  day ;  intimidation  of  voters  by  threats  or  otherwise 
is  made  punishable ; 4  and  generally  all  such  precautions  as  the 
people  in  framing  their  organic  law,  or  the  legislature  afterwards, 
have  thought  might  be  made  available  for  the  purpose,  have  been 

1  See  the  Constitutions  of  Maryland,  Missouri,  New  Jersey,  West  Virginia, 
Oregon,  California,  Kansas,  Texas,  Arkansas,  Rhode  Island,  Alabama,  Florida, 
New  York,  Massachusetts,  New  Hampshire,  Vermont,  Nevada,  Tennessee,  Con- 
necticut, Louisiana,  Mississippi,  Ohio,  Wisconsin.  And  it  has  been  held  on  gen- 
eral principles  that  if  an  elector  is  induced  to  vote  in  a  particular  way  by  the 
payment  or  promise  of  any  money  or  other  valuable  consideration  for  such  vote, 
his  vote  should  be  rejected  as  illegal.     State  v.  Olin,  23  Wis.  327. 

2  State  v.  Rutledge,  8  Humph.  32.  And  see  the  provision  in  the  Constitution 
of  Vermont  on  this  subject.  A  resort  to  this  species  of  influence  would  gen- 
erally, at  the  present  time,  prejudice  the  candidate's  interests  instead  of  advancing 
them,  but  such  has  not  always  been  the  case.  Mr.  Madison,  after  performing 
valuable  service  for  the  State  in  its  legislature,  was  defeated  when  offering  him- 
self for  re-election,  in  the  very  crisis  of  the  Revolution,  by  the  treating  of  his 
opponent.     See  his  Life  by  Rives,  Vol.  I.  p.  179. 

*  But  it  was  held  in  New  York  that  the  statute  of  that  State  forbidding  the 
holding  of  courts  on  election  days  did  not  apply  to  the  local  elections.  Matter  of 
Election  Law,  7  Hill,  194;  Redfield  v.  Florence,  2  E.  D.  Smith,  339. 

4  As  to  what  shall  constitute  intimidation,  see  Respublica  v.  Gibbs,  3  Yeates, 
429. 

[  723  ] 


*  615  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVII. 

provided  with  a  view  to  secure  the  most  completely  free  and  un- 
biassed expression  of  opinion  that  shall  be  possible. 

Betting  upon  elections  is  illegal  at  the  common  law,  on  grounds 
of  public  policy  ;  *  and  all  contracts  entered  into  with  a  view  im- 
properly to  influence  an  election  would  be  void  for  the  same  rea- 
son.2 And  with  a  just  sense  of  the  danger  of  military  interference, 
where  a  trust  is  to  be  exercised,  the  highest  as  well  as  the  most 
delicate  in  the  whole  machinery  of  government,  it  has  not  been 
thought  unwise  to  prohibit  the  militia  being  called  out  on  election 
days,  even  though  for  no  other  purpose  than  for  enrolling  and  or- 

1  Bunn  v.  Riker,  4  Johns.  426;  Lansing  v.  Lansing,  8  Johns.  454;  Ball  v. 
Gilbert,  12  Met.  397 ;  Laval  v.  Myers,  1  Bailey,  486 ;  Smyth  v.  McMasters,  2 
Browne,  182;  McAllister  v.  Hoffman,  16  S.  &  R.  147;  Stoddard  v.  Martin,  1 
R.  I.  1 ;  Wroth  v.  Johnson,  4  H.  &  M.  284;  Tarelton  v.  Baker,  18  Vt.  9 ;  Davis 
v.  Holbrook,  1  La.  An.  176;  Freeman  v.  Hardwick,  10  Ala.  316;  Wheeler  v. 
Spencer,  15  Conn.  28;  Russell  v.  Pyland,  2  Humph.  131;  Porter  v.  Sawyer,  1 
Harr.  517  ;  Hickerson  v.  Benson,  8  Mo.  8;  Machir  v.  Moore,  2  Grat.  257  ;  Rust 
v.  Gott,  9  Cow.  169 ;  Brush  v.  Keeler,  5  Wend.  250. 

2  In  Jackson  v.  Walker,  5  Hill,  27,  it  was  held  that  an  agreement  by  the 
defendant  to  pay  the  plaintiff  $1000,  in  consideration  that  the  latter,  who  had 
built  a  log-cabin,  would  keep  it  open  for  political  meetings  to  further  the  suc- 
cess of  certain  persons  nominated  for  members  of  Congress,  &c,  by  one  of  the 
political  parties,  was  illegal  within  the  statute  of  New  York,  which  prohibited 
contributions  of  money  "  for  any  other  purpose  intended  to  promote  the  election 
of  any  particular  person  or  ticket,  except  for  defraying  the  expenses  of  pi'inting 
and  the  circulation  of  votes,  handbills,  and  other  papers."  This  case  is  criticised 
in  Hurley  v.  Van  Wagner,  28  Barb.  109,  and  it  is  possible  that  it  went  further 
than  either  the  statute  or  public  policy  would  require.  In  Nichols  v.  Mudgett, 
32  Vt.  546,  the  defendant  being  indebted  to  the  plaintiff,  who  was  a  candidate  for 
town  representative,  the  parties  agreed  that  the  former  should  use  his  influence 
for  the  plaintiff's  election,  and  do  what  he  could  for  that  purpose,  and  that  if  the 
plaintiff  was  elected,  that  should  be  a  satisfaction  of  his  claim.  Nothing  was 
specifically  said  about  the  defendant's  voting  for  the  plaintiff,  but  he  did  vote  for 
him,  and  would  not  have  done  so,  nor  favored  his  election,  but  for  this  agree- 
ment. The  plaintiff  was  elected.  Held,  that  the  agreement  was  void,  and  con- 
stituted no  bar  to  a  recovery  upon  the  demand.  See  also  Meachem  v.  Dow,  32 
Vt.  721,  where  it  was  held  that  a  note  executed  in  consideration  of  the  payee's 
agreement  to  resign  public  office  in  favor  of  the  maker,  and  use  influence  in  favor 
of  the  latter's  appointment  as  his  successor,  was  void  in  the  hands  of  the  payee. 
In  Pratt  v.  People,  29  111.  54,  it  was  held  that  an  agreement  between  two  electors 
that  they  should  "pair  off,"  and  both  abstain  from  voting,  wa«  illegal,  and  the 
inspectors  could  not  refuse  to  receive  a  vote  of  one  of  the  two,  on  the  ground  of 
his  agreement. 

[724] 


CH.  XVII.]  THE   EXPRESSION   OF   THE   POPULAR   WILL.  *  615 

ganizing  them.1  The  ordinary  police  is  the  peace  force  of  the 
State,  and  its  presence  suggests  order,  individual  safety,  and  pub- 
lic security  ;  but  when  the  military  appear  upon  the  stage,  even 
though  composed  of  citizen  militia,  the  circumstances  must  be 
assumed  to  be  extraordinary,  and  there  is  always  an  appearance 
of  threatening  and  dangerous  compulsion  which  might  easily  in- 
terfere seriously  with  that  calm  and  unimpassioned  discharge  of 
the  elector's  duty  which  the  law  so  justly  favors.  The  soldier  in 
organized  ranks  can  know  no  law  but  such  as  is  given  him  by  his 
commanding  officer  ;  and  when  he  appears  at  the  polls,  there  is 
necessarily  a  suggestion  of  the  presence  of  an  enemy  against 
whom  he  may  be  compelled  to  exercise  the  most  extreme  and  de- 
structive force ;  and  that  enemy  must  generally  be  the  party  out 
of  power,  while  the  authority  that  commands  the  force  directed 
against  them  will  be  the  executive  authority  of  the  State  for  the 
time  being  wielded  by  their  opponents.  It  is  consequently  of  the 
highest  importance  that  the  presence  of  a  military  force  at  the  polls 
be  not  suffered  except  in  serious  emergencies,  when  disorders  exist 
or  are  threatened  for  the  suppression  or  prevention  of  which  the 
ordinary  peace  force  is  insufficient ;  and  any  statute  which  should 
provide  for  or  permit  such  presence  as  a  usual  occurrence  or  ex- 
cept in  the  last  resort,  though  it  might  not  be  void,  would  never- 
theless be  a  serious  invasion  of  constitutional  right,  and  should 
not  be  submitted  to  in  a  free  government  without  vigorous  remon- 
strance.2 

1  See  Hyde  v.  Melvin,  11  Johns.  521. 

2  The  danger,  and  we  may  say  also,  the  folly  of  military  interference  with  the 
deliberations  or  action  of  electors  except  in  the  last  necessity,  was  fearfully  illus- 
trated in  the  case  of  the  "  Manchester  Massacre,"  which  occurred  in  1819.  An 
immense  meeting  of  radical  parliamentary  reformers,  whose  objects  and  purposes 
appeared  threatening  to  the  government,  was  charged  upon  by  the  military,  with 
some  loss  of  life,  and  with  injury  to  the  persons  of  several  hundred  people.  As 
usual  in  such  cases,  the  extremists  of  one  party  applauded  the  act  and  compli- 
mented the  military,  while  the  other  party  was  exasperated  in  the  last  degree,  by 
what  seemed  to  them  an  unnecessary,  arbitrary,  and  unconstitutional  exercise  of 
force.  The  most  bitter  and  dangerous  feeling  was  excited  throughout  the  country 
by  this  occurrence,  and  it  is  not  too  much  to  say  that  if  disorders  were  threaten- 
ing before,  the  government  had  done  nothing  in  this  way  to  strengthen  its  authority, 
or  to  insure  quiet  or  dispassionate  action.  No  one  had  been  conciliated  ;  no  one 
had  been  reduced  to  more  calm  and  deliberate  courses ;  but,  on  the  other  hand, 
even  moderate   men  had  been  exasperated  and  inclined  to  opposition  by  this 

[  725  ] 


616  CONSTITUTIONAL    LIMITATIONS.  [CH.    XVII. 


[*  616]     *  The  Elector  not  to  be  deprived  of  his   Vote. 

That  one  entitled  to  vote  shall  not  be  deprived  of  the  privilege 
by  the  action  of  the  authorities,  is  a  fundamental  principle. 

It  has  been  held,  on  constitutional  grounds,  that  a  law  creating 
a  new  county,  but  so  framed  as  to  leave  a  portion  of  its  territory 
unorganized,  so  that  the  voters  within  such  portion  could  not  par- 
ticipate in  the  election  of  county  officers,  was  inoperative  and  void.1 
So  a  law  submitting  to  the  voters  of  a  county  the  question  of  re- 
moving the  county  seat  is  void  if  there  is  no  mode  under  the  law 
by  which  a  city  within  the  county  can  participate  in  the  election.2 
And  although  the  failure  of  one  election  precinct  to  hold  an  elec- 
tion, or  to  make  a  return  of  the  votes  cast,  might  not  render  the 
whole  election  a  nullity,  where  the  electors  of  that  precinct  were 
at  liberty  to  vote  had  they  so  chosen,  or  where,  having  voted  but 
failed  to  make  return,  it  is  not  made  to  appear  that  the  votes  not 
returned  would  have  changed  the  result,8  yet  if  any  action  was 
required  of  the  public  authorities  preliminary  to  the  election,  and 
that  which  was  taken  was  not  such  as  to  give  all  the  electors  the 
opportunity  to  participate,  and  no  mode  was  open  to  the  electors 
by  which  the  officers  might  be  compelled  to  act,  it  would  seem 
that  such  neglect,  constituting  as  it  would  the  disfranchisement  of 
the  excluded  electors  pro  hac  vice,  must  on  general  principles 
render  the  whole  election  nugatory  ;  for  that  cannot  be  called  an 
election  or  the  expression  of  the  popular  sentiment  where  a  part 
only  of  the  electors  have  been  allowed  to  be  heard,  and  the  others, 
without  being  guilty  of  fraud  or  negligence,  have  been  excluded.4 

violent,  reckless,  and  destructive  display  of  coercive  power.     See  Hansard's 
Debates,  Vol.  XLI.  pp.  4,  51,  230. 

1  People  v.  Maynard,  15  Mich.  471.  For  similar  reasons  the  act  for  the 
organization  of  Schuyler  County  was  held  invalid  in  Lanning  v.  Carpenter,  20 
N.  Y.  477. 

2  Attorney-General  v.  Supervisors  of  St.  Clair,  11  Mich.  63.  For  a  similar 
principle  see  Foster  v.  ScarfF,  15  Ohio,  N.  s.  532. 

3  See  Ex  parte,  Heath,  3  Hill,  42;  Louisville  and  Nashville  R.R.  Co.  v. 
County  Court  of  Davidson,  1  Sneed,  637.     Also  Marshall  v.  Kerns,  2  Swan,  68. 

4  See  Fort  Dodge  v.  District  Township,  17  Iowa,  85  ;  Barry  v.  Lauck,  5  Cold. 
588.  In  People  v.  Salomon,  46  111.  415,  it  was  held  that  where  an  act  of  the 
legislature,  before  it  shall  become  operative,  is  required  to  be  submitted  to  the 
vote  of  the  legal  electors  of  the  district  to  be  affected  thereby,  if  the  election 
which  is  attempted  to  be  held  is  illegal  within  certain  precincts  containing  a 

[726] 


CH.  XVII.]  THE   EXPRESSION    OF   THE    POPULAR   WILL.  *  616 

If  the  inspectors  of  elections  refuse  to  receive  the  vote  of  an 
elector  duly  qualified,  they  may  be  liable  both  civilly  and  crimi- 
nally for  so  doing:  criminally,  if  they  were  actuated  by  improper 
and  corrupt  motives  ;  and  civilly,  it  is  held  in  some  of  the  States, 
even  though  there  may  have  been  no  malicious  design  in 
so  doing  ; 1  *  but  other  cases  hold  that,  where  the  inspec-  [*  617] 
tors  are  vested  by  the  law  with  the  power  to  pass  upon 
the  qualifications  of  electors,  they  exercise  judicial  functions  in  so 
doing,  and  are  entitled  to  the  same  protection  as  other  judicial 
officers  in  the  discharge  of  their  duty,  and  cannot  be  made  liable 
except  upon  proof  of  express  malice.2  Where,  however,  by  the 
law  under  which  the  election  is  held,  the  inspectors  are  to  receive 
the  voter's  ballot,  if  he  takes  the  oath  that  he  possesses  the  con- 
stitutional qualifications,  the  oath  is  the  conclusive  evidence  on 
which  the  inspectors  are  to  act,  and  they  are  not  at  liberty  to 
refuse  to  administer  the  oath,  or  to  refuse  the  vote  after  the  oath 
has  been  taken.  They  are  only  ministerial  officers  in  such  a 
case,  and  have  no  discretion  but  to  obey  the  law  and  receive 
the  vote.3 

The  Conduct  of  the  Election. 

The  statutes  of  the  different  States  point  out  specifically  the 
mode  in  which  elections  shall  be  conducted  ;  but,  although  there 
are  great  diversities  of  detail,  the  same  general  principles  govern 
them  all.     As  the  execution  of  these  statutes  must  very  often  fall 

majority  of  the  voters  of  the  district,  then  the  act  will  not  be  deemed  to  have 
been  submitted  to  the  required  vote,  and  the  result  will  not  be  declared  upon  the 
votes  legally  cast,  adverse  to  what  it  would  have  been  had  no  illegality  inter- 
vened. 

1  Kilham  v.  Ward,  2  Mass.  236;  Gardner  v.  Ward,  2  Mass.  244,  note;  Lin- 
coln v.  Hapgood,  11  Mass.  350 ;  Capen  v.  Foster,  12  Pick.  485  ;  Gates  v.  Neal, 
23  Pick.  308;  Blanchard  v.  Stearns,  5  Met.  298;  Jeffries  v.  Ankeny,  11  Ohio, 
372;  Chrisman  v.  Bruce,  1  Duvall,  63;  Monroe  v.  Collins,  17  Ohio,  N.  s.  665; 
Gillespie  v.  Palmer,  20  Wis.  544. 

2  Carter  v.  Harrison,  5  Blackf.  138 ;  Rail  v.  Potts,  8  Humph.  225 ;  Peavey  v. 
Robbins,  3  Jones,  Law,  339  ;  Gordon  v.  Farrar,  2  Doug.  (Mich.)  411 ;  Caulfield 
v.  Bullock,  18  B.  Monr.  494 ;  Morgan  v.  Dudley,  ib.  693 ;  Friend  v.  Hamill,  34 
Md.  298  ;  Goetcheus  v.  Matthewson,  5  Lans.  214. 

3  Spriggins  v.  Houghton,  2  Scam.  377  ;  State  v.  Robb,  17  Ind.  536 ;  People  v. 
Pease,  30  Barb.  588.  And  see  People  v.  Gordon,  5  Call.  235  ;  Chrisman  v.  Bruce, 
1  Duvall,  63 ;  Gillespie  v.  Palmer,  20  Wis.  544. 

[727] 


*  617  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVII. 

to  the  hands  of  men  unacquainted  with  the  law  and  unschooled  in 
business,  it  is  inevitable  that  mistakes  shall  sometimes  occur,  and 
that  very  often  the  law  will  fail  of  strict  compliance.  Where  an 
election  is  thus  rendered  irregular,  whether  the  irregularity  shall 
avoid  it  or  not  must  depend  generally  upon  the  effect  the  failure 
to  comply  strictly  with  the  law  may  have  had  in  obstructing  the 
complete  expression  of  the  popular  will,  or  the  production  of  sat- 
isfactory evidence  thereof.  Election  statutes  are  to  be  tested  like 
other  statutes,  but  with  a  leaning  to  liberality,  in  view  of  the  great 
public  purposes  which  they  accomplish  ;  and  except  where  they 

specifically  provide  that  a  thing  shall  be  done  in  the  man- 
[*  618]   ner  indicated  and  not  otherwise,  *  their  provisions  designed 

merely  for  the  information  and  guidance  of  the  officers 
must  be  regarded  as  directory  only,  and  the  election  will  not  be 
defeated  by  a  failure  to  comply  with  them,  providing  the  irregu- 
larity has  not  hindered  any  who  were  entitled  from  exercising  the 
right  of  suffrage,  or  rendered  doubtful  the  evidences  from  which 
the  result  was  to  be  declared.  In  a  leading  case  the  following 
irregularities  were  held  not  to  vitiate  the  election  : .  the  accidental 
substitution  of  another  book  for  the  holy  evangelists  in  the  admin- 
istration of  an  oath,  both  parties  being  ignorant  of  the  error  at 
the  time  ;  the  holding  of  the  election  by  persons  who  were  not 
officers  de  jure,  but  who  had  colorable  authority,  and  acted  de  facto 
in  good  faith  ; x  the  failure  of  the  board  of  inspectors  to  appoint 
clerks  of  the  election ;  the  closing  of  the  outer  door  of  the  room 
where  the  election  was  held  at  sundown,  and  then  permitting  the 
persons  within  the  room  to  vote;  it  not  appearing  that  legal  voters 
were  excluded  by  closing  the  door,  or  illegal  allowed  to  vote  ;  and 
the  failure  of  the  inspectors  or  clerks  to  take  the  prescribed  oath 
of  office.  And  it  was  said,  in  the  same  case,  that  any  irregularity 
in  conducting  an  election  which  does  not  deprive  a  legal  voter  of 
his  vote,  or  admit  a  disqualified  voter  to  vote,  or  cast  uncertainty 
on  the  result,  and  has  not  been  occasioned  by  the  agency  of  a 
party  seeking  to  derive  a  benefit  from  it,  should  be  overlooked  in 
a  proceeding  to  try  the  right  to  an  office  depending  on  such  elec- 

1  As  to  what  constitutes  an  officer  de  facto,  the  reader  is  referred  to  the  care- 
ful opinion  in  State  v.  Carroll,  38  Conn.  449 ;  s.  C.  9  Am.  Rep.  409.  Also  to 
Fowler  v.  Beebe,  9  Mass.  231 ;  Tucker  v.  Aiken,  7  N.  H.  131 ;  Commonwealth 
v.  McCombs,  56  Penn.  St.  436 ;  Ex  parte  Strang,  21  Ohio,  N.  s.  610 ;  Kimball 
v.  Alcorn,  45  Miss.  151,  and  authorities  referred  to  in  these  cases  severally. 

[728] 


CH.  XVII.]  THE    EXPRESSION    OF   THE    POPULAR   WILL.  *  618 

tion.1     This  rule  is  an  eminently  proper  one,  and  it  furnishes  a 

very  satisfactory  test  as  to  what  is  essential  and  what  not 

in  election  laws.2  And  where  a  party  contests  *  an  election   [*  619] 

on  the  ground  of  these  or  any  similar  irregularities,  he 

ought  to  aver  and  be  able  to  show  that  the  result  was  affected  by 

1  People  v.  Cook,  14  Barb.  259,  and  8  N.  Y.  67.  To  the  same  effect,  see 
Clifton  v.  Cook,  7  Ala.  114;  Truehart  v.  Addicks,  2  Texas,  217;  Dishon  v. 
Smith,  10  Iowa,  212;  Attorney-General  v.  Ely,  4  Wis.  420;  State  v.  Jones,  19 
Ind.  356 ;  People  v.  Higgins,  3  Mich.  233 ;  Gorham  v.  Campbell,  2  Cal.  135 ; 
People  v.  Bates,  11  Mich.  362;  Taylor  v.  Taylor,  10  Minn.  112;  People  v. 
McManus,  34  Barb.  620  ;  Whipley  v.  McCune,  12  Cal.  352 ;  Bourland  v.  Hildreth, 
26  Cal.  161 ;  Day  r.  Kent,  1  Oregon,  123 ;  Piatt  v.  People,  29  111.  54;  Ewing  v. 
Filley,  43  Penn.  St.  384 ;  Howard  v.  Shields,  16  Ohio,  n.  s.  184 ;  State  v.  Stumpf, 
21  Wis.  579  ;  McKinney  v.  O'Connor,  26  Texas,  5  ;  Sprague  v.  Norway,  31  Cal. 
173.  In  Ex  parte  Heath,  3  Hill,  42,  it  was  held,  that,  where  the  statute  required 
the  inspectors  to  certify  the  result  of  the  election  on  the  next  day  thereafter,  or 
sooner,  the  certificate  made  the  second  day  thereafter  was  sufficient,  the  statute 
as  to  time  being  directory  merely.  In  People  v.  McManus,  34  Barb.  620,  it 
was  held  that  an  election  was  not  made  void  by  the  fact  that  one  of  the  three 
inspectors  was  by  the  statute  disqualified  from  acting,  by  being  a  candidate  at 
the  election,  the  other  two  being  qualified.  In  Sprague  v.  Norway,  31  Cal.  173, 
it  was  decided  that  where  the  judges  of  an  election  could  not  read,  and  for  that 
reason  a  person  who  was  not  a  member  of  the  board  took  the  ballots  from  the 
box,  and  read  them  to  the  tellers,  at  the  request  of  the  judges,  the  election  was 
not  affected  by  the  irregularity. 

2  This  rule  has  certainly  been  applied  with  great  liberality,  in  some  cases.  In 
People  v.  Higgins,  3  Mich.  233,  it  was  held  that  the  statute  requiring  ballots  to 
be  sealed  up  in  a  package,  and  then  locked  up  in  the  ballot-box,  with  the  orifice 
at  the  top  sealed,  was  directory  merely,  and  that  ballots  which  had  been  kept  in 
a  locked  box,  but  without  the  orifice  closed  or  the  ballots  sealed  up,  were  admis- 
sible in  evidence  in  a  contest  for  an  office  depending  upon  this  election.  This 
case  was  followed  in  People  v.  Cicotte,  16  Mich.  283,  and  it  was  held  that  whether 
the  ballots  were  more  satisfactory  evidence  than  the  inspector's  certificates,  where 
a  discrepancy  appeared  between  them,  was  a  question  for  the  jury.  In  Morril 
v.  Haines,  2  N.  H.  246,  the  statute  required  State  officers  to  be  chosen  by  a 
check-list,  and  by  delivery  of  the  ballots  to  the  moderator  in  person ;  and  it  was 
held  that  the  requirement  of  a  check-list  was  mandatory,  and  the  election  in  the 
town  was  void  if  none  was  kept.  The  decision  was  put  upon  the  ground  that 
the  check-list  was  provided  as  an  important  guard  against  indiscriminate  and 
illegal  voting,  and  the  votes  given  by  ballot  without  this  protection  were  there- 
fore as  much  void  as  if  given  viva  voce.  An  election  adjourned  without  warrant 
to  another  place,  as  well  as  an  election  held  without  the  officers  required  by  law, 
is  void.  Commonwealth  v.  County  Commissioners,  5  Rawle,  75.  An  unauthor- 
ized adjournment  of  the  election  for  dinner  —  it  appearing  to  have  been  in  good 
faith,  and  no  one  having  been  deprived  of  his  vote  thereby  —  will  not  defeat  the 
election.     Fry  v.  Booth,  19  Ohio,  N.  s.  25. 

[729] 


*  619  CONSTITUTIONAL    LIMITATIONS.  [CH.  XVII. 

them.1  Time  and  place,  however,  are  of  the  substance  of  every 
election,2  and  a  failure  to  comply  with  the  law  in  these  particulars 
is  not  generally  to  be  treated  as  a  mere  irregularity.3 

What  is  a  Sufficient  Election. 

Unless  the  law  under  which  the  election  is  held  expressly  re- 
quires more,  a  plurality  of  the  votes  cast  will  be  sufficient  to  elect, 
notwithstanding  these  may  constitute  but  a  small  portion 
[*620]  of  those  *  who  are  entitled  to  vote,4  and  notwithstanding 
the  voters  generally  may  have  failed  to  take  notice  of  the 
law  requiring  the  election  to  be  held.5 

If  several  persons  are  to  be  chosen  to  the  same  office,  the  requi- 
site number  who  shall  stand  highest  on  the  list  will  be  elected. 
But  without  such  a  plurality  no  one  can  be  chosen  to  a  public 
office ;  and  if  the  person  receiving  the  highest  number  of  votes  was 

1  Lanier  v.  Gallatas,  13  La.  An.  175 ;  People  v.  Cicotte,  16  Mich.  283  ;  Tay- 
lor v.  Taylor,  10  Minn.  107. 

2  Dickey  v.  Hurlburt,  5  Cal.  343;  Knowles  v.  Yeates,  31  Cal.  82. 

3  The  statute  of  Michigan  requires  the  clerks  of  election  to  keep  lists  of  the 
persons  voting,  and  that  at  the  close  of  the  polls  the  first  duty  of  the  inspectors 
shall  be  to  compare  the  lists  with  the  number  of  votes  in  the  box,  and  if  the 
count  of  the  latter  exceeds  the  former,  then  to  draw  out  unopened  and  destroy  a 
sufficient  number  to  make  them  correspond.  In  People  v.  Cicotte,  16  Mich.  283, 
it  appeared  that  the  inspectors  in  two  wards  of  Detroit,  where  a  surplus  of  votes 
had  been  found,  had  neglected  this  duty,  and  had  counted  all  the  votes  without 
drawing  out  and  destroying  any.  The  surplus  in  the  two  wards  was  sixteen. 
The  actual  majority  of  one  of  the  candidates  over  the  other  on  the  count  as  it 
stood  (if  certain  other  disputed  votes  were  rejected)  would  be  four.  It  was  held 
that  this  neglect  of  the  inspectors  did  not  invalidate  the  election  ;  that  had  the 
votes  been  drawn  out,  the  probability  was  that  each  candidate  would  lose  a  num- 
ber proportioned  to  the  whole  number  which  he  had  in  the  box  ;  and  this  being  a 
probability  which  the  statute  providing  for  the  drawing  proceeded  upon,  the  court 
should  apply  it  afterwards,  apportioning  the  excess  of  votes  between  the  candi- 
dates in  that  proportion. 

4  Augustin  v.  Eggleston,  12  La.  An.  366 ;  Gillespie  v.  Palmer,  20  Wis.  544. 
See  also  State  v.  Mayor,  &c,  of  St.  Joseph,  37  Mo.  270;  State  v.  Binder,  38 
Mo.  450. 

6  People  v.  Hartwell,  12  Mich.  508.  Even  if  the  majority  expressly  dissent, 
yet  if  they  do  not  vote,  the  election  by  the  minority  will  be  valid.  Oldknow  v. 
Wainwright,  1  W.  Bl.  229 ;  Rex  v.  Foxcroft,  2  Burr.  1017  ;  Rex  v.  Withers, 
referred  to  in  same  case.  Minority  representation  in  certain  cases  has  been 
introduced  in  New  York,  Pennsylvania,  and  Illinois,  and  the  principle  is  likely 
to  find  favor  elsewhere. 

[730] 


CH.  XVII.]  THE    EXPRESSION   OF   THE   POPULAR   WILL.  *  620 

ineligible,  the  votes  cast  for  him  will  still  be  effectual  so  far  as  to 
prevent  the  opposing  candidate  being  chosen,  and  the  election 
must  be  considered  as  having  failed.1 

The  admission  of  illegal  votes  at  an  election  will  not  necessarily 
defeat  it,  but  to  warrant  its  being  set  aside  on  that  ground  it 
should  appear  that  the  result  would  have  been  different  had  they 
been  excluded.2  And  the  fact  that  unqualified  persons  are  allowed 
to  enter  the  room,  and  participate  in  an  election,  does  not  justify 
legal  voters  in  refusing  to  vote,  and  treating  the  election  as  void, 
but  it  will  be  held  valid  if  the  persons  declared  chosen  had  a 
plurality  of  the  legal  votes  actually  cast.3  So  it  is  held  that  an 
exclusion  of  legal  votes —  not  fraudulently,  but  through  error  in 
judgment  —  will  not  defeat  an  election  ;  notwithstanding  the  error 
in  such  a  case  is  one  which  there  was  no  mode  of  correcting,  even 
by  the  aid  of  the  courts,  since  it  cannot  be  known  with  certainty 
afterwards  how  the  excluded  electors  would  have  voted,  and  it 
would  obviously  be  dangerous  to  receive  and  rely  upon  their  sub- 
sequent statements  as  to  their  intentions,  after  it  is  ascer- 
tained precisely  what  effect  their  *  votes  would  have  upon  [*  621] 
the  result.4  If,  however,  the  inspectors  of  election  shall 
exclude  legal  voters,  not  because  of  honest  error  in  judgment,  but 

1  State  v.  Giles,  1  Chand.  112 ;  Opinions  of  Judges,  38  Maine,  597 ;  State  v. 
Smith,  14  Wis.  497;  Saunders  v.  Haynes,  13  Cal.  145;  Fish  v.  Collens,  21  La. 
An.  289;  Dillon,  Mun.  Corp.  §  135.  In  People  v.  Molliter,  23  Mich.  341,  a 
minority  candidate  claimed  the  election  on  the  ground  that  the  votes  cast  for  his 
opponent,  though  a  majority,  were  ineffectual  because  the  name  was  abbreviated. 
Held,  that  they  were  at  least  effectual  to  preclude  the  election  of  a  candidate  who 
received  a  less  numbeV.  But  it  has  been  held  that  if  the  ineligibility  is  notorious, 
80  that  the  electors  must  be  deemed  to  have  voted  with  full  knowledge  of  it,  the 
votes  for  the  ineligible  candidate  must  be  declared  void,  and  the  next  highest 
candidate  is  chosen.  Gulick  v.  New,  14  Ind.  93 ;  Carson  v.  McPhetridge,  15 
Ind.  327  ;  People  v.  Clute,  50  N.  Y.  451.  So  if  the  law  which  creates  the  dis- 
qualification expressly  declares  all  votes  cast  for  the  disqualified  person  void, 
they  must  be  treated  as  mere  blank  votes,  and  cannot  be  counted  for  any 
purpose. 

2  Ex  parte  Murphy,  7  Cow.  153  ;  First  Parish  in  Sudbury  v.  Stearns,  21  Pick. 
148;  Blandford  School  District  v.  Gibbs,  2  Cush.  39;  People  v.  Cicotte,  16 
Mich.  283 ;  Judkins  v.  Hill,  50  N.  H.  140.  Votes  received  illegally  will  be 
rejected  by  the  court  in  an  action  to  try  title  to  an  office.  State  v.  Hilmantel, 
21  Wis.  566. 

3  First  Parish  in  Sudbury  v.  Stearns,  21  Pick.  148. 

4  Newcum  v.  Kirtley,  13  B.  Monr.  515.  See  Burke  v.  Supervisors  of  Monroe, 
4  W.  Va.  371. 

[731] 


*  621  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVII. 

wilfully  and  corruptly,  and  to  an  extent  that  affects  the  result,  or 
if  by  riots  or  otherwise  legal  voters  are  intimidated  and  prevented 
from  voting,  or  for  any  other  reasons  the  electors  have  not  had 
opportunity  for  the  expression  of  their  sentiments  through  the 
ballot-box,  the  election  should  be  set  aside  altogether,  as  having 
failed  in  the  purpose  for  which  it  was  called.1  Errors  of  judgment 
are  inevitable,  but  fraud,  intimidation,  and  violence  the  law  can 
and  should  protect  against.  A  mere  casual  affray,  however,  or 
accidental  disturbance,  without  any  intention  of  overawing  or 
intimidating  the  electors,  cannot  be  considered  as  affecting  the 
freedom  of  the  election ; 2  nor  in  any  case  would  electors  be  justi- 
fied in  abandoning  the  ground  for  any  light  causes,  or  for  improper 
interference  by  others  where  the  officers  continue  in  the  discharge 
of  their  functions,  and  there  is  opportunity  for  the  electors  to 
vote.3  And,  as  we  have  already  seen,  a  failure  of  an  election  in 
one  precinct,  or  disorder  or  violence  which  prevent  a  return  from 
that  precinct,  will  not  defeat  the  whole  election,  unless  it  appears 
that  the  votes  which  could  not  be  returned  in  consequence  of  the 
violence  would  have  changed  the  result.4  It  is  a  little  difficult  at 
times  to  adopt  the  true  mean  between  those  things  which  should 
and  those  which  should  not  defeat  an  election ;  for  while  on  the 
one  hand  the  law  should  seek  to  secure  the  due  expression  of  his 
will  by  every  legal  voter,  and  guard  against  any  irregularities  or 
misconduct  that  may  tend  to  prevent  it,  so,  on  the  other  hand,  it 
is  to  be  borne  in  mind  that  charges  of  irregularity  and  misconduct 
are  easily  made,  and  that  the  dangers  from  throwing  elections 
open  to  be  set  aside  or  controlled  by  oral  evidence,  are  perhaps  as 
great  as  any  in  our  system.  An  election  honestly  conducted  under 
the  forms  of  law  ought  generally  to  stand,  notwithstanding  indi- 
vidual electors  may  have  been  deprived  of  their  votes,  or  unquali- 
fied voters  have  been  allowed  to  participate.      Individuals  may 

1  Where  one  receives  a  majority  of  all  the  votes  cast,  the  opposing  candidate 
cannot  be  declared  elected  on  evidence  that  legal  voters  sufficient  to  change  the 
result  offered  to  vote  for  him,  but  were  erroneously  denied  the  right ;  but  the 
election  may  be  declared  to  have  failed,  and  a  new  election  be  ordered.  Renner 
v.  Bennett,  21  Ohio,  n.  s.  431.  See  also  Matter  of  Long  Island  R.R.  Co.,  19 
Wend.  37  ;  People  v.  Phillips,  1  Denio,  389 ;  State  v.  McDaniel,  22  Ohio,  n.  s. 
354. 

