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A. TIIEA.TISE

OS THE

RULES WHICH GOYERN

INTERPEETATM MD, APPLICATION

STATUTOEY

AND.

CONSTITUTIONAL LAW

THEODORE SEDGWICK,

AUTHOB OF A TBEATISE ON THE MEASURE OF DAMAGES.

" Maximum interpretattonia juridicce mysteriwm"

Heineco. de Orig. Test. Fact et Ex. XII. § ix.

NEW'TOEK:
JOHN S. VOOKHIBS, LAW BOOKSELLER AND PUBLISHER,

No. 20 NASSAU STREET.
1857.

Entered according to A.at of Congress, in tlie year 18S7, by

. THEODcJeE SEDGWICK, .

In the Clerk's Office of tlie District Conrt of the United States for the Sonthem District of

New York.

BAKEE & GODWIH, Peihtbes,
1 Spruce Street, N. T.

MEMORY OF MY WIFE

THIS VOLUME

DEDICATED.

PREFACE.

A VEET slight glance at the field of jurisprudence
is sufficient to convince us of the extent to which
written law is making inroads upon the field of un-
written, customary, or common law.

One branch after another of the great topics of
our science, become subjects of legislation. Statutes,
codes, and constitutions succeed each other, and in
our time, with greatly-increased rapidity, threaten
finally to absorb every topic of jurisprudence.

This process commenced long since, and is now
going on, on the continent of Europe, in England,
and this counti;y, with equal certainty if not with
equal rapidity. Here particularly, in the absence of
the State machinery and the social and religious
organizations of the old world, the very essence of
our system may be said to be the government of
Written Law.

VI • PREFACE.

This volume then, is an attempt to state the rules
which control the interpretation and application of
written law. as it exists in the shape of Statutes and
Constitutions ; and if it succeed at all in giving more
certainty and, facility to the administration of this
portion of the great science of justice, my object
will have been attained.

It is my duty to refer to those who have pre-
ceded me in this path. There are various works
on the subject of constitutional law, among whicb
the most prominent is that of Mr. Justice Story,
confined, however, to the Constitution of the United
States. Mr. Smith's treatise, one of much labor and
research, treats of statutory and constitutional law
generally, and is the only one we have which can
be properly said to treat of the same subjects as this
volume. The well-known work of Sir Fortunatus
Dwarris, in the second edition of which, he has been
assisted' by Mr. Amyot, is confined to Statutes. It is a
work of great soundness as well as of great original-
ity of thought ; and my frequent references stow at
once the extent 6f my obligations to it, and my
profound sense gf its ability and value.

In taking leave of a task which has beguiled many
hours of their weariness — which has furnished a par-
, tial solace for the sadness of many others, it behooves
me to say that no one can be more aware than myself
of the many imperfections of this volume: just in
proportion to my conviction of the importance and

PREFACE. YU

magnitude of the subject'is my sense of the deficien-
cies in my treatment of it.

It is proper to add that I have intended carefully
to avoid the discussion of topics of a political nature,
or the expression of opinions having, directly or
indirectly, any political bearing. To the best of niy
ability I have made the treatise qne purely of a legal
character.

I submit the work to the judgment of the learned
and able body of men to whose studies it chiefly
appertains, — who are most able to discern and detect
its errors and defects, and who at the same time
will most readily recognize i any claim of merit or
utility that it may possess.

CONTENTS.

CHAPTER I.

PLAN OF THE WOBK.

Tte sources of Municipal or Civil Law usually two-fold: Usage, or
Common Law ; and Statute Law — In America a third silperadded :
Constitutional Law — ^The two last written ; of these, the Interpre-
tation and Construotioii belong to the Judiciary — ^The object of this
Tolume, to define the limits of legislative and judicial power ; and
to give the rules which govern the ajfplication^of Constitutional
and Statute, in other words, of written Law, ..... 1

•
CHAPTER IL

GENERAL OLASSIPIOATTON AND DIVISION OF STATniKS.

Division of Statutes — In England divided into ancient and modem —
Division in the United States — Public and Private Acts — Declara-
tory and Innovating Statutes — Affirmative and Negative Statutes
— Remedial Statutes — Penal Statutes — Repealing Statutes, . . 26

CHAPTER m.

THE PARTS OF STATUTES.

Blaokstone's Enumeration of the Parts of a Statute : Practical' Division —
Title — Commencement — Preamble^ — Purview — Clauses — Provisos^ —
Exceptions — Schedules 49

CHAPTER IV.

THE ATTEIBUTES AND INCIDENTS OF STATUTES.

Application for the passage of Statutes — Contracts to obtain the passage
of Statutes, or to withdraw opposition — Authority and Jurisdiction
of Statutes — ^Time when Statutes take effect — Effect of Statute^ to
avoid contracts in violation of them — Remedies for the violation of
Statutes — Statutory Forfeitures — Ignorance of Statute no excuse —
Limitations of actions— "Waiver of Statutes by consent — Pleading *
and Proof of Statutes — Repeal, 65

X CONTENTS.

CHAPTEE V.

OF THE B0TJNDAEIE8 OF LKOISLATIVE AND JTJDIOIAL POWEE.

Division of Legislative and Judicial functions in England — Bills of
Attainder — Division in this country — Disputed power of judiciary,
independently of interpretation and constitutional limitation —
What is a Law! — Power of the State Legislatures examineS — Ret-
rospective Laws — Result of the examination — Judicial power of con-
struing douhtful provisions of written law — History of its exercise
in England — In France — Present condition of the law on the subject
— Power of the judiciary to enforce constitutional restrictions, . 142

CHAPTER VL

GENKBAL BULE3 FOE THE CONSTRUOTION OF STATUTES.

General rules for the construction and interpretation of statutes —
Necessity for construction and interpretation growing out of the
ambiguity of language, and other causes — Various rules given by
standard writers —•Vattel's rules — Domat's rules — Rutherforth'a
rules — Mackeldey's — Lieber's — Rules of our law — Intention of the
legislature, to goverlS — Mode of arriving at the legislative intention
— Lord Coke's rules — Blackstone's rules-r-Statutes ip pari materia —
Contemporaneous exposition — Legislative exposition — Judicial con-
struction— Usage — Language used in statutes — ^Technical terms —
Liberal and strict construction, ....'.. 226

CHAPTER VIL

OF STEIOT CONSTRUOTION, AND OF LIBERAL OR EQUITABLE CONSTRUCTION.

The line separating judicial construction from judicial legislation — Strict
construction, and liberal or equitable oonstrnction-r-Statutes when
strictly construed — Statutes conflicting with u constitution, or
fundamental law — Statutes prescribing forms of procedure, modes

of proof and of practice — Statutes of frauds — Statutes of wills

Statutes of limitations — Statutes in derogation of the Common Law
— Penal Statutes— Revenue laws — Usury laws — Statutes granting
franchises and corporate powers — Statutes granting exemptions
from general burthens — Statutes^authorizing summary judicial pro-
ceedings— Statutes authorizing summary administrative proceed-
ings—Statutes' of explanation — The stamp acts— Statutes giving

costs — Statutes when to be liberally or equitably construed

Remedial statutes— Equity of a statute — When statutes treated as
directory merely— General Rules, 291

CONTENTS. XI

CHAPTEE Tin.

THE CONSTEnonON AND APPUOATIOfT OF 8TATCTKS IN PAETIODLAE OASES.

Statutes delegating public authority — Revenue laws — Penal laws — ^Laws
as affecting the rights of the government — Effect of statutes on con-
tracts in violation of them — Cumulative remedies and penalties —
Eetroaotive effect of laws — Waiver — Rule that the last statute in
point of timfr prevails — Computation of time in statutes — Subject-
matter — General words- — Misdescription and surplusage — Remote-
ness of effect — Statutes against wagers — Corporations — ^The inter-
pretation and proof of foreign laws — Revision of statutes — State
laws, how construed in the courts of the United States-^-Interprcta-
tion of particular words — ^Miscellaneous cases — Grants or Patents, 384

CHAPTER IX.

OF THE INTEBPKETATION AND AFPLIOATIpN OF TREATIES, OF FATENI3 OE GEANT3 OF
LAND, AND OF MUNICIPAL OEDINANCES.

Treaties — ^Part of the Supreme Law of the Union — How far they affect
State Legislation — How far they may have a retrospective effect —
Patents or Grants of Land — ^Resumption of, in early times — Rules
of construction applicable to Municipal Ordinances — Centralization
and Local Sovereignty — Instance of the former in Rome and
France — ^Development and application of the latter in America.
Towns and Cities — Delegation of Legislative Sovereignty — Mode
of the exercise of the delegated authority-^ — Cases — General autho-
rity of the Courts — Contracts in violation of Ordinances void —

: of Ordinances, HI

CHAPTER X

LIMrrATIONS IMPOSED CPON LEGISLATIVE POWER BY THE CONSTITUTIONS OF THE
SEVERAL STATES OF THE UNION.

The g;eneral character of constitutional provisions regarded as limitations
upon legislative power — Principal rest^'ictions imposed by the State
constitutions — Guarantee of private property — ^Trial by jury —
Protection of Law — Sparches and seizures — ^Taxation — Police regu-
lations— ^Titles of bills — ^Amendments — Repeal — Constitutional ma-
jorities— ^Religious tests — ^Religious societies — Creation of judges —
Incorporations — ^Trust funds — ^Divorces — Suits against the State, . 4f 6

XU CONTENTS.

CHAPTER XL

LIMITATIONS IMPOSED UPON LEGISLATIVE POWKK BY THE CONSTITUTION OF THE
UNITED STATES.

Clauses of the Federal Constitution ■which operate as checks on legisla-
tive action — General nature of the Legislative Power of the Union
— General Principles of Constitutional Construction or Interpreta-
tion—Interpretation and application of Particular Clauses — Habeas
Corpus — Bills of Attainder — Ex-post-facto Laws — ^Fugitives from
Justice — ^Fugitives from Labor — Beligious Freedom — ^Freedom of
Speech and of the Press — Search-warrants and Seizures — Only
one Trial for Offenses — Due Process of Law — Compensation for
Private Property taken for Public Purposes — ^Trial by Jury —
Excessive Bail and Cruel Punishments — ^The Obligation of. Con-
tracts— ^Vested Sights — Conclusion, S82

TABLE OF CASES CITED.

The figure is the last colnmn refers to the page of this book.

Abbott m. Yost,
Adams iis. Hamell,

Adams vs. Bancroft,

Adams-«», Howe,

Adams us. Woods,

Adm'x of Tracy vs. Adm'r of Card,

Agar vs. Regent's Canal Co.,

Agnew vs. Piatt,

Agent of State Prison vs. Lathrop,

Albany, Northern Railroad Com-
pany vs. Lansing,

Alderman Backwell's Case,

Alexander vs. The State,

AUen vs. Mille,

Almy vs. Harris,

American Home Missionary Society
vs. Wadhams,

American Fm: Company vs. The
United States,

Andrews vs. Wheeton,

Andrews vs. N. Y. Bible and Pray-
er Book Society,

Andrews vs. Montgomery,

Andover and Medford Turnpike
Corporation vs. Gould,

Aulanier vs. The .Governor,

Anon,

Armstrong vs. Jackson,

Armstrong vs. Toler,

Armstrong vs. The United States,

2 Denio, 86,

386.

2 Doug., Mich. R.,

15.

85.

3 Sumner, 386, 387,

335.

14 Mass., 341,

564.

2 Cranch, 386,

56.

2 Ohio State Kep.,

•'

N. S., 431,

361.

Cooper's Chancery

Cases, 77,

466.

15 Pick., 417,

642.

1 Michigan, 438,

385.

16 Barb., 68,

520.

1 Vem., 152,

438.

12 Texas, 540,

441.

17 Wend., 202,

321.

5 John. E., 175,

39, 93, 404

10 Barb., 597,

220.

2 Peters, 3S8,

327.

23 Conn., 142,

422.

4 Sandf, 166,

18.

19 J. R., 162,

600.

6 Mass., 40,

403.

1 Texas, 653,

558.

2 Hill, 376,

420.

1 Blackf., 375,

546.

11 Wheat., 258,

85.

1 Peters, C. C. U.

S., 46.

91.

XIV

TABLE OF CASES CITED.

Annstrong vs. Treasurer of Athens

County, 16 Peters, 281.

Armington et al. vs. The Towns of

Bamet, Ryegate, et al., 15 Verm., 745,

Armstrong *s. Garrow,
Arnold vs. The United States,
Arnold vs. Tallmadge,
Arrowsmith vs. Burlingim,
Atcheson vs. Everitt,
Atkinson vs. Fell,

6 Oowen, 465,
9 Cranch, 104,

19 Wend., 527,
4 M'Lean R., 498,
Cowp., 382, 891,
6 Maule & S., 240.

241,

20 Wend., 241,
2 Price, 381,

Atkins vs. Kinnan,
Attorney General vs. Pougett,
Attorney General ex r«Z.M'Kay w.

Detroit and Erie Plank Road Co., 2 Michigan, 138,
Attorney General vs. Newman, 1 Price, 438,
Attorney General vs. Governor and

Co'y of Chelsea Water Works, Fitzgibbons, 195,
Attorney General vs. Mayor of Dub-
lin, 9 Bligh, 895,
Attorney General vs. Corporation

of Poole, 4M. &C., 17.

Attorney General vs. Panter, 6 Bro., P. C, 486,

Attorney General vs. Chelsea Wa-
ter Works Company, Pitzgibbon, 195,
Attorney General vs. Lock, 3 Atk., 164,
Attorney General vs. Aspinwall, 2 M. & C, 613,
Atwater vs. Woodbridge, 6 Conn., 228,
Aubert vs. Maz», 2 B. & P., 371,
Austin vs. Stevens, 24 Maine R., 520,
Avery et al. vs. Pixley, 4 Mass., 460,
Ayres vs. The Methodist Episcopal

Church, 3 Sandf, 351,

512, 655.

482.
111.
418.
118.
539.
360.

801.
348.
84.

238.
128. •

129.

466.

466.
81.

62.

440.

466.

559.

85.

197, 681.

421.

18.

Babbitt vs. Doe,

Babcock vs. Lamb,

Backus vs. Lebanon,

Bacon vs. Bacoi;i,

Bagnell et al. vs. Broderick,

Bailey vs. Mogg,

Bailey vs. The Mayor, &c., of N. Y,

Baker vs. The City of Boston,

Baker vs. Braman,

Baker vs. Johnson,

Barker vs. The People,

Barker vs. The City of Pittsburgh,

Bait, and S. R. R. vs. Nesbit,

Bank of Pennsylvania vs. Common-
wealth,

Bank of State of Alabama vs. Dal-
ton,

4 Indiana, 355,

1 Cowen, 238,

11 N. H., 19,
Cro. Car., 601,
13 Peters, 436.
4 Denio, 60,

7 Hill, 146,

12 Pick., 184,
6 Hill, 47,

2 Hill, 342,

8 Cowen, 687,
4Barr,Penn. R, 51,
10 Howard, 401,

19Penn.S.R.,156,

9 Howard, 627, j

348.

388.

512, 519, 665.

87.

456.

182.

196.

464, 465.

111.

527.

697, 616.

688.

689, 656.

241.

660.

TABLE OF OASES OITED.

Bank of U. S. vs. Daniel et al.,
Bancroft vs. Dumas,
Bank of Augusta vs. Earle,
Bank of Augusta vs. Earle,
Bank of U. S. us. Deveaux,
Bank of U. S. vs. Halstead,
Bank of Hamilton vs. Dudley's Xes-

see,
Bank of Pennsylvania vs. Common-
wealth,
Bank of Easton vs. Commonwealth,
Bank of Hamilton vs. Dudley's Les-
see,
Bank of Utica vs. Mersereau,

Bank of Columbia vs. Okely,

Bank of Utica vs. Sniedes,

Bank of Monroe vs. Widner,

Banne Case,

Barden vs. Crocker,

Barclay vs. Brown.

Barwell vs. Brooks,

Barber vs. Andover,

Barber vs. Dennis,

Barto vs. Himrod,

Barton vs. Port Jackson and U. P.
Plank Road Co.',

Bartlett et al. vs. King Ex'r,

Barron vs. The Mayor, &c., of Bal-
timore,

Bartlett vs. Morris,

Barksdale vs. Morgan,

Barkamsted vs. Parsons,

Barton vs. Port Jackson and Union
Falls Plank Road Company,

Barnes vs. First Parish in Fal-
mouth,

Bargis vs. The State,

Barker vs. The State,

Barrett vs. The Stockton and Dar-
lington Railroad Co.,

Bartlett vs. Vinor,

Bartlett vs. Viner,

Baskett vs. Cunningham et at,

Bass vs. Fontleroy,

Baskett vs. The University of Cam-
bridge,

Battle vs. Howard,
Bates vs. Kimball,
Bates vs. Voorhies,
Baugher vs. Nelson,
Baxter vs. Taber,
Beach vs. Walker,

12 Peters, 32,

74.

21 Verm., 456,

85.

13 Peters, 519,

70.

13 Peters, 625,

78.

5 Cranch, 87,

689.

10 Wheat., 61,

166,

690.

2 Peters, 526,

696.

7Har. (Penn.),144,

341.

10Barr,442,

341-.

2 Peters, 493,

613.

3 Barb. C, 530,

677,

266.

4 Wheaton, 245,

644.

3 Cowen, 662,

33.

11 Paige, 529,

91.

Davies' Rep., 157,

464.

10 Pick., 383,

39.

10 Pick., 383, 389,

401.

7 Paige, 245,

322.

3 Doug., 371, 373 j

254.

8 N. H., 398,

665.

1 Salk, 68,

302.

4 Seld., 483,

165.

17 Barb., 39.7,

85.

12 Mass R., 537,

126,430.

7 Peters, 243,

697,

612, 616

9 Porter, Ala. 268,

269,

379,

4 Mod., 185,

420.

3 Conn., a,

80.

17 Barb., 397,

111.

6 Mass., 401,

564.

4 Indiana, 126.

348.

12 Texas, 273,

436.

2 Scott, N. R., 337.

340.

Carthew, 252,

398.

Skin., 322,

87.

1 Black., 370,

138.

11 Texas, 698,

33.>

1 W. Black, 105,

121,

138.

13 Texas, 345,

570.

2 Chip., 77,

167,

169.

7 How. P. R., 234,

221.

9 Gill, 299, 412.

412,

692, 694.

4 Mass., 361,

685.

6 Conn., 198,

670.-

XVI

TABLE OF OASES CITED.

Bumgardner vs. Circuit Courtj 4 Missouri R, 50,
Bayard vs. Smith, 17 Wend., 88,

Beaty vs. Knowler, 4 Peters, 152,

Beaumont vs. Mountain, 10 Bing., 404,

Beaty vs. Perkins, 6 Wend., 882,

Beckford vs. Hood, 7 T. R., 620,

Bedford vs. Shilling, 4 Serg. & R . 401,

Beekman vs. Bigham, 1 Selden, 366,

fieers vs. Beers, 4 Conn. R., 539,

Beers vs. Beer^, 4 Conn., 535,

Beers vs. Haughion, 9 Peters, 329,

Beebe vs. The State, 6 Indiana, 501,

Beekman vs. Saratoga and Sch. R,
B. Co., •

Beekman vs. Saratoga and Sch. R.
R. Co.,

Bein vs. Heath,

Bell vs. Olapp,

Bell vs. Morrison,

Bell vs. Quin,

Beman vs. Tugnot,

Bennett vs. Am. Art Union,

Benjamin vs. Benjamin,

Bennett vs. Boggs,

Benson vs. The Mayor of New York 10 Barb., 223,
et al.,

Betts vs. Bagley,

Biddis vs. James,

Bidwell ei al. vs. Whitaker et al.,

Bigelow vs. Johnson,

Bigelow vs. Pritchard,

Bigelow vs. Stearns,

Bigelow vs. Willson,

Biggs vs. Lawrence,

Bishop of Petersborough vs. Cates-
by, Cro. Jac, 166, 167.