2  Gush.  Leg.  Assemb.  §  184. 

3  See  First  Parish  in  Sudbury  v.  Stearns,  21  Pick.  148. 

4  Ex  parte  Heath,  3  Hill,  42.     See  ante,  p.  616  and  note. 

[732] 


CH.  XVII.]  THE    EXPRESSION    OF    THE    POPULAR    WILL.  *  621 

suffer  wrong  in  such  cases,  and  a  candidate  who  was  the  real 
choice  of  the  people  may  sometimes  be  deprived  of  his  election ; 
but  as  it  is  generally  impossible  to  arrive  at  any  greater 
certainty  of  *  result  by  resort  to  oral  evidence,  public  [*62"2] 
policy  is  best  subserved  by  allowing  the  election  to  stand, 
and  trusting  to  a  strict  enforcement  of  the  criminal  laws  for 
greater  security  against  the  like  irregularities  and  wrongs  in  the 
future. 

TJie    Canvass  and  the  Return. 

If  the  election  is  purely  a  local  one,  the  inspectors  who  have  had 
charge  of  the  election  canvass  the  votes  and  declare  the  result.  If, 
on  the  other  hand,  their  district  is  one  precinct  of  a  larger  district, 
they  make  return  in  writing  of  the  election  over  which  they  have 
presided  to  the  proper  board  of  the  larger  district ;  and  if  the 
election  is  for  State  officers,  this  district  board  will  transmit  the 
result  of  the  district  canvass  to  the  proper  State  board,  who  will 
declare  the  general  result.  In  all  this  the  several  boards  act  for 
the  most  part  ministerially  only,  and  are  not  vested  with  judicial 
powers  to  correct  the  errors  and  mistakes  that  may  have  occurred 
with  any  officer  who  preceded  them  in  the  performance  of  any  duty 
connected  with  the  election,  or  to  pass  upon  any  disputed  fact 
which  may  affect  the  result.1  Each  board  is  to  receive  the  returns 
transmitted  to  it,  if  in  due  form,  as  correct,  and  is  to  ascertain  and 
declare  the  result  as  shown  by  such  returns  ;2  and  if  other  matters 
are  introduced  into  the  return  than  those  which  the  law  provides, 
they  are  to  that  extent  unofficial,  and  such  statements  must  be 
disregarded.3     If  a  district  or  State  board  of  canvassers  assumes 

1  State  v.  Charleston,  1  S.  C.  (n.  s.)  30.  And  see  cases  cited  in  the  next 
note. 

2  Ex  parte  Heath,  3  Hill,  42 ;  Brower  v.  O'Brien,  2  Ind.  423  ;  People  v.  Hil- 
liard,  29  111.  413 ;  People  v.  Jones,  19  Ind.  357  ;  Ballou  v.  York  County  Com'rs, 

13  Shep.  491 ;  Mayo  v.  Freeland,  10  Mo.  629 ;  Thompson  v.  Circuit  Judge, 
9  Ala.  338;  People  v.  Kilduff,  15  111.  492;  O'Farrell  v.  Colby,  2  Minn.  180; 
People  v.  Van  Cleve,  1  Mich.  362 ;  People  v.  Van  Slyck,  4  Cow.  297 ;  Morgan 
v.  Quackenbush,  22  Barb.  72;  Dishon  v.  Smith,  10  Iowa,  212;  People  v.  Cook, 

14  Barb.  259,  and  8  N.  Y.  67  ;  Hartt  v.  Harvey,  32  Barb.  55  ;  Attorney-General 
v.  Barstow,  4  Wis.  567  ;  Attorney-General  v.  Ely,  ib.  420 ;  State  v.  Governor, 
1  Dutch.  331;  State  v.  Clerk  of  Passaic,  ib.  354;  Marshall  v.  Kerns,  2  Swan, 
68 ;  People  v.  Pease,  27  N.  Y.  45. 

3  Ex  parte  Heath,  3  Hill,  42. 

[  733] 


*  622  CONSTITUTIONAL    LIMITATIONS.  [CH.  XVII, 

to  reject  returns  transmitted  to  it  on  other  grounds  than  those 
appearing  upon  its  face,  or  to  declare  persons  elected  who  are  not 
shown  by  the  returns  to  have  received  the  requisite  plurality,  it  is 
usurping  functions,  and  its  conduct  will  be  reprehensible,  if  not 
even  criminal.  The  action  of  such  boards  is  to  be  carefully  con- 
fined to  an  examination  of  the  papers  before  them,  and  a 
[*  628]  determination  of  the  *  result  therefrom,  in  the  light  of 
such  facts  of  public  notoriety  connected  with  the  election 
as  every  one  takes  notice  of,  and  which  may  enable  them  to  apply 
such  ballots  as  are  in  any  respect  imperfect  to  the  proper  candi- 
dates or  offices  for  which  they  are  intended,  provided  the  intent  is 
sufficiently  indicated  by  the  ballot  in  connection  with  such  facts,  so 
that  extraneous  evidence  is  not  necessary  for  this  purpose.  If 
canvassers  refuse  or  neglect  to  perform  their  duty,  they  may  be 
compelled  by  mandamus  ; 1  though  as  these  boards  are  created 
for  a  single  purpose  only,  and  are  dissolved  by  an  adjournment 
without  day,  it  has  been  held  that,  after  such  adjournment,  man- 
damus would  be  inapplicable,  inasmuch  as  there  is  no  longer  any 
board  which  can  act;2  and  the  board  themselves,  having  once 
performed  and  fully  completed  their  duty,  have  no  power  after- 
wards to  reconsider  their  determination  and  come  to  a  different 
conclusion.3 

Contesting  Elections. 

As  the  election  officers  perform  for  the  most  part  ministerial 
functions  only,  their  returns,  and  the  certificates  of  election  which 
are  issued  upon  them,  are  not  conclusive  in  favor  of  the  officers 
who  would  thereby  appear  to  be  chosen,  but  the  final  decision  must 
rest  with  the  courts.4    This  is  the  general  rule,  and  the  exceptions 

1  Clark  v.  McKenzie,  7  Bush,  523 ;  Burke  v.  Supervisors  of  Monroe,  4  W. 
Va.  371;  State  v.  County  Judge,  7  Iowa,  186;  Magee  v.  Supervisors,  10  Cal. 
376. 

2  Clark  v.  Buchanan,  2  Minn.  346 ;  People  v.  Supervisors,  12  Barb.  217. 
Contra,  State  v.  Gibbs,  13  Fla.  55. 

3  Hadley  v.  Mayor,  &c.,  33  N.  Y.  603;  State  v.  Warren,  1  Houston,  43; 
State  v.  Harrison,  38  Mo.  540.  If  they  recount  and  give  the  certificate  to 
another,  such  action  is  a  mere  nullity.  Bowen  v.  Hixon,  45  Mo.  340 ;  People 
v.  Robertson,  Mich.  Sup.  Court,  July,  1873. 

4  State  u.  Justices  of  Middlesex,  Coxe,  244;  Hill  v.  Hill,  4  McCord,  277; 
Wammack  v.  Holloway,  2  Ala.  81 ;  State  v.  Clerk  of  Passaic,  1  Dutch.  854; 
Marshall  v.  Kerns,  2  Swan,  68 ;  Attorney-General  v.  Barstow,  4  Wis.  567 ;  At- 

[  734  ] 


CH.  XVII.]  THE   EXPRESSION    OF   THE   POPULAR   WILL.  *  623 

are  of  those  cases  where  the  law  under  which  the  canvass  is  made 
declares  the  decision  conclusive,  or  where  a  special  statutory  board 
is  established  with  powers  of  final  decision.1  And  it  mat- 
ters not  how  *  high  and  important  the  office  ;  an  election  [*  624] 
to  it  is  only  made  by  the  candidate  receiving  the  requisite 
plurality  of  the  legal  votes  cast ;  and  if  any  one,  without  having 
r  eceived  such  plurality,  intrudes  into  an  office,  whether  with  or 
without  a  certificate  of  election,  the  courts  have  jurisdiction  to 
oust,  as  well  as  to  punish  him  for  such  intrusion.2 

torney-General  v.  Ely,  ib.  420;  People  v.  Van  Cleve,  1  Mich.  362;  People 
v.  Higgins,  3  Mich.  233;  Dishon  v.  Smith,  10  Iowa,  211  ;  State  v.  Johnson,  17 
Ark.  407  ;  State  v.  Fetter,  12  Wis.  566  ;  State  v.  Avery,  14  Wis.  122 ;  People  v. 
Jones,  20  Cal.  50 ;  Newcum  v.  Kirtley,  13  B.  Monr.  515  ;  People  v.  Van  Slyck,  4 
Cow.  297  ;  People  v.  Vail,  20  Wend.  12  ;  People  v..  Seaman,  5  Denio,  409  ;  Peo- 
ple o.  Cook,  14  Barb.  259,  and  8  N.  Y.  67;  People  v.  Matteson,  17  111.  167; 
Taylor  v.  Taylor,  10  Minn.  107  ;  Calaveras  County  v.  Brockway,  30  Cal.  325. 
An  illegal  election  may  be  contested  and  set  aside  even  though  but  one  person 
was  voted  for.     Ex  parte  Ellyson,  20  Grat.  10. 

1  See  Grier  v.  Shackleford,  Const.  Rep.  642  ;  Batman  v.  Megowan,  1  Met. 
(Ky.)  533  ;  People  ».  Goodwin,  22  Mich.  496  ;  State  v.  Marlow,  15  Ohio,  n.  s.  114. 
For  the  proceedings  in  the  State  of  New  York  in  the  canvass  of  votes  for  governor 
in  1792,  where  the  election  of  John  Jay  to  that  office  was  defeated  by  the  rejec- 
tion of  votes  cast  for  him  for  certain  irregularities,  which  under  the  more  recent 
judicial  decisions  ought  to  have  been  overlooked,  see  Hammond' 's  Political  His- 
tory of  New  York,  c.  3.  The  law  then  in  force  made  the  decision  of  the  State 
canvassers  final  and  conclusive. 

2  Barstow,  being  Governor  of  Wisconsin,  was  candidate  for  re-election  against 
Bashford.  A  majority  of  the  votes  was  cast  for  Bashford,  but  certain  spurious 
returns  were  transmitted  to  the  State  canvassers,  which,  together  with  the  legal 
returns,  showed  a  plurality  for  Barstow,  and  he  was  accordingly  declared  chosen. 
Proceedings  being  taken  against  him  by  quo  warranto  in  the  Supreme  Court, 
Barstow  objected  to  the  jurisdiction,  on  the  ground  that  the  three  departments  of 
the  State  government,  the  legislative,  the  executive,  and  the  judicial,  were  equal, 
co-ordinate,  and  independent  of  each  other,  and  that  each  department  must  be 
and  is  the  ultimate  j  udge  of  the  election  and  qualification  of  its  own  member  or 
members,  subject  only  to  impeachment  and  appeal  to  the  people  ;  that  the  question 
who  is  rightfully  entitled  to  the  office  of  governor  could  in  no  case  become  a 
judicial  question  ;  and  that  as  the  constitution  provides  no  means  for  ousting  a 
successful  usurper  of  either  of  the  three  departments  of  the  government,  that 
power  rests  exclusively  with  the  people,  to  be  exercised  by  them  whenever  they 
think  the  exigency  requires  it.  A  strange  doctrine  in  this  country  of  laws  !  but 
which,  of  course,  received  no  countenance  from  the  able  court  to  which  it  was 
addressed.  In  People  v.  Cicotte,  16  Mich.  283,  the  opinion  is  expressed  by  two 
of  the  judges,  that  one  claiming  a  public  office  has  a  constitutional  right  to  a  trial 
by  jury,  and  that  this  right  cannot  be  taken  away  from  him  by  any  law  which 

C  735  ] 


*  624  CONSTITUTIONAL    LIMITATIONS.  [CH.  XVII. 

Where,  however,  the  question  arises  collaterally,  and  not  in  a 
direct  proceeding  to  try  the  title  to  the  office,  the  correctness  of 
the  decision  of  the  canvassers  cannot'  be  called  in  question,  but 
must  be  conclusively  presumed  to  be  correct ; x  and  where  the 
election  was  to  a  legislative  office,  the  final  decision,  as  well  by 
parliamentary  law  as  by  constitutional  provisions,  rests  with  the 
legislative  body  itself,  and  the  courts,  as  we  have  heretofore  seen,2 
cannot  interfere. 

The  most  important  question  which  remains  to  be  mentioned, 

relates  to  the  evidence  which  the  courts  are  at  liberty  to  receive, 

and  the  facts  which  it  is  proper  to  spread  before  the  jury 

[*  625]  for  their  *  consideration  when  an  issue  is  made  upon  an 

election  for  trial  at  law. 

The  questions  involved  in  every  case  are,  first,  has  there  been 
an  election  ?  and  second,  was  the  party  who  has  taken  possession 
of  the  office  the  successful  candidate  at  such  election,  by  having 
received  a  majority  of  the  legal  votes  cast  ?  These  are  ques- 
tions which  involve  mixed  considerations  of  law  and  fact,  and 
the  proper  proceeding  in  which  to  try  them  in  the  courts  is  by  quo 
warranto,  when  nO  special  statutory  tribunal  is  created  for  the 
purpose.3 

Upon  the  first  question,  we  shall  not  add  to  what  we  have 
already  said.  When  the  second  is  to  be  considered,  it  is  to  be 
constantly  borne  in  mind  that  the  point  of  inquiry  is  the  will  of  the 
electors  as  manifested  by  their  ballots  ;  and  to  this  should  all  the 
evidence  be  directed,  and  none  that  does  not  bear  upon  it  should 
be  admissible. 

We  have  already  seen  that  the  certificates  or  determinations  of 
the  various  canvassing  boards,  though  conclusive  in  collateral 
inquiries,  do  not  preclude  an  investigation  by  the  courts  into  the 
facts  which  they  certify.     They  are  prima  facie  evidence,  however, 

shall  undertake  to  make  the  decision  of  the  canvassing  board  conclusive.    But  see 
Ewing  v.  Filley,  43  Penn.  St.  384;  Commonwealth  v.  Leech,  44  Penn.  St.  332. 

1  Morgan  v.  Quackenbush,  22  Barb.  72 ;  Hadley  v.  Mayor,  &c,  33  N.  Y.  603  ; 
Howard  v.  Diarmid,  26  Ark.  100.  And  see  Hulseman  v.  Kens,  41  Penn.  St.  396, 
where  it  was  held  that  the  court  could  not  interfere  summarily  to  set  aside  a 
certificate  of  election,  where  it  did  not  appear  that  the  officers  had  acted  cor- 
ruptly, notwithstanding  it  was  shown  to  be  based  in  part  upon  forged  returns. 

2  See  ante,  p.  133.     See  also  Commonwealth  v.  Meeser,  44  Penn.  St.  341. 
1  People  v.  Matteson,  17  111.  167 ;  People  v.  Cover,  50  111.  100. 

•  [  736  ] 


CH.  XVII.]  THE   EXPRESSION   OF   THE   POPULAR   WILL.  *  625 

even  in  the  courts ; J  and  this  is  so,  notwithstanding  alterations 
appear ;  the  question  of  their  fairness  in  such  a  case  being  for  the 
jury.2  But  back  of  this  prima  facie  case  the  courts  may  go,  and 
the  determinations  of  the  State  board  may  be  corrected  by  those  of 
the  district  boards,  and  the  latter  by  the  ballots  themselves  when 
the  ballots  are  still  in  existence  and  have  been  kept  as  required  by 
law.3  If,  however,  the  ballots  have  not  been  kept  as  required  by 
law,  and  surrounded  by  such  securities  as  the  law  has  prescribed 
with  a  view  to  their  safe  preservation  as  the  best  evidence  of  the 
election,  it  would  seem  that  they  should  not  be  received  in  evi- 
dence at  all,4  or,  if  received,  that  it  should  be  left  to  the  jury  to 
determine,  upon  all  the  circumstances  of  the  case,  whether  they 
constitute  more  reliable  evidence  than  the  inspectors'  certificate,5 
which  is  usually  prepared  immediately  on  the  close  of 
*  the  election,  and  upon  actual  count  of  the  ballots  as  [*  626] 
then  made  by  the  officers  whose  duty  it  is  to  do  so. 

Something  has  already  been  said  regarding  the  evidence  which 
can  be  received  where  the  elector's  ballot  is  less  complete  and 
perfect  in  its  expression  of  intention  than,  it  should  have  been. 
There  can  be  no  doubt  under  the  authorities  that,  whenever  a 
question  may  arise  as  to  the  proper  application  of  a  ballot,  any 
evidence  is  admissible  with  a  view  to  explain  and  apply  it  which 
would  be  admissible  under  the  general  rules  of  evidence  for  the 
purpose  of  explaining  and  applying  other  written  instruments. 
But  the  rule,  as  it  appears  to  us,  ought  not  to  go  further.  The 
evidence  ought  to  be  confined  to  proof  of  the  concomitant  circum- 
stances ;  such  circumstances  as  may  be  proved  in  support  or 
explanation  of  a  contract,  where  the  parties  themselves  would  not 
be  allowed  to  give  testimony  as  to  their  actual  intention,  when 

1  Marshall  v.  Kerns,  2  Swan,  68 ;  Morgan  v.  Quackenbush,  22  Barb.  72 ; 
Calaveras  County  v.  Brockway,  30  Cal.  325. 

2  State  v.  Adams,  2  Stew.  231.     See  State  v.  Hilmantel,  23  Wis.  422. 

3  People  v.  Van  Cleve,  1  Mich.  362 ;  People  v.  Higgins,  3  Mich.  233 ;  State 
v.  Clerk  of  Passaic,  1  Dutch.  354;  State  v.  Judge,  &c,  13  Ala.  805;  People  v. 
Cook,  14  Barb.  259 ;  s.  c.  8  N.  Y.  67 ;  People  v.  Cicotte,  16  Mich.  283 ;  At- 
torney-General v.  Ely,  4  Wis.  420.  The  ballot  is  always  the  best  evidence  of 
the  voter's  action.  Wheat  v.  Ragsdale,  27  Ind.  191 ;  People  v.  Holden,  28  Cal. 
123. 

4  People  v.  Sackett,  14  Mich.  320.      But  see  People  v.  Higgins,  3  Mich.  233. 

5  People  v.  Cicotte,  16  Mich.  283. 

47  [  737  ]       • 


*  626  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVII. 

unfortunately  the  intention  was  ineffectually  expressed.1  And  we 
have  seen  that  no  evidence  is  admissible  as  to  how  parties  intended 
to  vote  who  were  wrongfully  prevented  or  excluded  from  so  doing. 
Such  a  case  is  one  of  wrong  without  remedy,  so  far  as  candidates 
are  concerned.2  There  is  more  difficulty,  however,  when  the 
question  arises  whether  votes  which  have  been  cast  by  incom- 
petent persons,  and  which  have  been  allowed  in  the  canvass,  can 
afterwards  be  inquired  into  and  rejected  because  of  the  want  of 
qualification. 

If  votes  were  taken  viva  voce,  so  that  it  could  always  be  deter- 
mined with  absolute  certainty  how  every  person  had  voted,  the 
objections  to  this  species  of  scrutiny  after  an  election  had  been 
held  would  not  be  very  formidable.  But  when  secret  balloting  is 
the  policy  of  the  law,  and  no  one  is  at  liberty  to  inquire  how  .any 
elector  has  voted,  except  as  he  may  voluntarily  have  waived  his 
privilege,  and  when  consequently  the  avenues  to  correct  informa- 
tion concerning  the  votes  cast  are  carefully  guarded  against  ju- 
dicial exploration,  it  seems  exceedingly  dangerous  to  permit  any 
question  to  be  raised  upon  this  subject.  For  the  evidence  volun- 
tarily given  upon  any  such  question  will  usually  come  from  those 
least  worthy  of  credit,  who,  if  they  have  voted  without  legal  right 

in  order  to  elect  particular  candidates,  will  be  equally 
[*  627]  ready  to  testify  *  falsely,  if  their  testimony  can  be  made 

to  help  the  same  candidates  ;  especially  when,  if  they  give 
evidence  that  they  voted  the  opposing  ticket,  there  can  usually  be 
no  means,  as  they  will  well  know,  of  showing  the  evidence  to  be 
untrue.3  Moreover,  to  allow  such  scrutiny  is  to  hold  out  strong 
temptation  to  usurpation  of  office,  without  pretence  or  color  of 
right ;  since  the  nature  of  the  case,  and  the  forms  and  proceed- 
ings necessary  to  a  trial  arc  such  that,  if  an  issue  may  be  made  on 
the  right  of  every  individual  voter,  it  will  be  easy,  in  the  case  of 

1  People  v.  Pease,  27  N.  Y.  84,  per  Denio,  Ch.  J.,  commenting  upon  previ- 
ous New  York  cases.     See  also  Attorney-General  v.  Ely,  4  Wis.  420. 

2  See  ante,  620. 

3  It  has  been  decided  in  Wisconsin  that  where  an  unqualified  person  is  called 
to  prove  that  he  voted  at  an  election,  and  declines  to  testify,  the  fact  of  his  having 
voted  may  be  proved,  and  then  his  declarations  may  be  put  in  evidence  to.  show 
how  he  voted.  State  v.  Olin,  23  Wis.  319.  This  may  give  the  incompetent 
voter  a  double  vote.  First,  he  votes  for  the  ticket  of  his  choice,  and  then,  on  a 
contest,  he  declares  he  voted  the  other  way,  and  a  deduction  is  made  from  the 
opposite  vote  accordingly. 

[738  J 


CH.  XVII.]  THE   EXPRESSION    OF   THE   POPULAR   WILL.  *  627 

important  elections,  to  prolong  a  contest  for  the  major  part  if  not 
the  whole  of  an  official  term,  and  to  keep  perpetually  before  the 
courts  the  same  excitements,  strifes,  and  animosities  which  char- 
acterize the  hustings,  and  which  ought,  for  the  peace  of  the  com- 
munity, and  the  safety  and  stability  of  our  institutions,  to  terminate 
with  the  close  of  the  polls.1 

Upon  this  subject  there  is  very  little  judicial  authority,  though 
legislative  bodies,  deriving  their  precedents  from  England,  where 
the  system  of  open  voting  prevails,  have  always  been  accustomed 
to  receive  such  evidence,  and  have  indeed  allowed  a  latitude  of 
inquiry  which  makes  more  to  depend  upon  the  conscience  of  the 
witnesses,  and  of  legislative  committees,  in  some  cases,  than  upon 
the  legitimate  action  of  the  voters.  The  question  of  the  right  to 
inquire  into  the  qualifications  of  those  who  had  voted  at  an  elec- 
tion, on  a  proceeding  in  the  nature  of  a  quo  warranto,  was  directly 
presented  in  one  case  to  the  Supreme  Court  of  New  York,  and  the 
court  was  equally  divided  upon  it.'-  On  error  to  the  Court  of 
Appeals,  a  decision  in  favor  of  the  right  was  rendered  with  the 
concurrence  of  five  judges,  against  three  dissentients.3  The  same 
question  afterwards  came  before  the  Supreme  Court  of  Michigan, 
and  was  decided  the  same  way,  though  it  appears  from  the  opin- 
ions that  the  court  were  equally  divided  in  their  views.4  To  these 
cases  we  must  refer  for  a  full  discussion  of  the  reasons  influencing 
the  several  judges ;  but  future  decisions  alone  can  give  the  ques- 
tion authoritative  settlement.5 

1  This  is  one  reason,  perhaps,  why  in  the  case  of  State  officers  a  statutory 
tribunal  is  sometimes  provided  with  powers  of  summary  and  final  decision. 

2  People  v.  Pease,  30  Barb.  588. 

3  People  v.  Pease,  29  N.  Y.  45. 

4  People  v.  Cicotte,  16  Mich.  283.  See  further  the  case  of  State  v.  Hilmantel, 
23  Wis.  422,  where  it  was  decided  that  those  who  had  voted  illegally  might  be 
compelled  to  testify  for  whom  they  voted.  The  question  was  discussed  but  brietiy, 
and  as  one  of  privdege  merely. 

5  Considerable  stress  was  laid  by  the  majority  of  the  New  York  Court  of 
Appeals  on  the  legislative  practice,  which,  as  it  seems  to  us,  is  quite  too  loose  in 
these  cases  to  constitute  a  safe  guide.  Some  other  rulings  in  that  case  also  seem 
more  latitudinarian  than  is  warranted  by  sound  principle  and  a  due  regard  to  the 
secret  ballot  system  which  we  justly  esteem  so  important.  Thus,  Selden,  J., 
says  :  "  When  a  voter  refuses  to  disclose  or  fails  to  remember  for  whom  he  voted, 
I  think  it  is  competent  to  resort  to  circumstantial  evidence  to  raise  a  presump- 
tion in  regard  to  that  fact.  Such  is  the  established  rule  in  election  cases  before 
legislative  committees,  which  assume  to  be  governed  by  legal  rules  of  evidence 

[  739] 


*  628  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVII. 

(Cush.  Leg.  Assem.  §§  199  and  200)  ;  and  -within  that  rule  it  was  proper,  in 
connection  with  the  other  circumstances  stated  by  the  witness  Loftis,  to  ask  him 
for  whom  he  intended  to  vote ;  not,  however,  on  the  ground  that  his  intention, 
as  an  independent  fact,  could  be  material,  but  on  the  ground  that  it  was  a  cir- 
cumstance tending  to  raise  a  presumption  for  whom  he  did  vote."  Now  as,  in 
the  absence  of  fraud  or  mistake,  you  have  arrived  at  a  knowledge  of  how  the 
man  voted,  when  you  have  ascertained  how,  at  the  time,  he  intended  to  vote,  it 
is  difficult  to  discover  much  value  in  the  elector's  privilege  of  secrecy  under  this 
ruling.  And  if  "  circumstances  "  may  be  shown  to  determine  how  he  probably 
voted,  in  cases  where  he  insists  upon  his  constitutional  right  to  secrecy,  then,  as 
it  appears  to  us,  it  would  be  better  to  abolish  altogether  the  secret  ballot  than  to 
continue  longer  a  system  which  falsely  promises  secrecy,  at  the  same  time  that  it 
gives  to  party  spies  and  informers  full  license  to  invade  the  voter's  privilege  in 
secret  and  surreptitious  ways,  and  which  leaves  jurors,  in  the  absence  of  any 
definite  information,  to  act  upon  their  guesses,  surmises,  and  vague  conjectures 
as  to  the  contents  of  a  ballot. 

Upon  the  right  to  inquire  into  the  qualifications  of  those  who  have  voted,  in  a 
proceeding  by  quo  warranto  to  test  the  right  to  a  public  office,  Justice  Chris- 
tiana/, in  People  v.  Cicotte,  16  Mich.  311,  expresses  his  views  as  follows  :  — 

"  I  cannot  go  to  the  extent  of  holding  that  no  inquiry  is  admissible  in  any  case 
into  the  qualification  of  voters  or  the  nature  of  the  votes  given.  Such  a  rule,  I 
admit,  would  be  easy  of  application,  and,  as  a  general  rule,  might  not  be  produc- 
tive of  a  great  amount  of  injustice,  while  the  multitude  of  distinct  questions  of 
fact  in  reference  to  the  great  number  of  voters  whose  qualifications  may  be  con- 
tested, is  liable  to  lead  to  some  embarrassment,  and  sometimes  to  protracted 
trials,  without  a  more  satisfactory  result  than  would  have  been  attained  under  a 
rule  which  should  exclude  all  such  inquiries.  Still,  I  cannot  avoid  the  conclusion 
that  in  theory  and  spirit  our  constitution  and  our  statutes  recognize  as  valid 
those  votes  only  which  are  given  by  electors  who  possess  the  constitutional  quali- 
fications ;  that  they  recognize  as  valid  such  elections  only  as  are  effected  by  the 
votes  of  a  majority  of  such  qualified  electors ;  and  though  the  election  boards  of 
inspectors  and  canvassers,  acting  only  ministerially,  are  bound  in  their  decisions 
by  the  number  of  votes  deposited  in  accordance  with  the  forms  of  law  regulating 
their  action,  it  is  quite  evident  that  illegal  votes  may  have  been  admitted  by  the 
perjury  or  other  fault  of  the  voters,  and  that  the  majority  to  which  the  inspectors 
have  been  constrained  to  certify  and  the  canvassers  to  allow  has  been  thus  wrong- 
fully and  illegally  secured ;  and  I  have  not  been  able  to  satisfy  myself  that  in 
such  a  case,  these  boards,  acting  thus  ministerially,  and  often  compelled  to  admit 
votes  which  they  know  to  be  illegal,  were  intended  to  constitute  tribunals  of  last 
resort  for  the  determination  of  the  rights  of  parties  claiming  an  election.  If  this 
were  so,  and  there  were  no  legal  redress,  I  think  there  would  be  much  reason  to 
apprehend  that  elections  would  degenerate  into  mere  contests  of  fraud. 

"  The  person  having  the  greatest  number  of  the  votes  of  legally  qualified 
electors,  it  seems  to  me,  has  a  constitutional  right  to  the  office;  and  if  no  inquiry 
can  be  had  into  the  qualification  of  any  voter,  here  is  a  constitutional  right  de- 
pending upon  a  mode  of  trial  unknown  to  the  constitution,  and,  as  I  am  strongly 
inclined  to  think,   oppos-ed  to  its   provisions.      I  doubt  the  competency  of  the 

[740] 


CH.  XVII.]  THE   EXPRESSION   OF   THE    POPULAR   WILL.  *  629 

legislature,  should  they  attempt  it,  which  I  think  they  have  not,  to  make  the 
decision  of  inspectors  or  canvassers  final  under  our  constitution." 

The  opposite  view  is  expressed  by  Justice  Campbell  as  follows  (ib.  p.  294)  :  — 

"  The  first  inquiry  is  whether  an  election  can  be  defeated  as  to  any  candidate 
by  showing  him  to  have  received  illegal  votes.  The  authorities  upon  election 
questions  are,  in  this  country,  neither  numerous  nor  satisfactory.  In  England, 
where  votes  are  given  viva  voce,  it  is  always  easy  to  determine  how  any  voter  has 
given  his  voice.  And  in  some  States  of  the  Union,  a  system  seems  to  prevail 
of  numbering  each  ballot  as  given,  and  also  numbering  the  voter's  name  on  the 
poll  list,  so  as  to  furnish  means  of  verification  when  necessary.  It  has  always 
been  held,  and  is  not  disputed,  that  illegal  votes  do  not  avoid  an  election,  unless 
it  can  be  shown  that  their  reception  affects  the  result.  And  where  the  illegality 
consists  in  the  casting  of  votes  by  persons  unqualified,  unless  it  is  shown  for 
whom  they  voted,  it  cannot  be  allowed  to  change  the  result. 

"The  question  of  the  power  of  courts  to  inquire  into  the  action  of  the  author- 
ities in  receiving  or  rejecting  votes  is,  therefore,  very  closely  connected  with  the 
power  of  inquiring  what  persons  were  voted  for  by  those  whose  qualifications  are 
denied.  It  is  argued  for  the  relator  that  neither  of  these  inquiries  can  be  made. 
No  use  can  fairly  be  made  in  such  a  controversy  as  the  present  of  decisions  or 
practice  arising  out  of  any  system  of  open  voting.  The  ballot  system  was  de- 
signed to  prevent  such  publicity,  and  not  to  encourage  it.  And  the  course 
adopted  by  legislative  bodies  cannot  be  regarded  as  a  safe  guide  for  courts  of 
justice.  There  is  little  uniformity  in  it,  and  much  of  it  is  based  on  English  pre- 
cedents belonging  to  a  different  practice.  The  view  taken  of  contested  elections 
by  these  popular  bodies  is  not  always  accurate,  or  consistent  with  any  settled 
principles. 

"  There  is  no  case  so  far  as  I  have  been  able  to  discover,  under  any  system  of 
voting  by  closed  ballot,  which  has  held  that  any  account  could  be  taken  of  rejected 
votes  in  a  suit  to  try  title  for  office.  The  statutes  here,  and  probably  elsewhere, 
require  the  election  to  be  made  out  by  the  votes  given.  But  it  is  plain  enough 
that  in  most  cases  it  would  be  quite  as  easy  to  determine  for  whom  a  rejected 
voter  would  have  voted  as  for  whom  any  other  actually  did  vote.  In  many  cases 
it  would  be  easier,  because  the  vote  is  always  ready  and  tendered  with  better 
opportunities  of  observation  than  are  given  where  it  is  received  and  deposited. 
But  the  element  of  uncertainty  has  been  regarded  as  sufficient  to  cause  the  rejec- 
tion of  any  such  inquiry,  and,  in  most  cases,  probably  it  would  not  be  admissible 
under  the  statutes.  But  the  policy  which  leads  to  this  result  must  have  some 
bearing  upon  the  construction  of  the  whole  system. 

"  So  far  as  I  have  been  able  to  discover  by  means  of  the  somewhat  imperfect 
indexes  on  this  head,  there  is  but  one  case  in  which  the  decision  has  turned  upon 
the  propriety  of  allowing  inquiry  into  the  qualifications  of  voters,  and  the  iden- 
tification of  their  tickets  when  claimed  to  be  disqualified.  That  case  was  the 
case  of  People  v.  Pease,  27  N.  Y.  45.  In  the  Supreme  Court  the  judges, 
although  arriving  at  a  general  result,  were  equally  divided  on  this  point.  In  the 
Court  of  Appeals,  the  judges  elected  to  that  tribunal  were  also  equally  divided, 
and  the  majority  of  the  Supreme  Court  judges,  belonging  to  it  by  rotation, 
turned  the  scale,  and  decided  that  the  inquiry  was  proper.  The  decision  was 
based  chiefly  upon  English  authorities ;  the  previous  New  York  decisions  hav- 

[741] 


*  630  CONSTITUTIONAL   LIMITATIONS.  [CH.   XVII. 

ing  turned  principally  on  other  errors  wbicb  rest  upon  somewhat  different 
grounds. 

"New  York,  so  far  as  may  be  inferred  from  the  absence  of  decisions  else- 
where, seems,  until  recently,  to  have  been  the  only  State  preserving  the  ballot 
system,  in  which  the  right  to  office  by  election  is  open  to  examination  on  the 
merits  to  any  considerable  extent.  The  courts  of  that  State  bave  gone  farther 
than  any  others  in  opening  the  door  to  parol  proof.  Some  of  the  Western 
States  have,  upon  the  authority  of  the  New  York  cases,  permitted  some  of  these 
matters  to  be  litigated,  but  they  are  not  in  any  majority.  And  it  is  quite  mani- 
fest that  the  decisions  have  not  in  general  acted  upon  any  careful  consideration 
of  the  important  questions  of  public  policy  underlying  the  ballot  system,  which 
are  so  forcibly  explained  by  Dcnio,  Ch.  J.,  in  his  opinion  in  People  v.  Pease; 
and  it  is  a  little  remarkable  that  in  New  York,  while  so  many  doors  have  been 
opened  by  the  decisions,  the  law  requires  all  the  ballots,  except  a  single  speci- 
men of  each  kind,  to  be  destroyed ;  thus  leaving  the  number  of  votes  of  each 
kind,  in  all  cases,  to  be  determined  by  the  inspectors,  and  rendering  any  cor- 
rection impossible.  I  think  the  weight  of  reasoning  is  in  favor  of  the  view  of 
Judge  Denio  in  the  New  York  case,  that  no  inquiry  can  be  made  into  the  legality 
of  votes  actually  deposited  by  a  voter  upon  any  ground  of  personal  right  as  an 
elector. 