Blakemore vs. The Glamorganshire

Canal Navigation, 1 Mylne & K.,

164,

Blanchard vs. Russell, 13 Mass., 1,

Bleecker vs. Ballon, 3 Wend., 268,

Bleecker vs. Wisebum, 5 Wend., 136

Bloom «s. Burdick, 1 Hill, 130,

Blood vs. Humphrey, 17 Barb., 660,

Bloodgood vs. The Mohawk and

3 Paige, 73,

3 Paige, 75,

12 Howard, 168,

10 J. B., 263,

1 Peters, 359,

2 Sandford, 146,
5 Sandf. 154,

5 Sandf, 614, 636,
1 Seld., 388,
1 Bald., 74, 75,

13 Pick., 572,
6 Binney, 321,
1 Mich., 469, 479.
13 John., 428.
21 Pick., 174,
19 J. R., 39,
1 Pick., 485,
3 D. & E., 454,

Hudson R. R. Co.
Bloodgood vs. The Mohawk and

Hudson R. R. Co.,
Bloom vs. Richards,
Bloom vs. Richards,
Blunt's Lessee vs. Smith et al.,
Board of Corns, vs. Cutler,
Boardman et al. vs. The Lessees of

I Reed and Ford, et al..
Bock vs. Lauman,
Bodley et al. vs. Taylor,

18 Wend., 9, 69,

18 Wend., 9,
22 Ohio, 387,
22 Ohio, 888,
7 Wheat., 248,
6 Indiana, 364,

6 Peters, 328,
24 Penn., 485,
5 Cranch, 191,

653.

391.

841.

119.

553.

402.

134, 696.

356.

547.

549.

590.

480, 482, 486.

600, 515.

518, 529. '

614.

553, 609.

433.

473, 86.

86, 473.

97, 98.

314.

184.

156, 344.

643.

119.

247.

392.

647, 695,

348.

418.

397.

420.

340.

70, 74.

305.

322.

348.

511.

516.

187, 518, 627.

85.

466.

250.

456.
427.
456.

TABLE OF CASES CITED.

XVll

Bonaparte vs. Camden and Amboy
Railroad Co., 1 Baldw. 0. C. R ,

205,
Bond vs. Bond, 2 Pick. 382,

Boom vs. City of Utica, 2 Barb., 104,

Booth vs. Booth, 7 Conn., 350,

Borden vs. Pitch, 15 J. R., 121,

Boring vs. "Williams, 17 Ala. 510,

Boston and Lowell R. R. Corpora-
tion w. Salem and Lowell R. R.
Company, 2 Gray, 1,

Boston Water Power Co. vs. The

Boston and "Worcester R. R. Co., 23 Pick., 3§1,
Bosworth vs. Budgen, 7 Mod., 459,

Bosley vs. Mattingly, , 14 B. Monroe, Ken-

tucky, 89.
Bostrek vs. The North Staffordshire

Railway,
Boutwell vs. Foster,
Bouldin vs. Massie's Heirs,
Bowen vs. Argall,
Bowen vs. Lease,
Bowman vs. Middleton,
Boyle. «s. Zacharie,
Boyd vs. Barreng«r;
Bradley vs. Baxter,
Brett vs. Beale,
Braddee vs. Brownfleld,
Bradford vs. Brooks,
Brandling vs. Barrington,

Bradstreet vs. Clarke,

Brason vs. Dean,

Brackett vs. Hoyt,

Bradley vs. New York and New

Haven R. R. Co.,
Braynard vs. Marshall,
Brewster vs. Hough,
Brewster vs. Kitehin,

Brewster vs. Hpugh,
Briscoe vs. Anketell,
Briscoe vs. Bank of Commonwealth

of Kentucky,
Briggs vs. Georgia,
Bristol vs. New Chester,
Brittain vs. Kinnaird,

Brooke q. t. vs. MilUken,
Broome vs. Wellington,

Brooks vs. Daniel,

Bronson vs. Kinzie,

BronsonDS. Newberry,

Brown vs. County Commissioners, 21 Penn., 37,

Brown vs. Duncan. 10 Bam. & Cres, 93,

4 Ellis & Black. 799,
24 "Term., 485,

7 "Wheat., 122, 149,
24 "Wend., 496,

5 Hill, 221,

1 Bay, 252,

6 Peters, 635,
23 Miss. R., 270,
15 Barb., 131,
IM. &M,416,

2 W. & Sgrg., 271,

2 Aik., 284.

6 Barn. & Cres.,

467, 475,
4 Wend., 211,

3 Mod , 39,

9 Foster, 264,

21 Conn., 294, 306,

8 Pick., 194,

10 N. H., 138,

I Ld. Ray, 317 ; S.
C. 1 Salk. 198,

10 N. H, 145,
28 Miss., 361,

II Peters, 257,
15 Verm,, 61, 72,
3 N. H. R., 535,

1 Brod. & Ring.,

432,
3 T. R., 509,
1 Sandf. Sup.

Rep., 664,

22 Pick., 498,

1 Howard, 311,

2 Doug. Mich., 38,

Ct.

187.
551.
468.
669.
600.
548.

628, 512.

666.
473.

231.

339.

85.

456.

367.

127.

187, 478.

641.

196, 683.

580.

119.

187.

168.

244.
137.
635.
392.

341,618.
642.
631, 655.

635.

554, 559.
669.

589.
377.
494, 495.

103.
394.

420.

551.

64lj 651, 656,

647.

123, 126, 127.

86, 87, 397.

xvm

TABLE- OF CASES CITED.

Brown vs. Heummel, 6 Barr, 87,

Brown vs. M'Millan, 7 Mees. & Wei., 196,

Brown vs. Penobscot Bank, 8 Mass. R., 445,

Broadbent vs. The State, 7 Maryland, 416,

Brown DS. Somerville, 8 Maryl'd, 444,456,

Bronson vs. Wiman, 10 Barb., 406,
Bruce vs. President of Delaware

and Hudson Canal Co., 19 Barb., 871,

Brutton vs. The State, 4 Indiana, 602,

Brudenell vs. Vaux, 2 Dall., 302,

Brush vs. Ware et al., 15 Peters, 93,

BrysQp vs. Campbell, 12 Miss., 498,

Buckner vs. Finley, 2 Peters, 586,

Buckley vs. Lowry, 2 Mich., 419,

Buchan vs. Sumner, 2 Barb. Ch. R. 165,

Buckingham vs. Billings, 13 Mass., 82,

Buel vs. Trustees of Lockport, 3 Corns., 197,
Buffalo and Niagara Falls Railroad

vs. Buffalo, ' 6 Hill, 209,

Bulkley vs. Eckert,

Burghardt vs. Turner,

Bntgett vi. Butgell,

Burn vs. Oarvalho,

Bumham vs. Webster,

Bussing vs. Bushnell,

Bussey vs. Story,

Butler vs. Kent,

Butler et al. vs. Pennsylvania,

Butler vs. Palmer,

Butler and Baker's Case,

3 Barr (Penn.) R.,
368,

12 Pick., 539,
1 Ham., 219,

4 Ney. & Man., 889,

5 Mass. R., 268,

6 Hill, 382,

4 B. & A., 98, 108,
19 J. R., 223,
10 Howard, 410,
1 Hill, 324,
3 Rep., 31, a,

539.
125.
655.
345.
298.
119.

104.

63.

421.

456.

636.

74.

350.

364.

346.

110.

573.

305.

682.

51.

82.

33.

314.

251.

96.

618, 633.

130, 131, 132, 183.

358,

Call vs. Hagger et al.

Calder and Wife vs. Bull and Wife,

Calcraft vs. Gibbs,

Caldwell vs. The Mayor, &c., of

Albany,
Callender vs. Marsh,
Camden vs. Anderson,
Cameron vs. Baker,

Campau vs. Fairbanks,

Campbell vs. Perkins,

Cannan vs. Bryce,

Canandaigua and Niagara Falls R.
R. Co. vs. Payne,

Canal Commissioners vs. The Peo-
ple,

Canal Appraisers vs. The Peo-
ple,

8 Mass., 429,

3 Dall., 380,

5 T. R., 19,

9 Paige, 572,
1 Pick., 418,
5 T. R , 709,

1 Carr & Payne,

268,
1 Michigan, 161,

4 Selden, 430,

3 B. & Aid., 179,

16 Barb., 273,

5 Wend. R., 445,

17 Wend., 584,

660.

187, 597, 191, 689,

199, 170, 159.
100.

322.
528.
397, 129.

404.
348.
867.
85.

620.

10.

10, 523.

TABLE OF CASES CITED.

XIX

Canal Co. vs. R. R. Co.,

Cannon vs. Vaughan,
Carson vs. Commonwealth,

Carpenter vs, Oommonwealth of

PennsylTania,
Carpenter vs. ProT. W. Ins. Co.,
Caswell vs. Allen,
Castle vs. Burditt,
Cass vs. Dillon,
Case of Rogers,
Case vs. Willbridge,
Catlin vs. Gunter,
Cates vs. Knight,
Cathcart vs. Robinson,
Chadwick vs. Moore,
Chapman vs. Albany and Schnec-

tady R. R. Co.
Chalmers vs. Bell,
Charles vs. The People,
Chase vs. Sutton Manufacturing

Co.,
Charles River Bridge vs. "Warren

Bridge,

Champlain and St. Lawrence R. R.

vs, Valentine,
Cheany vs. Hooser,
Chealey et al. vs. Brewer,
Chester Glass Co. vs. Dewey,
Cheval vs. Nichols,
Christopher vs. The Mayor, &c. of

New York,
Churchill vs. Merchants' Bank,
Churchill vs. Crease,

City of Covington vs. Southgate,

City of New Orleans vs. Graihle,

City of Lowell vs. Hadley,

City of Lexington vs. M'QuiUan's

Heirs,
City of New Orleans vs. Cannon,
City of New Orleans vs. St. Rowes,
City of New York vs. Miln,
City of Boston vs. Shaw,
City of London vs. Wood,
City of Patterson vs. The Society,

&c.
Clayton vs. Adams,
Clark vs. Clark,
Clark vs. Brown,
Clark vs. Ellis,
Clark vs. Hatch,
Clark vs. The Mayor of Syracuse,

4 Gill. & Johns. R.,

152,

298, 127.

12 Texas, 399, 402,

249, 235.

1 A. K. Marsh,

280,

547.

17 How. 456,

600.

16 Peters, 495,

591.

7 J. R. 63,

99.

3 T. R. 623,

418, 420.

22 Ohio, 607,

490.

2 Greenleaf; 303,

33.

4 Indiana, 51,

436, 231.

1 Ken;i. 368,

221.

3 Term R. 442,

313.

5 Peters, 264—280,

8 Watts & Serg. 49,

647.

10 Barb. 360,

520.

3 B. & P. 604,

397.

1 Corns. 180,

116.

4 Cush. 152,

533.

11 Peters, 420,

655, 341, 612, 339,

454, 395, 339.

19 Barb. 484, 107,

457.

9 Ben Monroe, 389,

675.

7 Mass. 259,

305.

16 Mass. 94,

90, 403.

1 Str, 664,

321.

13 Barb. 567,

577.

19 Pick. 532,

421.

2 Moore & Payne,

415;5Bing.l80,

423, 61, 133.

15 B. Monroe, Law

& Equity R. 491,

675.

9 La. Ann. R. 561,

578.

8 Met. 181,

469, 373, 558.

9 Dana, 518,

503.

10.La. Ann. R.764,

542.

9 La. Ann. R. 573,

876.

11 Peters, 102,

489.

1 Met. 130,

558,403,94,473.

12 Mod. 669,

151,

4 Zabriskie, 385,

690.

6 Term R. 605,

254.

ION. H. 881,

637.

18 Wend. 220,

94, 92.

2 Blackford, 10,

489.

7 Cush. 455,

642.

13 Barb. 32,

465.

TABLE OF CASES CITED.

Clark vs. The People,
Clark vs. Saybrook,
Clark va. City of Utica,
Clippinger vs. Hepbaugh,

Clugas vs. Penaluna,

Coates and Stuyvesant vi. The

Mayor of N. Y.
Cobia vs. The State,
Cochran vs. Van Siitley,
Cochran vs. Surlay,
CofBn vs. Tracy,
Cohens vs. Virginia,

Collins vs. Blantem,
Colt vs. Eves,
Colden vs. Bldred,
Cole vs. Green,

College of Physicians »s. Harrison,
Collins vs. Ragrew,
Columbia Turnpike Road vs. Hay-
wood,
Cole vs. Smith,
Commonwealth vs. Aves,
Commonwealth vs. Alger,

Commonwealth vs. Breed,
Commonwealth vs. Baldwin,

Commonwealth vs. Barker,
Commonwealth vs. Cook,
Commonwealth vs. Churchill,
Commonwealth vs. Chambre,
Commonwealth vs. Cooley,
Commonwealth vs. Dana,
Commonwealth vs. Duane,
Commonwealth vs. EastsQ Bank,
Commonwealth" ««. Farmers & Me-
chanics' Bank,
Commonwealth vs. Green,
Commonwealth vs. Gillespie,

Commonwealth vs. Baird,
Commonwealth vs. Herrick,
Commonwealth vs. Harvey,
Commonwealth vs. Inhabitants of

Springfield,
Commercial Bank of Oswego vs.

Ives,
Commonwealth vs. Tewksbury,
Commonwealth of Kentucky vs.

Bassford,
Commonwealth vs. Knowlton,
Commonwealth vs. Kimball,
Commonwealth vs. Keniston,

26 Wend. 599,

48S.

21 Conn. 313,

522.

18 Barb. 451,

529,261.

5 "Watts & Serg.

315,

67.

4 D. & E. 466,

397.

7 Cow. 68,

634.

ISAla. 781,

547.

20 Wend. 381,

185.

20 Wend. 379,

639.

3Caine'sRep. 129,

109.

6 Wheat. 264, 618

to 121,

593, 430.

2 Wils. 361,

316.

12 Conn. 243, 253,

376,547,597.

15 J. B. 220,

93.

6 Man. & G. 872,

890,

372.

9 Barn. & Cres. 524,

135.

15 J. B. 5,

392.

10 Wend. 422,

418,419.

4 John, 193,

392.

18 Pickering, 193,

76.

7 Gushing, 63, 66,

609, 16, 238, 507,

608, 504.

4Rck.464,

610.

1 Watt's Penn. R.

54,

396.

6 Binn. 423,

670.

6S.&Rawle, 577,

610.

2 Met. 118,

137.

4 Ball. 143,

421;

10 Pick. 37,

126, 130.

2 Met 336,

651.

1 Binney, 601,

394, 131, 238.

10 Barr, 442,

127.

21 Pick. 543,

690.

17 Mass. 516,

610.

7 Serg. & Rawle,

469,

80.

12 Mass. 443,

660.

6 Gushing, 465,

128.

8. Am. Jur. 69,

80.

7 Mass. 9,

33.

2 Hill, 355,

418.

11 Met. 56,

506.

6 Hill, 627,

70.

2 Mass. 580-634,

12.

21 Pick. 373,

126, 308, 489.

5 Pick. 420,

4^8.

TABLE OF CASES CITED.

XXI

Commonwealth m. Loring,
Commonwealth ««. Leach,
Commonwealth vs. Marion,

Commonwealth vg. Murray,
Commonwealth vs. M'Ourdy,
Commonwealth vs. Marshall,
Commonwealth m. Pittsburg and

Connelsville R. R. Co.
Commonwealth vs. Porter,
Commonwealth vs. Robbins,
Commercial Bank of Buffalo vs.

Sparrow,
Commonwealth vs. Tuck,
Commonwealth vs. Tracy,
Commonwealth vs. Thos. Ryan,
Commonwealth vs. Worcester,
Commonwealth vs. Weiher,
Comter vs. Read,
Cone vs. Bowles,
Conner vs. Elliott,
Conner vs. The Mayor,
Conley vs. Palmer,
Cook vs. Moffat,
Cooley vs. Board of Wardens

Philadelphia,
Coolidge vs. Williatas,
Copeman vs. Gallant,
Cope w, Rowland,
Corning vs. M''CulIough,
Corliss vs. Corliss,
Corfield vs. Coryell,

Cornell vs. Moulton,
Corbett vs. Poelnitz,
Cornell vs. Town of Guilford,
Couch q. tarn vs. Jefiries,
Couch vs. Steel,

Coutant vs. The People,
Crane vs. Hardy,
Crane vs. Meginnis,
Crayton vs. Munger,
Creigton vs. Johnson,
Crespigny vs. Wittenoom,
Crisp vs. Bunbury,
Cripps vs. Durden,
Crittenden vs. Wilson,
Crosley vs. Arkwright,
Crosby us. Bennett,
Crocker vs. Crane,
Croswell vs. Crane,
Crocker vs. Crane,
Crooke vs. De Vandes,
Crone vs. Daniels, ^
Crow vs. The State of Missouri,

8 Pick. 370, 374,

330.

1 Mass. 59,

12.

17 Mass. 359, 362,

363,

329.

4 Binn. 487,

670.

5 Mass. 324,

S3.

11 Pick. 360,

130, 126.

24 Penn. 159,

340.

10 Met. 263,

616.

26 Penn. 165, 167,

418.

2 Denio, 97,

573, 69.

20 Pick. 366,

547.

5 Metcalf, 536,

607.

6 Mass. R 90,

560.

3 Pick. 462,

472.

3 Met. 445,

303.

5 Denio, 564,

350.

lSalk.R.205,

358.

18 How. 591,

603.

ISeld. 285,293,

51, 52.

2 Corns. 182,

99.

5 Howard, 295,

641.

12 How. 299,

590.

4 Mass. 139,

343.

1 P. Wm. R. 320,

55.

2 M. & W. 149, 167,

88, 397.

2 Coms. 47,

108.

8 Verm. 373,

377.

4 Washington's C.

C. Reports, 381,

602.

3 Denio, 12,

418.

1 Term R. 6, 9,

254.

1 Denio, 610,

467.

4 Burr, 2460-2,

190, 133.

3 EUis & Black-

burn, Q. B. 402,

91.

11 Wend, 511,

262, 488.

1 Michigan, 56,

427.

1 Gill & J. 463,

169,483.

11 Texas, 234,

313.

6 Litt. 241,

548.

4T.R.193,

55.

8 Bing. 394,

313, 125.

Dwarris, 643,

394.

6 Cow. 165,

39,

2T. R.-605,

302.

7 Met. 17,

94.

21 Wend. 211,

387.

7 Barb. 191,

429.

2 Wendell, 211,

234.

9Vesey,197,

263.

20 Conn. 331,

422.

13 Miss. R.

558.

xxu

TABLE OF CASES CITED.

Cruger vs. Hudson R. R. Co.
Cunningham vs. Bucklin,
Cumming vs. Police Jury,
Curran vs. State of Arkansas,
Currier vs. Phillips,
Curtis vs. Leavitt,
Cushman vs. Smith,

2 Kern. 196,

8 Oowen, 178,

9 La. Ann. R. 503,
15 How. 304, 318,
12 Pick. 223,

ir Barb. 312, 317,
34 Maine, 247,

529.
103.

558, 504.
651.

442.

83, 412, 394.
[523,628.

Danforth vs. Tfoodward,

Dartmouth Coll. vs. Woodward,

Darbey vs. Newton,

Dash vs. Van Kleeck,

Davies vs. Fairbairn,

Davison vs. Gill,

Davison vs: Johonnot et al.