"  The  reasons  why  such  an  inquiry  should  be  prevented  do  not  necessarily  rest 
on  any  assumption  that  the  inspectors  act  throughout  judicially,  although  under 
our  registration  system  that  objection  has  a  force  which  would  not  otherwise  be 
so  obvious.  Neither  do  they  rest  in  any  degree  upon  the  assumption  that  one 
rule  or  another  is  most  likely  to  induce  perjury,  as  very  hastily  intimated  in 
People  v.  Ferguson,  8  Cow.  102.  But  a  very  strong  ground  for  them  is  found 
in  the  fact  that  our  whole  ballot  system  is  based  upon  the  idea  that,  unless  invio- 
lable secrecy  is  preserved  concerning  every  voter's  action,  there  can  be  no  safety 
against  those  personal  or  political  influences  which  destroy  individual  freedom  of 
choice. 

"It  is  altogether  idle  to  expect  that  there  can  be  any  such  protection  where 
the  voter  is  only  allowed  to  withhold  his  own  oath  concerning  the  ticket  he  has 
voted,  while  any  other  prying  meddler  can  be  permitted  in  a  court  of  justice  to 
guess  under  oath  at  its  contents.  If  the  law  could  permit  an  inquiry  at  all,  there 
is  no  reason  whatever  for  preventing  an  inquiry  from  the  voter  himself,  who 
alone  can  actually  know  how  he  voted,  and  who  can  suffer  no  more  by  being 
compelled  to  answer  than  by  having  the  fact  established  otherwise.  The  reason 
why  the  ballot  is  made  obligatory  by  our  constitution  is  to  secure  every  one  the 
right  of  preventing  any  one  else  from  knowing  how  he  voted,  and  there  is  no 
propriety  in  any  rule  which  renders  such  a  safeguard  valueless. 

"  It  has  always  been  the  case  that  the  rules  of  evidence  have,  on  grounds  of 
public  policy,  excluded  proof  tending  to  explain  how  individuals  have  acted  in 
positions  where  secrecy  was  designed  for  their  protection  or  that  of  the  public. 
No  grand  juror  could  be  permitted  to  disclose  as  a  witness  the  ballots  given  by 
himself  or  others  upon  investigations  of  crime.  Informers  cannot  be  compelled 
to  disclose  to  whom  they  have  given  their  information.  And  many  official  facts 
are  denied  publicity.  In  all  of  these  cases,  the  rule  is  not  confined  to  one  person 
any  more  than  to  another;    for  public  policy  is  against  publication   from  any 

[742] 


CH.  XVII.]  THE   EXPRESSION   OF   THE   POPULAR   WILL. 


631 


source.  And  if,  as  is  clear,  a  man  is  entitled  to  keep  his  own  vote  secret,  it  is 
difficult  to  see  how  any  testimony  whatever  can  be  allowed,  from  any  source,  to 
identify  and  explain  it. 

"  The  statutes  contain  some  provisions  bearing  upon  these  topics  with  consid- 
erable force.  By  sec.  47  of  the  Compiled  Laws,  every  voter  is  compelled  to 
deliver  his  ballot  folded ;  and,  by  sec.  52,  the  inspector  is  prohibited  from  either 
opening  or  permitting  it  to  be  opened. 

"  The  devices  adopted  for  creating  different  appearances  in  the  ballots  of 
different  parties  are  such  palpable  evasions  of  the  spirit  of  the  law  as  to  go  very 
far  towards  destroying  the  immunity  of  the  voter,  and  in  some  States  it  has 
been  found  desirable  to  attempt  by  statute  the  prevention  of  such  tricks ;  but  the 
difficulty  of  doing  this  effectually  is  exemplified  in  People  v.  Kilduff,  15  111.  492, 
where  the  evidence  seems  to  have  shown  that  a  uniform  variation  may  be  entirely 
accidental.  Unless  some  such  difference  exists,  it  would  be  idle  to  attempt  any 
proof  how  a  person  voted,  and  it  would  be  better  to  do  away  at  once  with  the 
whole  ballot  than  to  have  legal  tribunals  give  any  aid  or  countenance  to  indirect 
violations  of  its  security ;  and  the  evidence  received  in  the  present  case  exempli- 
fies the  impropriety  of  such  investigations.  In  some  instances,  at  least,  the  only 
proof  that  a  vofer,  complained  of  as  illegal,  cast  his  ballot  for  one  or  the  other 
of  these  candidates,  was,  that  he  voted  a  ticket  externally  appearing  to  belong  to 
one  of  the  two  political  parties,  and  containing  names  of  both  State  and  county 
officers.  To  allow  such  proof  to  be  received  in  favor  of  or  against  any  particular 
candidate  on  the  ticket,  is  to  allow  very  remote  circumstances  indeed  to  assume 
the  name  of  evidence.  And  the  necessity  of  resorting  to  such  out-of-the-way 
proofs  only  puts  in  a  clearer  light  the  impropriety  and  illegality  of  entering  upon 
any  such  inquiry,  when  the  law  sedulously  destroys  the  only  real  proofs,  and  will 
not  tolerate  a  resort  to  them.  And  the  whole  State  is  much  more  interested  than 
any  single  citizen  can  be,  in  emancipating  elections  from  all  those  sinister  influ- 
ences, which  have  so  great  a  tendency  to  coerce  or  deceive  electors  into  becoming 
the  mere  instruments  of  others. 

"  But  there  are  further  provisions  bearing  more  directly  on  the  propriety  and 
necessity  of  allowing  no  inquisition  into  individual  votes. 

"  County  officers  are  among  those  included  under  sec.  31  of  the  Compiled 
Laws,  which  declares  that  '  the  persons  having  the  greatest  number  of  votes  shall 
be  deemed  to  have  been  duly  elected.'  The  law  does  not  confine  this  to  votes 
cast  by  authorized  voters,  and  can  only  be  applied  to  votes  cast  and  recorded  in 
the  manner  provided  by  law.  And  although  this  section,  standing  alone,  might 
be  open  to  construction,  yet,  when  the  whole  law  is  taken  together,  there  are 
provisions  not  to  be  reconciled  with  any  rule  allowing  single  voters  and  their 
votes  to  be  made  the  subject  of  inquiry.  It  will  not  be  denied,  that  an  inquiry 
into  the  legality  of  a  particular  voter's  qualifications,  after  his  vote  has  been 
cast,  is  of  a  strictly  judicial  nature ;  and  it  cannot  be  proper  or  legal  to  allow 
6uch  an  inquiry  in  one  case,  and  not  in  another.  But  it  will  be  found  not  only 
that  the  rejection  of  votes  from  the  count  is  required  to  be  in  such  a  way  as  to 
preclude  any  consideration  of  the  person  giving  or  putting  them  in,  but  that 
there  are  cases  where  even  a  legal  inquiry  into  the  ballots  themselves  is  pre- 
vented. 

"In  the  first  place,  when  two  or  more  ballots  are  so  folded  together  as  to 

[  743] 


*  632  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVII. 

present  the  appearance  of  one,  and  if  counted  will  make  the  ballots  exceed  the 
names  on  the  poll-list,  they  are  to  be  destroyed.  And  whenever,  for  any  other 
reason,  the  number  of  ballots  found  in  tbe  box  exceeds  the  number  of  names  on 
the  corrected  poll-lists,  the  inspectors  are  required  to  draw  out  and  destroy  un- 
opened a  number  equal  to  the  excess.  This  is,  of  course,  upon  the  assumption 
that  the  excess  has  probably  been  caused  by  fraud,  and  assumes  that  no  man's 
vote  ought  to  be  counted,  unless  the  testimony  of  the  poll-lists  shows  that  he 
actually  handed  in  his  ballot.  It  is,  therefore,  altogether  likely,  upon  any  theory 
of  probabilities,  that,  in  drawing  out  these  extra  ballots,  they  will  really  be  bal- 
lots lawfully  put  in,  and  this  probability  is  in  the  ratio  furnished  by  a  comparison 
of  numbers  between  lawful  and  unlawful  votes.  In  other  words,  it  is  more  than 
likely  to  punish  the  innocent,  instead  of  the  guilty.  The  true  method  of  arriving 
at  the  truth  would  be  to  inquire  what  vote  each  voter  on  the  list  actually  cast,  and 
destroy  the  remainder.  The  absurdity  of  this  process  upon  such  a  large  scale 
is  such  as  to  need  no  pointing  out.  But  unless  something  very  like  it  is  done  in 
such  a  case  as  the  present,  the  result  obtained  by  anyr  partial  inquiry  will  be  no 
better  than  guesswork.  Where  votes  are  thrown  out,  no  one  can  tell  whether 
the  illegal  voter  whose  vote  is  sought  to  be  assailed  has  not  already  had  his  vote 
cancelled.  The  adoption  of  the  principle  of  allotment  is  the  most  sensible  and 
practicable  measure  which  could  be  devised,  and  I  cannot  conceive  how  it  can  be 
improved  upon  by  any  subsequent  search. 

"  But  when  the  inspectors  have  made  their  returns  to  the  county  canvassers, 
and  by  those  returns  a  tie  vote  appears  between  two  or  more  candidates,  who  are 
highest  on  the  list,  their  right  to  the  office  is  to  be  determined  by  lot,  and  the 
person  drawing  the  successful  slip  is  to  be  '  deemed  legally  elected  to  the  office  in 
question.1     Compiled  Laws,  §§  76,  132,  133. 

"  In  case  the  State  canvassers  (who  can  only  count  the  votes  certified  to  them) 
find  a  tie  vote,  the  legislature  has  power  to  choose  between  the  candidates.  Con- 
stitution, art.  8,  §  5.  In  these  cases,  there  can  be  no  further  scrutiny ;  and  in 
the  case  of  State  officers,  if  such  a  scrutiny  were  had,  no  end  could  be  reached 
within  any  reasonable  time,  and  there  would  be  a  practical  impossibility  in  attempt- 
ing to  conduct  it  in  any  time  within  the  official  term,  o~r  to  approach  accuracy  in 
a  count  of  some  thousand  or  more  ballot-boxes  before  a  jury.  Yet  State  offi- 
cers are  not  less  important  to  the  private  elector,  and,  of  course,  are  not  to  the 
community  at  large,  than  local.  And  the  nearer  a  vote  approaches  a  tie,  the 
more  likely  it  is  that  a  rigid  scrutiny  might  change  its  character.  There  is  no 
more  reason  for  preventing  investigation  behind  the  ballots  in  the  one  case  than 
in  the  other. 

"  The  statute  also  takes  very  efficient  measures  to  prevent  any  needless  litiga- 
tion by  shutting  out  any  preliminary  resort  to  the  means  of  information.  If  the 
officers  do  their  duty,  no  one  else  can  ever  know  whether  their  count  is  correct 
or  not,  until  a  suit  is  brought  and  issue  joined  upon  it.  The  ballots  are  required 
to  be  sealed  up,  and  not  opened  except  for  the  inspection  of  the  proper  author- 
ities, in  case  of*  a  contest.  The  only  ballots  open  to  public  inspection  are  those 
which  are  rejected  upon  the  canvass  for  defects  apparent  on  their  face.  These 
ballots  are  not  sealed  up  with  the  rest,  but  are  filed  ;  while,  therefore,  it  can  be 
determined  by  inspection  whether  votes  which  have  been  thrown  out  should  have 
been  counted,  the  law  does  not  seem  to  favor  any  unnecessary  disturbance  of  the 

[744] 


CH.  XVII.]         THB   EXPRESSION   OF   THE    POPULAR   WILL.  *  633 

official  returns,  and  any  one  who  assumes  to  dispute  an  election  is  compelled  to 
begin  his  suit  before  he  can  have  access  to  the  means  of  proof.  This  is  not  the 
usual  course  of  litigation,  and  the  rule  has  a  strong  bearing  upon  the  policy  to 
be  deduced  from  the  law. 

"  Under  our  statute,  there  is  no  general  provision  which  makes  the  canvass 
for  local  officers  conclusive  in  all  cases,  and  therefore  the  rule  is  recognized 
that  the  election  usually  depends  upon  the  ballots,  and  not  upon  the  returns. 
These  being  written  and  certain,  the  result  of  a  recount  involves  no  element 
of  difficulty  or  ambiguity,  beyond  the  risk  of  mistakes  in  counting  or  footing 
up  numbers,  which  may,  in  some  respects,  be  more*  likely  in  examining  the 
ballots  of  a  whole  county  than  in  telling  off  those  of  a  town  or  ward,  but  which 
involves  no  great  time  or  serious  disadvantage.  But  the  introduction  of  parol 
evidence  concerning  single  voters  in  a  considerable  district,  can  rarely  reach 
all  cases  of  illegality  effectually,  and  must  so  multiply  the  issues  as  to  seriously 
complicate  the  inquiry.  And  when  we  consider,  that,  for  many  years,  legisla- 
tion has  been  modified  for  the  very  purpose  of  suppressing  illegal  voting,  and 
when  we  know  that  hundreds  of  elections  must  have  been  turned  by  the  ballots 
of  unqualified  voters,  the  absence  of  any  body  of  decisions  upon  the  subject 
is  very  strong  proof  that  inquiry  into  private  ballots  is  felt  to  be  a  violation 
of  the  constitutional  safeguard  on  which  we  pride  ourselves  as  distinguishing 
our  elections  from  those  which  we  are  wont  to  regard  as  conducted  on  unsafe 
principles." 

[745] 


INDEX. 


A. 

ABBREVIATIONS, 

when  ballots  rendered  ineffectual  by,  608,  609. 
AB  INCONVENIENTI, 

doctrine  of,  in  construction,  67-71. 
ACCUSATIONS   OF  CRIME, 
are  actionable,  per  se,  423. 
self,  not  to  be  compelled,  313-317. 
how  made  with  a  view  to  investigation  and  trial,  309. 

(See  Personal  Liberty.) 
varying  form  of,  cannot  subject  party  to  second  trial,  328. 
ACCUSED   PARTIES, 

testimony  of,  in  their  own  behalf,  317,  318  and  notes, 
confessions  of,  314,  315. 

(See  Personal  Liberty.) 
ACTION, 

against  election  officers  for  refusing  to  receive  votes,  616. 
for  negligent  or  improper  construction  of  public  works,  571. 
for  property  taken  under  right  of  eminent  domain,  559-564. 

(See  Eminent  Domain.) 
for  exercise  of  legislative  power  by  municipal  bodies,  208. 
for  slander  and  libel,  rules  for,  422-425. 
modification  of,  by  statute,  430. 

(See  Liberty  of  Speech  and  of  the  Press.) 
rights  in,  cannot  be  created  by  mere  legislative  enactment,  369. 
nor  taken  away  by  legislature,  362. 
nor  appropriated  under  right  of  eminent  domain,  527. 
nor  forfeited,  except  by  judicial  proceedings,  362,  363. 
statutory  penalties  may  be  taken  away  before  recovery  of  judgment, 
362,  n. ;  383,  n. 
limitation  to  suits,  364-367. 

statutes  for,  are  unobjectionable  in  principle,  365. 
subsequent  repeal  of  statute  cannot  revive  rights,  293,  365. 
principle  on  which  statutes  are  based,  365. 
cannot  apply  against  a  party  not  in  default,  366. 
must  give  parties  an  opportunity  for  trial,  366. 
for  causing  death  by  negligence,  &c,  581. 


748  INDEX. 

ACTS   OF  THE  LEGISLATURE, 

(See  Statutes.) 
ADJOURNMENT   OF  SUIT, 

from  regard  to  religious  scruples  of  party,  477,  n. 
ADJOURNMENT  OF  THE   LEGISLATURE, 

on  its  own  motion,  132. 

by  the  governor,  132. 
ADMINISTRATORS, 

(See  Executors  and  Administrators.) 
ADMIRALTY  JURISDICTION, 

exercise  of,  by  the  Revolutionary  Congress,  6. 

conferred  upon  courts  of  United  States,  11. 
ADMISSIONS, 

of  accused  parties  as  evidence,  313-318. 

(See  Confessions.) 
ADVERTISEMENT, 

notice  to  foreign  parties  by,  404. 

not  effectual  to  warrant  a  personal  judgment,  404,  405. 
AGENCIES   OF   GOVERNMENT, 

not  to  be  taxed,  18,  482-485. 
AGREEMENTS, 

(See  Contracts.) 
ALABAMA, 

divorces  not  to  be  granted  by  legislature,  110,  n. 

revenue  bills  in,  131,  n. 

legislative  rules  concerning  pardons,  116,  n. 

title  of  acts  to  express  the  object,  142,  n. 

protection  of  person  and  property  by  law  of  the  land,  351,  n. 

liberty  of  speech  and  the  press,  417,  n. 

legislature  may  make  rules  respecting  pardons,  116,  n. 

privileges  of  members,  134,  n. 

persons  conscientiously  opposed  to  bearing  arms  excused,  478. 
ALIENS, 

exclusion  of,  from  suffrage,  29,  30,  599. 
ALIMONY, 

payment  of,  cannot  be  ordered  by  legislature,  114. 

decree  for,  not  valid  unless  process  served,  405. 
AMBASSADORS, 

jurisdiction  of  United  States  courts  in  respect  to,  11. 
AMENDMENT, 

of  money  bills,  may  be  made  by  Senate,  131. 

of  indictments,  272. 

of  statutes,  151,  152. 

republication  of  statute  amended,  151. 

by  implication,  152. 

at  the  same  session  of  their  passage,  152. 

of  defective  proceedings  by  legislation,  293,  371-381. 

of  State  constitutions,  21. 

(See  State  Constitutions.) 


INDEX.  749 

AMERICAN   COLONIES, 

(See  Colonies.) 
AMUSEMENT, 

regulation  of  places  of,  596. 
APPEAL, 

right  of,  may  be  taken  away,  384. 

effect  of  change  in  the  law  pending  an  appeal,  381. 
APPOINTMENT  TO   OFFICE, 

(See  Office.) 
APPORTIONMENT, 

of  powers  between  the  States  and  the  nation,  2. 

between  the  departments  of  the  State  government,  33-37, [39, [90-92. 

of  taxes,  495. 

(See  Taxation.) 
APPRAISAL, 

of  private  property  taken  by  the  public,  559-570. 
APPRAISEMENT  LAWS, 

how  far  invalid,  290. 
APPRENTICE, 

control  of  master  over,  340. 
APPROPRIATION, 

of  private  property  to  public  use,  525. 

(See  Eminent  Domain.) 
ARBITRARY  ARRESTS, 

illegality  of,  300,  302. 

(See  Personal  Liberty.) 
ARBITRARY  EXACTIONS, 

distinguished  from  taxation,  490,  491. 
ARBITRARY  POWER, 

unknown  among  common-law  principles,  22. 

cannot  be  exercised  under  pretence  of  taxation,  490,  508. 
ARBITRARY  RULES, 

of  construction,  danger  of,  59,  61,  62,  83. 

of  presumption,  326,  n. 
ARBITRATION, 

submission  of  controversies  to,  399. 
AR O  UMENTUM  AB  INCON VENIENTI, 

in  constitutional  construction,  70,  71,  n. 
ARKANSAS, 

divorces  not  to  be  granted  by  legislature,  110,  n. 

legislative  rules  concerning  pardons,  116,  n. 

special  acts  for  sale  of  lands  of  infants,  &c,  forbidden,  98,  n. 

revenue  bills  in,  131,  n. 

privilege  of  members  in,  134,  n. 

protection  of  person,  &c,  by  law  of  the  land,  352,  n. 

liberty  of  speech  and  of  the  press,  414,  n. 

legislature  may  regulate  granting  of  pardons,  116,  n. 

exclusion  from  office  for  want  of  religious  belief,  468,  n. 
ARMS, 

right  to  bear,  350. 


750  INDEX. 

ARMS,  —  continued. 

exemption  from  bearing  of  persons  conscientiously  opposed,  478. 
ARMY, 

quartering  in  private  houses,  308. 

jealousy  of  standing  army,  350. 
ARREST, 

privilege  of  legislators  from,  134. 

on  criminal  process.     (See  Crimes.) 

of  judgment,  new  trial  after,  328  and  n. 
ART,  WORKS  OF, 

criticism  of,  how  far  privileged,  457. 
ARTICLES  OF  CONFEDERATION, 

adoption  of,  7. 

why  superseded,  7,  8. 
ASSESSMENTS, 

for  local  improvements,  generally  made  in  reference  to  benefits,  497. 

special  taxing  districts  for,  497. 

not  necessarily  made  on  property  according  to  value,  497. 

are  made  under  the  power  of  taxation,  498. 

not  covered  by  the  general  constitutional  provisions  respecting  taxation, 
498. 

not  unconstitutional  to  make  benefits  the  basis  for,  499,  505,  511. 

apportionment  necessary  in  cases  of,  499. 

may  be  made  in  reference  to  frontage,  507. 

but  each  lot  cannot  be  compelled  to  make  the  improvement  in  front  of  it, 
508. 

for  drains,  levees,  &c,  510. 

in  labor  for  repair  of  roads,  512. 
ATTAINDER, 

meaning  of  the  term,  259. 

bills  of,  not  to  be  passed  by  State  legislatures,  15,  33,  259. 
cases  of  such  bills,  259-264. 
bills  of  pains  and  penalties  included  in,  261. 
ATTORNEYS, 

exclusion  of,  from  practice  is  a  punishment,  263,  264. 

right  to  notice  of  proceedings  therefor,  337,  n.,  404,  n. 

laws  requiring  service  from,  without  compensation,  393,  394. 

punishment  of,  for  misconduct,  337. 

(See  Counsel.) 
AUTHORS, 

not  to  be  assailed  through  their  works,  457. 

criticism  of  works  of,  how  far  privileged,  457. 

B. 

BAIL, 

accused  parties  entitled  to,  309-311. 
unreasonable,  not  to  be  demanded,  310. 
on  habeas  corpus,  348. 
control  of  bail  over  principal,  341. 


INDEX.  751 

BAILMENT, 

(See  Common  Carriers.) 
BALLOT, 

correction  of  abuses  by,  193;  n. 

system  of  voting  by,  generally  prevails,  604. 

right  of  the  elector  to  secrecy,  605. 

must  be  complete  in  itself,  606. 

abbreviated  names,  608. 

how  far  open  to  explanation,  611,  626. 

(See  Elections.) 
BANKRUPTCY. 

power  of  Congress  over,  10. 

legislation  by  the  States,  18,  293,  294. 

revival  of  debts  barred  by  discharge,  293. 
BEARING  ARMS, 

persons  conscientiously  opposed  to,  are  excused,  478. 

constitutional  right  of,  350. 
BEASTS, 

police  regulations  regarding,  596. 

regulations  making  railway  companies  liable  for  killing,  579. 
BENEFITS, 

may  be  taken  into  account  in  assessments  for  local  improvements,  499, 
505,  511. 

what  may  be  deducted  when  private  property  is  taken  by  the  public,  565. 
BETTERMENT  LAWS, 

principle  of,  386. 

are  constitutional,  387. 

owner  cannot  be  compelled  to  improve  his  lands,  385. 

not  applicable  to  lands  appropriated  by  the  public,  389,  n. 
BETTING   ON   ELECTIONS, 

illegality  of,  615. 
BEVERAGES, 

police  regulations  to  prevent  the  sale  of  intoxicating,  581. 
BILL   OF   RIGHTS     (English), 

a  declaratory  statute,  23,  257. 
BILL   OF   RIGHTS     (National), 

not  originally  inserted  in  Constitution,  256. 

reasons  for  omission,  256. 

objections  to  Constitution  on  that  ground,  257-259. 

afterwards  added  by  amendments,  259. 
BILL  OF  RIGHTS   (State), 

generally  found  in  constitution,  35. 

classes  of  provisions  in,  35,  36. 

what  prohibitions  not  necessarv,  175. 
BILLS,  LEGISLATIVE, 

constitutional  provisions  for  three  readings,  80,  81,  139,  140. 

title  of,  to  express  object,  81,  141-151. 

(See  Legislature  of  the  State.) 
BILLS   OF  ATTAINDER, 

not  to  be  passed  by  State  legislature,  15,  33,  259. 


752  INDEX. 

BILLS  OF  ATTAINDER,—  continued. 

meaning  of  attainder,  259. 

cases  of  such  bills,  259-264. 
BILLS   OF   CREDIT, 

States  not  to  emit,  15. 
BILLS   OF   PAINS    AND   PENALTIES, 

included  in  bills  of  attainder,  261. 
BLASPHEMY, 

punishment  of,  does  not  violate  religious  liberty,  471-476. 
nor  the  liberty  of  speech,  422. 

published  in  account  of  judicial  proceedings  is  not  privileged,  449. 
BOATS,  / 

ferry,  licensing  of,  593. 

speed  of,  on  navigable  waters  may  be  regulated  by  States,  594. 
BONA  FIDE  PURCHASERS, 

not  to  be  affected  by  retrospective  legislation,  378,  379,  382,  n. 
BONDS, 

issue  of,  by  municipalities  in  aid  of  internal  improvements,  119,  213-219. 
BOOKS, 

criticism  of,  how  far  privileged,  457. 

indecent,  sale  of,  may  be  prohibited,  596. 
BOUNTIES, 

when  earned,  become  vested  rights,  383,  384. 

payment  of,  to  soldiers  by  municipal  corporations,  219-229. 
BOUNTY   SUBSCRIPTIONS, 

by  municipal  corporations,  how  far  valid,  219-229. 
BRIDGES, 

erection  of,  by  State  authority  over  navigable  waters,  592. 
(See  Navigable  Waters.) 
BUILDINGS, 

condemnation  and  forfeiture  of,  as  nuisances,  583,  584. 

destruction  of,  to  prevent  spread  of  fires,  526,  n. 

appropriation  of,  under  right  of  eminent  domain,  526. 
BURLESQUES, 

libels  by  means  of,  423. 
BY-LAWS, 

of  municipal  corporations,  198-203. 
must  be  reasonable,  200-203. 
must  be  certain,  202. 

must  not  conflict  with  constitution  of  State  or  nation,  198. 
nor  with  statutes  of  State,  198. 
imposing  license  fees,  201. 

•  c. 

CALIFORNIA, 

legislature  of,  not  to  grant  divorces,  110,  n. 

privileges  of  members,  134,  n. 

title  of  acts  to  express  their  object,  142,  n. 

protection  of  property,  &c,  by  law  of  the  land,  352,  n. 

liberty  of  speech  and  of  the  press  in,  416. 


INDEX.  753 

CANALS, 

appropriation  of  private  property  for,  533. 

when  are  private  property,  590. 
CANDIDATES  FOR  OFFICE, 

criticism  of,  how  far  privileged,  431-441,  455. 

ineligibility  of,  how  to  affect  election,  620. 
CANVASSERS, 

act  ministerially  in  counting  and  returning  votes,  622. 

whether  they  may  be  compelled  by  mandamus  to  perform  duty,  623. 

certificate  of,  conclusive  in  collateral  proceedings,  624. 
(See  Elections.) 
CARRIERS, 

police  regulations  making  them  liable  for  beasts  killed,  570. 

change  of  common-law  liability  of,  by  police  regulations,  580,  581. 

may  be  made  responsible  for  death  caused  by  negligence,  &c,  581. 
CATTLE, 

police  regulations  making  railway  companies  liable  for  killing,  579. 
CEMETERIES, 

further  use  of,  may  be  prohibited  when  they  become  nuisances,  595. 
CENSORSHIP  OF  THE  PRESS, 

in  England  and  America,  417-419,  420. 
CENTRALIZATION, 

American  system  the  opposite  of,  189. 
CHARACTER, 

bad,  of  attorney,  sufficient  reason  to  exclude  him  from  practice,  337. 

slander  of,  422-424. 

good,  of  defendant  in  libel  suit,  no  defence  to  false  publication,  466. 

benefit  of,  in  criminal  cases,  325,  n. 
CHARTERS, 

of  liberty,  24,  n. 

colonial,  swept  away  by  Revolution,  26. 

exceptions  of  Connecticut  and  Rhode  Island,  26. 

municipal,  do  not  constitute  contracts,  193. 
control  of  legislature  over,  192,  193. 
construction  of,  195,  211. 

(See  Municipal  Corporations.) 

of  private  corporations  are  contracts,  279. 

police  regulations  affecting,  577-579. 

strict  construction  of,  394-396. 

amendment  of,  279,  577,  n. 
CHASTITY, 

accusation  of  want  of,  not  actionable  per  se,  423,  424. 

statutory  provisions  on  the  subject,  424. 
CHILDREN, 

control  of  parent,  &c,  over,  339,  340. 

obtaining  possession  of,  by  habeas  corpus,  348. 

decree  for  custody  of,  in  divorce  suits,  405. 
CHRISTIANITY, 

its  influence  in  the  overthrow  of  slavery,  297,  298,  and  n. 

48 


754  INDEX. 

CHRISTIANITY,  —  continued. 

in  what  sense  part  of  the  law  of  the  land,  472-475. 
(/See  Religious  Liberty.) 

CHURCH  ENDOWMENTS, 

not  to  be  taken  away  by  legislature,  275,  n. 
CHURCH  ESTABLISHMENTS, 

forbidden  by  State  constitutions,  469. 
CHURCH  ORGANIZATIONS, 

powers  and  control  of,  467,  n. 

discipline  of  members,  434,  n. 
CiTIES  AND  VILLAGES, 

(/See  Municipal  Corporations.) 
CITIZENS, 

who  are,  11. 

of  the  several  States,  privileges  and  immunities  of,  11,  15,  16,  391-397. 

discriminations  in  taxation  of,  397,  487. 

jurisdiction  of  United  States  courts  in  respect  to,  11,  12,  294. 
CIVIL  RIGHTS, 

discriminations  not  to  be  made  in,  on  account  of  religious  beliefs,  467-470. 
(See  Citizens  ;  Class  Legislation.) 
CLASS  LEGISLATION, 

private  legislation  which  grants  privileges,  389-397. 

party  petitioning  for,  estopped  from  disputing  validity,  390. 

public  laws  may  be  local  in  application,  390. 

special  rules  for  particular  occupations,  390,  393. 

proscription  for  opinion's  sake  unconstitutional,  390. 

suspensions  of  laws  must  be  general,  391,  892. 

each  individual  entitled  to  be  governed  by  general  rules,  391,  392. 

discriminations  should  be  based  upon  reason,  393. 

equality  of  rights,  &c,  the  aim  of  the  law,  393. 

strict  construction  of  special  burdens  and  privileges,  393-397. 

discriminations  not  to  be  made  on  account  of  religious  beliefs,  467-470. 
COINING  MONEY, 

power  over,  10. 
COLLUSION, 

conviction  by,  no  bar  to  new  prosecution,  327,  n. 
COLONIES, 

union  of,  before  Revolution,  5. 

authority  of  the  Crown  and  Parliament  in,  5. 

Revolutionary  Congress  and  its  powers,  6,  7. 

controversy  with  the  mother  country,  23,  24. 

legislatures  of,  25. 

substitution  of  constitutions  for  charters  of,  26. 
censorship  of  the  press  in,  418. 
COLOR, 

not  to  be  a  disqualification  fo    suffrage,  11,  599. 
COMMERCE, 

power  of  Congress  to  regulate,  10. 

State  regulations  valid  when  they  do  not  interfere  with  those  of  Congress, 
581-587.  (See  Police  Power.) 


INDEX.  i Ob 

COMMERCE,  —continued. 

State  taxation  of  subjects  of,  586,  587. 

{See  Taxation.) 

in  intoxicating  drinks,  how  far  State  regulations  may  affect,  581-584. 
COMMITTEES  OF  THE  LEGISLATURE, 

collection  of  information  by,  135. 

contempts  of  witnesses  how  punished,  135. 

employment  of  counsel  before,  139. 
COMMON   CARRIERS, 

police  regulations  regarding,  576-581. 

{See  Railway  Companies.) 
COMMON   LAW, 

Federal  courts  acquire  no  jurisdiction  from,  19,  20,  427. 

pre-existing  the  Constitution,  21. 

what  it  consists  in,  21. 

its  general  features,  22. 

modification  of,  by  statutes,  22,  23. 

colonists  in  America  claimed  benefits  of,  23,  24. 

how  far  in  force,  23,  n. 

evidences  of,  24. 

decisions  under,  as  precedents,  51,  52. 

gradual  modification  of,  54,  55. 

to  be  kept  in  view  in  construing  constitutions,  60. 

statutes  in  derogation  of,  61,  n. 

not  to  control  constitutions,  61. 

municipal  by-laws  must  harmonize  with,  202. 

rules  of  liability  for  injurious  publications,  417,  422-425. 
modification  of,  by  statute,  430. 

modification   by  police  regulations   of  common-law  liability   of  carriers, 
579-581. 
COMMON   RIGHT, 

statutes  against,  said  to  be  void,  165,  n,  166,  167,  n. 
COMPACTS   BETWEEN   STATES, 

must  have  consent  of  Congress,  15. 

are  inviolable  under  United  States  Constitution,  275,  and  n. 
COMPENSATION, 

for  private  property  appropriated  by  the  public,  559. 
{See  Eminent  Domain.) 

what  the  tax-payer  receives  as  an  equivalent  for  taxes,  498. 
COMPLAINTS, 

for  purposes  of  search-warrant,  304. 

of  crime  how  made,  309. 
COMPULSORY  TAXATION, 

by  municipal  bodies,  231-233. 
CONCLUSIVENESS  OF  JUDGMENTS, 

full  faith  and  credit  to  be  given  in  each  State  to  those  of  other  States,  16, 17. 

parties  and  privies  estopped  by,  47-54,  408. 

but  not  in  controversy  with  new  subject-matter,  49. 

strangers  to  suit  not  bound  by,  48. 
irregularities  do  not  defeat,  409. 

{See  Jurisdiction.) 


756  INDEX. 

CONDITIONAL  LEGISLATION, 

power  of  the  States  to  adopt,  117. 
CONDITIONS, 

what  may  be  imposed  on  right  of  suffrage,  362,  n.,  601,  602. 

(See  Elections.) 
precedent  to  exercise  of  right  of  eminent  domain,  528,  529. 
CONFEDERACY   OF    1643, 

brought  about  by  tendency  of  colonies  to  union,  5. 
CONFEDERATE  DEBT, 

not  to  be  assumed  or  paid,  11. 
CONFEDERATION,  ARTICLES   OF, 
adoption  of,  6,  7. 
authority  to  supersede,  8,  n. 
CONFESSIONS, 

dangerous  character  of,  as  evidence,  314. 
must  appear  to  have  been  made  voluntarily,  313,  314. 
excluded  if  solicitations  or  threats  have  been  used,  315.  • 
will  not  prove  the  corpus  delicti,  315. 
CONFIDENCE, 

communications  in,  when  privileged,  425,  426. 
between  attorney  and  client,  is  client's  privilege,  334,  and  n. 
CONFIRMING  INVALID   PROCEEDINGS, 
of  a  judicial  nature,  107,  108. 

admissible  when  defects  are  mere  irregularities,  371. 
(See  Retrospective  Laws.) 
CONFISCATIONS, 

require  judicial  proceedings,  363,  364. 
during  the  Revolutionary  War,  262. 
CONFLICT  OF  LAWS, 

in  divorce  cases,  401,  and  n. 