Davis vs. Marshall,

Davis vs. The Mayor, &c>, of the
City of New York,

Davis vs. Packard,

Davis vs. The State Court of Ap-
peals,

Dawson vs. Shaver,

Day et al. vs. Stetson,

Day vs. Savage,

Dean and Chapter of Norwich's
Case,

Dean vs. Dean,

De Baun vs. The Mayor,

De Begnis ««. Armistead,

De Bow vs. The People,

De Camp vs. Eveland,

Deerfleld vs. Ames,

Denn ex. dem. Fisher vs. Hamden,

Denning vs. Roome,

Denning vs. Smith,

De Peyster vs. Michael,

De Ruyter vs. The Trustees of St.
Peter's Church,

Dexter and Limerick Plank Road
Co. vs. Allen,

Dicas vs. Lord Brougham,

Dike vs. Lewis,

Divine vs. Harvie,

Doane vs. Phillips,

Dodge vs. Woolsey,

Dodge vs. Gridley,

Doe dem. Broughton vs. Gully,

Doe vs. Naylor,

Dominick vs. Michael,

10 Pickering, 23,
4 Wheat. 519,

6 Taunt. 544,

7 J. R. 477,
3HOW.U.S.R.636,
1 East, 64,

7 Met. 389,
14 Barb. 96,

1 Duer, 451,
7 Peters, 276,

7 Maryland, 151,

1 Blackf. 204,

8 Greenl. 365, 523,
Hobart, 85,

8 Rep. 76,

2 Mass. 150,

16 Barb. 392,
10 Bing. 107,
1 Denio, 9,
19 Barb. 81,

17 Pick. 46,

1 Paine 0. C. R. 54,
6 Wend. 651,

3 J.. C. R. 332,

2 Seld. 467, 503,

3 Barb. Ch. R. 119 ;
3 Corns. 238,

16 Barb. S. C. R.
15,

6 C. & P. 249-

4 Denio, 287; 2
Barb. Ch. 344,

7 Monroe, 444,
12 Kck. 223,

18 How. 330,
10 Ohio, 173,

9 B. & C. 344, 354,
2 Blackford, 82,
4SandS.C.R.374,

409,

346.

624, 636, 656, 47ffw

397

599^ 191, 213, 195.

125.

347, 319.

199, 167,. 171,, 169.

348.

472.
109.

670, 578.
549.
523.
150.

358.

690.

677.

88, 39&

673,69.

680, 482.

458.

448.

474.

386.

200.

la.

125.
103.

355.

305.

442.

631, 664.

250.

137.

429.

TABLE OF CASES CITED.

XXUl

Donohoe vs. Richards,
Douglas vs. Bank of Missouri,
Doughty vs. Hope,

Douglas vs. Howland,

Dow vs. Norris,

Downing vs. Rugar,

Dozier vs. Ellis,

Dubois vs. Kelly,

Duck vs. Addington,

Dudley vs. Mayhew,

Duffield vs. Smith,

Duramus vs. Harrison & Whitman,

Durham vs. Lewiston,

Dutch Church in Garden Street «*

Mott,
Dutchess Cotton Manufactory vs

Davis,
Dyson vs. West's Bx'r,

38 Maine, 879, 410,
1 Missouri R. 20,

3 Denio, 594, and 1
Coms. 79,

24 Wend. 35,

4 N. H. 16,
21 Wend. 178,

28 Mississippi, 730,
10 Barb. 496,
4 Term R. 447,
3 Comstock, 9,

3 Serg. & R. 590-9,
26 Ala. 326,

4 Greenleaf, 140,

7 Paige, 82,

14 J. R. 238,
1 Har. & J. 567,

562.
83.

354.

429.

198.

352.

321.

13.

24g;

92, 109.

134.

429.

170.

694.

403.
314.

Eakin vs. Raub,

12 Serg. & Rawle,

■ 352,683,

489, 490.

Earl of Buckinghamshire «j

.Drury,

2 Eden. Ch. R. 61,

64, and 74,

256.

Easton vs. Calendar,

11 Wend. 90,

103.

Bast and West India Docks am

Birmingham Junction

Railwaj

vs. Gattke,

3 Man. & G. 155,

524.

East Hartford vs. Hartford Bridge

Co.

10 Howard, 511,

33, 344, 684, 639

Edmonds vs. Lawley,

6 M. & W. 285,

191.

Edwards vs. Dick,

4B. &Ald. 212,

299.

Edwards vs. James,

13 Texas, 52,

376.

Edwards vs. Pope,

3 Seam. 465,

55, 169, 489.

Eldridge vs. Knott,

Cowper, 215,

121.

EUah vs. Leigh,

5 Term R. 682,

254.

Ellis vs. Paige et al.

1 Pick. 43,

430, 212.

Ellicottville and Great Valley Plank

Road Co. vs. The Buffalo and P

R. R. Co.

20 Barb. 644,

633.

Elliott vs. Swartwout,

10 Peters, 137,

388.

Elmendorf D«. Carmichael,

4 Litt. R. 47,

57.

Elmendorf vs. Taylor,

lOWheaton, 152,

433.

Elsworth vs. Cole,

2 M. & W. 30,

423.

Elton vs. Eason,

19 Vesey, 77,

263.

Elwood vs. Klock,

13 Barb. 50,

429.

Ely vs. Thompson,

3 Wash. C. 0. R.

313,

489.

Emanuel vs. Constable,

3 Russell, 436,

55.

Embury vs. Conner,

3 Coms. 511, 518,

111.

Emerick vs. Harris,

1 Binney, 416,

548, 549.

Emerson vs. Taylor,

9 Greenleaf, 44,

458.

XXIV

TABLE OF CASES CITED.

Enderman vs. Ashby,

Pr. Dec. 65,

546.

Enfield Toll Bridge Co.

vs.

The

Hartford & N. H. E. R.

Co.

17 Conn. 40,

665.

Enfleld Toll Bridge Co.

vs.

The

Conn. River Co.

7 Conn. 44,

625.

Englishbee «s. Helmuth,

3 Conn. 295,

682.

Entick vs. Carrington,

19 Howell's State
Trials, No. 1029,

551.

Entwistle jjs. Dent,

1 Exch. 811, 823,
per Pollock, O.B.

369.

Erie & Northeast K. R. vs.

Casey,

26 Penn. 287,

656.

Ervine's Appeal,

16 Penn. R. 256,

539.

Estep vs. Hutchman,

14Serg. &R.435,

173.

Evans vs. Eaton,

Peters C. C. U. S.
R. 837,

618.

Evans vs. Myers,

25 Penn. R. 114,
116,

258.

Evans vs. Montgomery,

4 Watts & Serg.
218,

647.

Evans vs. Richard,

Q. B. R.

135.

Everett vs. Wells,

2 Scott, M. C. 531,

246.

Ewing vs. Directors of the Peni

tentiary,

Hardin R. 5,

548.

Executors of Burr vs. Smith,

7 Verm. 241,

18.

Ex parte Edward Henry,

24 Ala. 688,

547.

Extension of Hancock Street,

18 Penn. (6 Harris)

26.

503.

Fairbanks vs. Antrim,

Pair Title vs. Gilbert,

Fairbanks vs. Wood,

Farmers and Mechanics' Bank of

Pennsylvania vs. Smith,
Farmers and Mechanics' Bank vs.

Smith,
Farmers' Loan and Trust Co. vs.

Walworth,
Farrington vs. Morgan,
Fashion vs. Wards,
Fennell vs. Ridler,
Finch vs. M'Dowall,
Fiske vs. Foster,
First Massachusetts Turnpike vs.

Field et al.
First Baptist Church vs. Utica and

Schnectady R. R. Co.
Fisher vs. Blight,
Fisher vs. M'Girr,
Fletcher vs. Lord Londes,
Fletcher vs. Peck,

2 N. H. 105,

328.

2 T. R. 171,

635.

17 Wend. 329,

419, 426.

6 Wheat. 181,

641.

3 Serg. & R. 63, 73,

485.

1 Coms. 433,

111.

20 Wend. 207,

318.

6 M'Lean, 52,

263.

5 B. & C. 406,

85.

7 Cowen, 537,

137.

10 Met. 597,

642.

3 Mass. 201,

321.

6 Barb. 313,

520.

2 Cranch, 358, 399,

231.

1 Gray, 22,

489, 509.

8 Bing. 680,

325.

6 Cranch, 87,

619, 699, 584, 187,

621, 482, 133, 693,

698, 656, 595,

620.

TABLE OF CASES CITED.

XXV

Floyer m. Edwards,
Fontaine vs. Phoenix Ins. Co.
Foot vs. Prowse, Mayor de Truro,

Forrest vs. Forrest,

Forth vs. Chapman,

Fort Miller and Fort Edward Plank

Road Co. M. Payne,
Foster vs. Banbury,
Foster et al. vs. The Essex Bank,
Foster & Elam vs. Neilson,
Foster el al. vs. Neilson,
Fowler vs. Stoneum,
Foxcroft vs. Mallett,
Franklin Glass Co. vs. White,
Free vs. Burgoyne,
Freeland vs. M'Cullough,
Freeman vs. Moyes,
Frewin vs. Lewis,
Frohock vs. Pattee,
Frost vs. Brisbin,
Fulton Bank vs. Beach,
Furman vs. The City of New York,
Furrillio vs. Crowther,

Cowper, 112,
IIJ. R. 293,
Strange, 625,

George 1,
10 Barb. S. C.

46,
1 P. Wm. 667,

17 Barb. 567,

3 Sim. 40,

16 Mass. 245,
2 Peters, 314,
2 Peter.s, 253, 307,
11 Texas, 478,

4 How. 377,
14 Mass. 286,

5 B. & C. 400,
1 Denio, 414,

1 Ad. & Ell. 338,
4 M. & Craig, 249,
38 Maine, 103,
19 Wend. 11,
1 Paige, 429,

6 Sandf. 16,
7DowL&RyL612,

257.
98.

369.

260, 430.
263,

94.

55.

484, 694.

460.

451.

591.

403.

56.

107.

136, 190.

466.

390.

601.

219.

231, 239, 457.

404.

Gage vs. Currier,

Gale vs. Mead,

Games vs. Stiles,

Gardner vs. CoUins ef al.,

Garrett vs. Beaumont,

Gedney vs. Inhab. of Tewksbury,

Gee vs. Wilden,

Gerrard vs. Dickinson,

Gibbons vs. Ogden,

Gibson ■OS. Jenney,
Gififbrd vs. Livingston,
Gilbert vs. Col. Turnpike Co.,
Gildart vs. Gladstone,
Giles vs. Ferrers,
Gillet vs. Moody,
Gillmore vs. Shooter's Ex'r,
Glassington vs. Rawlins,

Glover vs. North Staffordshire Rail-
way Co.,
Gorlet vs. Cowdrey,

4 Pick. 399,

564.

2 Denio, 160,

373.

4 Hill, 109,

137.

14 Peters, 322,

482,

615.

2 Peters, 58,

431,

486.

24Miss. R. 377,

196.

3 Mass. 307, 309,

404.

2 Lutw. 1320,

473.

Cro. Eliz. 196,

9 Wheat. 188, per

Marshall, C. J.,

489,

595.

15 Mass. 205, 206,

318.

2 Denio, 380,

573.

3 Johns. Cas. 107,

436.

11 East, 685,

340.

Cro. Eliz. 59,

263.

3 Corns. 479,

361.

2 Mod. 310,

133.

3 East, 407,

418.

6 Railway Cases,

371,

624.

16 Jut. 673,

523,

624.

1 Duer, 132,

320.

XXVI

TABLE OF CASES CITED.

Going vs. Emery,
Goodell vs. Jackson,
Gooch vs. Stephenson,

Gordon vs. Appeal Tai Court,
Gordon's Exors. US. The Mayor of

Baltimore,
Gore vs. Brazier,
Goshen and Minisink Co. vs. Hur-

tin,
Goshen vs. Stodnington,

Goszler vs. The Corporation of
Georgetovm,

Gould vs. James,

Gould vs. Johnson,

Governor, &c., of Oast Plate Manu-
factory vs. Meredith,

Grace vs. Clinch,

Graham vs. Van Wyck,

Grant DS. Kemp,

Gray vs. Bennett,

Gray vs. Russell,

Green vs. Biddle,

Greene vs. Briggs,

Greenough vs. Greenough,

Greene vs. James,

Green vs. Kemp,

Green vs. Neal,

Green vs. Wood,

Griffith vs. Wells,

GrigD.on's Lessee vs. Astor,

Grindley ei al. vs. Barker et al.,

Grosset vs. Ogilvie,

Groton & Sedyard vs. Hurlbut et
al.,

GroTerDS. Coon,

Gwin vs. Barton,

Gwin vs. Breedlove,

Gye vs. Pelton,

16 Pick. 107,

18.

20 J. R. 722,

429, 465.

13 Maine (1 Shep-

ley), 371,

405.

3 Howard, 133,

681, 656.

6 Gill, 236,

632.

3 Mass. 623, 539,

310, 265.

9 J. R., 207,

403.

4 Conn., 209,

158, 411, 668,
694.

669

6 Wheat. 593,

634.

6 Cowen, 369,

455, 457.

2 Lord Eaym. 838,

35.

4 Term, 795, 401,

501.

4 J. B. 606,

302.

14 Barb. 531, 582,

815.

2 0. & M. 636.

190.

3 Met. 622, 527,

888.

1 Story, 11,

139.

8 Wheat. 89,

612, 628, 644,

656

1 Curtis, 311,

611, 615.

11 Penn. 489,

410.

2 Curtis, 187,

590, 611.

13 Mass. 518,

803.

6 Peters, 301,

431, 433.

7 Q. B. 178, 185,

245.

3 Denio, 226,

41, 88.

2 Howard, 319,

349, 350.

1 B. & P. 229,

387.

5 Bro. P. C. 527,

135, 894.

22 Conn. 178,

422.

1 Corns 536,

185.

6 Howard, t.

614.

2 Howard. 29,

614.

4 Taunt. 876,

302.

Haley vs. Clark,

Hale vs. N. J. Steam Nav. Co.,

Hall vs. Bergen,

Hall vs. Dyson,

Hall vs. Franklin,

Hallet vs. Noonar,

Halsted vs. The Mayor, &o., of the

City of New York,
Hammond vs. Anderson,

26 Ala. 439,

578.

15 Conn. 539,

427

19 Barb. 122,

424.

17Ad. &K11 N. S.

785,

86.

8Mees.&We]s.259,

309.

14 J. R. 278,

88.

3 Com. 431,

468

4 Bos. & P. 69,

254

TABLE OF CASES CITED.

xxvii

Hampton vs. Commonwealth,

Hampton vs. Erenzeller,

Hampton vs. M'Connel,

Ham vs. Sawyer,

Hamilton vs. Williams,

Hampshire vs. Franklin,

Hand vs. Ballou,

Hartwell vs. Armstrong,

Harrison vs. Chiles,

Harman vs. Brothreson,

Hartford and New Haven Railroad

Company vs. Croswell, 5 Hill, 384,

Harpending vs. Dutch Church, 16 Peters, 455,
Harding vs. Goodlet, 3 Yerger, 41,

Hartford and New Haven Railroad

7 Harris (Penn.),
329,

2 Browne's R. 18.

3 Wheat. 234,
38 Maine, 37,
26 Ala. 527,
16 Mass. 86,

2 Kern. 541,
19 Barb. 166,

3 Litt. R. 200,
1 Denio, 537,

Company vs. Kennedy,
Hardin vs. Owings,
Harris vs. Roofs Executors,
Harris vs. Runnels,
Hart vs. lUe Mayor of Albany,
Harvey vs. Thomas,

12 Conn. 507,
1 Bibb. 215, Ken'y,
10 Barb. 489,
12 Howard, 79,

9 Wend. 571,

10 Watts, 63,

Harrington vs. Trus's of Rochester, 10 Wend. 547,
Harrison vs. Stipp, 8 Blackf. R. 455,

Harris vs. Wood, 6 Monroe, 642,

Hardyman vs. Whitaker, Bulh N. P. 189 n (b)

Hastings vs. Aiken, 1 Gray, 166,

Hatzfield vs. Gulden, 7 Watts, 152,

Hatch vs. Vermont Central Rail-
road Company, 25 Verm. 49, 61,
Haven vs. Foster, 9 Pick. 112,
Hawkins vs. Barney's Lessee, 5 Peters, 447,
Helmore vs. Shuter, 2 Show. 17,
Henderson vs. Bise, 3 Starkie, 158,
Henderson vs. Brown, 1 Caines, 92,
Henry vs. Salina Bank, 1 Coms. 83,
Henniker vs. Contoocook Valley

Railroad, 9 Foster, 147,

Henley vs. Mayor et al. of Lyme 5 Bing. 91 ; 3 Barn

Regis,

Henry vs. Pittsburgh and Alle-
ghany Bridge Co.,

Henry vs. Tilson,

Hepburn vs. Curts,

Heridia vs. Ayres,

Herrick vs. Randolph,

Hey ward vs. The Mayor, &c., of
New York,

Hicks vs. Whitmorej

Hills vs. Hunt,

Hilour's Case,

HillM. Town of Sunderland,
Hindle««. O'Brien,
Hinsdale vs. Lamed et al.,
Hiriart vs. Ballon,

& Adol. 77.

8 W. & Serg., 85,
17 Verm. 479,
7 Watts, 300,

12 Pick. 334,

13 Verm. 525,

3 Selden, 314,
12 Wend. 548,

15 Com. B. 1, 6 ; t
Scott, 1, 25,

7 Rep. 27,
3 Verm. 507,
1 Tauni 413,

16 Mass. 65,

9 Peters, 156,

131.

418.

78, 600.

258.

442.

683.

357.

513.-

548.

loa.

425.
106.
519.

403.

381.

67.

89, 397.

465.

187.

415.

654.

353, 54a

394.

137.

67.

159, 523.

428.

655.

190.

423.

102.

397.

405.

387.

521.

253, 303, 331.

201.

559, 555.

532.
320.

473.
679.
168.
337.
404.
614.

XXVlll

TABLE OF CASES CITED.

Hitchcock vs. Way,

Hodges vs. City of Buffalo,

Hodgson vs. FuUarton,

Hoke vs. Henderson,

Holbrook vs. Finney,

Holden vs. James Adm'r,

HoUewell vs. Corporation of Bridge-
water,

HoUingback vs. Fleming,

Holmes vs. Holmes,

Holbrook vs. Holbrook,

Holman vs. Johnson,

Holman vs. King,

Holland et al. vs. Osgood,

Holyoke vs. Haskins,

Homer vs. Fish et al.,

Homan vs. Liswell,

Hook vs. Gray,

Hooker vs. The New Haven and
Northampton Co.,

Hopkins w. Stapers,

Horton vs. Auchmoody,

Hosmer, J., United Soc. m. Eagle
Bank,

Hospital vs. Philadelphia Co.,

Howard vs. Williams,

Hoyt vs. Dillon,

Hubbard vs. Johnston,

Hudson vs. Temple,

Hughes vs. Hughes,

Hughes vs. Lumley,

Humphrey vs. Chamberlain,
Humphrey vs. Whitney,
Hunt vs. Holden,
Hunt vs. Vanbelstyer,
Hyde vs. Cogan,

6 Ad. & Ell. 943,

134.

2 Denio, 110,

467.

4 Taunt. 787,

397.

8 Dev. 12,

539.

4 Mass. 566,

682.

11 Mass. 396,

170, 689.

2 And. 192,

60.

6 Hill, 303,

349.

4 Barb. 296,

638.

1 Pick. 248,

55, 564.

Cowp. 841,

397.

7 Met. 888,

427.

8 Verm. 276,

377.

6 Pick. 20,

660, 683, 692

1 Pick. 435,

321.

6 Cowen 659,

418.

6 Barb. 398,

85.

14 Conn. 146,

528.

Cro. Eliz. 229,

263.

7 Wend. 200,

103.

7 Conn. 457, 469,

470,

249.

24 Penn., 229,

632.

2 Pick. 80,

846.

19 Barb. 644,

356.

3 T&,unt. 177,

335.

5 Taunt. 181,

398.

4 Munroe, 43,

547.

4 Ellis & Blackb.

358, 859,

416.