(See  Unconstitutional  Laws.) 
CONFRONTING  WITH  WITNESSES, 
in  criminal  cases,  318  and  n.,  319,  n. 
CONGRESS   OF   1690, 

brought  together  by  tendency  of  colonies  to  union,  5. 
CONGRESS   OF  THE   REVOLUTION, 

powers  assumed  and  exercised  by,  5-7. 
CONGRESS   OF  THE  UNITED   STATES, 
general  powers  of,  10-12. 

enabling  acts  by,  for  formation  of  State  constitutions,  30,  31. 
cannot  divest  vested  rights,  362. 
exercise  of  power  of  eminent  domain  by,  525. 
regulations  of  commerce  by,  are  supreme,  581,  591. 
(See  Police  Power.) 
CONNECTICUT, 

charter  government  of,  26. 

protection  of  property  by  law  of  the  land,  352,  n. 
freedom  of  speech  and  of  the  press  in,  414,  n. 
CONSCIENCE,  FREEDOM   OF, 

(See  Religious  Liberty,  467-478.) 


INDEX.  757 

CONSENT, 

conviction  by  collusion  no  bar  to  new  prosecution,  327. 
cannot  confer  jurisdiction  of  subject-matter  upon  courts,  398. 
cannot  authorize  jury  trial  by  less  than  twelve  jurors,  319,  n. 
is  a  waiver  of  irregularities  in  legal  proceedings,  409. 
waiver  of  constitutional  privileges  by,  181,  319,  n.,  390,  and  n. 
CONSEQUENTIAL   INJURIES, 

caused  by  exercise  of  legal  right  give  no  ground  of  complaint,  384. 

do  not  constitute  a  taking  of  property,  542-544. 

are  covered  by  assessment  of  damages  when  property  taken  by  the  public, 

570. 
but  not  such  as  result  from  negligence  or  improper  construction,  571. 
CONSTITUTION, 

definition  of,  2,  3. 

object  of,  in  the  American  system,  37. 
CONSTITUTION  OF  ENGLAND, 
theory  of,  3,  4. 
power  of  Parliament  under,  3. 
developed  by  precedents,  50,  n. 
CONSTITUTION   OF  THE   UNITED   STATES, 
origin  of,  5-7. 
ratification  of,  7,  8. 

government  of  enumerated  powers,  formed  by,  9,  10,  173. 
general  powers  of  the  government  under,  10-12. 
judicial  powers  under,  11-13,  19. 

(See  Courts  op  the  United  States.) 
prohibition  by,  of  powers  to  the  States,  15,  294,  599. 
guaranty  of  republican  government  to  the  States,  17. 
implied  prohibitions  on  the  States,  18. 

and  on  municipal  corporations,  198. 
reservation  of  powers  to  States  and  people,  19. 
difference  between,  and  State  constitutions,  9,  10,  173. 
construction  of,  9,  10,  19. 

amendment  of  State  constitutions  how  limited  by,  33. 
protection  of  person  and  property  by,  as  against  State  action,  256-294. 
bill  of  rights  not  at  first  inserted  in,  and  why,  256. 

addition  of,  afterwards,  257-259. 
bills  of  attainder  prohibited  by,  259-264. 

(See  Bills  op  Attainder.) 
ex  post  facto  laws  also  forbidden,  264-273. 

(See  Ex  ])ost  facto  Laws.) 
laws  impairing  obligation  of  contracts  forbidden,  273-294. 
what  is  a  contract,  273-279. 
what  charters  of  incorporation  are,  279. 
whether  release  of  taxation  is  contract,  280,  283. 
whether  States  can  relinquish  right  of  eminent  domain,  281,  525. 

or  the  police  power,  282,  283,  525. 
general  laws  of  the  States  not  contracts,  284. 
what  the  obligation  of  the  contract  consists  in,  525. 
power  of  the  States  to  control  remedies,  287-294. 


758  INDEX. 

CONSTITUTION   OF   THE   UNITED    STATES,—  continued. 
and  to  pass  insolvent  laws,  293,  294. 

(See  Obligation  of  Contracts.) 
police  regulations  by  the  States,  when  in  conflict  with,  579,  589. 

(See  Police  Power.) 
taxation  of  the  subjects  of  commerce  by  the  States,  586,  587. 
CONSTITUTIONS   OF  THE   STATES, 

compared  with  that  of  the  United  States,  9,  173. 
formation  and  amendment  of,  21-37. 
construction  of,  38-84. 
not  the  source  of  individual  rights,  37. 
(See  State  Constitutions  ;  Construction  of  State  Constitutions.) 
CONSTITUTIONAL   CONVENTIONS, 

or  formation  and  amendment  of  State  constitutions,  30-32. 
proceedings  of,  as  bearing  on  construction  of  constitution,  66. 
of  1787  sat  with  closed  doors,  419. 
CONSTITUTIONAL   GOVERNMENTS, 

meaning  of  the  term,  2,  3. 
CONSTITUTIONAL  PRIVILEGES, 

may  be  waived  generally,  181.     (See  Waiver.) 
CONSTRUCTION, 

meaning  of  and  necessity  for,  38. 

of  United  States  Constitution  and  laws  by  United  States  courts,  12. 
of  State  constitution  and  laws  by  State  courts,  13,  14,  294. 
CONSTRUCTION  OF  STATE  CONSTITUTIONS, 
meaning  of  the  term  "  construction,"  38,  n. 
necessity  for,  38. 

questions  of,  arise  whenever  powers  to  be  exercised,  39. 
who  first  to  decide  upon,  39-41. 

in  certain  States  judges  may  be  called  upon  for  opinions  in  advance,  40. 
in  what  cases  construction  by  legislature  or  executive  to  be  final,  41-43. 

in  what  cases  not,  42,  43. 
when  questions  of,  are  addressed  to  two  or  more  departments,  42,  43. 
final  decision  upon,  rests  generally  with  judiciary,  43-46,  53,  54. 
reasons  for  this,  44. 

this  does  not  imply  pre-eminence  of  authority  in  the  judiciary,  45,  n. 
the  doctrine  of  res  adjudicata,  47-54. 

decisions  once  made  binding  upon  parties  and  privies,  47,  48. 
force  of  judgment  does  not  depend  on  reasons  given,  49. 
strangers  to  suit  not  bound  by,  49. 

nor  the  parties  in  a  controversy  about  a  new  subject-matter,  49. 
the  doctrine  of  stare  decisis,  47-54. 

only  applicable  within  jurisdiction  of  court  making  the  decision,  51,  52. 
importance  of  precedents,  51,  n. 
when  precedents  to  be  disregarded,  52. 

when  other  departments  to  follow  decisions  of  the  courts,  and  when 
not,  53,  54. 
uniformity  of  construction,  importance  of,  54,  55. 
not  to  be  affected  by  changes  in  public  sentiment,  54,  55. 
words  of  the  instrument  to  control,  55-57,  65,  83,  n.,  130. 


INDEX. 


759 


CONSTRUCTION  OF  STATE  CONSTITUTIONS,  —  continued. 
intent  of  people  in  adopting  it  to  govern,  55-57. 
intent  to  be  found  in  words  employed,  55,  and  n.,  57. 
whole  instrument  to  be  examined,  57,  59,  n. 
words  not  to  be  supposed  employed  without  occasion,  57,  58. 
effect  to  be  given  to  whole  instrument,  58. 
irreconcilable  provisions,  58,  and  n. 

general  intent  as  opposed  to  particular  intent,  58,  and  n. 
words  to  be  understood  in  their  ordinary  sense,  58,  59,  83,  n. 

of  art,  to  be  understood  in  technical  sense,  60. 
importance  of  the  history  of  the  law  to,  59,  65. 
common  law  to  be  kept  in  view,  59-62. 
but  not  to  control  constitution,  61. 

whether  provisions  in  derogation  of,   should  be  strictly  construed, 
61,  n. 
arbitrary  rules  of,  dangerous,  59,  61,  62,  83. 

and  especially  inapplicable  to  constitutions,  58. 
same  word  presumed  employed  in  same  sense  throughout,  62. 
this  not  a  conclusive  rule,  62. 
operation  to  be  prospective,  62,  63. 
implied  powers  to  carry  into  effect  express  powers,  63,  64. 
power  granted  in  general  terms  is  co-extensive  with  the  terms,  64. 
when  constitution  prescribes  conditions  to  a  right,  legislature  cannot  add 

others,  64. 
mischief  to  be  remedied,  consideration  of,  65. 
prior  state  of  the  law  to  be  examined,  65. 
proceedings  of  constitutional  convention  may  be  consulted,  66. 

reasons  why  unsatisfactory,  66,  67. 
weight  of  contemporary  and  practical  construction,  67. 
the  argument  ab  inconvenienti,  67-70,  72,  n. 
deference  to  construction  by  executive  officers,  69. 
plain  intent  not  to  be  defeated  by,  69-73. 
injustice  of  provisions  will  not  render  them  void,  72,  73. 

nor  authorize  courts  to  construe  them  away,  73. 
doubtful  cases  of,  duty  of  officers  acting  in,  73,  74. 
directory  and  mandatory  statutes,  doctrine  of,  74-78. 
not  applicable  to  constitutions,  78-82. 
has  been  sometimes  applied,  79-81. 
authorities  generally  the  other  way,  82. 
CONSTRUCTION   OF   STATUTES, 

to  be  such  as  to  give  them  effect,  if  possible,  184. 
conflict  with  constitution  not  to  be  presumed,  185,  186. 
directory  and  mandatory,  74-78. 

contemporary  and  practical,  weight  to  be  given  to,  67-71. 
to  be  prospective,  370. 
CONTEMPORANEOUS   CONSTRUCTION, 

force  and  effect  of,  67-71. 
CONTEMPTS, 

of  the  legislature,  punishment  of,  133-135. 
of  legislative  committees,  135. 


760  INDEX. 

CONTESTED   ELECTIONS, 

right  of  the  courts  to  determine  upon,  623. 
(See  Elections.) 
CONTESTED  FACTS, 

cannot  be  settled  by  statute,  96,  104,  105. 
CONTESTED   SEATS, 

•  legislative  bodies  to  decide  upon,  133. 
CONTINENTAL   CONGRESS, 

powers  assumed  and  exercised  by,  5-7. 
CONTINGENT  LEGISLATION, 

authority  of  the  States  to  adopt,  117,  121,  n.,  122,  n. 
CONTRACTS, 

for  lobby  services,  illegal,  136. 

to  influence  elections,  are  void,  615. 

cannot  be  made  for  individuals  by  legislative  act,  369,  and  n. 

charters  of  municipal  corporations  do  not  constitute,  192,  193. 
of  private  corporations  are,  279. 

of  municipal  corporations  ultra  vires  void,  196. 

invalid,  may  be  validated  by  legislature.  372-383. 

obligation  of,  not  to  be  violated,  126,  273. 

(See  Obligation  of  Contracts.) 
COPYRIGHT, 

Congress  may  secure  to  authors,  10. 
CORPORATE   CHARTERS, 

(See  Charters.) 
CORPORATE  FRANCHISES, 

may  be  appropriated  under  right  of  eminent  domain,  526. 
CORPORATE   PROPERTY, 

legislative  control  of,  235. 
CORPORATIONS, 

private,  may  be  authorized  to  take  lands  for  public  use,  536-538. 

irregular  organization  of,  may  be  validated,  371,  374,  n. 
(See  Charters  ;  Municipal  Corporations.) 
CORRESPONDENCE, 

private,  inviolability  of,  307,  n. 
COUNSEL, 

constitutional  right  to,  330-338. 

oath  of,  330,  331,  n. 

duty  of,  331,  335,  338,  n. 

denial  of,  in  England,  331-333. 

court  to  assign  for  poor  persons,  334. 

whether  those  assigned  may  refuse  to  act,  334. 

privilege  of,  is  the  privilege  of  the  client,  334,  and  n. 

independence  of,  334,  335,  n.,  337,  n. 

not  at  liberty  to  withdraw  from  cause,  except  by  consent,  335. 

how  far  he  may. go  in  pressing  for  acquittal,  335,  336. 

duty  of,  as  between  the  court  and  the  prisoner,  335,  n. 

whether  to  address  the  jury  on  the  law,  336,  337. 

summary  punishment  of,  for  misconduct,  337. 


INDEX.  761 

COUNSEL,  —  continued. 

limitation  of  client's  control  over,  338,  and  n. 

(See  Attorneys.) 
may  be  employed  before  legislative  committees,  13G,  n. 

but  not  as  lobbies,  136,  n. 
not  liable  to  action  for  what  he  may  say  in  judicial  proceedings,  442-445. 

unless  irrelevant  to  the  case,  444. 
not  privileged  in  afterwards  publishing  his  argument,  if  it  contains  injuri- 
ous reflections,  448. 
newspaper  publisher  not  justified  in  publishing  speech  of  a  criminal  reflect- 
ing on  his  counsel,  456. 
COUNTERFEITING, 

Congress  may  provide  for  punishment  of,  10,  18. 
States  also  may  punish,  18. 
COUNTIES   AND   TOWNS, 

difference  from  chartered  incorporations,  240. 

(See  Municipal  Corporations.) 
COUNTY   SEAT, 

change  of,  384. 
COURTS, 

duty  of,  to  refuse  to  execute  unconstitutional  laws,  71,  n.,  81,  82, 159,  et  seq. 
contested  elections  to  be  determined  by,  623. 
not  to  be  directed  by  legislature  in  decisions,  94,  95. 
action  of,  not  to  be  set  aside  by  legislature,  95. 
must  act  by  majorities,  96. 
not  to  be  open  on  election  days,  614. 

power  to  declare  laws  unconstitutional  a  delicate  one,  159,  160. 
will-not  be  exercised  by  bare  quorum,  161. 
nor  unless  necessary,  163. 

nor  on  complaint  of  one  not  interested,  163,  164. 
nor  of  one  who  has  assented,  164. 
will  not  declare  laws  void  because  solely  of  unjust  provisions,  164-168. 
nor  because  in  violation  of  fundamental  principles,  169,  170. 
nor  because  conflicting  with  the  spirit  of  the  constitution,  171-174. 
nor  unless  a  clear  repugnancy  between  the  laws  and  the  constitution, 
173-176. 
special,  for  trial  of  rights  of  particular  individuals,  392. 
of  star  chamber,  342. 
of  high  commission,  342. 
martial,  319,  n. 

of  the  United  States,  to  be  created  by  Congress,  10. 
general  powers  of,  11. 

removal  of  causes  to,  from  State  courts,  12,  13. 
to  follow  State  courts  as  to  State  law,  13,  14. 
to  decide  finally  upon  United  States  laws,  &c,  12,  294. 
require  statutes  to  apportion  jurisdiction,  19. 
have  no  common-law  jurisdiction,  19,  20. 
in  what  cases  may  issue  writs  of  habeas  corpus,  345,  346. 
CREDIT, 

bills  of,  15. 


762  INDEX. 

CREDITOR, 

control  of  debtor  by,  341. 
CRIMES, 

legislative  convictions  of,  prohibited,  15,  33,  259. 
ex  post  facto  laws  prohibited,  15,  33,  264. 
punishment  of,  by  servitude,  299. 

search  warrants  for  evidence  of.     (See  Searches  and  Seizures.) 
accusations  of,  how  made,  309. 
presumption  of  innocence,  309,  311. 
right  of  accused  party  to  bail,  309-311. 
prisoner  refusing  to  plead,  311. 
trial  to  be  speedy,  311,  312. 
and  public,  312. 
and  not  inquisitorial,  313. 

prisoner's  right  to  make  statement,  313-318. 
confessions  as  evidence,  313-318. 
prisoner  to  be  confronted  with  the  witnesses,  318. 

exceptional  cases,  318. 
to  be  by  jury,  309,  319. 
jury  must  consist  of  twelve,  319. 
right  to  jury  cannot  be  waived,  319. 
prisoner's  right  to  challenges,  319. 
jury  must  be  from  vicinage,  319,  320. 

must  unanimously  concur  in  verdict,  320. 
must  be  left  free  to  act,  320. 
judge  not  to  express  opinion  upon  the  facts,  320. 
nor  to  refuse  to  receive  the  verdict,  320. 
but  is  to  give  instruction  in  the  law,  322. 
how  far  jury  may  judge  of  the  law,  321-324. 
acquittal  by  jury  is  final,  321,  322. 
accused  not  to  be  twice  put  in  jeopardy,  325-328. 
what  is  legal  jeopardy,  326,  327. 
when  nolle  prosequi  equivalent  to  acquittal,  327. 
when  jury  may  be  discharged  without  verdict,  327. 
second  trial  after  verdict  set  aside,  327,  328. 
cruel  and  unusual  punishments  prohibited,  328-330. 
counsel  to  be  allowed,  330-338. 
oath  of,  330,  331,  n. 
duty  of,  331,  335,  338,  n. 
denial  of,  in  England,  331-333. 
court  to  designate  for  poor  persons,  334. 
whether  one  may  refuse  to  act,  334. 
privilege  of,  is  the  privilege  of  the  client,  334,  and  n. 
not  at  liberty  to  withdraw  from  case,  except  by  consent,  335. 
how  far  he  may  go  in  pressing  for  acquittal,  335,  336. 
duty  of,  as  between  the  court  and  the  prisoner,  335,  n. 
whether  to  address  the  jury  on  the  law,  336,  337. 
summary  punishment  of,  for  misconduct,  337,  404,  n. 
not  to  be  made  the  instrument  of  injustice,  338. 
habeas  corpus  for  imprisoned  parties,  838-348. 


INDEX.  763 

CRIMES,  — continued. 

accusations  of,  are  libellous,  per  se,  424-426. 

but  privileged  if  made  in  course  of  judicial  proceedings,  441,  444. 

violations  of  police  regulations  of  States,  596. 
CRITICISM, 

of  works  of  art  and  literary  productions  is  privileged,  457. 
but  not  the  personal  character  of  the  author,  457. 

of  public  entertainments  and  sermons,  457,  n. 
CROWN  OF  GREAT  BRITAIN, 

succession  to,  may  be  changed  by  Parliament,  86. 

union  of  the  colonies  under,  5. 
CRUEL  AND  UNUSUAL  PUNISHMENTS, 

constitutional  prohibition  of,  328-330. 

what  are,  329,  330. 
CUMULATIVE  PUNISHMENTS, 

for  counterfeiting  money,  18. 

under  State  and  municipal  laws,  199. 
CURTESY,  ESTATE  BY  THE, 

power  of  legislature  to  modify  or  abolish,  360,  361. 
CUSTODY, 

of  wards,  apprentices,  servants,  and  scholars,  340. 

of  wife  by  husband,  339. 

of  children  by  parents,  340,  348. 

of  principal  by  his  bail,  341. 
CUSTOMS, 

(See  Common  Law;  Duties  and  Imposts.) 

D. 
DAM, 

to  obtain  water  power,  condemnation  of  land  for,  532,  534-536. 

effect  of  repeal  of  act  permitting,  383,  n. 

erection  of,  across  navigable  waters  by  State  authority,  593,  594. 

destruction  of,  when  it  becomes  a  nuisance,  595. 
DAMAGES, 

in  libel  cases,  increased  by  attempt  at  justification,  438. 
when  exemplary,  not  to  be  awarded,  457. 

for  property  taken  by  the  public,  must  be  paid,  559. 
(See  Eminent  Domain.) 
DAMNUM  ABSQUE  INJURIA, 

what  consequentia  injuries  are,  384,  543. 
DEATH, 

common  carriers  may  be  made  liable  for  causing,  581. 
DEBATES, 

in  Parliament,  formerly  not  suffered  to  be  published,  418. 

in  American  legislative  bodies,  publication  of,  419,  420,  457,  460. 

privileges  of  members  in,  445-447. 

(See  Freedom  of  Speech  and  of  the  Press.) 

DEBT, 

public,  declared  inviolable,  11. 
confederate,  not  to  be  assumed  or  paid,  11. 


764  INDEX. 

DEBT,  —  continued. 

imprisonment  for,  may  be  abolished  as  to  pre-existing  obligations,  287. 

imprisonment  for,  now  generally  abolished,  341. 
DEBTOR, 

control  of  creditor  over,  341. 
DEBTS  BY  THE  STATE, 

prohibition  of,  whether  it  precludes  indebtedness  by  municipalities,  217, 
218. 
DECENTRALIZATION", 

the  peculiar  feature  in  American  government,  189. 
DECISIONS, 

judicial,  binding  force  of,  47-54. 

(See  Judicial  Proceedings.) 
DECLARATION  OF  RIGHTS, 

was  a  declaratory  statute,  257. 

(See  Bill  of  Rights.) 
DECLARATORY  STATUTES, 

in  English  constitutional  law,  22-24. 

are  not  encroachments  upon  judicial  power,  93-95. 

judgments  not  to  be  reversed  by  means  of,  94,  95. 

purpose  and  proper  force  of,  93-95. 
DEDICATION, 

of  lands  to  public  use,  238,  n.,  565. 
DEEDS, 

invalid,  may  be  confirmed  by  legislature,  377,  378. 

but  not  to  prejudice  of  bona  fide  purchasers,  378,  379. 
DEFENCES, 

not  based  upon  equity,  may  be  taken  away  by  legislature,  370-383. 

under  statute  of  limitations  are  vested  rights,  365. 
DEFINITIONS, 

of  a  State,  1. 

of  a  nation,  1. 

of  a  people,  sovereignty  and  sovereign  State,  1. 

of  a  constitution,  2. 

of  an  unconstitutional  law,  3,  4. 

of  construction  and  interpretation,  38.  n. 

of  legislative  power,  90-92,  94. 

of  judicial  power,  91,  92,  94. 

of  declaratory  statutes,  93. 

of  due  process  of  law,  353. 

of  law  of  the  land,  353. 

of  personal  liberty,  339. 

of  natural  liberty,  893,  n. 

of  liberty  of  the  press,  420,  422. 

of  liberty  of  speech,  422. 

of  religious  liberty,  467,  468. 

of  taxation,  479. 

of  the  eminent  domain,  524. 

of  police  power,  572. 

of  domicile,  600,  n. 


INDEX.  765 

DELAWARE, 

revenue  bills  must  originate  in  lower  house,  131,  n. 
protection  of  property  and  person  by  law  of  the  land,  352,  n. 
liberty  of  speech  and  of  the  press  in,  415,  n. 
disqualification  of  religious  teachers  for  office,  468,  n. 
religious  tests  forbidden,  4G9,  n. 
DELEGATION  OF  POWER, 

by  the  legislature  not  admissible,  116-125. 

except  as  to  powers  of  local  government,  191. 
by  municipal  corporations  invalid,  204. 
DEPARTMENTS  OF  THE  GOVERNMENT, 

division  of  powers  between,  33-37,  39,  87-94. 
equality  of,  45,  n.,  47,  n. 
DESECRATION  OF  THE  SABBATH, 

constitutional  right  to  punish,  476,  588. 
DIRECTORY  STATUTES, 

what  are,  and  what  are  mandatory,  74,  78. 

doctrine  of,  not  admissible  as  to  constitutional  provisions,  78-83. 
DISCRETIONARY  POWERS, 
what  are,  39-43. 

department  to  which  they  are  confided  decides  finally  upon,  39-43,  115,  n. 
DISCRIMINATIONS, 

cannot  be  made  in  taxation  between  citizens  of  different  States,  487. 
in  legislation  between  different  classes,  389-397. 
in  the  privileges  and  immunities  of  citizens,  11,  15,  16,  397,  599. 
not  to  be  made  on  account  of  religious  belief,  467-470. 
DISCUSSION, 

right  of,  349. 

(See  Liberty  of  Speech  and  of  the  Press.) 
DISFRANCHISEMENT, 

of  voters,  may  render  a  statute  void,  616. 
what  classes  excluded  from  suffrage,  28-30,  73,  599. 
DISTRICTS, 

for  schools,  powers  of,  240,  247,  248. 

exercise  by,  of  power  of  eminent  domain,  537. 
for  taxation,  necessity  for,  495,  497. 
not  to  tax  property  outside,  499. 
taxation  to  be  uniform  within,  502. 
DIVISION  OF  POWERS, 

between  sovereign  States,  2. 
between  the  States  and  the  Union,  2. 
among  departments  of  State  government,  33-37,  39,  87. 
DIVISION  OF  TOWNSHIPS,  &c, 

question  of,  may  be  submitted  to  people,  119. 
disposition  of  property  and  debts  on,  193,  n. 
DIVORCE, 

question  of,  is  properly  judicial,  109. 
power  of  the  legislature  over,  109,  110. 
general  doctrine  of  the  courts  on  the  subject,  111. 
conflicting  decisions,  112,  113. 


766  INDEX. 

DIVORCE,  —  continued. 

legislative  divorce  cannot  go  beyond  dissolution  of  the  status,  114. 

constitutional  provisions  requiring  judicial  action,  110,  n. 

laws  for,  do  not  violate  contracts,  284. 

and  may  be  applied  to  pre-existing  causes,  266,  n. 

what  gives  jurisdiction  in  cases  of,  400,  401. 

actual  residence  of  one  party  in  the  State  sufficient,  400,  401. 
conflict  of  decisions  on  this  subject,  401,  402. 
not  sufficient  if  residence  merely  colorable,  401. 

necessity  for  service  of  process,  402. 
cannot  be  served  out  of  State,  403. 
substituted  service  by  publication,  403,  404. 
restricted  effect  of  such  notice,  405,  406. 
order  as  to  custody  of  children,  405. 

alimony  not  to  be  awarded  if  defendant  not  served,  406. 
DOGS, 

police  regulation  of,  595. 
DOMAIN, 

ordinary,  of  the  State,  distinguished  from  eminent  domain,  523. 
DOMICILE, 

gives  jurisdiction  in  divorce  cases,  400. 
but  must  be  bona  fide,  401. 

of  wife,  may  be  different  from  that  of  husband,  401,  n. 

of  one  party,  may  give  jurisdiction  in  divorce  cases,  400. 

of  voters,  meaning  of,  599,  600. 
DOUBLE  PUNISHMENT, 

for  same  act  under  State  and  municipal  law,  199. 

for  counterfeiting  money,  18. 
DOUBLE  TAXATION, 

sometimes  unavoidable,  513. 
DOUBTFUL  QUESTIONS, 

of  constitutional  law,  duty  in  case  of,  73,  74,  182-186. 
DOWER, 

legislative  control  of  estates  in,  360,  361. 
DRAINS, 

appropriating  property  for  purposes  of,  533. 

special  assessments  for,  491,  n.,  510,  511. 

ordered  under  police  power,  589. 
DRUNKENNESS, 

does  not  excuse  crime,  476,  n. 

is  a  temporary  insanity,  599,  n. 
DUE  PROCESS  OF  LAW, 

meaning  of  the  term,  353,  369,  n. 

(See  Law  of  the  Land.) 
DUPLICATE   PUNISHMENTS, 

by  States  and  United  States,  18. 

by  States  and  municipal  corporations,  199. 
DUTIES  AND   IMPOSTS, 

to  be  uniform  throughout  the  United  States,  10. 

what  the  States  may  lay,  15. 


INDEX.  767 

DWELLING-HOUSE, 

is  the  owner's  castle,  22,  299. 
homicide  in  defence  of,  308. 
quartering  soldiers  in,  prohibited,  308. 
DYING  DECLARATIONS, 

admissible  in  evidence  on  trials  for  homicide,  318. 
inconclusive  character  of  the  evidence,  318. 

E. 
EASEMENTS, , 

acquirement  by  the  public  under  right  of  eminent  domain,  524. 
private,  cannot  be  acquired  under  this  right,  530,  531. 
(See  Eminent  Domain.) 
ECCLESIASTICAL   CORPORATIONS, 

powers  and  control  of,  467,  n. 
ELECTIONS, 

on  adoption  of  State  constitutions,  27-31. 

people  exercise  the  sovereignty  by  means  of,  598. 

who  to  participate  in,  599. 

constitutional  qualifications  cannot  be  added  to  by  legislature,  64,  n. 

exolusion  of  married  women,  aliens,  minors,  idiots,  &c,  599. 

conditions  necessary  to  participation,  599,  601,  602. 

presence  of  voter  at  place  of  domicile,  599. 

what  constitutes  residence,  599,  600. 

registration  may  be  made  a  condition,  601. 

preliminary  action  by  the  authorities,  notice,  &c,  602. 

mode  of  exercising  the  right,  604. 

the  elector's  privilege  of  secrecy,  601-606. 

a  printed  ballot  is  "  written,"  604. 

ballot  must  be  complete  in  itself,  606. 

technical  accuracy  not  essential,  607. 

explanations  by  voter  inadmissible,  607. 

must  not  contain  too  many  names,  607. 

name  should  be  given  in  full,  608. 

sufficient  if  idem  sonans,  608. 

what  abbreviations  sufficient,  608,  609. 

erroneous  additions  not  to  affect,  610. 
extrinsic  evidence  to  explain  imperfections,  611. 
ballot  must  contain  name  of  office,  612. 

but  need  not  be  strictly  accurate,  612. 
different  boxes  for  different  ballots,  613. 
elector  need  not  vote  for  every  office,  613. 
plurality  of  votes  cast  to  elect,  614,  620. 
effect  if  highest  candidate  is  ineligible,  620. 
freedom  of  elections,  614. 

bribery  or  treating  of  voters,  614. 

militia  not  to  be  called  out  on  election  day,  615. 

courts  not  to  be  open  on  election  day,  614. 
bets  upon  election  are  illegal,  615. 
contracts  to  influence  election  are  void,  615. 


768  INDEX. 

ELECTIONS  —  continued. 

elector  not  to  be  deprived  of  his  vote,  362,  n.,  616. 

statutes  which  would  disfranchise  voters,  616. 

failure  to  hold  election  in  one  precinct,  616. 

liability  of  inspectors  for  refusing  to  receive  vote,  616. 

elector's  oath  when  conclusive  on  inspector,  617. 
conduct  of  the  election,  617. 
effect  of  irregularities  upon,  617,  618. 
what  constitutes  a  sufficient  election,  619. 

not  necessary  that  a  majority  participate,  620. 

admission  of  illegal  votes  not  to  defeat,  620. 
unless  done  fraudulently,  621. 

effect  of  casual  affray,  621. 
canvass  and  return,  622. 

canvassers  are  ministerial  officers,  622. 

canvassers  not  to  question  returns  made  to  them,  622. 

whether  they  can  be  compelled  by  mandamus  to  perform  duty,  623. 
contesting  elections  in  the  courts,  623. 

canvassers1  certificate  as  evidence,  624. 

courts  may  go  behind  certificate,  624. 

what  surrounding  circumstances  may  be  given  in  evidence,  626. 

whether  qualification  of  voters  may  be  inquired  into,  627. 
to  legislative  body,  house  to  decide  upon,  133. 
EMANCIPATION, 

of  slaves  in  Great  Britain  and  America,  11,  295-299. 
of  children  by  parents,  340. 
EMINENT   DOMAIN, 

distinguished  from  ordinary  domain  of  States,  523. 

definition  of,  524. 

right  of,  rests  upon  necessity,  524. 

cannot  be  bargained  away,  281,  525. 

general  right  is  in  the  States,  525. 

for  what  purposes  nation  may  exercise  right,  525,  526. 

all  property  subject  to  right,  526. 

exception  of  money  and  rights  in  action,  527. 
legislative  authority  requisite  to,  527. 
legislature  may  determine  upon  the  necessity,  528,  538. 
conditions  precedent  must  be  complied  with,  528,  529. 
statutes  for  exercise  of,  not  to  be  extended  by  intendment,  530. 
the  purpose  must  be  public,  530,  531. 
private  roads  cannot  be  laid  out  under,  530,  531. 
what  constitutes  public  purpose,  532,  533. 
whether  erection  of  mill-dams  is,  534-536. 
property  need  not  be  taken  to  the  State,  536. 

individuals  or  corporations  may  be  public  agents  for  the  purpose,  537,  538. 
the  taking  to  be  limited  to  the  necessity,  539-541. 
statute  for  taking  more  than  is  needed  is  ineffectual,  unless  owner  assents, 

540,  541. 
what  constitutes  a  taking  of  property,  541. 

incidental  injuries  do  not,  542-544. 


INDEX.  769 

EMINENT  DOMAIN,—  continued. 

any  deprivation  of  use  of  property  does,  544. 
water  front  and  right  to  wharfage  is  property,  544. 
right  to  pasturage  in  streets  is  property,  545. 
taking  of  common  highway  for  higher  grade  of  way,  545. 

if  taken  for  turnpike,  &c,  owner  not  entitled  to  compensation,  546. 
difference  when  taken  for  a  railway,  546-548. 
owner  entitled  to  compensation  in  such  case,  549,  550. 
whether  he  is  entitled  in  case  of  street  railway,  551. 
decisions  where  the  fee  of  the  streets  is  in  the  public,  552,  555. 
distinction  between  a  street  railway  and  a  thoroughfare,  556. 
right  to  compensation  when  course  of  a  stream  is  diverted,  557. 
whether  the  fee  in  the  land  can  be  taken,  557-559. 
compensation  must  be  made  for  property,  559. 
must  be  pecuniary,  559. 

preliminary  surveys  may  be  made  without  liability,  560. 
need  not  be  first  made  when  property  taken  by  State,  &c,  560. 
sufficient  if  party  is  given  a  remedy  by  means  of  which  he  mav  obtain 

it,  560,  561. 
time  for  resorting  to  remedy  may  be  limited,  561. 
waiver  of  right  to  compensation,  561,  562. 

when  property  taken  by  individual  or  private  corporation,  compen- 
sation must  be  first  made,  562. 
tribunal  for  assessment  of,  563. 
time  when  right  to  payment  is  complete,  563,  564. 
principle  on  which  compensation  to  be  assessed,  565. 
allowance  of  incidental  injuries  and  benefits,  556. 
not  those  suffered  or  received  in  common  with  public  at  large,  569, 

570. 
if  benefits  equal  damages,  owner  entitled  to  nothing,  570. 
assessment  of  damages  covers  all  consequential  injuries,  570. 
for  injuries  arising  from  negligence,  &c,  party  mav  have  action,  571. 
ENABLING  ACT, 

to  entitle  Territory  to  form  State  constitution,  27,  28,  30. 
ENGLAND, 

(See  Great  Britain.) 
ENUMERATED   POWERS, 

United  States,  a  government  of,  9. 
EQUALITY, 

of  protection  guaranteed  by  the  fourteenth  amendment,  1 1 . 
of  the  several  departments  of  the  government,  45,  n. 
of  rights  and  privileges,  the  aim  of  the  law,  393. 
grants  of  special  privileges  construed  strictly,  393-396. 
religious,  467-478. 

(See  Religious  Liberty.) 
EQUITABLE  TITLES, 

may  be  changed  by  legislature  into  legal,  377  and  n.,  378. 
ERRONEOUS  JUDGMENTS, 
may  be  overruled,  52. 
when  they  should  not  be,  52. 