1 Kern. 274,

91.

3 Pick., 158,

633.

2 Mass. 170,

421.

25 Wend. 605,

573.

Douglas, 702,

362.

Ilsley vs. Meriam,

In Charles Eiver Bridge vs. Warren

Bridge,
In the Matter of Cooper,
In the Matter of Hamilton Avenue,
In the Matter of John and Cherry

Streets,
Ingraham vs. Hart,
Inge vs. Murphy,
Inhabs. of Shirley vs. Lunenburgh,
Inhabs. of Springfield vs. Conn.

River Railroad Co.,
Inhabs. of Stoughtoh vs. Baker,
Ives vs. Finch, '

7 Cush. 242,

11 Peters, 681,
16 John. 633,
14 Barb. 405,

19 Wend. 669,
11 Ohio, 255,

10 Ala. 886,

11 Mass. 379,

4 Cush. 68,
4 Mass. 622,
22 Conn. 101,

642.

640.
486.
621.

615.
426.
427.
549.

866.
106.
422.

TABLE OF CASES CITED.

XXIX

Jackson vs. Collins,

Jackson vs. Chew,

Jackson vs. Catlin,

Jackson vs. .Corey,

Jackson vs. Esty,

Jackson vs. Edwards,

Jackson vs. Frost,

Jacobs vs. Graham,

Jackson vs. Lampshire,

Jackson vs. Lunn,

Jackson vs. Lervey,

Jackson ex dem M'CIoughry vs.

Lyon,
Jackson vs. Marsh,
Jack vs. Martin,

Jackson vs. Morse,

Jackson vs. Van'VaJkenburgh,'

Jackson vs. Varick,

Jacques '«s. Withy,

Jackson vs. Wood,

Jackson vs. Wright,

Jackson vs. Young,

James vs. Patten,

James vs. Reynolds,

James vs. The Commonwealth,

Jenkins vs. Hooker,

Jenkinson vs. Thomas,

Jenkins vs. Union Turnpike Co.,

John M. Martin vs. The Somerrille

Water Power Co. et al.,
Johnson vs. Burrell,
Johnson vs. Bush,

Johnson vs. Hudson,

Johnes vs. Johnes,

Johnson, J., in Ogden vs. Saunders,

Johnson vs. Sutton,

Johnson vs. The Commonwealth,

Jones vs. Axen,

Jones vs. Tatham,

Jones vs. Harrison,

Jones vs. Perry,

Jones vs. Smart,

Jones vs. Smith,

Josselyn vs. Stone et al.,

Judd vs. Fulton,

Justices of Clarke Co. vs. The P.

W. and R. R. Turnpike Co.,
Justices of Clarke Co. vs. The P.

W. and R. R. Turnpike Co.,

3 Cowen, 89, 96,
12 Wheat. 153,
2 J. R. 248,

8 J. R. 388,

7 Wend. 148,
22 Wend. 498,
6 Cowen, 346,

1 Blackf. 392,

8 Peters, 289,

3; Johns. Cases, 109,
6 Cowen, 897,

9 Cowen, 664,

6 Cowen, 281,

12 Wend. 311 ; 14
Wend. 507,

18 J. R. 441,

8 Cowen, 260,

2 Wend. 294,

1 H. Bl. 65,

2 Cowen, 819,

4 Johns. R. 79,
2 Cowen, 819,
2 Selden, 9,

2 Texas, 251,

12 Serg. & R. 220,

19 Barb. 435,
4 T. R. 666,

1 Caines' Cases, 86i
KY. Even'gPost,

April 4, 1857,

2 Hill, 238,

3 Barb. Ch. R. 207,
238,

11 East, 180,
3 Dow. 15,

12 Wheat. 290,
1 Doug. 254,

7 Dana, 342,

1 L. Raymond, 119,

20 Penn. R. 899,
6 Exch. 328, 333,

10 Yerger, 59,
IT. R. 44, 52,

2 Bulst. 36,

28 Mississippi, 768,

10 Barb. 117,

11 B. Monroe, 143,
18 B. Monroe, 143,

298, 304.

433.

36,, 599, 679,

ft79..

110, 353.

636.

677.

418.

597, 655, 659, i

679.

455.

681.
456.

607.

355.

418, 420.

219,

132.

597.

682.

378, 377.

212.

539.

597, 616.

87.

325.

403.

657.
195.

232.

87, 397.

360.

593.

397.

632.

34.

36.

260, 439.

172, 539.

807.

88.

395.

419.

464.

505,

XXX

TABLE OP CASES CITED.

Kay vs. Gordon,

Eeator vs. Ulster and Delaware
Plank Road Co.,

Keene vs. The Borough of Bristol,

Keith vs. "Ware,

Kelly vs. Harrison,

KendaU vs. Dodge,

Kendall vs. Inhabs. of Kingston,

Kennedy vs. Strong,

Kent vs. Somerville,

Kerrison vs. Cole,

Key vs. Goodwin,

Kiersted vs. Avery,

Kimberly vs. Ely,

Kinaston vs. Clarke,

King vs. Adderly,

King vs. Allen,

King vs. Athos,

King vs. Birmingham,

King vs. Bishop of London,

King vs. Brisac,

King vs. Burrell,

King vs. Cartwright,

Knight vs. Crockford,

King vs. Forrest,

King vs. George Marks,

King vs. Harris,

King vs. Inhabs. of Barham,

King vs. Inhabs. of Corsham,

King vs. Inhabs. of Cumberland,

King vs. Inhabs. of Haverstall Red-
ware,

King vs. Inhabs. of North Nibley,

King vs. Inhabs. of Ramsgate,

King vs. Inhabs. of St. Gregory,

King vs. Inhabs. of Worminghall,

King vs. John Younger,

King vs. Lacey,

King vs. Peckham,

King vs. The Justices, &c.

King vs. The Mayor of Hastings,

Kingston upon Hull Dock Co. vs.
La Marche,

Kinney vs. Beverly,

Kirk vs. Nowill,

Kirby vs. Shaw,

6 Bing. 576,

7 How. Pr. R. 41,
26 Penn. 46,

2 Verm. 175,

2 J. Cases, 29,

3 Verm. 361,

5 Mass. 524,

14 J. B. 128,

7 GiU & J. 265,

8 East, 234,

4 M. & Payne, 341
4 Paige, 9,

6 Pick. 440,

2 Atk. 205,
Doug. 463,

15 East, 333,

3 Mod. 144,
8 B. & C. 29,
Shower, 420,

4 East, 164,

12 A. & E. 468,
4 T. R. 490,

1 Esp. 190,

3 D. & B. 38,

3 East, 160,

4 T. R. 205,

8 Barn. & Ores. 99,

2 East, 302,
6 Term. R. 194,

6 Term. R. 380,

5 Term. R. 21,

6 B. & C. 712, 715,
2 Ad. & Ell. 99,

6 M. & Selw. 350,
5 T. R. 449, 450,
8 Conn. R. 499,
Carth. 406,

15 East, 377,

1 D. & Ryl. 53,

8 B. & Ores. 51,

2 H. & Munf. 336,
1 T. R. 118,

7 H. Penn. R. 258,

130.

111.

528.

168.

636, 679.

168.

564, 691.

98.

55.

400.

129.

364.

596.

55.

418,420.

395.

55.

90.

38.

80.

246.

50.

321.

352.

50, 55.

406.

245.

254.

395.

352.
254.
245.
371.
421.
254.
422.
420.
127.
439.

340.

539.

185, 602.

Lacon vs. Hooper,
Laefon us. Dufrocq,
Lamond vs. Eiffe,
Lancaster Savings Institution
Peigart,

6 T. R. 224,
9 La. Ann. 640,
8 Q. B. 910,
vs. 4: Kent Com. 434,
note a.

420.
570.
246.

663.

TABLE OF CASES CITED.

XXXI

Lane «s. Gary,
Lansing vs. Caswell,
Lane vs. Dorman,
Langdon vs. Litchfield,
Landt vs. Hilts,
Lang vs. Scott,
Lansing vs. Smith,
Lang vs. Phillips,
Langdon vs. Potter,
Laragne vs. Stanley,
Latless vs. Holmes,
Latham vs. Spedding,

Lawrence vs. Miller,

Leathley vs. Webster,

Lee vs. Clark,

Lee vs. Rogers,

Lees vs. Somersgill, -

Lee vs. Tillotson,

Leigh vs. Kent,

Le Neve vs. Le Neve,

Lester vs. Garland,

Lessee of Good vs. Zercher,

Lessee of Henry Gordon vs. Kerr,

Levi vs. Milne,
Lewin vs. Stewart et al.,
Lewis vs. Webb,
Lindsey vs. Lynch,

Lindsay vs. The Charleston Com-
missioners,

Livingston vs. The Mayor,

Livingston vs The Mayor of New
York,

Livingston vs. Van Ingen,

Lockwood vs. Crawford,

Locke vs. Dane,

Lohman vs. The People,

Loring vs. Hailing,

Lonsdale vs. Brown,

Looker vs. Halcomb,

Lopez vs. Andrew,

Lord Bernard vs. Saul,

Lovejoy vs. Whipple,

Low vs. Rice,

Lowe vs. Waller,

Lucy vs. Levington,

Lumbard vs. Stearsis,

Lyman vs. Mower,

Lynch vs. Clarke,

Lyn vs. Wyn,

Lynde vs. Noble,
Lyon vs . Jerome,

19 Barb. 537,

436.

4 Paige, 619,

137.

3 Scam. 238,

169.

11 Conn. 251,

559, 632.

19 Barb. 283,

103.

1 Black. (Ind) 405,

39, 404.

8 Cowen, 146,

96, 573.

27 Ala. 311,

419.

3 Mass. 215, 221,

310.

3 Lev. 1,

321.

4 T. B. 486,

81.

20 Law Journal, N.

S. Q. B. 302,

439.

2 Corns. 245, 251,

195, 636.

Sayer, 251,

473.

2 East, 333,

391.

1 Lev. 110,

35.

17 Ves. 510,

55.

24 Wend. 337,

111.