49 


770  INDEX. 

ERRORS, 

waiver  of,  in  legal  proceedings,  409. 

judgments,  &c,  not  void  by  reason  of,  408. 

curing  by  retrospective  legislation,  370-383. 

in  conduct  of  elections,  effect  of,  613,  617-619. 
ESSENTIAL   POWERS   OF   GOVERNMENT, 

taxation,  eminent  domain,  &c,  cannot  be  bartered  away,  280,  284,  525. 
ESTABLISHMENTS, 

religious,  are  forbidden  by  State  constitutions,  469. 
ESTATES  OF   DECEASED   PERSONS, 

special  legislative  authority  to  sell  lands  for  payment  of  debts  is  consti- 
tutional, 97-106. 

such  acts  forbidden  by  some  constitutions,  98,  n. 

legislature  cannot  adjudicate  upon  debts,  103,  104. 
ESTATES  IN  LAND, 

subject  to  change  by  the  legislature  before  they  become  vested,  360. 

but  not  afterwards,  93,  n. 
ESTOPPEL, 

by  judgment  only  applies  to  parties  and  privies,  48. 

does  not  depend  on  reasons  given  by  the  court,  48,  49. 
does  not  apply  in  controversy  about  new  subject-matter,  49. 

of  the  State  by  its  legislation,  73,  n.,  254,  n. 

of  individuals  by  legislation,  96,  390,  and  n. 
EVASION, 

of  constitutional  provisions,  139,  n. 
EVIDENCE, 

by  recitals  in  statutes,  96. 

complete  control  of  legislature  over  rules  of,  288,  367-369. 

conclusive  rules  of,  not  generally  admissible,  368,  369. 

confessions  of  accused  parties  as,  313-318. 

dying  declarations,  when  are,  318. 

search-warrants  to  obtain,  not  constitutional,  305,  307,  n. 

correspondence  not  to  be  violated  to  obtain,  307,  n. 

accused  party  not  compelled  to  give,  against  himself,  313. 

by  accused  parties  in  their  own  favor,  317,  n. 

against  accused  parties,  to  be  given  publicly,  and  in  their  presence,  312, 
318. 

communications  by  client  to  counsel  not  to  be  disclosed,  334. 

in  State  courts,  State  laws  control,  484,  n. 

to  explain  imperfections  in  ballots,  611,  624. 
EVIL  TO  BE  REMEDIED, 

weight  of,  in  construing  constitutions,  65,  83,  n. 

what  in  view  in  requiring  title  of  act  to  state  the  object,  142-144. 
EXAMINATIONS, 

of  accused  parties,  when  to  be  evidence  against  them,  313,  314. 
EXCESSIVE  PUNISHMENTS, 

constitutional  prohibition  of,  330. 
EXCESSIVE  TAXATION, 

renders  tax  proceedings  and  sales  void,  520. 
EXCISE  TAXES, 

Congress  may  lay,  10. 


INDEX.  771 

EXCLUSIVE  PRIVILEGES, 

not  to  be  taken  by  implication,  393-396. 

strict  construction  of,  282,  n.,  393-396. 

are  subject  to  right  of  eminent  domain,  281. 
EXECUTION, 

exemptions  from,  may  be  increased  -without  violating  pre-existing  con- 
tracts, 287. 

and  may  be  recalled,  383. 

imprisonment  upon,  may  be  abolished,  287. 
EXECUTIVE, 

construction  of  constitution  by,  39-43. 

weight  of  practical  construction  by,  69. 

power  of,  to  pardon  and  reprieve,  115  and  n.,  116  and  n. 

approval  or  veto  of  laws  by,  153,  154. 
EXECUTIVE  POWER, 

what  is,  91. 

not  to  be  exercised  by  legislature,  87,  114-116. 

of  the  United  States,  11. 
EXECUTORS  AND  ADMINISTRATORS, 

special  statute,  authorizing  sales  by,  97-106. 

propriety  of  judicial  action  in  these  cases,  97. 

legislature  cannot  adjudicate  upon  debts,  104. 
EXEMPLARY  DAMAGES, 

against  publisher  of  newspaper,  457. 
EXEMPTIONS, 

from  taxation,  when  not  repealable,  127,  280,  383,  n. 
power  of  the  legislature  to  make,  514. 

from  public  duties,  &c,  may  be  recalled,  220,  383. 

of  property,  from  right  of  eminent  domain,  281. 

of  property,  from  police  power  of  the  State,  282. 

from  execution,  may  l>e  increased  without  violating  contracts,  287. 

of  debtor  from  imprisonment,  287,  341. 

privilege  of,  may  be  made  to  de  end  upon  residence,  397. 

laws  for,  not  to  be  suspended  for  individual  cases,  391,  n. 
EX  PARTE  PROCEEDINGS, 

publication  of,  not  privileged,  449-451. 
EXPECTANCY, 

interest  in,  are  not  vested  rights,  359-361. 
EXPOSITORY  ACTS, 

{See  Declaratory  Statutes.) 
EX  POST  FACTO  LAWS, 

States  not  to  pass,  15,  33,  264. 

meaning  of  the  term,  264. 

only  applies  to  criminal  laws,  264. 

classification  of,  265. 

laws  in  mitigation  of  punishment  are  not,  267. 

what  is  in  mitigation,  and  what  not,  267-272. 

modes  of  procedure  in  criminal  cases  may  be  changed,  272. 

punishment  of  second  ofFeaees,  273. 


772  INDEX. 

EXPRESSION  OF  POPULAR  WILL, 

must  be  under  forms  of  law,  598. 

(See  Elections.) 
EXPULSION, 

of  legislative  members  for  misconduct,  133,  134. 
EXTRADITION, 

of  criminals  as  between  the  States,  15,  n. 

of  persons  accused  of  libel,  320,  n. 

F. 

FACT  AND  LAW, 

province  of  judge  and  jury  respectively,  320-324. 
in  libel  cases,  460. 
FAST  DAYS, 

appointment  of,  does  not  violate  religious  liberty,  471. 
FEDERAL  COURTS, 

(See  Courts  op  the  United  States.) 
FEDERALIST, 

on  the  power  to  supersede  the  Articles  of  Confederation,  8,  n. 

reasons  of,  for  dispensing  with  national  bill  of  rights,  256. 

reference  in,  to  laws  violating  obligation  of  contracts,  273. 
FEE, 

whether  the  public  may  appropriate,  in  taking  lands,  557-559. 
FEMALES, 

accusation  of  want  of  chastity  not  actionable,  per  se,  423,  424. 
statutes  on  the  subject,  424. 

excluded  from  suffrage,  599. 

(See  Married  Women.) 
FERRY  FRANCHISES, 

granted  to  municipal  corporations,  may  be  resumed,  277,  278. 

strict  construction  of,  396. 

grants  of,  by  the  State  across  navigable  waters,  593. 

police  regulations  respecting,  577. 
FEUDAL  SYSTEM, 

Mackintosh's  definition  of,  22  and  n. 
FIFTEENTH  AMENDMENT, 

provisions  of,  11,  599. 
FINE, 

remission  of,  115,  n. 
FIRE, 

destruction  of  buildings  to  prevent  spread  of,  526,  n.,  594. 

precautions  against,  by  establishing  fire  limits,  594. 
FISHERY, 

public  rights  of,  in  navigable  waters,  524. 

restrictions  upon,  202,  and  n. 
FLORIDA, 

legislative  divorces  forbidden  in,  110,  n. 

special  statutes  for  sale  of  lands  of  minors,  &c,  forbidden,  97,  n. 

legislature  may  make  rules  respecting  pardons,  116. 


INDEX. 


773 


FLORIDA,  —  continued. 

protection  of  property,  &c,  by  law  of  the  land,  352,  n. 

liberty  of  speech  and  the  press  in,  416. 

religious  belief  not  to  disqualify  a  witness,  478. 

disqualifications  for  suffrage,  599,  n. 
FOREIGNERS,  (See  Aliens.) 

FORFEITURES, 

under  municipal  by-laws,  204,  n. 

must  be  judicially  declared,  263,  264,  292. 
FORMS, 

prescribed  by  constitution  are  essential,  78-83,  177. 
FOURTEENTH  AMENDMENT, 

protections  of,  11,  294,  and  n.,  397. 
FOURTH  OF  JULY, 

celebration  of,  at  public  expense,  211. 
FOX'S  LIBEL  ACT, 

provisions  of,  462. 

import  and  purpose  of,  462,  463. 
FRANCHISES, 

of  incorporation,  when  they  constitute  contracts,  279. 

granted  to  municipal  bodies  may  be  resumed,  239,  276. 

repeal  of,  where  right  to  repeal  is  reserved,  384,  578. 

strict  construction  of,  195,  394-396. 

police  regulations  respecting,  576-581. 

may  be  appropriated  under  right  of  eminent  domain,  526. 
FRAUD, 

as  affecting  decrees  of  divorce,  401,  and  n. 
FREEDMEN, 

made  citizens,  294,  599. 
FREEDOM, 

maxims  of,  in  the  common  law,  21,  22. 

gradually  acquired  by  servile  classes  in  Great  Britain,  295,  299. 
(/See  Personal  Liberty.) 
FREEDOM  OF  ELECTIONS, 

provisions  to  secure,  614,  615. 

bribery  and  treating  of  electors,  614. 

militia  not  to  be  called  out  on  election  day,  614. 

courts  not  to  be  open  on  election  day,  614. 

betting  on  elections  illegal,  615. 

contracts  to  influence  elections  void,  615. 
FREEDOM  OF  THE  PRESS, 

Hamilton's  reasons  why  protection  of,  by  bill  of  rights  not  important,  256. 

opposing  reasons  by  Jefferson,  258,  n. 

(See  Liberty  of  Speech  and  of  the  Press.) 
FREEDOM  OF  SPEECH, 

definition  of,  422. 

(See  Liberty  of  Speech  and  of  the  Press.) 
FUGITIVES  FROM  JUSTICE, 

to  be  delivered  up  by  the  States,  15,  16. 
FUNDAMENTAL  LAW, 

constitutions  are,  2. 


774  INDEX, 

FUNDAMENTAL  RIGHTS, 

bills  of,  in  State  constitutions,  35. 

in  the  national  Constitution,  256-259. 

in  England,  23,  257. 
are  before  constitutions,  36,  37. 
statutes  in  violation  of,  169-176. 
under  fourteenth  amendment,  11,  294,  397. 

G. 
GAMING  IMPLEMENTS, 

keeping  of,  for  unlawful  games,  may  be  prohibited,  596. 
GENERAL  INTENT, 

when  to  control  particular  intent,  58,  n. 
GENERAL  LAWS, 

required  instead  of  special  by  some  constitutions,  128,  129,  n. 

in  cases  of  divorce,  110,  n. 

due  process  of  law  does  not  always  require,  353-355,  389-393. 

submission  of,  to  vote  of  people  invalid,  116-125. 

suspension  of,  391. 

changes  in,  give  citizens  no  claim  to  remuneration,  358. 

respecting  remedies,  power  to  change,  267-273,  287-294,  361-367. 
GENERAL  WARRANTS, 

illegality  of,  299-303. 
GEORGIA, 

divorce  cases  to  be  adjudged  by  the  courts,  110,  n. 

revenue  bills  in,  131,  n. 

liberty  of  speech  and  of  the  press  in,  417,  n. 

religious  liberty  in,  468,  478,  n. 

protection  of  property  by  law  of  the  land,  351,  n. 

disqualifications  for  suffrage,  599,  n. 
GOOD  MOTIVES  AND  JUSTIFIABLE  ENDS, 

defence  of,  in  libel  cases,  464. 

burden  of  proof  on  defendant  to  show,  464. 
GOVERNMENT, 

constitutional,  what  is,  2,  3. 

republican,  to  be  guaranteed  to  the  States,  17. 

of  the  United  States,  origin  of,  5-8. 
GOVERNOR, 

approval  or  veto  of  laws  by,  153,  154. 

messages  to  legislature,  155. 

power  to  prorogue  or  adjourn  legislature,  132. 

power  to  convene  legislature,  155. 

legislative  encroachment  on  powers  of,  114-116. 

power  to  pardon,  115,  n. 

power  to  reprieve,  116,  n. 
GRADE  OF  RAILROADS, 

legislature  may  establish  for  crossings,  580. 
GRADE   OF   STREETS, 

change  of,  gives  parties  no  right  to  compensation,  207. 

special  assessments  for  grading,  497,  505-509. 


INDEX.  775 

GRAND  JURY, 

criminal  accusations  by,  309. 

presentments  by,  are  privileged,  442  n. 
GRANTS, 

are  contracts,  and  inviolable,  274. 

by  States,  cannot  be  resumed,  274,  275,  n. 

of  franchises,  strict  construction  of,  195,  394-396. 
when  they  constitute  contracts,  279. 
to  municipal  bodies,  may  be  recalled,  276. 
GREAT  BRITAIN, 

how  it  became  a  constitutional  government,  3,  n.,  50,  n. 

power  of  Parliament  to  change  constitution,  3. 

meaning  of  unconstitutional  law  in,  4. 

control  over  American  colonies,  5,  23-25. 

statutes  of,  how  far  in  force  in  America,  23,  24. 

bill  of  rights  of,  23,  257. 

habeas  corpus  act  of,  23,  344. 

local  self-government  in,  189. 

declaration  of  rights  of,  257. 

bills  of  attainder  in,  260,  261. 

money  bills  to  originate  in  the  Commons,  132,  n. 

emancipation  of  slaves  in,  295-299. 

prosecutions  for  libel  in,  427,  460-462. 

(See  Parliament.) 
GUARDIANS, 

special  statutes  authorizing  sales  by,  97-106. 

propriety  of  judicial  action  in  such  cases,  97. 

control  of  ward  by,  340. 

appointment  of,  in  divorce  suits,  405. 

authority  of,  is  local,  405,  n. 
GUNPOWDER, 

police  regulations  concerning,  595. 

H. 

HABEAS   CORPUS, 

writ  of,  a  principal  protection  to  personal  liberty,  338,  342. 
personal  liberty,  meaning  of,  339. 

restraints  upon,  to  prevent  or  punish  crime,  &c,  339. 
growing  out  of  relation  of  husband  and  wife,  339. 
of  parent  and  child,  340. 
of  guardian  and  ward,  340. 
of  master  and  apprentice,  340. 
of  master  and  servant,  341. 
of  teacher  and  scholar,  341. 
of  principal  and  bail,  341. 
of  creditor  and  debtor,  341. 
insecurity  of,  formerly,  in  England,  342,  343. 
habeas  corpus  act,  and  its  purpose,  23,  344. 
general  provisions  of,  344,  345. 


776  INDEX. 

HABEAS  CORPUS,  —  continued. 

adoption  of,  in  America,  345. 
writ  of,  when  to  be  issued  by  national  courts,  345,  3-46. 
generally  to  issue  from  State  courts,  346. 
return  to,  where  prisoner  held  under  national  authority,  347. 
cases  for,  determined  by  common  law,  347. 
not  to  be  made  a  writ  of  error,  347. 
what  to  be  inquired  into  under,  348. 
to  obtain  custody  of  children,  348. 
HARBOR  REGULATIONS, 

establishment  of,  by  the  States,  585. 
wharf  lines  may  be  prescribed,  595. 
HARDSHIP, 

of  particular  cases  not  to  control  the  law,  71,  72,  n. 
unjust  provisions  not  necessarily  unconstitutional,  72,  73,  513. 
HEARING, 

right  to,  in  judicial  proceedings,  361,  402-406. 
in  cases  of  appropriation  of  lands,  560-563. 
HEALTH, 

police  regulations  for  protection  of,  584,  595. 
draining  swamps,  &c,  in  reference  to,  510,  589. 
HEIRSHIP, 

right  to  modify,  359. 
HIGH   SEAS, 

not  subject  to  exclusive  appropriation,  2. 
States  no  authority  upon,  128. 
HIGHWAYS, 

establishment  of,  under  right  of  eminent  domain,  524. 
when  owner  entitled  to  compensation  in  such  case,  564. 
appropriation   of,   to   purposes    of  turnpike,    railroad,    &c,    whether   it 
entitles  owner  to  compensation,  545-557. 

(See  Eminent  Domain.) 
regulations  of,  by  States  under  police  power,  588,  594. 
HOMESTEADS, 

exemption  of,  from  execution,  288,  n. 
HUSBAND  AND  WIFE, 

power  of  legislature  to  divorce,  109-114. 
jurisdiction  in  divorce  cases,  401-406. 

(See  Divorce.) 
control  of  husband  over  wife,  339. 
obligation  of  husband  to  support  wife,  339,  n. 
right  as  between,  to  custody  of  children,  348. 
property  rights,  how  far  subject  to  legislative  control,  360,  361. 
validating  invalid  marriage  by  legislation,  372. 


I. 

IDEM  SONANS, 

ballots  sufficient  in  cases  of,  608. 


INDEX.  777 

IDIOTS, 

exclusion  of,  from  suffrage,  599. 

special  legislative  authority  for  sale  of  lands  of,  97-106,  389. 
ILLEGAL  CONTRACTS, 

have  no  obligation,  286. 

legalization  of,  293,  374-377. 

for  lobby  legislative  services,  136,  and  n. 

designed  to  affect  elections,  615. 
ILLINOIS, 

legislature  of,  not  to  grant  divorces,  110,  n. 

special  legislative  sessions,  155,  n. 

when  statutes  of,  to  take  effect,  156. 

title  to  bill  to  express  the  object,  142,  n. 

protection  of  property  by  law  of  the  land,  352,  n. 

liberty  of  speech  and  the  press  in,  416. 

religious  tests  forbidden,  469,  n. 

persons  conscientiously  opposed  to  bearing  arms  excused,  478,  n. 
IMMUNITIES, 

of  citizens  of  the  several  States,  15,  16,  397. 

citizens  not  to  be  deprived  of,  11. 
IMPAIRING  CONTRACTS, 

(See  Obligation  of  Contracts.) 
IMPEACHMENT, 

of  judges  for  declaring  law  unconstitutional,  160. 
IMPLICATION, 

amendments  by,  not  favored,  152. 

repeals  by,  152. 

grant  of  powers  by,  in  State  constitutions,  63,  64. 

corporations  established  by,  197. 
IMPLIED  POWERS, 

of  municipal  corporations,  what  are,  194-209. 

granted  by  State  constitutions,  63,  64. 
IMPLIED  PROHIBITIONS, 

to  the  States  by  the  national  Constitution,  18. 

upon  legislative  power,  164-177. 
IMPORTS, 

State  taxation  of,  586,  587. 
IMPOSTS, 

to  be  uniform  throughout  the  Union,  10. 

what  the  States  may  lay,  15. 

taxation  by,  495. 
IMPRESSMENT  OF  SEAMEN, 

not  admissible  in  America,  299. 
IMPRISONMENT, 

for  legislative  contempt  must  terminate  with  the  session,  134. 

for  debt  may  be  abolished  as  to  existing  contracts,  287. 

unlimited,  cannot  be  inflicted  for  common-law  offence,  329. 

relief  from.     (See  Habeas  Corpus.) 
IMPROVEMENTS, 

owner  of  land  cannot  be  compelled  to  make,  385,  532. 


778  INDEX. 

IMPROVEMENTS,  —  continued. 

betterment  laws,  385-389. 

local,  assessments  for  the  making  of,  497-510. 
(See  Assessments.) 
INCHOATE  RIGHTS, 

power  of  the  legislature  in  regard  to,  359-361. 
INCIDENTAL  INJURIES, 

by  change  in  the  law,  give  no  claim  to  compensation,  384. 
(See  Eminent  Domain.) 
INCOMPETENT  PERSONS, 

legislative  authority  for  sale  of  lands  of,  97-106,  389. 

exclusion  of,  from  suffrage,  599. 
INCONTINENCE, 

accusation  of,  against  female,  not  actionable,  per  se,  423,  424. 

statutory  provisions  respecting,  424. 
INCORPORATIONS, 

charters  of  private,  are  contracts,  279. 

charters  of  municipal,  are  not,  192,  276. 

control  of,  by  police  regulations,  577-579. 

(See  Charters  ;  Municipal  Corporations.) 
INDEBTEDNESS  BY  STATE, 

prohibition  of,  whether  it  precludes  debts  by  towns,  counties,  &c,  217,  218. 
INDECENT  PUBLICATIONS, 

sale  of,  may  be  prohibited,  596. 

parties  not  free  to  make,  422. 
INDEMNIFICATION, 

of  officers  of  municipal  corporation  where  liability  is  incurred  in  supposed 
discharge  of  duty,  209,  210. 

power  of  legislature  to  compel,  211. 

not  to  be  made  in  case  of  refusal  to  perform  duty,  212. 
INDEMNITY, 

for  property  taken  for  public  use. 

(See  Eminent  Domain.) 

for  consequential  injuries  occasioned  by  exercise  of  legal  rights,  384. 
INDEPENDENCE, 

declaration  of,  by  Continental  Congress,  6. 

new  national  government  established  by,  6. 

celebration  of,  at  public  expense,  211. 

of  the  traverse  jury,  320. 

of  the  bar,  334,  335,  n.,  337,  n. 
INDIANA, 

special  statutes  licensing  sale  of  lands  forbidden,  98,  n. 

legislature  of,  not  to  grant  divorces,  110,  n. 

when  laws  to  take  effect  without  governor's  signature,  154,  n. 

revenue  bills  to  originate  in  lower  house,  132,  n. 

privileges  of  members,  134,  n. 

prohibition  of   special    laws   where  general    can    be    made    applicable, 
129,  n. 

title  of  acts  to  express  the  object,  142. 

liberty  of  the  press  in,  416,  n. 


INDEX.  779 

INDIANA,  — continued. 

religious  tests  for  office  forbidden,  469,  n. 

exemption  from  bearing  arms  of  persons  conscientiously  opposed,  478,  n. 

republication  of  amended  statutes,  151,  152. 
INDICTMENT, 

criminal  accusations  to  be  by,  309. 

trial  on  defective,  272,  n.,  327. 

(See  Crimes.) 
INDIVIDUAL   RIGHTS, 

provisions  for  protection  of,  in  State  constitutions,  35,  36. 
in  national  Constitution,  256-259. 

do  not  owe  their  origin  to  constitutions,  36,  37. 

English  statutes  declaratory  of,  22,  23,  257. 

{See  Personal  Liberty.) 
INELIGIBILITY, 

of  highest  candidate,  how  to  affect  election,  620. 
INFANTS, 

excluded  from  suffrage,  29,  30,  599. 

special  statutes  authorizing  sale  of  lands  of,  97-106,  389. 

custody  of,  by  parents,  340,  348. 

emancipation  of,  340. 

control  of,  by  masters,  guardians,  and  teachers,  340,  341. 
INFERIOR   COURTS, 

duty  of,  to  pass  upon  constitutional  questions,  162,  n. 

distinguished  from  courts  of  general  jurisdiction,  406. 

disproving  jurisdiction  of,  406,  407. 
INFORMALITIES, 

right  to  take  advantage  of,  may  be  taken  away  by  legislation,  370-383. 

do  not  defeat  jurisdiction  of  court,  408. 

waiver  of,  in  legal  proceedings,  409. 
INHABITANT, 

meaning  of,  in  election  laws,  599,  600. 
INITIALS, 

to  Christian  name  of  candidate,  whether  sufficient  in  ballot,  609. 
INJUSTICE, 

of  constitutional  provisions,  cannot  be  remedied  by  the  court,  72,  73. 

of  statutes,  does  not  render  them  unconstitutional,  164-168. 

in  taxation,  sometimes  inevitable,  513. 
INNOCENCE, 

of  accused  parties,  presumption  of,  309-311. 

only  to  be  overcome  by  confession  in  open  court,  or  verdict,  311. 

conclusive  presumptions  against,  326,  n. 
INQUISITORIAL    TRIALS, 

not  permitted  where  the  common  law  prevails,  313. 

accused   parties   not  compellable  to  give  evidence   against    themselves, 
313-317. 
INSANITY, 

defence  of,  in  criminal  cases,  309,  n. 
INSOLVENT   LAWS, 

right  of  the  States  to  pass,  293,  294. 


780  INDEX. 

INSOLVENT  LAWS,  —  continued. 

Congressional  regulations  supersede,  294. 

what  contracts  cannot  be  reached  by,  294. 

creditor  making  himself  a  party  to  proceedings  is  bound,  294. 
INSPECTION   LAWS, 

of  the  States,  imposts  or  duties  under,  15. 

constitutionality  of,  584,  585. 
INSURRECTIONS, 

employment  of  militia  for  suppression  of,  11. 
INTENT, 

to  govern  in  construction  of  constitutions,  55. 

whole  instrument  to  be  examined  in  seeking,  57,  58. 

in  ineffectual  contracts,  may  be  given  effect  to  by  retrospective  legislation, 
372-383. 

question  of,  in  libel  cases,  460-466. 

in  imperfect  ballot,  voter  cannot  testify  to,  607. 

what  evidence  admissible  on  question  of,  611,  626. 
INTEREST, 

in  party,  essential  to  entitle  him  to  question  the  validity  of  a  law,  163. 

in  judge,  precludes  his  acting,  175,  410-413. 

of  money,  illegal  reservation  of,  may  be  legalized,  375,  376. 
INTERNAL   IMPROVEMENTS, 

giving  municipal  corporations  power  to  subscribe  to,  is  not  delegating 
legislative  power,  119  and  n. 

constitutionality  of  municipal  subscriptions  to,  213-219. 

special  legislative  authority  requisite,  215. 

negotiable  securities  issued  without  authority  are  void,  215. 

prohibition  to  the  State  engaging  in,  whether  it  applies  to  municipalities, 
216-219. 

retrospective  legalization  of  securities,  379,  380. 
INTERNATIONAL    LAW, 

equality  of  States  under,  1. 
INTERNATIONAL   QUESTIONS, 

States  no  jurisdiction  over,  128. 
INTERPRETATION, 

meaning  of,  38,  n. 

(See  Construction  of  State  Constitutions.) 
INTIMIDATION, 

of  voters,  secrecy  as  a  protection  against,  604,  605. 
securities  against,  614,  615. 
INTOXICATING  DRINKS, 

power  of  States  to  require  licenses  for  sale  of,  581-584. 

power  of  States  to  prohibit  sales  of,  581-584. 

payment  of  license  fee  to  United  States  does  not  give  right  to  sell  as 
against  State  laws,  584. 

furnishing  to  voters,  614. 
INTOXICATION, 

not  an  excuse  for  crime,  476,  n. 

is  temporary  insanity,  599. 


INDEX.  781 

INTRODUCTION   OF   BILLS, 

for  revenue  purposes,  131,  132. 

generally,  137,  138. 
INVASIONS, 

employment  of  militia  to  repel,  11. 
INVENTIONS, 

securing  right  in,  to  inventors,  10. 
INVOLUNTARY   SERVITUDE, 

gradual  abolition  of,  in  England,  295-299. 

as  a  punishment  for  crime,  299. 

(See  Personal  Liberty.) 
IOWA, 

legislature  of,  not  to  grant  divorces,  110,  n. 

special  legislative  sessions,  155,  n. 

when  statutes  of,  to  take  effect,  158. 

title  of  acts  to  express  the  object,  142,  n. 

legislative  regulations  of  pardons,  116,  n. 

liberty  of  the  press  in,  416,  n. 

disqualifications  for  suffrage,  599. 

religious  tests  for  office  forbidden,  469. 

religious  belief  not  to  be  test  of  competency  of  witness,  478. 
IRREGULARITIES,    . 

in  judicial  proceedings,  not  inquirable  into  on  habeas  corpus,  347,  348. 

do  not  render  judicial  proceedings  void,  408. 

waiver  of,  409. 

may  be  cured  by  retrospective  legislation,  370-383. 

effect  of,  upon  elections,  617-619. 
IRREPEALABLE  LAWS, 

legislature  cannot  pass,  125-127,  284. 

Parliament  cannot  bind  its  successors,  126. 

laws  which  constitute  contracts  are  inviolable,  127. 

whether  essential  powers  of  government  can  be  bartered  away,  280-284, 
525. 

municipal  corporations  cannot  adopt,  206-208. 


J. 
JEOPARDY, 

party  not  to  be  twice  put  in,  for  same  cause,  325-328. 

what  constitutes,  326,  327. 

when  jury  may  be  discharged  without  verdict,  327. 

when  nolle  prosequi  is  an  acquittal,  327. 

second  trial  after  verdict  set  aside,  327,  328. 

acquittal  on  some  counts  is  a  bar  pro  tanto  to  new  trial,  328. 

varying  form  of  the  charge,  327. 

duplicate  punishments  under  State  and  municipal  laws,  199. 
JOURNAL  OF   THE   LEGISLATURE, 

is  a  public  record,  135. 

is  evidence  whether  a  law  is  properly  adopted,  135,  136. 

presumption  of  correct  action  where  it  is  silent,  135,  136. 


782  INDEX. 

JUDGE, 

disqualification  of  interest,  410-413. 

not  to  urge  opinion  upon  the  jury,  320. 

to  instruct  the  jury  on  the  law,  322. 
JUDGE-MADE   LAW, 

ob  ectionable  nature  of,  56,  n. 
JUDGMENTS, 

conclusiveness  of  those  of  other  States,  17. 

general  rules  as  to  force  and  effect,  47-54. 

must  apply   he  law  in  force  when  rendered,  381. 

are  void  if  jurisdiction  is  wanting,  382,  398,  406,  413. 

irregularities  do  not  defeat,  347,  348,  408. 

(See  Judicial  Proceedings  ;  Jurisdiction.) 
JUDICIAL  DECISIONS, 

of  federal  courts  conclusive  on  questions  of  federal  jurisdiction,  12. 

of  State  courts  followed  in  other  cases,  13. 

general  rules  as  to  force  and  etfect  of,  47-54. 
JUDICIAL   POWER, 

of  the  United  States,  19. 

|   See  Cour'S  of  the  United  States.) 

not  to  be  exercised  by  State  legislatures,  87-114,  392. 

what  it  is,  90-92,  347,  n. 

declaratory  statutes  not  an  exercise  of,  93-95. 

such  statutes  not  to  be  applied  to  judgments,  94. 

instances  of  exercise  of,  95,  96. 

is  apportioned  by  legislature,  89,  n. 

legislature  may  exercise,  in  deciding  contested  seats,  133. 
JUDICIAL   PROCEEDINGS, 

confirmation  of  invalid,  by  legislature,  107,  108,  370. 

are  void  if  court  has  no  jurisdiction  of  the  case,  397. 

jurisdiction  of  subject-matter,  what  is,  398. 
consent  will  not  confer,  398. 

if  wanting,  objection  may  be  taken  at  any  time,  398. 

law  encourages  voluntary  settlements  and  arrangements,  399. 

arbitrations  distinguished  from,  399. 

transitory  and  local  actions,  399,  400. 

jurisdiction  in  divorce  cases,  400,  401. 

necessity  for  service  of  process,  or  substitute  therefor,  402-404. 

proceedings  in  rem  and  in  personam,  403. 

bringing  in  parties  by  publication,  404. 

no  personal  judgment  in  such  case,  404,  406. 
decree  for  custody  of  children,  effect  of,  405. 

contesting  jurisdiction,  406,  407. 

courts  of  general  and  special  jurisdiction,  406,  407. 

record  of,  how  far  conclusive,  406,  407. 

irregularities  do  not  defeat,  347,  348,  408. 
waiver  of,  409. 

judicial  power  cannot  be  delegated,  410. 

right  to  jury  trial  in  civil  cases,  410,  n. 

judge  not  to  sit  when  interested,  410-413. 


INDEX.  783 

JUDICIAL  PROCEEDINGS,  —  continued. 

statements  in  course  of,  how  far  privileged,  441-445. 
publication  of  accounts  of  trials  privileged,  448,  449. 

but  must  be  fair  and  full,  448,  449. 

and  not  ex ;  arte,  449-451. 

and  not  contain  indecent  or  blasphemous  matter,  449. 
JUDICIARY, 

construction  of  constitution  by,  44-46. 
equality  of,  with  legislative  department,  45,  n. 
independence  of,  46,  n. 
when  its  decisions  to  be  final,  44-54. 

(See  Courts;  Judicial  Powkr;  Judicial  Proceedings.) 
JURISDICTION, 

of  courts,  dispi'oving,  17,  406,  407. 
want  of,  cannot  be  cured  by  legislation,  107. 
of  subject-matter,  what  it  consists  in,  398. 
not  to  be  conferred  by  consent,  398,  409. 
if  wanting,  objection  may  be  taken  at  any  time,  398. 
in  divorce  cases,  what  gives,  400,  401. 
necessity  for  service  of  process,  402-404. 
irregularities  do  not  affect,  347,  348,  408. 
interest  in  judge,  effect  of,  410-413. 
general  and  special  distinguished,  406,  407. 

where  it  exists,  proceedings  not  to  be  attacked  collaterally,  408,  409. 
in  tax  proceedings,  499. 
of  federal  courts,  10-14,  19,  20,  294,  427. 
in  cases  of  habeas  corpus,  345,  346. 
JURY, 

independence  of,  320,  321  and  n.,  325,  n. 
JURY  TRIAL, 

the  mode  for  the  trial  of  criminal  accusations,  309,  319! 
importance  of,  320,  n. 
must  be  speedy,  311. 

and  public,  312. 

and  not  inquisitorial,  313. 
prisoner  to  be  confronted  with  witnesses,  318. 
to  be  present  during  trial,  319. 
jury  .to  consist  of  twelve,  319,  562,  n. 

challenges  of,  319. 

must  be  from  vicinage,  24,  319,  320. 

must  be  left  free  to  act,  320. 

how  far  to  judge  of  the  law,  321-324,  414,  n. 
in  libel  cases,  460-463. 

acquittal  by,  is  final,  321,  322. 
judge  to  instruct  jury  on  the  law,  322. 

but  not  to  express  opinion  on  facts,  320. 
nor  to  refuse  to  receive  verdict,  320. 
accused  not  to  be  twice  put  in  jeopardy,  325-328. 

what  is  legal  jeopardy,  326,  327. 

when  jury  may  be  discharged  without  verdict,  327. 


784  INDEX. 

JURY  TRIAL,  —  continued. 

when  nolle  prosequi  equivalent  to  verdict,  327. 
second  trial  after  verdict  set  aside,  327,  328. 
right  to  counsel,  330-338. 

constitutional  right  to  jury  trial  in  civil  cases,  19,  n.,  410,  n. 
in  case  of  municipal  corporations,  233,  n. 
JUST  COMPENSATION, 

what  constitutes,  when  property  taken  by  the  public,  559-570. 
(See  Eminent  Domain.) 
JUSTIFICATION, 

in  libel  cases  by  showing  truth  of  charge,  424,  464. 
showing  of  good  motives  and  justifiable  occasion,  464-466. 
unsuccessful  attempt  at,  to  increase  damages,  438. 


K. 

KANSAS,  _ 

requirement  of  general  laws  when  they  can  be  made  applicable,  129. 

power  to  grant  divorces  vested  in  courts,  110,  n. 

privilege  of  members  of  legislature  from  arrest,  134,  n. 

title  of  acts  to  express  the  object,  141,  n. 

legislative  regulation  of  pardons,  116,  n. 

republication  of  amendatory  statutes,  151,  n. 

liberty  of  the  press  in,  416,  n. 

disqualifications  for  suffrage,  599,  n. 

religious  test  for  office  forbidden,  469. 
KENTUCKY, 

special  statutes  licensing  sale  of  lands  forbidden,  98,  n. 

legislature  of,  not  to  grant  divorces,  110,  n. 

title  of  acts  to  express  the  object,  141,  n. 

revenue  bills  to  originate  in  lower  house,  132,  n. 

protection  of  property  by  law  of  the  land,  352,  n. 

persons  conscientiously  opposed  to  bearing  arms  excused,  468,  n. 

protection  to  property  by  law  of  the  land,  351,  n. 


LAW, 

common,  how  far  in  force,  23,  n. 

(See  Common  Law.) 

and  fact,  respective  province  of  court  and  jury  as  to,  320-324,  460-463. 

the  jury  as  judges  of,  321-324,  460-463. 
LAW-MAKING  POWER, 

(See  Legislatures  of  the  States.) 
LAW   OF   THE   LAND, 

protection  of,  insured  by  magna  cliarta,  351. 

American  constitutional  provisions,  11,  15,  351,  n. 

meaning  of  the  term,  353-357,  369,  n. 

vested  rights  protected  by,  357. 


INDEX.  785 

LAW  OF  THE  LAND,  —  continued. 

meaning  of  vested  rights,  358,  370,  378. 

subjection  of,  to  general  laws,  358. 

interests  in  expectancy  are  not,  359-361. 

rights  acquired  through  the  marriage  relation,  3G0,  361. 

legal  remedies  not  the  subject  of  vested  rights,  and  may  be  changed, 

361,  362. 
statutory  privileges  are  not,  383. 
rights  in  action  are,  362. 

forfeitures  must  be  judicially  declared,  363,  364. 
limitation  laws  may  be  passed,  364-367,  369. 
rules  of  evidence  may  be  changed,  367-369. 
retrospective  laws,  when  admissible,  369-384. 
cannot  create  rights  in  action,  369. 

nor  revive  debts  barred  by  statute  of  limitations,  369. 
may  cure  informalities,  370-383. 
may  perfect  imperfect  contracts,  293,  371-381. 
may  waive  a  statutory  forfeiture,  375,  n.,  376,  n. 
may  validate  imperfect  deeds,  376-379. 

but  not  as  against  bona  fide  purchasers,  378,  379. 
cannot  validate  proceedings  the  legislature  could  not  have  authorized, 

381-383. 
cannot  cure  defects  of  jurisdiction  in  courts,  382. 
consequential  injuries  give  no  right  to  complain,  384. 
sumptuary  laws  inadmissible,  385. 
betterment  laws,  385-389. 
unequal  and  partial  laws,  389-397. 
invalid  judicial  proceedings,  397. 

what  necessary  to  give  courts  jurisdiction,  397-400. 
consent  cannot  confer,  398-400. 
in  divorce  cases,  400,  401,  405. 
process  must  be  served  or  substitute  had,  402-404. 
proceedings  in  rem  and  in  personam,  403. 
bringing  in  parties  by  publication,  403,  404. 

no  personal  judgment  in  such  case,  404,  406. 
process  cannot  be  served  in  another  State,  403. 
jurisdiction  over  guardianship  of  children  in  divorce  cases,  405. 
courts  of  general  and  special  jurisdiction,  and  the  rules  as  to  ques- 
tioning their  jurisdiction,  406,  407. 
irregular  proceedings  do  not  defeat  jurisdiction,  408. 
waiver  of  irregularities,  409. 
judicial  power  cannot  be  delegated,  410. 
judge  cannot  sit  in  his  own  cause,  410-413. 

objection  to  his  interest  cannot  be  waived,  413. 
right  to  jury  trial  in  civil  cases,  19,  n.,  410,  n. 
(See  Taxation;  Eminent  Domain;  Police  Power.) 
LAWS,   ENACTMENT   OF, 

(See  Statutes.) 
LAWS   IMPAIRING  OBLIGATION  OF   CONTRACTS, 
(See  Obligation  of  Contracts.) 
50 


786  INDEX. 

LAWS,   EX  POST  FACTO, 

(See  Ex  Post  Facto  Laws;  Retrospective  Laws.) 
LEGAL   PROCEEDINGS, 

publication  of  accounts  of,  how  far  privileged,  448-451. 
statements  in  course  of,  when  privileged,  441-445. 
(See  Judicial  Proceedings.) 
LEGAL  TENDER, 

only  gold  and  silver  to  be  made,  by  the  States,  15. 
LEGISLATIVE   DEPARTMENT, 

not  to  exercise  executive  or  judicial  powers,  87-116. 
equality  of,  with  other  departments,  45,  n.,  47,  n. 

(See  Legislatures  of  the  States.) 
LEGISLATIVE  DIVORCES, 

whether  they  are  an  exercise  of  judicial  power,  109-114. 
impropriety  of,  110,  114,  n. 
LEGISLATIVE   MOTIVES, 

not  to  be  inquired  into  by  courts,  135,  136,  186,  187,  208. 
presumption  of  correctness  of,  186,  187,  208. 
LEGISLATIVE   POWERS, 

enactments  in  excess  of,  are  void,  3,  174. 
distingirshed  from  judicial,  91. 
cannot  be  delegated,  116-125. 
exercise  of,  will  not  give  right  of  action,  208. 
cannot  extend  beyond  territorial  limits,  127. 

grant  of,  will    not    warrant    exercise    of    executive    or  judicial    powers, 
87-116. 
LEGISLATIVE   PROCEEDINGS, 

privilege  of  publication  of,  457-460. 

members  not  to  be  questioned  for  words  in  course  of,  445-447. 
LEGISLATORS, 

contested  elections  of,  to  be  decided  by  house,  133. 
duty  of,  not  to  violate  constitution,  185. 
presumed  correctness  of  motives,  186,  187. 
privilege  of,  in  debate,  445-447. 
rigbt  of,  to  publish  speeches,  457-460. 
LEGISLATURES,   COLONIAL, 

statutes  adopted  by,  in  force  at  Revolution,  25. 
LEGISLATURES   OF  THE   STATES, 

power  to  originate  amendments  to  State  constitution,  31,  and  n. 
construction  of  constitution  by,  39-43. 
deference  due  to  judicial  construction  by,  53. 
powers  of,  compared  with  those  of  Parliament,  85,  86,  172,  173. 
not  to  exercise  executive  or  judicial  powers,  87,  116,  174-176. 
complete  legislative  power  vested  in,  87,  168,  172,  173. 
specification  of  powers  in  constitution  unnecessary,  88. 
declaratory  statutes  not  the  exercise  of  judicial  power,  93-95. 
cannot  set  aside  judgments,  grant  new  trials,  &c,  95,  96,  392. 
how  far  may  bind  parties  by  recital  of  facts  in  statutes,  96. 
power  of,  to  grant  divorces,  109-114. 
delegation  of  legislative  power  inadmissible,  116-125. 


INDEX.  787 

LEGISLATURES   OF  THE   STATES,  —  continued. 

but  conditional  legislation  is  not,  117. 

nor  making  charters  subject  to  acceptance,  118,  119. 

nor  conferring  powers  of  local  government,  118-125,  191. 
irrepealable  legislation  cannot  be  passed,  125-127,  284. 

but  exemptions  from  taxation  may  be  made,  127,  280,  514. 
power  of,  limited  to  territory  of  the  State,  127. 
discretionary  powers  of,  how  restricted,  129. 

courts  no  control  over,  129. 
enactment  of  laws  by,  130-158. 

must  be  under  the  constitutional  forms,  130,  131. 
parliamentary  common  law  of,  130,  131,  134. 
division  of,  into  two  houses,  131,  132. 
when  to  meet,  132. 
proroguement  by  executive,  132. 
rules  of  order  of,  133. 

election  and  qualification  of  members,  determination  of,  133. 
contempts  of,  may  be  punished  by,  133,  134. 

but  not  by  committees,  135. 
members  of,  may  be  expelled,  133. 

their  privilege  from  arrest,  &c,  134. 
committees  of,  for  collection  of  information,  &c,  135. 

power  of,  to  terminate  with  session,  135. 
journals  of,  to  be  evidence,  135,  136. 
action  of,  to  be  presumed  legal  and  correct,  135,  136. 
motives  of  members  not  to  be  questioned,  135,  186,  187,  208. 
"  lobby"  services  illegal,  136,  and  n. 
bills,  introduction  and  passage  of,  137-141. 

three  several  readings  of,  80,  81,  139,  140. 

yeas  and  nays  to  be  entered  on  journal,  140. 

vote  on  passage  of,  what  sufficient,  141. 

title  of,  formerly  no  part  of  it,  141. 

constitutional  provisions  respecting,  81,  82,  141,  n. 
purpose  of  these,  142. 
they  are  mandatory,  150,  151. 
particularity  required  in  stating  object,  144,  145. 
what  is  embraced  by  title,  148-150. 
effect  if  more  than  one  object  embraced,  147,  148. 
effect  if  act  is  broader  than  title,  148-150. 
amended  statutes,  publication  of,  at  length,  151,  152. 
repeal  of  statutes  at  session  when  passed,  152. 
signing  of  bills  by  officers  of  the  houses,  152. 
approval  and  veto  of  bills  by  governor,  153,  154. 
governor's  messages  to,  155. 
special  sessions  of,  155. 
when  acts  to  take  effect,  155-158. 

power  of  the  courts  to  declare  statutes  unconstitutional,  159-188. 
full  control  of,  over  municipal  corporations,  192,  193,  226,  233. 
legalization  by,  of  irregular  municipal  action,  224. 

of  invalid  contracts,  293,  371-381. 


788  INDEX. 

LEGISLATURES   OF  THE   STATES,  —  continued. 

of  irregular  sales,  taxation,  &c,  370-383. 
not  to  pass  bills  of  attainder,  15,  33,  259. 
nor  ex  post  facto  laws,  15,  33,  264. 

nor  laws  violating  obligation  of  contracts,  15,  33,  127,  273. 
(See  Obligation  of  Contracts.) 
insolvent  laws,  what  may  be  passed,  293,  29-1. 
right  to  petition,  349. 
vested  rights  protected  against,  351-397. 

(See  Law  of  the  Land.) 
control  by,  of  remedies  in  criminal  cases,  267-273. 

in  civil  cases,  287-294,  361-367. 
control  of  rules  of  evidence,  288,  367-369. 
may  change  estates  in  land,  359-361. 

and  rights  to  property  under  the  marriage  relation,  360,  361. 
limitation  laws  may  be  passed  by,  364-367. 
retrospective  legislation  by,  369-383. 

(See  Retrospective  Legislation.) 
privileges  granted  by,  may  be  recalled,  383. 
consequential  injuries  from  action  of,  384. 
sumptuary  laws,  385. 
betterment  laws,  386-389. 
unequal  and  partial  legislation,  389-397. 

general  laws  not  always  essential,  389,  390. 
special  rules  for  particular  occupations,  390. 
proscriptions  for  opinion's  sake,  390,  391. 
suspensions  of  laws  in  special  cases,  391,  392. 
special  remedial  legislation,  389,  391. 
special  franchises,  393-397. 
restrictions  upon  suffrage,  394. 
power  of,  to  determine  for  what  purposes  taxes  may  be  levied,  488-492, 

517. 
cannot  authorize  property  to  be  taxed  out  of  its  district,  499-504. 
must  select  the  subjects  of  taxation,  514. 
may  determine  necessity  of  appropriating  private  property  to  public  use, 

528,  538,  539. 
authority  of,  requisite  to  the  appropriation,  528. 
cannot  appropriate  property  to  private  use,  530,  531. 
LETTERS, 

legal  inviolability  of,  307,  n. 
LEVEES, 

establishment  of,  under  police  power,  589. 
special  assessments  for,  510. 
LIBEL, 

(See  Liberty  of  Speech  and  of  the  Press.) 
LIBERTY, 

personal, 

(See  Personal  Liberty.) 
of  the  press, 

(See  Liberty  of  Speech  and  of  the  Press.) 


INDEX. 


789 


LIBERTY,  —  continued. 
religious, 

(See  Religious  Liberty.) 
of  discussion,  349. 
of  bearing  arms,  350. 
of  petition,  349. 
charters  of,  24,  n. 
LIBERTY  OF   SPEECH   AND   OF  THE   PRESS, 

Hamilton's  reasons  why  protection  of,  by  bill  of  rights,  was  not  important, 

256. 
opposing  reasons  by  Jefferson,  258,  n. 
Congress  to  pass  no  law  abridging,  414. 
State  constitutional  provisions  respecting,  414,  n. 

these  create  no  new  rights,  but  protect  those  already  existing,  415,  416. 
liberty  of  the  press  neither  well  defined  nor  protected  at  the  common  law, 
417. 

censorship  of  publications,  417-419. 
debates  in  Parliament  not  suffered  to  be  published,  418. 
censorship  in  the  Colonies,  418,  419. 
secret  sessions  of  Constitutional  Convention,  419. 

and  of  United  States  Senate,  420. 
what  liberty  of  speech  and  of  the  press  consists  in,  420,  421,  422. 
general  purpose  of  the  constitutional  provisions,  421,  422. 
rules  of  common-law  liability  for  injurious  publications,  422-425. 

modification  of,  by  statute,  430. 
privileged  cases,  425,  426. 

libels  upon  the  government  indictable  at  the- common  law,  426. 
prosecutions  for,  have  ceased  in  England,  427. 
sedition  law  for  punishment  of,  427. 
whether  now  punishable  in  America,  428-430. 
criticism  upon  officers  and  candidates  for  office,  431-441. 
statements  in  the  course  of  judicial  proceedings,  441-445. 
privilege  of  counsel,  442-445. 
privilege  of  legislators,  445-447. 

publication  of  privileged  communications  through  the  press,  448-460. 
publication  of  speeches  of  counsel,  &c,  not  privileged,  448. 
fair  and  impartial  account  of  judicial  trial  is,  448. 
but  not  of  ex  parte  proceedings,  448,  449. 
whole  case  must  be  published,  448,  449. 
must  be  confined  to  what  took  place  in  court,  449. 
must  not  include  indecent  or  blasphemous  matter,  449. 
privilege  of  publishers  of  news,  451-457. 

publishers  generally  held  to  same  responsibility  as  other  persons,  455. 
not  excused  by  giving  source  of  inforniTftlon,  455. 
nor  because  the  publication  was  without  their  personal  knowledge,  455. 
nor  by  its  being  a  criticism  on  a  candidate  for  office,  455. 
nor  by  its  constituting  a  fair  account  of  a  public  meeting,  455,  456. 
criticisms  by,  on  works  of  art  and  literary  productions,  456,  457. 
exemplary  damages  against  publishers,  457. 
publication  of  legislative  proceedings,  how  far  privileged,  457. 


790  INDEX. 

LIBERTY  OF   SPEECH  AND   OF  THE  PRESS,  —  continued. 
rule  in  England,  457,  -158. 
the  case  of  Stockdale  v.  Hansard,  458,  n. 
publication  of  speeches  by  members,  457,  459,  460. 
the  jury  as  judges  of  the  law  in  libel  cases,  460. 
Woodfall's  and  Miller's  cases,  460,  461. 
Mr.  Fox's  Libel  Act,  462. 

the  early  rulings  on  the  subject  in  America,  462,  463. 
provisions  on  the  subject  in  State  constitutions,  463. 
the  truth  as  a  defence  when  good  motives  and  justifiable  ends  in  the  pub- 
lication can  be  shown,  464. 

burden  of  proof  on  the  defendant  to  show  them,  464. 
that  publication  was  copied  from  another  source  is  not  sufficient,  466. 
motives  or  character  of  defendant  no  protection,  if  publication  is  false, 
466. 
LICENSE, 

of  occupations  in  general,  596. 
for  ferry  across  navigable  waters,  593. 
revoking,  where  a  fee  was  received  therefor,  283,  n. 
LICENSE   FEES, 

when  are  taxes,  201,  495. 

limited  generally  to  necessary  expenses,  &c,  201. 

payment  of,  to  United  States,  does  not  give  rights  as  against  State  laws, 
584. 
LICENSER, 

of  intended  publications,  417-419. 

(See  Liberty  of  Speech  and  op  the  Press.) 
LICENTIOUSNESS, 

distinguished  from  liberty,  339,  n. 
LIFE, 

action  for  taking,  through  negligence,  &c,  581. 
not  to  be  taken  but  by  due  process  of  law,  11,  15,  291,  n. 
LIMITATION, 

of  time  to  apply  for  compensation  for  property  taken  by  public,  561. 
LIMITATION   LAWS, 

may  cut  off  vested  rights,  364-367. 

opportunity  to  assert  rights  must  first  be  given,  365,  366. 
cannot  operate  upon  party  in  possession,  366. 
legislature  to  determine  what  is  reasonable  time,  366. 
suspension  of,  365,  n.,  391,  n. 
legislature  cannot  revive  demands  barred  by,  365. 
legislature  may  prescribe  form  for  new  promise,  293. 
do  not  apply  to  State  or  nation,  367,  n. 
LIMITATIONS    TO   LEGISLATIVE   POWER, 

are  only  such  as  the  people  have  imposed  by  their  constitutions,  87. 
(See  Legislatures  of  the  States.) 
LITERARY   PRODUCTIONS, 

copyright  to,  Congress  may  provide  for,  10. 
privilege  of  criticism  of,  457. 


INDEX. 

LOBBY   SERVICES, 

contract  for,  unlawful,  136,  and  n.,  212,  n. 
LOCAL   SELF-GOVERNMENT, 

State  constitutions  framed  in  reference  to,  35. 

the  peculiar  feature  of  the  American  system,  189. 
(See  Municipal  Corporations.) 
LOCAL   TAXATION, 

(See  Taxation.) 
LOCALITY   OF   PROPERTY, 

may  give  jurisdiction  to  courts,  404,  406. 

taxation  dependent  upon,  499-504,  516. 
LOG-ROLLING  LEGISLATION, 

constitutional  provisions  to  prevent,  142-144. 
LORD'S   DAY, 

laws  for  observance  of,  how  justified,  476,  477. 
LOUISIANA, 

divorces  not  to  be  granted  by  special  laws,  110,  n. 

revenue  bills  in,  131,  n. 

title  of  acts  to  express  their  object,  142,  n. 

liberty  of  the  press  in,  417,  n. 

persons  conscientiously  opposed  to  bearing  arms  excused,  468,  n. 

republication  of  amended  statutes,  152. 

exclusions  from  suffrage,  599,  n. 
LUNATICS, 

excluded  from  suffrage,  599. 

special  statutes  for  sale  of  lands  of,  97-106. 

M. 

MAGNA    CHABTA, 

grant  of,  did  not  create  constitutional  government,  3,  n. 

a  declaratory  statute,  22,  23,  257. 

its  maxims  the  interpreters  of  constitutional  grants  of  power,  175. 

provision  in,  for  trial  by  peers,  &c,  351. 
MAILS, 

inviolability  of,  307,  n. 
MAINE, 

judges  of,  to  give  opinions  to  legislature,  40. 

revenue  bills  to  originate  in  lower  house,  132,  n. 

protection  of  property  by  law  of  the  land,  352,  n. 

liberty  of  the  press  in,  414,  n. 

religious  tests  forbidden  in,  469. 

periodical  valuations  for  taxation,  496. 

exclusions  from  suffrage,  599,  n. 
MAJORITY, 

what  constitutes  two  thirds,  141. 

what  sufficient  in  elections,  598,  n.,  614. 
MALICE, 

presumption  of,  from  falsity  of  injurious  publications,  422,  455. 

in  refusing  to  receive  legal  votes,  616. 


791 


792  INDEX. 

MANDAMUS, 

to  compel  registration  of  voters,  602. 

to  compel  canvassers  to  perform  duty,  G23. 
MANDATORY   STATUTES, 

doctrine  of,  74-78. 

constitutional  provisions  always  mandatory,  78-83,  140,  150. 
but  courts  cannot  always  enforce,  129. 
MANUFACTURING    PURPOSES, 

whether  dams  for,  can  be  established  under  right  of   eminent   domain, 
534-536. 
MARKETS, 

State  power  to  regulate,  596. 
MARRIAGE, 

validating  invalid,  by  retrospective  legislation,  372. 

legislative  control  of  rights  springing  from,  360,  361. 

power  of  the  legislature  to  annul,  109-114. 

statutory  regulation  of,  319,  n. 

(See  Divorce  ;  Married  Women.) 
MARRIED   WOMEN, 

exclusion  of,  from  suffrage,  29,  599. 

statutes  enlarging  rights  of,  61,  n. 

testimony  of,  in  favor  of  husband,  317,  318,  n. 

invalid  deeds  of,  may  be  validated  by  legislature,  377,  378. 

control  of,  by  husband,  339,  340. 

(See  Divorce;  Dower.) 
MARSHES, 

draining  of,  and  assessments  therefor,  510,  511,  533. 
MARTIAL   LAW, 

when  may  be  declared,  309,  n.,  319,  n. 

legality  of  action  under,  862,  n. 

danger  from,  615. 
MARYLAND, 

special  statutes  licensing  sale  of  lands  forbidden,  98,  n. 

legislature  of,  not  to  grant  divorces,  110,  n. 

title  of  acts  to  express  the  object,  141,  n. 

protection  of  property  by  law  of  the  land,  352,  n. 

liberty  of  the  press  in,  415,  n. 

religious  liberty  in,  468,  n.,  478,  n. 

republication  of  amended  statutes,  151,  n. 

exclusions  from  suffrage,  599,  n. 
MASSACHUSETTS, 

judges  of,  to  give  opinions  to  legislature,  40. 

divorces  in,  to  be  granted  by  courts,  110,  n. 

revenue  bills  to  originate  in  lower  house,  131,  n. 

protection  of  property  by  law  of  the  land,  352,  n. 

liberty  of  the  press  in,  414,  n. 

periodical  valuations  for  taxation,  496. 

exclusions  from  suffrage,  599,  n. 
MASTER, 

of  apprentice,  servant,  and  scholar,  power  of,  340,  341 


INDEX.  793 

MAXIMS, 

of  government,  laws  in  violation  of,  169,  170. 
of  the  common  law,  what  they  consist  in,  22. 
gradual  growth  and  expansion  of,  54,  55. 
for  construction  of  statutes, 

a  statute  is  to  be  construed  as  prospective,  and  not  retrospective,  in 

its  operation,  62. 
such  an  interpretation  shall  be  put  upon  a  law  as  to  uphold  it,  and 

give  effect  to  the  intention  of  the  law-makers,  58. 
words  in  a  statute  are  presumed  to  be  employed  in  their  natural  and 

ordinary  sense,  58,  83,  n. 
contemporary  construction  is  best  and  strongest  in  the  law,  67-71. 
a  statute  is  to  be  construed  in  the  light  of  the  mischief  it  was  designed 

to  remedy,  65. 
he   who   considers   the   letter  merely,  goes  but  skin  deep   into  the 

meaning,  84. 
statutes  in  derogation  of  the  common  law  are  to  be  construed  strictly, 

61,  n. 
an  argument  drawn  from  inconvenience  is  forcible  in  the  law,  67-71. 
general  principles, 

no  man  can  be  judge  in  his  own  cause,  410-413. 

consent  excuses  error,  181,  182,  409. 

the  law  does  not  concern  itself  about  trifles,  520. 

that  to  which  a  party  assents  is  not  in  law  an  injury,  181,  182. 

no  man  shall  be  twice  vexed  for  one  and  the  same  cause,  47-54. 

every  man's  house  is  his  castle,  22,  299. 

that  which  was  originally  void  cannot  by  mere  lapse  of  time  become 

valid,  366,  n. 
necessity  knows  no  law,  594. 

so  enjoy  your  own  as  not  to  injure  that  of  another,  573. 
MEANING  OF  WORDS, 

(See  Definitions.) 
MEASURES  AND  WEIGHTS, 

regulation  of,  596. 
MEMBERS  OF  THE  LEGISLATURE, 

contested  seats  of,  decided  by  the  house,  133. 
punishment  of,  for  contempts,  &c,  133. 
power  of  the  houses  to  expel,  133,  134. 
exemption  of,  from  arrest,  134. 
publication  of  speeches  by,  457-460. 
privilege  of,  in  debate,  &c,  445-448. 
MICHIGAN, 

right  of,  to  admission  to  the  Union  under  ordinance  of  1787,  28. 

repeal  of  acts  of  Parliament  in,  25,  n. 

right  of  married  women  to  property  in,  61,  n. 

special  statutes  licensing  sale  of  lands  forbidden,  98,  n. 

legislature  of,  not  to  grant  divorces,  110,  n. 

privilege  of  legislators  from  arrest,  134,  n. 

special  legislative  sessions  in,  155,  n. 

title  of  acts  to  express  the  object,  142,  n. 


794  INDEX. 

> 

MICHIGAN",  —  continued. 

when  statutes  of,  to  take  effect,  156. 

protection  of  property  by  law  of  the  land,  352,  n. 

liberty  of  the  press  in,  416. 

religious  belief  of  witness  not  to  be  inquired  into,  478. 

periodical  valuation  of  property  for  taxation,  496. 
MILITARY  BOUNTIES, 

by  municipal  corporations,  when  legal,  219-229. 
MILITARY  COMMISSIONS, 

when  not  admissible,  319,  n. 

(See  Martial  Law.) 
MILITIA, 

control  of,  11,  18,  41,  n. 

not  to  be  called  out  on  election  days,  615. 
MILL-DAMS, 

construction  of,  across  navigable  waters,  594. 

abatement  of,  as  nuisances,  595. 
MILL-DAM  ACTS, 

do  not  confer  vested  rights,  384. 

constitutionality  of,  534-536. 
MINNESOTA, 

divorces  not  to  be  granted  by  legislature,  110,  n. 

title  of  acts  to  express  the  object,  141,  n. 

revenue  bills  to  originate  in  lower  house,  132,  n. 

protection  to  property  by  law  of  the  land,  352,  n. 

liberty  of  the  press  in,  416,  n. 

religious  liberty  in,  468,  n.,  478,  n. 

disqualifications  for  suffrage,  599,  n. 
MINORS, 

(See  Infants.) 
MISCHIEF  TO  BE  REMEDIED, 

may  throw  light  on  constitutional  clause,  65. 
MISSISSIPPI, 

constitutional  provision  respecting  divorces,  110,  n. 

privileges  of  members,  134,  n. 

when  statutes  to  take  effect,  156. 

revenue  bills  to  originate  in  lower  house,  132,  n. 

protection  to  property  by  law  of  the  land,  352,  n. 

liberty  of  the  press  in,  417,  n. 

religious  test  for  office,  468,  469. 

disqualifications  for  suffrage,  599,  n. 
MISSOURI, 

legislative  licenses  for  sale  of  lands  forbidden,  98,  n. 

judges  of,  to  give  opinions  to  legislature,  40. 

restrictions  upon  legislative  power  in  constitution  of,  128,  n. 

legislature  of,  not  to  grant  divorces,  111,  n. 

privileges  of  members,  134,  n. 

special  legislative  sessions  in,  155,  n. 

title  of  acts  to  express  the  object,  142,  n. 

disqualifications  for  suffrage,  599,  n. 


INDEX.  795 

MISSOURI,  —  continued. 

republication  of  amended  statutes,  187,  n. 
when  acts  to  take  effect,  156,  n. 
protection  to  property  by  law  of  the  land,  352,  n. 
liberty  of  the  press  in,  416. 
disqualifications  for  suffrage,  599,  n. 
MONEY, 

coinage  and  regulation  of,  10,  15. 
legal  tender,  15. 

punishment  of  counterfeiting,  10,  18. 

bills  for  raising,  to  originate  in  lower  house  in  some  States,  131,  132. 
cannot  be  appropriated  under  right  of  eminent  domain,  527. 
MONOPOLIES, 

odious  nature  of,  393. 
grant  of,  not  presumed,  395. 
in  navigable  waters,  591. 
MORTGAGES, 

right  to  possession  under,  cannot  be  taken  away  by  legislature,  290,  291. 
MOTIVES, 

of  legislative  body  not  to  be  inquired  into  by  courts,  135,  136,  186,  187. 

nor  those  of  municipal  legislative  body,  208. 
good,  when  a  defence  in  libel  cases,  46-4. 
MUNICIPAL  CORPORATIONS, 

question  of  formation  or  division  of,  may  be  submitted  to  people  inter- 
ested, 118,  119. 
powers  of  local  government  may  be  conferred  upon,  118-125,  191. 
whether  they  may  engage  in  internal  improvements,  &c,  119,  213-219. 
general  view  of  the  system,  189-192. 
legislature  prescribes  extent  of  powers,  191. 
charter  of,  the  measure  of  their  authority,  192. 
complete  control  of,  by  legislature,  170,  n.,  191,  193. 
whether  it  may  compel  them  to  assume  obligations  aside  from  their  ordi- 
nary functions,  230-235. 
charter  of,  not  a  contract,  192. 
implied  powers  of,  194,  209,  210. 
effect  of  changes  in,  192,  n. 
charter  to  be  strictly  construed,  195. 
contracts,  ultra  vires,  void,  196,  211,  212,  215,  and  n. 

negotiable  paper  issued  by,  when  valid,  212,  215,  and  n. 
may  exist  by  prescription,  197. 

powers  thereof,  197. 
what  by-laws  they  may  make,  195,  198. 

must  not  be  opposed  to  constitution  of  State  or  nation,  198. 
nor  to  charter,  198. 
nor  to  general  laws  of  the  State,  198. 
nor  be  unreasonable,  200. 
nor  uncertain,  202. 
cannot  delegate  their  powers,  204,  205. 

nor  adopt  irrepealable  legislation,  206-208. 

nor  preclude  themselves  from  exercise  of  police  power,  206-208. 


796  INDEX. 

MUNICIPAL   CORPORATIONS,  —  continued. 

nor  grant  away  use  of  streets,  207,  208. 
incidental  injuries  in  exercise  of  powers  give  no  right  of  action,  208. 
may  indemnify  officers,  209,  210. 

but  not  for  refusal  to  perforin  duty,  212. 
may  contract  to  pay  for  liquors  destroyed,  211,  n. 

powers  of,  to  be  construed  with  reference  to  the  purposes  of  their  cre- 
ation, 211. 

will  not  include  furnishing  entertainments,  211. 

or  loaning  credit  or  making  accommodation  paper,  212. 
must  be  confined  to  territorial  limits,  213. 
power  of,  to  raise  bounty  moneys,  &c,  219-229. 
legislative  control  of  corporate  property,  235-239. 

towns,  counties,  &c,  how  differing  from  chartered  corporations,  240,  247, 
248. 

judgments  against,  may  be  collected  of  corporators,  241-247. 

but  only  in  New  England,  246,  247. 
not  liable  for  failure  of  officers  to  perforin  duty,  247. 
chartered  corporations  undertake  for  performance  of  corporate  duty,  247. 

liability  to  persons  injured  by  failure,  247-253. 
corporate  organization  how  questioned,  254. 
imperfect  acts  of,  may  be  validated,  373,  374,  n.,  379. 
must  tax  all  property  within  their  limits  alike,  502. 
cannot  tax  property  not  lying  within  their  limits,  500. 
bounds  of,  cannot  be  arbitrarily  enlarged  in  order  to  bring  in  property  for 

taxation,  500-504. 
obtaining  water  for,  under  right  of  eminent  domain,  533. 
taking  of  lands  for  parks  for,  533,  534,  n. 
MUTE, 

•wilfully  standing  when  arraigned,  311. 


N. 

NATION, 

definition  of,  1. 

distinguished  from  State,  1 . 

(See  United  States., 
NATURALIZATION, 

power  of  Congress  over,  10. 
NAVIGABLE   WATERS, 

made  free  by  ordinance  of  1787,  25,  n. 

right  of  States  to  improve  and  charge  toll,  26,  n.,  592. 

what  are,  and  what  not,  589. 

are  for  use  of  all  equally,  590. 

general  control  of,  is  in  the  States,  591. 

Congressional  regulations,  when  made,  control,  591. 

States  cannot  grant  monopolies  of,  591. 

States  inay  authorize  bridges  over,  592. 

when  bridges  become  nuisances,  592. 

States  may  establish  ferries  across,  593. 


INDEX.  797 

NAVIGABLE  WATERS,  —continued. 

States  may  authorize  dams  of,  593,  594. 
regulation  of  speed  of  vessels  upon,  594. 
rights  of  fishery  in,  524. 
frontage  upon,  is  property,  544. 

(See  Water-Courses.) 
NAVIGATION, 

right  of,  pertains  to  the  eminent  domain,  524. 
(See  Navigable  Waters.) 
NEBRASKA, 

legislature  of,  not  to  grant  divorces,  110,  n. 

privilege  of  members  of  legislature  from  arrest,  &c.,  134,  n. 

title  of  acts  to  express  the  object,  141,  n. 

republication  of  amended  statutes,  151,  n. 

liberty  of  the  press  in,  416,  n. 

religious  tests  forbidden  in,  4G9,  n.,  478,  n. 
NECESSITY, 

is  the  basis  of  the  right  of  eminent  domain,  524,  538. 

extent  of  property  to  be  taken  is  limited  by,  539. 

destruction  of  buildings"  to  prevent  spread  of  fire,  594. 
NEGLIGENCE, 

as  a  foundation  for  rights  under  betterment  laws,  388. 

carriers  of  persons  may  be  made  responsible  for  deaths  bv,  581. 

in  the  construction  of  public  works  mav  give  right  of  action,  571. 
NEGOTIABLE   PAPER, 

when  municipal  corporations  liable  upon,  212,  215,  and  n 
NEVADA, 

special  statutes  licensing  sale  of  lands  forbidden,  98. 

legislature  of,  not  to  grant  divorces,  110,  n. 

republication  of  amendatory  statutes,  151,  n. 

when  acts  to  take  effect,  156,  n. 

special  legislative  sessions  in,  155,  n. 

title  of  acts  to  express  the  subject,  142,  n. 

protection  by  the  law  of  the  land,  352,  n. 

liberty  of  the  press  in,  416,  n. 

religious  liberty  in,  478,  n. 

disqualifications  for  suffrage,  599,  n. 
NEW  ENGLAND   CONFEDERACY, 

of  1643,  why  formed,  5. 
NEW  HAMPSHIRE, 

judges  of,  to  give  opinions  to  legislature,  &c,  40. 

causes  of  divorce  to  be  heard  by  courts,  110,  n. 

revenue  bills  to  originate  in  lower  house,  132,  n. 

approval  of  laws,  153,  n. 

retrospective  laws  forbidden  in,  370. 

protection  by  the  law  of  the  land,  352,  n. 

liberty  of  the  press  in,  414,  n. 

religious  liberty  in,  469,  n.,  478,  n. 

disqualifications  for  suffrage,  599,  n. 
NEW  JERSEY, 

special  statutes  licensing  sale  of  lands  forbidden,  98,  n. 


798  INDEX. 

NEW  JERSEY,  —  continued. 

legislature  of,  not  to  grant  divorces,  110,  n. 

title  of  acts  to  express  tbe  object,  142,  n. 

revenue  bills  to  originate  in  lower  house,  132,  n. 

liberty  of  the  press  in,  415,  n. 

religious  tests  forbidden  in,  469,  n. 

disqualifications  for  suffrage,  599,  n. 
NEWSPAPERS, 

publication  of  privileged  communications  in,  448-451. 

whether  they  have  any  privilege  in  publishing  news,  451. 

privilege  not  admitted  by  the  courts,  453-457. 

when  publisher  not  liable  to  vindictive  damages,  457. 

(See  Liberty  of  Speech  and  op  the  Press.) 
NEW  STATES, 

admission  of,  27-37. 
NEW  TRIALS, 

not  to  be  granted  by  the  legislature,  95,  392. 

not  granted  on  application  of  State  in  criminal  cases,  321. 

may  be  had  after  verdict  set  aside  on  application  of  defendant,  327,  328. 
but  not  on  counts  on  which  he  was  acquitted,  328. 
(See  Jeopardy.) 
NEW  YORK, 

divorces  only  to  be  granted  injudicial  proceedings,  110,  n. 

title  of  private  and  local  acts  to  express  the  subject,  142,  n. 

amendment  of  first  constitution  in,  31. 

protection  by  law  of  the  land,  352,  n. 

liberty  of  the  press  in,  414,  n. 

witnesses  not  rendered  incompetent  from  want  of  religious  belief,  478,  n. 

contested  election  of  governor  in,  623,  n. 
NOBILITY, 

titles  of,  forbidden  to  be  granted,  17. 
NOLLE  PROSEQUI, 

when  equivalent  to  acquittal,  327. 
NON  COMPOTES  MENTIS, 

legislative  authority  for  sale  of  lands  of,  97-106. 

excluded  from  suffrage,  599. 
NON-RESIDENT   PARTIES, 

subjecting  to  jurisdiction  of  court  by  publication,  403-406. 

restricted  effect  of  the  notice,  404. 

discrimination  in  taxation  of,  487. 
NORTH   CAROLINA, 

ratification  of  Constitution  by,  8,  9. 

legislature  of,  not  to  grant  divorces,  111,  n. 

protection  by  the  law  of  the  land,  352,  n. 

liberty  of  the  press  in,  417,  n. 

infidels  disqualified  for  holding  office,  468. 
NOTICE, 

necessity  for,  in  legal  proceedings,  402-406. 

bringing  in  non-resident  parties  by  publication  of,  403,  404. 

of  elections,  when  essential  to  their  validity,  602,  603. 


INDEX.  799 

NUISANCE, 

when  bridges  over  navigable  waters  are,  593. 

when  dams  are,  and  may  be  abated,  594,  595. 

obstructions  in  navigable  streams  are,  590,  n. 

forbidding  use  of  cemeteries  which  have  become,  595. 

general  power  in  the  States  to  abate,  596. 

created  by  public,  not  to  be  abated  at  expense  of  individual,  596,  n. 


0. 
OATH, 

of  attorneys,  330,  331,  n. 
test,  may  be  punishment,  263,  n. 
of  voter,  when  conclusive  of  his  right,  617. 
blasphemy  and  profanity  punishable  by  law,  471-476. 
OBJECT  OF   STATUTE, 

in  some  States  required  to  be  stated  in  title,  141-151. 
OBLIGATION  OF   CONTRACTS, 

States  not  to  pass  laws  violating,  15,  33,  126,  273. 
what  is  a  contract,  273-281. 

agreements  by  States  are,  274,  275. 

executed  contracts,  275. 

appointments  to  office  are  not,  276.    ' 

municipal  charters  are  not,  192,  193,  276. 

franchises  granted  to  municipal  corporations  are  not,  277. 

but  grants  of  property  in  trust  are,  277-279. 

and  grants  of  property  for  municipal  use,  236. 

private  charters  of  incorporation  are,  279. 

whether  an  exemption  from  taxation  is,  127,  280-284. 
it  is  if  granted  for  a  consideration,  281. 

whether  right  of  eminent  domain  can  be  relinquished,  281. 
or  the  right  to  exercise  the  police  power,  282,  283. 
change  in  general  laws  of  the  State  does  not  violate,  284. 

nor  divorce  laws,  284. 

such  laws  not  to  divest  rights  in  property,  284,  285. 
what  obligation  consists  in,  285-287. 
remedies  for  enforcement  of  contracts  may  be  changed,  287-289. 

imprisonment  for  debt  may  be  abolished,  287. 

exemptions  from  execution  may  be  increased,* 287. 

rules  of  evidence  may  be  changed,  288. 

but  all  remedy  cannot  be  taken  away,  289,  290. 

repeal  of  statute  giving  remedy  cannot  destroy  contracts,  290. 
appraisement  laws  cannot  be  made  applicable  to  existing  debts    290. 
right  to  possession  under  mortgages  cannot  be  taken  away,  290. 

nor  time  to  redeem  lands  shortened  or  extended,  291. 
laws  staying  execution,  how  far  invalid,  292,  293. 
when  power  of  municipal  taxation  may  not  be  taken  away,  292. 
stockholders  liable  for  corporate  debts  may  not  be  released  by  law,  292. 
whether  a  party  may  release,  by  contract,  a  privilege  granted  for  reasons 
of  State  policy,  293. 


800  INDEX. 

OBLIGATION  OF  CONTRACTS,  —  continued. 

■when  a  contract  requires  new  action  to  its  enforcement,  changes  may  be 
made  as  to  such  action,  293. 

new  promise  to  revive  a  debt  may  be  required  to  be  in  writing,  293. 

laws  validating  invalid  contracts  do  not  violate  Constitution,  293. 
nor  laws  extending  corporate  franchises,  293. 

State  insolvent  laws,  how  far  valid,  293,  294. 

effect  of  police  laws,  574—584. 
OBSCENITY, 

in  legal  proceedings,  not  to  be  published,  449. 

sale  of  obscene  books  and  papers  may  be  prohibited,  596. 
OBSCURITIES, 

aids  ill  interpretation  of,  65-73. 

(See  Construction  of  State  Constitutions.) 
OBSTRUCTIONS   TO   NAVIGATION, 

when  bridges  and  dams  to  be  considered  such,  592-594. 

when  channels  cut  by  private  parties  are  private  property,  590. 
OCEAN, 

(See  High  Seas.) 
OFFICE, 

appointments  to,  do  not  constitute  contracts,  276. 
whether  they  pertain  to  the  executive,  115,  n. 

right  to,  not  to  be  contested  on  habeas  corpus,  348,  n. 
OFFICER, 

protection  of  dwelling-house  against,  22,  299. 

general  warrants  to,  are  illegal,  300-302. 

may  break  open  house  to  serve  criminal  warrant,  303. 

service  of  search-warrant  by, 

(See  Searches  and  Seizures.) 

privilege  of  criticism  of,  431-441,  455,  456.. 

constitutional  qualifications  cannot  be  added  to,  by  the  legislature,  64. 

duty  of,  when  doubtful  of  constitutional  construction,  73,  74. 

of  the  legislature,  election  of,  133. 

de  jure,  who  are,  618,  n. 

municipal,  may  be  indemnified  by  corporation,  209,  490. 
but  not  for  refusal  to  perform  duty,  212. 
election  of, 

(See  Elections.) 
OHIO, 

legislature  not  to  grant  divorces,  or  exercise  judicial  power,  111,  n. 

title  of  acts  to  express  the  object,  142,  n. 

general  laws  to  be  uniform,  63. 

appointing  power,  how  exercised,  115. 

retrospective  laws,  what  not  to  be  passed,  370,  n. 

republication  of  amendatory  statutes,  151,  n. 

liberty  of  the  press  in,  415,  n. 

religious  tests  forbidden,  469,  n.,  478,  n. 

impeachment  of  judges  of,  160,  n. 
OMNIPOTENCE   OF   PARLIAMENT, 

meaning  of  the  term,  3,  4,  86. 


INDEX.  801 

OPINION, 

proscription  for,  is  unconstitutional,  390. 

on  religious  subjects  to  be  free,  467-470. 

religious  tests  forbidden  in  some  States,  469,  n. 

of  witnesses  on  religious  subjects  not  to  constitute  disqualification  in  some 
States,  478. 

judicial,  force  of,  as  precedents,  50-54. 
ORDINANCE   OF   1787, 

how  far  still  in  force,  25,  26,  n. 

admission  of  States  to  the  Union  under,  28,  n. 
ORDINANCES,  MUNICIPAL, 

(See  By-Laws.) 
OREGON, 

special  statutes  licensing  sale  of  lands  forbidden,  98. 

legislature  of,  not  to  grant  divorces,  110,  n. 

revenue  bills  to  originate  in  lower  house,  132,  n. 

privileges  of  members,  134,  n. 

title  of  acts  to  express  the  subject,  141,  n. 

legislative  regulation  of  pardons,  116. 

republication  of  amendatory  statutes,  151,  n. 

liberty  of  the  press  in,  416,  n. 

religious  tests  forbidden  in,  408,  n. 

want  of  religious  belief  not  to  render  witness  incompetent,  478,  n. 

who  excluded  from  suffrage,  599,  n. 
OVERRULING  DECISIONS, 

when  should  take  place,  52. 


P. 
PAPERS, 

private,  exempt  from  seizure,  300,  n.,  306,  n.,  307,  n. 

protected  the  same  as  property,  358,  n. 
PARDON, 

power  of,  to  be  exercised  by  governor,  115,  n. 

constitutional  provisions  as  to  rules  for,  116,  n. 

power  to,  does  not  include  reprieves,  116,  n. 
PARENT, 

right  of,  to  custody  of  child,  340. 

respective  rights  of  father  and  mother,  348. 
PARLIAMENT, 

power  of,  to  change  the  constitution,  3,  4,  86,  175. 

acts  of,  adopted  in  America,  23,  24. 

repeal  of  acts  of,  25,  n. 

comparison  of  powers  with  those  of  State  legislatures,  85,  88,  175,  176. 

may  exercise  judicial  authority,  87. 

bills  of  attainder  by,  259.  • 

publication  of  proceedings  of,  not  formerly  allowed,  418. 

publication  of  speeches  by  members,  457-460. 

publication  of  reports  and  papers  of,  457-460. 

51 


802  INDEX. 

PARLIAMENTARY  LAW, 

influence  of,  in  construction  of  constitutions,  130,  131. 

legislative  power  in  regard  to,  133. 

power  to  preserve  order,  &c,  under,  133,  134. 

privilege  by,  of  members  from  arrest,  131. 
PARTIAL  LEGISLATION, 

legislature  to  govern  by  equal  laws,  392. 

special  laws  for  particular  individuals  not  permissible,  392. 

suspensions  of  laws  not  allowed  in  special  cases,  392,  393. 

regulations  for  special  localities  or  classes,  393. 

equality  of  rights,  &c,  the  aim  of  the  law,  393. 

strict  construction  of  special  privileges  and  grants,  393-396. 

and  of  discriminations  against  individuals  and  classes,  393,  394. 
and  of  statutes  in  derogation  of  the  common  law,  61,  n. 

citizens  of  other  States  not  to  be  discriminated  against,  397. 
PARTICULAR  INTENT, 

control  of,  by  general  intent,  58,  n. 
PARTIES, 

defendants  in  criminal  suits,  evidence  of,  317. 

not  compellable  to  testify  against  themselves,  313,  394. 

how  subjected  to  jurisdiction  of  courts,  402,  403. 

estopped  by  judgment,  48,  49. 
PARTITION, 

legislature  may  authorize  sale  of  lands  for  purposes  of,  102. 
PASTURAGE, 

right  of,  in  public  highway,  is  property,  545,  n. 
PASSENGERS, 

power  of  States  to  require  report  of,  from  carriers,  and  to  levy  tax  upon, 
587. 

making  carriers  responsible  for  safety  of,  580,  581. 
PAUPERS, 

exclusion  of,  from  suffrage,  599. 
PAVING   STREETS, 

assessments  for,  not  within  constitutional  provisions  respecting  taxation, 
497. 

special  taxing  districts  for,  505-507. 

assessments  may  be  made  in  proportion  to  benefits,  505,  506. 
or  in  proportion  to  street  front,  5U7. 

but  each  separate  lot  cannot  be  made  a  separate  district,  508. 
PEACE  AND   WAR, 

power  over,  of  the  revolutionary  Congress,  6. 
of  Congress  under  the  Constitution,  20. 
PENALTIES, 

for  the  same  act  under  State  and  municipal  laws,  199. 

given  by  statute  may  be  taken  away,  362,  375,  and  n.,  383. 

for  violation  of  police  regulations,  596. 
PENNSYLVANIA, 

legislature  of,  not  to  grant  divorces,  111,  n. 

title  of  acts  to  express  the  object,  142,  n. 
revenue  bills  to  originate  in  lower  house,  132,  n. 


INDEX.  •  803 

PENNSYLVANIA,  —  continued. 

protection  by  law  of  the  land,  352,  n. 
liberty  of  speech  and  the  press  in,  415,  n. 
religious  tests  in,  468,  n. 
PEOPLE, 

reservation  of  powers  to,  by  national  Constitution,  19. 
sovereignty  vested  in,  28,  598. 
formation  and  change  of  constitutions  by,  30. 
who  are  the,  28-30,  599. 
exercise  of  sovereign  powers  by,  598. 
PERSONAL  LIBERTY, 

gradually  acquired  by  servile  classes  in  Great  Britain,  295-299. 
constitutional  prohibition  of  slavery  in  America,  299. 
of  bills  of  attainder,  15,  33,  259. 

(See  Bills  of  Attainder.) 
of  ex  post  facto  laws,  15,  33,  264. 

(See  Ex  Post  Facto  Laws.) 
of  unreasonable  searches  and  seizures,  299-308. 

(See  Searches  and  Seizures.) 
of  quartering  soldiers  in  private  houses,  308,  309. 
protection  of,  in  one's  dwelling-house,  22,  299,  308. 
criminal  accusations,  how  made,  309. 
bail  for  accused  parties.,  309-31 1! 

unreasonable,  n#t  to  be  demanded,  310. 
trials  for  crimes,  3/11-338. 

/  (See  Crimes.) 

meaning  of  thefterm,  339,  393. 
legal  restrair/ts  upon,  339-341. 

right  to,  ir,  England,  did  not  depend  on  any  statute,  312. 
reason  why  it  was  not  well  protected,  342. 
evasions  of  the  writ  of  habeas  corpus,  343. 
the  habeas  corpus  act,  23,  344. 

did  not  extend  to  American  Colonies,  345. 
g;eneral  adoption  of,  345. 
writ  of  habeas  corpus,  345-348. 

"When  national  courts  may  issue,  315,  316. 
•State  courts  to  issue  generally,  316,  317. 
return  to,  when  prisoner  held  under  national  authority,  317. 
not  to  be  employed  as  a  writ  of  error,  317. 
;   application  for,  need  not  be  made  in  person,  317,  n. 

what  the  officer  to  inquire  into,  317,  318. 
I     to  enforce  relative  rights,  318. 
PETITION, 

rfight  of,  319,  433,  434. 
PETITION  OF  RIGHT, 

was  a  declaratory  statute,  23,  257. 

quartering  soldiers  upon  subjects  forbidden  by,  308. 

pp;tit  jury, 

trial  by, 

(See  Jury  Trial.) 


804  INDEX. 

PICTURES, 

libels  by,  injury  presumed  from,  423. 
indecent,  sale  of,  may  be  prohibited,  596. 
PLURALITY, 

sufficient  in  elections,  630. 
POISOXS, 

regulation  of  sales  of,  595. 
POLICE  POWER, 

pervading  nature  of,  572,  574. 

definition  of,  572,  n. 

the  maxim  on  which  it  rests,  573. 

States  no  power  to  relinquish  it,  282-284. 

power  of  States  to  make  regulations  which  affect  contracts,  574-581. 

how  charters  of  private  incorporation  may  be  affected  by,  575-581. 

charters  cannot  be  amended  on  pretence  of,  577,  578. 

nor  rights  granted  by  charters  taken  away,  578,  579. 
railroad  corporations  may  be  required  to  fence  track,  579. 
and  made  liable  for  beasts  killed  on  track,  579. 
grade  of  railways  and  crossings  may  be  prescribed,  580. 
requirement  that  bell  shall  be  rung  or  whistle  sounded  at  crossings,  &c,  580. 
whether  carriers  of  persons  may'not  be  made  insurers,  580. 
action  may  be  given  for  death  caused  by  negligence,  581. 
sale  of  intoxicating  drinks  may  be  regulated  by  States,  581. 

regulation  of,  does  not  interfere  with  power  of  Congress  over  com- 
merce, 582.    , 
sale  of  intoxicating  drinks  as  a  beverage  may  b$  prohibited  by  States, 

582,  583. 
payment  of  United  States  license  fee  does  not  give  rights  as  against  State 

law,  584. 
quarantine  and  health  regulations  by  States,  584. 
harbor  regulations  by  the  States,  585. 

line  of  distinction  between  police  regulations  and  interfere'nce  with  com- 
merce, 586. 
police  regulations  may  be  established  by  Congress,  586. 
State  requirement  of  license  fee  from  importers  illegal,  586. 
State  regulations  to  prevent  immigrants  becoming  a  public  charge,  587. 
State  regulations  of  pilots  and  pilotage,  587. 
Sunday  laws  as  regulations  of  police,  588. 
regulation  by  States  of  use  of  highways,  588. 

owners  of  urban  property  may  be  required  to  build  sidewalks,  £'88. 
construction  of  levees  on  river  fronts,  589. 
control  of  navigable  waters  by  States,  589,  591. 

restrictions  on  this  control,  591. 

monopolies  not  to  be  granted,  591. 

States  may  improve  and  charge  tolls,  592. 

may  authorize  bridges,  592. 

when  these  bridges  to  be  abated,  593. 

may  establish  ferries,  593. 

may  authorize  dams,  593,  594. 

when  the  dams  may  be  abated,  594,  595. 


INDEX.  805 

POLICE    POWER,  —  continued. 

may  regulate  speed  of  vessels,  594. 

other  cases  of  police  regulations,  594. 

destruction  of  property  to  prevent  spread  of  fire,  594. 

establishment  of  fire  limits,  wharf  lines,  &c,  595. 

regulations  respecting  gunpowder,  poisons,  dogs,  unwholesome  provisions, 
&c,  595,  596. 

regulations  for  protection  of  public  morals,  596. 

market  regulations,  596. 

prohibited  act  or  omission  may  be  made  criminal,  596. 
POLICE  REGULATIONS, 

power  to  establish,  may  be  conferred  on  municipal  corporations,  123-125. 
(See  Police  Power.) 
POLICE  REPORTS, 

publication  of,  499,  and  n. 
POLITICAL  OPINIONS, 

citizens  not  to  be  proscribed  for,  390,  n. 
POLITICAL  RIGHTS, 

equality  of,  390,  467-470. 
POPULAR  RIGHTS, 

not  measured  by  constitutions,  36,  37. 
POPULAR  VOTE, 

submission  of  laws  to,  not  generally  allowable,  116-125. 
(See  Elections.) 
POPULAR  WILL, 

expression  of,  as  to  amendment  of  constitutions,  31-33. 

must  be  obtained  under  forms  of  law,  598. 
(See  Elections.) 
POSSESSION, 

importance  of,  in  limitation  laws,  366,  n. 
POST-OFFICES, 

and  post-roads,  Congress  may  establish,  10. 

inviolability  of  correspondence  through,  307,  n. 
POWDER, 

police  regulations  concerning  storage  of,  595. 
POWERS, 

of  government,  apportionment  of,  by  State  constitutions,  33,  37. 

of  Congress,  10-12. 

of  State  legislatures,  85-129. 

(See  Judicial  Power;   Legislative  Powers.) 
PRACTICAL  CONSTRUCTION, 

weight  to  be  given  to,  67-71. 

not  to  override  the  Constitution,  71. 
PRECEDENTS, 

importance  of,  50,  51,  n. 

judicial,  how  far  binding,  50-54. 

law  made  by,  56,  57,  n. 

only  authoritative  within  country  where  decided,  51,  52. 

when  to  be  overruled,  52. 

of  executive  department,  force  of,  67-71. 


806  INDEX. 

PRECIOUS  METALS, 

in  the  soil  belong  to  sovereign  authority,  524. 
PRELIMINARY  EXAMINATIONS, 

of  persons  accused  of  crimes,  313. 

publication  of  proceedings  on,  not  privileged,  449. 
PRESCRIPTIVE  CORPORATIONS, 

powers  of,  197. 
PRESENCE, 

of  prisoner  at  his  trial,  319. 
PRESIDENT, 

powers  and  duties  of,  11. 

calling  out  the  militia  by,  41,  n. 
PRESS,  LIBERTY  OF, 

(See  Liberty  of  Speech  and  of  the  Press.) 
PRESUMPTION, 

of  constitutionality  of  statutes,  168,  183. 

of  existence  of  corporation,  197. 

of  innocence  of  accused  party,  309,  310. 

of  correctness  of  legislative  motives,  186,  187,  208. 
PRINCIPAL  AND  BAIL, 

custody  of  principal  by  bail,  341. 
PRINTED  BALLOTS, 

answer  the  requirement  of  written,  605,  n. 
PRIVATE  CORPORATIONS, 

distinguished  from  public,  279,  280,  n. 

charters  of,  are  contracts,  279. 
PRIVATE  PAPERS, 

(See  Papers.) 
PRIVATE  PROPERTY, 

right  to,  is  before  constitutions,  37,  175,  n.,  354,  n. 

of  municipal  corporations,  how  far  under  legislative  control,  235. 

owners  cannot  be  compelled  to  improve,  385,  532. 

appropriating  under  right  of  eminent  domain,  523. 

trial  of  right  to,  369,  and  n. 

(See  Eminent  Domain;  Vested  Rights.) 
PRIVATE  ROADS, 

cannot  be  laid  out  under  right  of  eminent  domain,  530,  531. 
PRIVATE  STATUTES, 

not  evidence  against  third  parties,  96. 

to  authorize  sales  by  guardians,  &c,  are  constitutional,  97-106,  389. 
PRIVIES, 

estoppel  of,  by  judgment,  48,  49. 
PRIVILEGES, 

of  citizens  of  the  several  States,  15,  16,  487. 

citizens  not  to  be  deprived  of,  11,  294. 

protection  of,  rests  with  the  States,  294,  n. 

of  legislators,  134,  135. 

special,  strict  construction  of,  389-397. 
PRIVILEGED   COMMUNICATIONS, 

meaning  of  the  term,  425. 


INDEX. 


807 


PRIVILEGED   COMMUNICATIONS,  —continued. 

•when  made  in  answer  to  inquiries,  425,  426. 

between  principal  and  agent,  426. 

where  parties  sustain  confidential  relations,  426. 

discussing  measures  or  principles  of  government,  426-430. 

criticising  officers  or  candidates,  431-441. 

made  in  the  course  of  judicial  proceedings,  441,  442. 

made  by  counsel,  442-445. 

by  legislator  to  constituents,  457-460. 

by  client  to  counsel,  334. 
PROCEEDINGS, 

of  constitutional  convention  may  be  looked  to  on  questions  of  construction, 
66,  67. 

of  legislative  bodies,  publication  of,  418-420,  457-460. 
PROFANITY, 

in  judicial  proceedings,  publication  of,  449. 

punishment  of,  471-476. 
PROFESSIONAL   COMMUNICATIONS, 

not  to  be  disclosed,  334,  and  n. 
PROFESSIONAL  SERVICES, 

to  influence  legislation  cannot  be  contracted  for,  136,  n. 

law  requiring,  without  compensation,  to  be  strictly  construed,  393,  394. 
(See  Counsel.) 
PROHIBITIONS  ON  THE   STATES, 

in  the  federal  Constitution,  15,  18. 

in  forming  or  amending  constitutions,  33. 
PROHIBITORY  LIQUOR  LAWS, 

constitutionality  of,  582,  583. 
PROPERTY, 

qualification  for  suffrage,  599. 

protection  of,  by  fourteenth  amendment,  11. 

of  municipal  corporations,  control  of,  235. 

(See  Eminent  Domain;   Private  Property;  Vested  Rights.) 
PROROGUEMENT, 

of  the  legislature  by  governor,  132. 
PROSCRIPTION, 

of  persons,  for  their  opinions,  390,  467-470. 
PROSECUTING  OFFICERS, 

duty  of,  to  treat  accused  parties  with  judicial  fairness,  311,  and  n. 
PROTECTION, 

the  equivalent  for  taxation,  559. 
PROVISIONS, 

regulations  to  prevent  sale  of  unwholesome,  595. 
PUBLIC   CORPORATIONS, 

(See  Municipal  Corporations.) 
PUBLIC   DEBT, 

inviolability  of,  11. 
PUBLIC    GOOD, 

laws  should  have  reference  to,  117,  n.,  129. 


808  INDEX. 

• 

PUBLIC   GRANTS, 

strict  construction  of,  394-396. 

(See  Charter;  Franchise.) 
PUBLIC   GROUNDS, 

lands  dedicated  for,  not  to  be  put  to  other  uses,  238,  n. 
PUBLIC  MORALS, 

regulations  for  protection  of,  596. 

(See  Religious  Liberty.) 
PUBLIC   OFFICERS, 

(.See  Officer.) 
PUBLIC  OPINION, 

not  to  affect  construction  of  constitution,  54,  55. 
expression  of,  by  elections,  598. 
.PUBLIC  PURPOSES, 

appropriation  of  property  for,  523. 

(See  Eminent  Domain.) 
PUBLIC   STATUTES, 

what  are,  390. 
PUBLIC  TRIAL, 

accused  parties  entitled  to,  312. 

not  essential  that  everybody  be  allowed  to  attend,  312. 
PUBLIC    USE, 

of  property,  what  constitutes,  531. 

(See  Eminent  Domain.) 
PUBLICATION, 

of  statutes,  156-158. 

of  debates  in  Parliament  formerly  not  suffered,  418. 

of  books,  &c,  censorship  of,  417-419. 

of  debates  in  American  legislative  bodies,  419,  420. 

of  legislative  speeches,  457-460. 

of  notice  to  non-resident  parties,  403,  404. 

(See  Liberty  of  Speech  and  of  the  Press.) 
PUBLISHERS   OF  NEWS, 

not  privileged  in  law,  451-457. 
PUNISHMENTS, 

what  changes  in,  the  legislature  may  make  applicable  to  previous  offences, 

267-272. 
of  crimes  by  servitude,  299. 
cruel  and  unsual,  prohibited,  328-330. 
must  not  exceed  measure  the  law  has  prescribed,  330. 
(See  Bills  of  Attainder;  Crimes;  Ex  Post  Facto  Laws.) 


Q. 

QUALIFICATIONS, 

of  officer  or  voter  under  constitution  cannot  be  added  to  by  legislature,  64. 

of  members  of  legislature  to  be  determined  by  the  two  houses,  133. 

of  voter,  inquiring  into,  on  contested  election,  627. 
QUARANTINE, 

regulations  by  the  States,  584. 


INDEX.  809 

QUARTERING  SOLDIERS, 

in  private  houses  in  time  of  peace  forbidden,  308. 
QUORUM, 

majority  of,  generally  sufficient  for  passage  of  laws,  141. 

of  courts,  must  act  by  majorities,  96. 

full  court  generally  required  on  constitutional  questions,  161,  162. 


R. 

RACE, 

not  to  be  a  disqualification  for  suffrage,  11. 
RAILROADS, 

authorizing  towns,  &c,  to  subscribe  to,  is  not  delegating  legislative  power, 

119. 
whether  such  subscriptions  may  be  made,  213-219. 
appropriations  of  lands  for,  533. 

and  of  materials  for  constructing,  526. 
and  of  lands  for  depot  buildings,  &c,  541. 
corporations  may  take,  537,  538. 

(See  Eminent  Domain.) 
appropriation  of  highways  for,  545-557. 
must  be  legislative  permission,  545. 

whether  adjoining  owner  entitled  to  compensation,  546-557. 
police  regulations  in  respect  to,  573. 

requiring  corporations  to  fence  track  and  pay  for  beasts  killed,  579. 
regulation  of  grade  and  crossings,  580. 
provisions  regarding  alarms,  580. 
responsibility  for  persons  injured  or  killed,  580,  581. 
bridges  for,  over  navigable  waters,  592. 
READING   OF  BILLS, 

constitutional  provisions  for,  80,  139,  140. 
REAL  ESTATE, 

not  to  be  taxed  out  of  taxing  district,  499,  500. 
within  taxing  district  to  be  taxed  uniformly,  502. 
taking  for  public  use, 

(See  Eminent  Domain.) 
REASONABLENESS, 

of  municipal  by-laws,  200. 
of  limitation  laws,  366. 
REBELLIONS, 

employment  of  militia  to  suppress,  11. 
RECITALS, 

in  statutes,  not  binding  upon  third  parties,  96. 
when  they  may  be  evidence,  96. 
RECONSTRUCTION  OF   STATES, 

control  over,  34,  n. 
RECORDS, 

public,  of  the  States,  full  faith  and  credit  to  be  given  to,  15,  16. 
judicial,  not  generally  to  be  contradicted,  407. 

(See  Judicial  Proceedings.) 


810  INDEX. 

REDEMPTION, 

right  of,  cannot  be  shortened, or  extended  by  legislature,  291. 
REFUSAL   TO   PLEAD, 

in  criminal  cases,  consequence  of,  311. 
REGISTRATION, 

of  voters,  may  be  required,  601. 
REGULATION, 

of  commerce  by  Congress,  10,  581-587. 
of  navigable  waters  by  Congress,  591. 
police,  by  the  States, 

(See  Police  Power.) 
of  the  right  of  suffrage,  601,  602. 

right  of,  does  not  imply  a  right  to  prohibit,  202,  203,  n. 
RELIGIOUS   LIBERTY, 

care  taken  by  State  constitutions  to  protect,  467-470. 
distinguished  from  religious  toleration,  467,  and  n. 

does   not  preclude   recognition  of  superintending  Providence  by  public 
authorities,  470,  471. 

nor  appointment  of  chaplains,  thanksgiving  and  fast  days,  471. 
nor  recognition  that  the  prevailing  religion  of  the  State  is  Christian, 
471. 
the  maxim  that  Christianity  is  part  of  the  law  of  the  land,  472-477. 
punishment  of  blasphemy  does  not  invade,  472-474. 

or  of  other  forms  of  profanity,  476. 
Sunday  laws,  how  justified,  476,  477. 
respect  for  religious  scruples,  477,  478. 

religious  belief,  as  affecting  the  competency  or  credibility  of  witnesses, 
478. 
REMEDIAL   STATUTES, 

liberal  construction  of,  61,  n. 
parties  obtaining,  are  bound  by,  96. 
REMEDY, 

power  of  legislature  over,  in  criminal  cases,  267-273. 

in  civil  cases,  287-294,  361-367. 
legislature  cannot  take  away  all  remedy,  289. 
may  give  new  remedies,  361. 
may  limit  resort  to  remedies,  364-367. 
for  compensation  for  property  taken  by  public,  560,  561. 
REMOVAL, 

of  causes  from  State  to  national  courts,  12,  13. 
REPEAL, 

of  old  English  statutes,  25,  n.,  26,  n. 
all  laws  subject  to,  125-127. 
of  statutes  at  same  session  of  passage,  152. 
by  implication,  not  favored,  152. 

of  a  law,  terminates  right  to  give  judgment  under  it,  381. 
of  laws  conflicting  with  unconstitutional  law,  186. 
question  of,  not  to  be  referred  to  the  people,  123. 
REPORTS, 

of  public  meetings,  435. 


INDEX.  811 

REPORTS,  —  continued. 

of  legislative  proceedings,  publication  of,  418-420,  457-460. 

of  judicial  proceedings,  publication  of,  448-451. 

(See  Liberty  of  Speech  and  of  the  Press.) 
REPRIEVE, 

power  of,  not  included  in  power  to  pardon,  116,  n. 
REPUBLICAN   GOVERNMENT, 

guarantee  of,  by  United  States  to  the  States,  17,  33. 

maxims  of,  do  not  constitute  limitations  on  legislative  power,  169,  170. 
REPUBLICATION, 

of  amended  statutes  under  certain  State  constitutions,  151,  152. 
RESERVED  POWERS, 

under  United  States  Constitution  in  the  States  and  people,  19. 
RES  ADJUDICATA, 

parties  and  privies  estopped  by  judgments,  48. 

force  of  judgment  does  not  depend  on  reasons  assigned,  49. 

strangers  not  bound  by,  49. 

parties  and  privies  not  bound  in  new  controversy,  49. 
RESIDENCE, 

gives  jurisdiction  in  divorce  suits,  400,  401. 
but  not  unless  bona  fide,  401. 

as  affecting  right  to  impose  personal  taxes,  499. 

of  voters,  what  constitutes,  599,  600. 
RESTRICTIONS, 

on  trade  by  municipal  by-laws,  202. 

in  United  States  Constitution  on  powers  of  the  States,  15,  16,  18. 

on  power  of  people  to  amend  constitutions,  31,  33. 

on  powers  of  legislature, 

(See  Legislatures  of  the  States.) 
RESUMPTION  OF   GRANTS, 

by  the  States  is  forbidden,  274,  275. 
RETROSPECTIVE  LEGISLATION, 

when  admissible  generally,  93,  369-383. 

cannot  revive  demands  which  are  barred,  369. 

nor  create  a  demand  where  none  ever  equitably  existed,  369. 

may  take  away  defences  based  on  informalities,  370. 

may  cure  irregularities  in  legal  proceedings,  371. 
or  in  corporate  action,  &c,  371,  373. 

what  defects  can  and  what  cannot  be  covered  by,  371. 

may  validate  imperfect  marriages,  372. 

or  other  imperfect  contracts,  374,  376. 
or  invalid  deeds,  376-378. 

may  take  away  defence  of  usury,  375. 

bona  fide  purchasers  not  to  be  affected  by,  378. 

legalizing  municipal  action,  224,  379. 

pendency  of  suit  does  not  affect  power  to  pass,  381. 

cannot  make  good  what  the  legislature  could  not  originally  have  permitted, 
381,  382. 

cannot  cure  defects  of  jurisdiction,  382,  383. 
forbidden  in  some  States,  370,  and  notes. 


812  INDEX. 

RETROSPECTIVE  LEGISLATION,  —  continued. 

statutes  generally  construed  to  operate  prospectively,  370. 

prospective  construction  of  constitution,  62,  63. 
REVENUE, 

in  some  States  bills  for,  to  originate  with  lower  house,  131,  132. 

cannot  be  raised  under  right  of  eminent  domain,  527. 
(See  Taxation.) 
REVISION, 

of  State  constitutions,  30-37. 

of  statutes, 

(See  Statutes.) 
REVOLUTION,   AMERICAN, 

powers  of  the  Crown  and  Parliament  over  Colonies  before,  5,  6. 

Congress  of  the,  its  powers,  6,  7. 

division  of  powers  of  government  at  time  of,  6,  n. 
REWARDS, 

cannot  be  paid  by  towns  for  apprehension  of  offenders,  212,  n. 
RHODE   ISLAND, 

ratification  of  Constitution  by,  8,  9. 

impeachment  of  judges  of,  26,  n.,  160,  n. 

charter  goveimment,  26,  n.,  30,  n. 

privilege  of  members  of  legislature  from  arrest,  134,  n. 

protection  by  law  of  the  land,  352,  n. 

liberty  of  the  press  in,  414,  n. 

periodical  valuation  of  property,  496. 

exclusions  from  suffrage,  599,  n. 
RIGHTS, 

distinguished  from  the  remedy,  285-287. 

vested, 

(See  Vested  Rights.) 

in  action, 

(See  Action.) 
ROADS, 

appropriation  of  private  property  for,  533. 

appropriation  of  materials  for  constructing,  526. 

appropriation  of,  for  railroads,  &c,  515-557. 
(See  Eminent  Domain.) 

regulation  of  use  of,  by  States,  588. 

action  for  exclusion  from,  543,  n. 
RULES  OF   CONSTRUCTION, 

(See  Construction  of  State  Constitutions.) 
RULES   OF  EVIDENCE, 

power  of  the  legislature  to  change,  288,  367-369. 
(See  Evidence.) 
RULES  OF  LEGISLATIVE   ORDER, 

are  under  the  control  of  the  legislature,  130-136. 

(See  Legislatures  of  the  States.) 


INDEX. 


813 


S. 
SABBATH, 

laws  for  observance  of,  476,  596. 
SALE  OF  LANDS, 

of  incompetent  persons,  &c,  special  legislative  authority  for,  97-106. 
propriety  of  judicial  action  in  such  cases,  97. 
SCHOOL-HOUSES, 

exercise  of  right  of  eminent  domain  for  sites  for,  533. 
SCOTLAND, 

servitude  in,  298. 
SEAMEN, 

impressment  of,  299. 
SEARCH-WARRANTS, 

(See  Searches  and  Seizures.) 
SEARCHES   AND   SEIZURES, 

the  maxim  that  every  man's  house  is  his  castle,  22,  299. 
unreasonable  searches  and  seizures  prohibited,  299,  300. 

origin  of  the  prohibition,  300. 
history  of  general  -warrants  in  England,  300,  n. 
general  warrants  in  America,  301,  302. 
search-warrants,  their  arbitrary  character,  303. 

only  granted  after  a  showing  of  cause  on  oath,  304. 
must  specify  place  to  be  searched  and  the  object,  304. 

particularity  of  description  required,  304. 
should  be  served  in  daytime,  305. 
mqst  be  directed  to  proper  officer,  305. 
must  command  accused  party  and  property,  &c,  to  be  brought  before 

officer,  305. 
cannot  give  discretionary  power  to  ministerial  officer,  305. 
not  allowed  t»  obtain  evidence  of  intended  crime,  305. 
cases  in  which  they  are  permissible,  305-307. 

not  to  seize  correspondence,  307,  n. 
for  libels,  illegal  at  common  law,  307,  n. 
officer  following  command  of,  is  protected,  307. 
and  may  break  open  doors,  308. 

SEAS, 

(See  High  Seas.) 
SECRECY, 

inviolability  of,  in  correspondence,  307,  n. 

elector's  privilege  of,  604,  605. 

privilege  of,  as  between  counsel  and  client,  334. 
SEDITION  LAW, 

passage  of,  and  prosecutions  under,  427,  428. 
SELF-ACCUSATION, 

not  to  be  compelled,  313-317. 
SELF-DEFENCE, 

right  to,  308,  n. 
SELF-GOVERNMENT, 

(See  Elections  ;   Municipal  Corporations.) 


814  INDEX. 

SERMONS, 

privilege  of  criticism  of,  441. 
SERVANT, 

control  of,  by  master,  341. 
SERVICES, 

laws  requiring,  without  compensation,  strictly  construed,  393. 

to  influence  legislation  cannot  be  contracted  for,  136,  n. 

of  child,  right  of  father  to,  340. 
SERVITUDE, 

(See  Slavery.) 
SIDEWALKS, 

owners  of  lots  may  be  compelled  to  build  under  police  power,  588. 
SIGNING   OF   BILLS, 

by  officers  of  legislature,  151. 

by  the  governor,  153,  154. 
SLANDER, 

general  rules  of  liability  for,  422-424. 

(-See  Liberty  of  Speech  and  op  the  Press.) 
SLAVERY, 

former  state  of,  in  England,  295. 

causes  of  its  disappearance,  296-298. 

in  Scotland,  298,  299. 

in  America,  299. 

now  prohibited,  11. 

servitude  in  punishment  of  crime,  299. 
SOLDIERS, 

quartering  of,  in  private  houses  prohibited,  308. 

municipal  bounties  to,  219-229. 

military  suffrage  laws,  599. 

jealousy  of  standing  armies,  350. 
SOUTH   CAROLINA, 

title  of  acts  to  express  the  object,  142,  n. 

revenue  bills  to  originate  in  lower  house,  132,  n. 

protection  by  law  of  the  land,  352,  n. 

liberty  of  the  press  in,  417. 

religious  liberty  in,  468,  n. 

exclusions   rom  suffrage,  599,  n. 
SOVEREIGN   POWERS, 

cannot  be  granted  away,  125,  206,  280-284. 
SOVEREIGN   STATE, 

what  it  is,  1. 

American  States  not  strictly  such,  6-9. 
SOVEREIGNTY, 

definition  of,  1, 

territorial  and  other  limits  of,  2. 

in  America,  rests  in  people,  28,  598. 

division  of  powers  of,  in  American  system,  2,  47,  n. 

legislature  not  to  bargain  away,  125-127,  and  n.,  280-284. 

exercise  of,  by  the  people,  598. 

(See  Elections.) 


INDEX. 


815 


SPECIAL  JURISDICTION, 

courts  of,  406. 
SPECIAL   LAWS, 

forbidden  in  certain  States  where  general  can  be  made  applicable,  110, 

111,  n.,  128,  129,  n. 
due  process  of  law  does  not  a'ways  forbid,  389-397. 
for  sale  o    lands,  &c,  97-106. 
SPECIAL  PRIVILEGES, 

strict  construction  of,  389-397. 
SPECIAL   SESSIONS   OF  LEGISLATURE, 

calling  of,  by  the  governor,  132,  155. 
SPEECH,    FREEDOM   OF, 

(See  Liberty  of  Speech  and  op  the  Pkess.) 
SPEECHES, 

of  legislators,  publication  of,  457-460. 
SPEED, 

upon  public  highways,  regulation  of,  588,  589,  594. 
SPEEDY"  TRIAL, 

right  of  accused  parties  to,  311. 
SPIRIT  OF   THE   CONSTITUTION, 

must  be  found  in  the  words  employed,  72,  73. 
laws  in  supposed  violation  of,  171,  172. 
STALLIONS, 

prohibition  of  standing  of,  in  public  places,  596. 
STAMP, 

defence  to  contract  based  on  the  want  of,  may  be  taken  away,  378. 
cannot  be  required  on  process  of  State  courts,  483. 
upon  contracts,  484,  n. 
STAMP  ACT   CONGRESS, 

what  led  to,  5. 
STANDING  ARMIES, 

jealousy  of,  350. 
STANDING  MUTE, 

of  accused  party,  proceeding  in  case  of,  311. 
STAR   CHAMBER, 
court  of,  342. 
STATE, 

definition  of,  1. 
sovereign,  what  js,  1. 
distinguished  from  nation,  1. 
limits  to  jurisdiction  of,  2. 
STATES  OF  THE   UNION, 

in  what  sense  sovereign,  6. 

always  subject  to  a  common  government,  9. 

suits  between,  in  Federal  courts,  11. 

division  of  powers  between,  and  the  nation,  2. 

not  suable  by  individuals,  12. 

powers  prohibited  to,  15,  16,  18. 

faith  to  be  given  to  public  records  of,  16,  17. 

privileges  and  immunities  of  citizens  of,  15,  16,  487. 

agreements  of,  are  inviolable,  275. 

compacts  between,  are  inviolable,  275. 


816  INDEX. 

STATE   CONSTITUTIONS, 

in  existence  when  United  States  Constitution  was  formed,  21. 
pre-existing  laws,  common  and  statutory,  21-25,  26,  n. 
ordinance  of  1787,  25,  n. 
colonial  charters,  26,  27. 
how  modified  when  not  containing  provisions  therefor,  28. 
theory  that  the  people  are  sovereign,  28. 
general  rules  for  modification  of,  30-37. 
right  of  people  of  territories  to  form,  30. 

right  to  amend,  rests  in  people  as  an  organized  body  politic,  31. 
will  of  the  people  must  be  expressed  under  forms  of  law,  31. 
conventions  to  amend  or  revise,  32. 

limitations  by  Constitution  of  the  United  States  on  power  to  amend,  33. 
protection  of  personal  rights  by,  33,  35,  36. 
unjust  provisions,  &c,  must  be  enforced,  34. 
what  is  generally  to  be  expected  in,  34. 
are  not  the  origin  of  individual  rights,  36. 
are  presumed  to  have  been  drafted  with  care,  58. 
are  successors  of  English  charters  of  liberty,  59,  60. 
construction  of,  38. 

(See  Construction  of  State  Constitutions.) 
STATE   COURTS, 

removal  of  causes  from,  to  United  States  courts,  12,  13. 
to  decide  finally  questions  of  State  law,  13,  14. 
protection  to  personal  liberty  by,  294,  n.,  3±5. 
(See  Courts.) 
STATE   INDEBTEDNESS, 

prohibition  of,  will  not  prevent  indebtedness  by  municipal  corporations, 
217-219. 
STATEMENT, 

of  defendant  in  criminal  case,  right  to  make,  and  effect  of,  313-318. 
STATUS, 

of  marriage,  control  of,  by  legislature,  109,  110. 
(See  Divorce.) 
STATUTES, 

directory  and  mandatory,  74-78. 
enactment  of,  130-158. 

constitutional  requirements  must  be  observed,  130,  131. 

common  parliamentary  law  as  affecting,  131. 

the  two  houses  must  act  separately,  131. 

to  proceed  in  their  own  way  in  collecting  information,  135. 

journals  of  houses  as  evidence,  135,  136. 

introduction  of  bills,  137-139. 

three  several  readings  of  bills,  80,  81,  139,  140. 

yeas  and  nays,  entry  of,  140. 

what  sufficient  vote  on  passage,  141. 

title  of  bill,  formerly  no  part  of  it,  141. 

constitutional  provisions  requiring  object  to  be  expressed,  81,  82, 

141. 
these  provisions  mandatory,  150. 


INDEX.  817 

STATUTES,—  continued. 

evil  to  be  remedied  thereby,  142-144. 

particularity  required  in  stating  object,  144. 

"  other  purposes,"  ineffectual  words  in,  145. 

examples  as  to  what  can  be  held  embraced  in,  145,  146. 

effect  if  more  than  one  object  embraced,  147,  148. 

effect  where  act  broader  than  title,  148-150. 
amendatory,  151,  152. 

requirement  that  act  amended  be  set  forth  at  length,  151. 

this  not  applicable  to  amendments  by  implication,  152. 
repeal  of,  at  same  session  of  their  passage,  152. 

by  unconstitutional  act,  186. 
approval  of,  by  the  governor,  153,  154. 
passage  of,  at  special  sessions,  155. 
when  to  take  effect,  155-158. 
publication  of,  157,  158. 
presumed  validity  of,  168,  172-177,  182-186. 
power  of  courts  to  declare  their  unconstitutionality,  159,  169. 

not  to  be  exercised  by  bare  quorum,  161,  162. 

nor  unless  decision  on  the  very  point  necessary,  163. 

nor  on  complaint  of  party  not  interested,  163,  164. 

nor  solely  because  of  unjust  provisions,  164-168. 

nor  because  violating  fundamental  principles,  169,  170. 

nor  because  opposed  to  spirit  of  constitution,  171-177. 

nor  in  any  doubtful  case,  182-186. 
may  be  unconstitutional  in  part,  177-181. 

instances  of,  179-181. 
constitutional  objection  to,  may  be  waived,  181. 
motives  in  passage  of,  not  to  be  inquired  into,  186,  187. 
consequence  when  invalid,  188. 
whether  jury  may  pass  upon,  336,  n. 
retrospective,  369-383. 
construction  of,  to  be  such  as  to  give  effect,  184. 

presumption  against  conflict  with  Constitution,  185,  186. 

to  be  prospective,  370. 

contemporary  and  practical,  67-73. 
ex  post  facto,  264-272. 

(See  Ex  Post  Facto  Laws.) 
violating  obligation  of  contracts,  273-294. 

(See  Obligation  of  Contracts.) 
unequal  and  partial,  389-397. 
of  limitation,  364-367. 

of  Parliament,  how  far  in  force  in  America,  23,  24. 
STATUTORY   PRIVILEGES, 
are  not  vested  rights,  383. 
strict  construction  of,  389-397. 
STAY  LAWS, 

law  taking  from  mortgagees  right  to  possession  invalid  as  to  existing 

mortgages,  290. 
law  extending  time  of  redemption  of  lands  previously  sold  is  void,  291. 

52 


818  INDEX. 

STAY   LAWS,—  continued. 

law  shortening  redemption  void,  291. 

stay  of  execution  on  existing  demands  for  unreasonable  or  indefinite  time 
is  void,  292. 
STOCK  IN   CORPORATIONS, 

municipal  subscriptions  to,  119,  213-219. 

when  liable  for  debts  cannot  be  released  by  legislative  act,  292. 
STREETS, 

power  of  cities,  &c.,  to  change  grade  of,  207. 
special  assessments  for  grading  and  paving,  505-508. 
assessment  of  labor  upon,  512. 
exercise  of  right  of  eminent  domain  for,  533. 
and  for  materials  for  constructing,  526. 
when  owner  of  land  to  receive  compensation,  563,  564. 
appropriation  of,  for  railways,  545-557. 
police  regulations  for  use  of,  588,  589. 
STRICT   CONSTRUCTION, 

of  laws  in  derogation  of  common  law,  61,  n. 
of  charters,  195,  394. 

of  statutes  granting  special  privileges,  389-397. 
of  statutes  requiring  gratuitous  services,  393,  394. 
of  statutes  taking  property  for  public  use,  528,  529. 
SUBJECT   OF   STATUTE, 

required  in  some  States  to  be  stated  in  title,  141-151. 
SUBMITTING   LAWS   TO   POPULAR  VOTE, 

whether  it  is  a  delegation  of  legislative  power,  116-125. 
authorities  generally  do  not  allow,  120. 
corporate  charters,  &c,  may  be  submitted,  118. 
and  questions  of  divisions  of  towns,  &c,  119. 
and  questions  of  local  subscriptions  to  improvements,  119. 
SUBSCRIPTIONS, 

to  internal  improvements  by  municipal  corporations,  119,  213-219. 
submitting  questions  of,  to  corporation  is  not  delegating  legislative  power, 

119. 
power  of  taxation  to  provide  for,  cannot  be  taken  away,  292. 
SUCCESSION   TO  THE    CROWN, 

power  of  Parliament  to  change,  86. 
SUFFRAGE, 

ri^ht  of,  in  forming  new  constitutions,  28,  30,  34. 

restrictions  upon,  to  be  construed  strictly,  394. 

constitutional  qualifications  for,  not  to  be  added  to  by  legislature,  64. 

who  to  exercise  generally,  599. 

regulation  of  right  of,  601,  602. 

(See  Elections.) 
SUIT, 

notification  of,  by  publication,  403,  404. 
(See  Action.) 
SUMPTUARY  LAWS, 

odious  character  of,  385. 


INDEX.  819 

SUNDAY, 

laws  to  prevent  desecration  of,  how  defended,  476,  477. 

police  regulations  regarding,  596. 
SUPPORT, 

of  children,  liability  of  father  for,  340. 

lateral,  of  lands,  right  to,  543,  n. 
SUPREMACY  OF  PARLIAMENT, 

extent  of,  3,  4,  86-88,  259. 
SUPREME  LAW, 

Constitution,  laws,  and  treaties  of  United  States  to  be,  12. 

of  a  State,  constitution  to  be,  2,  3. 
SURRENDER, 

of  fugitives  from  justice,  15,  n. 
SUSPENSION  OF  LAWS, 

when  authorized  must  be  general,  391. 

•  for  limitation  of  actions,  365,  n. 
SWAMPS, 

drains  for,  533. 

special  assessments  for  draining,  510,  511. 


T. 

TAKING  OF  PROPERTY, 

of  individuals  for  public  use,  509,  n.,  524. 

(See  Eminent  Domain  ;  Taxation.) 
TAX  LAWS, 

directory  and  mandatory  provisions  in,  75.  76. 
(See  Taxation.) 
TAX  SALES, 

curing  defective  proceedings  in,  by  retrospective  legislation,  382,  383. 

what  defects  should  avoid,  521. 

deeds  given  upon,  may  be  made  evidence  of  title,  367. 

conditions  to  redemption  from,  369,  n. 

(See  Taxation.) 
TAXATION, 

and  representation  to  go  together,  24,  and  n.,  59,  n.,  117,  n.,  169. 

right  of,  compared  with  eminent  domain,  559. 

exemptions  from,  by  the  States,  when  not  repealable,  127,  280. 

can  only  be  for  public  purposes,  129,  175,  487-495. 

must  be  by  consent  of  the  people,  117,  n. 

license  fees  distinguished  from,  201,  586,  587. 

by  municipalities,  power  of  legislature  over,  118,  n.,  230-235. 

reassessment  of  irregular,  may  be  authorized,  209. 

irregular  may  be  confirmed  by  legislature,  379,  n  ,  382. 

necessary  to  the  existence  of  government,  479. 

unlimited  nature  of  power  of,  479-485. 

of  agencies  of  national  government  by  the  States  impliedly  forbidden, 
480-483. 


820  INDEX. 

TAXATION,  —continued. 

of  agencies  of  the  States  by  the  national  government  also  forbidden, 
483. 

of  the  subjects  of  commerce  by  the  States,  485,  486,  586. 

discriminations  in,  as  between  citizens  of  different  States,  487. 

legislature  the  proper  authority  to  determine  upon,  488-495. 

apportionment  essential  to,  495. 

taxing  districts,  necessity  of,  495,  499. 

apportionment  not  always  by  values,  496,  501. 

license  fees  and  other  special  taxes,  496. 

assessments  for  local  improvements,  497. 

benefits  from  the  improvement  may  be  taken  into  the  account,  497, 
505,  511. 

general  provisions  requiring   taxation  by  value  do  not  apply  to  these 
assessments,  498. 

taxation  of  persons  or  property  out  of  the  district  is  void,  499,  500-504, 
516. 

must  be  uniform  throughout  the  district,  502. 

local  assessments  may  be  made  in  proportion  to  frontage,  507. 
necessity  for  apportionment  in  such  case,  508. 

special  taxing  districts  fo*r  drains,  levees,  &c,  509,  510. 

taxation  in  labor  for  repair  of  roads,  &c,  512. 

difficulty  in  making  taxation  always  equal,  513. 

hardships  of  individual  cases  do  not  make  it  void,  513. 

legislature  must  select  the  objects  of  taxation,  514. 

exemptions  of  property  from,  514,  515. 

constitutional  provisions  which  preclude  exemptions,  515,  516. 

special  exemptions  void,  515,  n.,  516. 

legislative  authority  must  be  shown  for  each  particular  tax,  517-520. 

excessive  taxation,  520. 

the  maxim  de  minimis  lex  non  curat  not  applicable  in  tax  proceedings, 
521. 

what  defects  and  irregularities  render  tax  sales  void,  521,  and  n. 
TEACHER  AND  SCHOLAR, 

control  of  former  over  latter,  341. 
TECHNICAL  RULES  OF  CONSTRUCTION, 

danger  of  resorting  to,  61,  n.,  83,  84,  and  n. 
TELEGRAPHIC    CORRESPONDENCE, 

right  to  secrecy  in,  307,  n. 
TEMPERANCE  LAWS, 

right  of  the  States  to  pass,  581-583. 
TENNESSEE, 

legislature  of,  not  to  grant  divorces,  110,  n. 

title  of  acts  to  express  the  object,  141,  n. 

republication  of  amended  statutes,  151,  n. 

when  acts  to  take  effect,  156,  n. 

retrospective  laws  in,  371,  n. 

protection  by  the  law  of  the  land,  353,  n. 

freedom  of  speech  and  of  the  press  in,  415,  n. 

exclusion  of  religious  teachers  from  office,  468,  n. 


INDEX. 


821 


TENNESSEE,  —  continued. 

religious  tests  in,  468,  n.,  469,  n. 

persons  conscientiously  opposed  to  bearing  arms  excused,  478,  n. 
TERRITORIAL  LIMITATION, 

to  the  powers  of  sovereignty,  2. 

to  the  exercise  of  power  by  the  States,  127,  128. 

to  municipal  authority,  213. 

to  power  of  taxation,  499,  500-504,  516. 
TERRITORIES, 

power  of  eminent  domain  in,  525. 

legislation  for,  25,  n. 

formation  of  constitutions  by  people  of,  30,  31. 
TEST   OATHS, 

when  may  constitute  a  punishment,  263,  264. 

forbidden  in  some  States,  469,  n. 
TEXAS, 

admission  of,  to  the  Union,  9. 

legislature  of,  not  to  grant  divorces,  110,  n. 

legislative  rules  for  regulation  of  pardons,  116,  n. 

title  of  acts  to  express  the  object,  142,  n. 

republication  of  amendatory  statutes,  151,  n. 

liberty  of  speech  and  the  press  in,  353,  n. 

exclusion  of  religious  teachers  from  office,  468,  n. 

religious  tests  forbidden  in,  468,  n. 

persons  conscientiously  opposed  to  bearing  arms  excused,  478,  n. 
THIRTEENTH  AMENDMENT, 

provisions  of,  11,  294. 
TIME, 

loss  of  remedy  by  lapse  of,  364-367. 

and  place  are  of  the  essence  of  election  laws,  602,  603. 
TITLE   TO   LEGISLATIVE   ACT, 

requirement  that  it  shall  state  subject,  &c,  is  mandatory,  81-83,  141-150. 
TITLES   OF  NOBILITY, 

States  not  to  grant,  17,  33. 
TOLERATION, 

as  distinguished  from  religious  liberty,  467,  468. 
TOWNSHIPS, 

importance  of,  in  the  American  system,  190,  n. 

origin  of,  189,  and  n. 

distinguished  from  chartered  corporations,  240. 

collection  from  corporators  of  judgments  against,  241-247. 
not  liable  for  neglect  of  duty  by  officers,  247. 

apportionment  of  debts,  &c,  on  division,  237,  290. 

indemnification  of  officers  of,  209,  212. 

(See  Municipal  Corporations.) 
TRADE, 

by-laws  in  general  restraint  of,  202. 
TRAVEL, 

obstructions  to,  on  navigable  waters,  592,  593. 

regulating  speed  of,  588,  594. 


822  INDEX. 

TRAVERSE  JURY, 

trial  of  accused  parties  by,  319-32S. 

(See  Crimes.) 
TREASON, 

evidence  required  to  convict  of,  314,  and  a. 
TREATIES, 

of  the  United  States,  to  be  the  supreme  law,  12. 

States  forbidden  to  enter  into,  15. 
TREATING  VOTERS, 

laws  against,  614. 
TRIAL, 

of  right  to  property,  369,  and  n. 

new,  not  to  be  granted  by  legislature,  95.  392. 

of  accused  parties  to  be  by  jury,  309.   ' 
must  be  speedy,  311. 
must  be  public,  312. 

(See  Crimes;  Jury  Trial.) 
TRUST, 

the  legislative  not  to  be  delegated,  116,  20'.-. 
TRUSTEES, 

special  statutes  authorizing  sales  by,  constitutional,  97-106. 

rights  of  cestuis  que  trust  not  to  be  determined  by  legislature,  105. 

municipal  corporations  as,  192. 
TRUTH, 

as  a  defence  in  libel  cases,  424,  438,  464. 

necessity  of  showing  good  motives  for  publication  of,  464. 
TURNPIKES, 

exercise  of  eminent  domain  for,  533. 

appropriation  of  highways  for,  545. 

change  of,  to  common  highways,  546,  n. 
TWICE   IN  JEOPARDY, 

punishment  of  same  act  under  State  and  national  law,  18. 
under  State  law  and  municipal  by-law,  198,  199. 
(See  Jeopardy.) 
TWO-THIRDS   OF  HOUSE, 

what  constitutes,  141. 


u. 

ULTRA    VIRES, 

contracts  of  municipal  corporations  which  are,  196,  211,  212,  215,  n. 
UNANIMITY, 

required  in  jury  trials,  320. 
UNCONSTITUTIONAL  LAW, 

definition  of  the  term,  3,  4. 

first  declaration  of,  160,  n. 

power  of  the  courts  to  annul,  159. 

whether  jury  may  pass  upon,  336,  n. 

(See  Courts  ;  Statutes.) 


INDEX.  823 

UNEQUAL   AND   PARTIAL   LEGISLATION, 

special  laws  of  a  remedial  nature,  389. 

local  laws,  or  laws  applying  to  particular  classes,  390-393. 

proscription  of  parties  for  opinions,  390. 

suspensions  of  the  laws  must  be  general,  391,  392. 

distinctions  must  be  based  upon  reason,  393. 

equality  the  aim  of  the  law,  393. 

strict  construction  of  special  burdens  and  privileges,  393-396. 

discrimination  against  citizens  of  other  States,  15,  397. 
UNIFORMITY, 

in  construction  of  constitutions,  54. 

in  taxation,  495,  499. 

(See  Taxation.) 
UNION, 

of  the  Colonies  before  the  Revolution,  5. 
UNITED   STATES, 

division  of  powers  between  the  States  and  Union,  2. 

origin  of  its  government,  5. 

Revolutionary  Congress,  and  its  powers,  6,  7. 

Articles  of  Confederation  and  their  failure,  6-8. 

formation  of  Constitution  of,  8. 

government  of,  one  of  enumerated  powers,  9,  10,  173. 

general  powers  of,  10-12. 

its  laws  and  treaties  the  supreme  law,  12. 

judicial  powers  of,  12,  19. 

removal  of  causes  from  State  courts  to  courts  of,  12,  13. 

prohibition  upon  exercise  of  powers  by  the  States,  15,  16. 

guaranty  of  republican  government  to  the  States,  17. 

implied  prohibition  of  powers  to  the  States,  18. 

reservation  of  powers  to  States  and  people,  19. 

consent  of,  to  formation  of  State  constitutions,  30,  31. 
(See  Congress  ;  Constitution  of  United  States  ;  Courts  of  United 
States  ;  President.) 
UNJUST  PROVISIONS, 

in  constitutions,  must  be  enforced,  72. 

in  statutes,  do  not  necessarily  avoid  them,  164-168. 
(See  Partial  Legislation.) 
UNLAWFUL   CONTRACTS, 

(See  Illegal  Contracts.) 
UNMUZZLED   DOGS, 

restraining  from  running  at  large,  595. 
UNREASONABLE   BAIL, 

not  to  be  required,  310. 
UNREASONABLE   BY-LAWS, 

are  void,  200. 
UNREASONABLE   SEARCHES   AND   SEIZURES, 
(See  Searches  and  Seizures.) 
UNWHOLSOME  PROVISIONS, 

prohibiting  sale  of,  595. 


824  INDEX. 

USAGE  AND  CUSTOM, 

(See  Common  Law.) 
USURY, 

right  to  defence  of,  may  be  taken  away  by  legislature  retrospectively,  375, 
376. 


V. 

VALIDATING  IMPERFECT  CONTRACTS, 

by  retrospective  legislation,  293,  371-381. 

(See  Retrospective  Legislation.) 
VALUATION, 

of  property  for  taxation,  496. 

(See  Taxation.) 
of  land  taken  for  public  use, 

(See  Eminent  Domain.) 
VERDICT, 

jury  not  to  be  controlled  by  judge  in  giving,  320. 
judge  cannot  refuse  to  receive,  320. 
jury  may  return  special,  321. 

but  cannot  be  compelled  to  do  so,  321. 
general,  covers  both  the  law  and  the  facts,  321,  323. 
in  favor  of  defendant  in  criminal  case,  cannot  be  set  aside,  321,  322,  326'. 
against  accused,  may  be  set  aside,  323. 
in  libel  cases,  to  cover  law  and  fact,  322,  460. 
to  be  a  bar  to  new  prosecution,  326. 

when  defendant  not  to  be  deprived  of,  by  nolle  prosequi,  327. 
not  a  bar  if  court  had  no  jurisdiction,  327. 
or  if  indictment  fatally  defective,  327. 
when  jury  may  be  discharged  without,  327. 
set  aside  on  defendant's  motion,  may  be  new  trial,  327,  328. 
on  some  of  the  counts,  is  bar  to  new  trial  thereon,  328. 
cannot  be  received  from  less  than  twelve  jurors,  319. 
VERMONT, 

revenue  bills  to  originate  in  lower  house,  142,  n. 
liberty  of  speech  and  the  press  in,  414,  n. 
persons  conscientiously  opposed  to  bearing  arms  excused,  478. 
betterment  law  of,  386. 
VESTED  RIGHTS, 

not  conferred  by  charters  of  municipal  incorporation,  192,  193. 
grants  of  property  to  corporations  not  revocable,  236-239,  275. 
under  the  marriage  relation,  cannot  be  taken  away,  284,  285. 
not  to  be  disturbed  except  by  due  process  of  law,  175,  and  n.,  202,  n., 

357. 
meaning  of  the  term,  358,  370,  378. 
subjection  of,  to  general  laws,  358. 
interests  in  expectancy  are  not,  359,  361. 
rights  under  the  marriage  relation,  when  are,  360,  361. 


INDEX.  825 

VESTED  RIGHTS,  —  continued. 

in  legal  remedies,  parties  do  not  have,  361,  362. 
exceptions,  290-292. 

statutory  privileges  are  not,  383. 

in  rights  of  action,  362. 

forfeitures  of,  must  be  judicially  declared,  363,  364. 

time  for  enforcing,  may  be  limited,  364-367,  369. 

do  not  exist  in  rules  of  evidence,  369. 

rights  to  take  advantage  of  informalities  are  not,  370-378. 
or  of  defence  of  usury,  375. 
VILLAGES  AND   CITIES, 

(See  Municipal  Corporations.) 
VILLEINAGE, 

in  England,  295-298. 
VINDICTIVE  DAMAGES, 

when  publisher  of  newspaper  not  liable  to,  457. 
VIOLATING  OBLIGATION  OF   CONTRACTS, 

{See  Obligation  of  Contracts.) 
VIRGINIA, 

special  statutes  licensing  sale  of  lands  forbidden,  98. 

special  laws  for  divorce  cases,  &c,  forbidden,  110,  n. 

legislative  regulation  as  to  pardons,  116,  n. 

revenue  bills  in,  131,  n. 

republication  of  amendatory  statutes,  151,  n. 

liberty  of  speech  and  the  press  in,  417. 

religious  liberty  in,  468. 
VOID   CONTRACTS, 

(See  Contracts.) 
VOID  STATUTES, 

(See  Statutes.) 
VOLUNTEERS, 

in  military  service,  municipal  bounties  to,  219-229. 
VOTERS, 

franchise  of,  cannot  be  made  to  depend  on  impossible  condition,  363,  n. 

constitutional  qualifications  of,  cannot  be  added  to  by  legislature,  64,  n. 

privilege  of  secrecy  of,  605. 

whether  qualifications  of,  can  be  inquired  into  in  contesting  election,  627. 
(See  Elections.) 


W. 

WAGERS, 

upon  elections,  are  illegal,  615. 
WAIVER, 

of  constitutional  objection,  181,  182. 

of  irregularities  in  judicial  proceedings,  409. 

of  objection  to  interested  judge,  413. 

of  right  to  full  panel  of  jurors,  319. 

of  right  to  compensation  for  property  taken  by  public,  561. 


826  INDEX. 

WAIVER,  —  continued. 

in  capital  cases,  319,  n. 

of  elector's  right  to  secrecy,  606. 
WAR  AND   PEACE, 

power  of  Revolutionary  Congress  over,  6. 

control  of  questions  concerning,  by  Congress,  10. 
WARD, 

control  of  guardian  over,  341. 

special  statutes  for  sale  of  lands  of,  97-106. 
WARRANTS, 

general,  their  illegality,  300-302. 

service  of,  in  criminal  cases,  303. 

search-warrants,  303. 

(See  Unreasonable  Searches  and  Seizures.) 
WATER  RIGHTS, 

right  to  front  on  navigable  water  is  property,  544. 

right  of  the  States  to  establish  wharf  lines,  595. 

right  to  use  of,  in  running  stream,  557. 

appropriation  of  streams  under  right  of  eminent  domain,  526,  533. 
(See  Navigable  Waters;  Water-Courses.) 
WATER-COURSES, 

navigable,  and  rights  therein,  589-594. 

dams  across,  for  manufacturing  purposes,  534-536,  594,  595. 

bridges  over,  under  State  authority,  592,  593. 

licensing  ferries  across,  593. 

construction  of  levees  upon,  533. 

flooding  premises  by,  the  liability  for,  544. 

incidental  injury  by  improvement  of,  gives  no  right  of  action,  592,  n. 
(See  Navigable  Waters;  Water  Rights.) 
WAYS, 

(See  Highways  ;  Private  Roads  ;  Roads  ;  Streets.) 
WEIGHTS   AND   MEASURES, 

Congress  may  fix  standard  of,  10. 

regulation  of,  by  the  States,  596. 
WEST  VIRGINIA, 

legislature  of,  not  to  grant  divorces,  111,  n. 

special  laws  for  sale  of  lands  of  minors,  &c,  forbidden,  97,  n. 

protection  of  property  by  law  of  the  land,  352,  n. 

liberty  of  speech  and  of  the  press  in,  415,  n. 

who  excluded  from  suffrage,  599,  n. 
WHARFAGE, 

right  to,  is  property,  544. 

States  may  establish  wharf  lines,  595. 
WIDOW, 

(See  Dower.) 
WIFE, 

(-See  Divorce;  Dower;  Married  Women.) 
WILL, 

imperfect,  cannot  be  validated  after  title  passed,  93,  n. 


INDEX.  827 

WISCONSIN, 

special  statutes  for  sale  of  lands  of  minors,  &e.,  forbidden,  97,  n. 

legislature  of,  not  to  grant  divorces,  110,  n. 

privileges  of  members,  134,  n. 

when  statutes  to  take  effect,  157. 

title  of  private  and  local  acts  to  express  the  subject,  142,  n. 

republication  of  amended  statutes,  151,  n. 

liberty  of  speech  and  the  press  in,  416,  n. 

religious  tests  forbidden  in,  469,  n. 

want  of  religious   belief  in  witness  does  not  render  him  incompetent, 

478,  n. 
contested  election  of  governor  in,  624,  n. 
WITNESSES, 

power  to  summon  and  examine  before  legislative  committees,  135. 
accused  parties  to  be  confronted  with,  318. 

not  compellable  to  be  against  themselves,  317,  394. 
evidence  by,  in  their  own  favor,  317,  n. 
not  liable  to  civil  action  for  false  testimony,  441. 
unless  the  testimony  was  irrelevant,  441,  n. 
competency  and  credibility  of,   as   depending  on  religious   belief,  478, 

and  n. 
testimony  of  wife  on  behalf  of  husband,  317,  318,  n. 
WORKS   OF  ART, 

liberty  of  criticism  of,  457. 
WRITS  OF  ASSISTANCE, 

unconstitutional  character  of,  301,  302,  n. 
WRITS   OF   HABEAS   CORPUS, 

(See  Habeas  Corpus.) 


Y. 

YEAS  AND    NAYS, 

in  some  States,  on  passage  of  laws  to  be  entered  on  journals,  140. 


Cambridge:   Press  of  John  Wilson  «ic  Son. 


n/' 


Tbisb0°tlVen"om  the  Builds 


3E 

1 
I