3 T. R. 362,

121.

3 Atk. 646,

321.

15 Ves. 248,

418.

12 Ohio, 364,

409.

1 Wash. C. C. B.

323,

448.

4 Ring. 195,

616.

10 How. Pr. R.509,

114.

3 Greenleaf, 326,

170.

2 Sch. & Lef. 5, 7,

363.

2 Bay, 38,

478.

8 Wend. 100,

597.

8 Wend. 85,

503, 531.

9 J. R. 507,

89, 402.

18 Conn. 361,

427.

gHass. 360,

199, 685

1 Corns. 379,

116.

15 J. R. 119,

420.

4 Wash. C. R. 86,

74.

4 Bing. 183,

313.

3 M. & ByL 329,

121.

1 Strange, 498,

35.

18 Verm. 379,

85.

8 J. R. 409, •

109.

2 Doug. 736, 740,

336.

1 Vent. 175,

86.

4 Cush. 60,

517.

2 Verm. 517,

168.

lSandf.Ch.R.583,

660,

17, 37.

Bridgeman's Judg-

ments, 122,

124.

20 J. R. 80, 82,

319.

26 Wend. 485, 496,

386.

ZXXll

TABLE OF CASES CITED.

M'Cabe vs. Emerson, 6 Har. Penn. R. Ill,

M'Cartee w. Orphan Asylum So-

ciety,
M'Olung vs. Ross,
M'Cauley vs. The State,
M'Cluskey m. Cromwell,
M'Cracken vs. Hayward,
H'CuHoch vs. The State of Mary.

land,
M'Cutcheon vs. Steamboat Co.
M'Donald vs. Schell,

9 Cowen, 437,

5 Wheat. 116,
26 Ala. 135,

1 Eernan, 593,

2 Howard, 608,

4 "Wheat. 316,
13 Penn, R. 13,

6 Serg. & Rawle,
240,

11 C. B. 755,

M'Dougall vs. Paterson,

M'Ewen vs. Montgomery Insurance

Co. 6 Hill, 101,

M'lver vs. Ragan, 2 Wheat. 25,

M'Keen vs. Delancy's Lessee, 5 Oranch, 22,

M'Lanahan vs. Uniyersal Ins. Co. 1 Peters, 182,

M'Mahon vs. Cincinnati and Chi-
cago Short Line Railroad Co. 5 Ind. 413,

M'Master vs. The Commonwealth, 3. Watts, 292,

M'MllIen vs. McNeill,

M'Nair vs. Ragland,

M'Pherson vs. Cunliff,

Mack vs. Jones,
Macy vs. Raymond,
Madison Co. Bank vs. Gould,
Maggs vs. Hunt,
Maguire vs. Maguire,
Mahala vs. The State,
Maine Bank vs. Butts,
Maize vs. The State,
Mason vs. Waite,
Malcolm vs. Rogers,
Manners vs. Blair,
Mann vs. Eckford's Ex'rs,
Manly vs. The State,
Marchant vs. Langworthy,

Marsh vs. Putnam,

Marshall vs. Guion,

Margate Pier Co. vs. Hannam,

Mason vs. Haile,

Mason vs. Wait,

Marbury vs. Madison,

Martin vs. Ford,

Martin vs. Hunter's Lessee,

Martin vs. Mott,

Martin vs. Payne,

Ma'rriatt vs. Shaw,

Martin vs. Waddell,

4 Wheat. 209,

I Dev. & Bat Eq.
Cases, 625,

II Serg. & Rawie,
429,

1 Poster, 393,

9 Pick. 286,

5 Hill, 309,
4 Bing. 212,
7 Dana, 184,

10 Yerg. 532,
9 Mass. 49,

4 Indiana, 342,

4 Scammon, 134,

5 Cow. 188,

3 Bligh, 391, 402,

15 Wend. 519,

7 Maryland, 135,

6 Hill, 646; 3 Den.

526,

3 Gray, 663,

4 Denio, 581,

3 B. & Aid. 266,
12 Wheat. 379,

4 Scammon, 134,
1 Cranch, 137,

5 T. R. 101,

1 Wheat. 804,
12 Wheat 19,

11 Texas, 292,
Com. 274,

16 Peters, 867,411,

197.

250.
353.
547.
246.
651, 656, 659.

482.
90.

549.
260, 439.

436.

308, 321.
431, 432.
615.

250.

503, 531.
641.

137.

349.
555.
262.
367.
130.
637.
547.
435.
166.
589.
440.
138.
200.
488.

373.

642.

474.

298,

645, 658.

690.

216, 479.

326.

431, 593, 592,

698.

120.

394.

433, 455, 456,

TABLE OF CASES CITEP.

XXXIU

Mason vs. Haile,

12 Wheaton, 370,

133.

Mason vs. Fulwood,

1 Lutw. 466,

35.

Master, &c., of St. Cross vs. Lord

Howard de Walden,

6 T. R. 338.

257.

Massie vs. Watts,

6 Cranch, 148,

456.

Matthews vs. Zane,

1 Wheaton, 164,

83.

Mayor of Baltimore es, Greenmount

Cemetery,

r Md. 517,

305.

Mayor, &c., of Albany vs. Cunlifl

, 2 Corns. 165,

387.

Mayor of New York vs. Furze,

3 Hill, 612,

439, 387.

Mayor of New York vs. Lord,

17 Wend. 285 ; 18

ibid. 126,

366.

Mather vs. Chapman,

6 Conn. Rep. 68,

669.

Mayor, &c., of New York,

3 Duer, 119,

474.

Mayor of Allegany vs. Ohio and

Penn. R. R. Co.'

26 Penn. 355.

343.

Master (The), &c., of Vintner's Co.

vs. Passey,

1 Burr. 235, 239,

466.

Mayor of Baltimore vs. Root,

8 Md. 98; Magna

Carta, §29,

305.

Mayo vs. Wilson,

1 N. H. R. 55,

534,

Medford vs. Learned,

16 Mass. 216,

408.

Melody vs. Reab,

4 Mass. 473,

326.

Meaoham vs. Fitchburg R. R. Co.

4 Cush. 291,

532.

Merchants' Bank vs. Cook,

4 Pick. 405,

262,

Merryfleld vs. Jones,

2 Curtis, 306,

614.

Meserole vs. Mayor of Brooklyn,

8 Paige, 1'98,

577.

Merchants' Bank ««. Spalding,

Court of Appeals, /

83.

Merville vs. Townsend,

5 Paige, 80,

435.

Mestader vs. Gillespie,

11 Ves. 621, 627,

104.

Middlesex Turnpike Company «t

Locke,

8 Mass. R. 268,

425.

Miffln vs. Railroad Company,

16 Penn. 193,

521.

Mills vs. Collett,

6 Bing. 85,

103.

Mills vs. Duryee,
MiUs vs. St. Clair Co.,

7 Cranch, 481,

78, 600.

8 Howard, 569,

33, 339, 344, 634

Milhau vs. Sharp,

15 Barb. 193,

577.

Milhau vs. Sharp,

17 Barb. 435,

467.

Milford vs. Worcester,

7 Mass. 48,

90.

Minor vs. Mechanics' Bank of Alex

andria,

1 Peters, 46, 64,

440.

Mitford vs. Elliott,

8 Taunt. 13,

60.

Mitchell vs. Harmony,

13 How. 115,131,

612, 615.

Mitchell vs. Smith,

i Bin. 110,

88.

Moers vs. City of iggading,

21 Penn. 188,

464, 487, 605.

Mohney vs. Cook,

26 Penn. 342,

400.

Monson vs. Chester,

22 Pick. 385,'

293.

Monongahela Navigation Co. vs

Coons,

' 6 W. & Serg. 114,

521.

Moncrief «s. Ely,

19 Wend. 405,

404.

Money vs. Leach,

3 Burr, 1743,

609.

Monys vs. Leake,

8 T. R,, 411,

400.

Montague vs. Smith,

17 Ad. & Ell. N. S.

688,

322.

Moon vs. Burden,

2 Exchequer R.
22,

190.

XXXIV

TABLE OF CASES CITED.

Montgomery vs. The State,
Mooers ®«. Bunker,
Moore vs. City of New York,
Moon vs. Duraen,
Moore vs. Fowler,

Moore vs. Houston,

Moore vs. The Mayor, &c.

Moore vs. The People of the State

of Illinois,
Morford vs. Barnes,
Morehouse et al. vs. Crilley,
Morgan et al. vs. Lesler,

11 Ohio, 427,
9 Foster, 421,
4 Sandf. 461,

2 Exch. 22,
Hempstead's Ark.

CO. Rep. 637,

3 S. & R. 144,

4 Selden, 110,

14 How. U.S. 13,
8 Yerger, 444,
8 How. Pr. R. 431,
Wright's Ohio R.

1&
3 Den'io, 392,

5 Gushing, 52,
1 Kernan, 281,

Morris vs. The People,

Morrison vs. Underwood,

Morse vs. Goold,

Moss vs. Commissioners of Sewers, 4 Ellis & Black. (Q.

B.) 670, 679,
Mott vs. U. S. Trust Co. "' ' ""

Mountfort vs. Hall,
Mount vs. The State,
Municipality No. 1 vs. Wheeler,

Municipality No 2, vs. White,

Murry vs. Asken,
Murray vs. Baker,
Murray vs. Gibson,

19 Barb. 568,
1 Mass. 443,

14 Ohio, 295,
10 La. Ann. R. 745,

746,
9 La. Ann. R.

447,
6 J. J. Marsh. 27,
3 Wheat. 541,

15 How. U. S. R.
421,

8 B. & C. 421,

Murray vs. Reeves,

Murray's Lessee vs. Hoboken Land

Improvement Co. 18 Howard, 272,

Murphy vs. Menard, 11 Texas, 673,

Murphy vs. The People, 2 Cow. 815,

Myers vs. Gemmel, 10 Barb. 537,

610.
429.
611.
191.

652.
421.
636, 638.

607.
549.
113, 392.

694.

468, 482.
110.
658.

309.
90.
549.
547.

363, 407.

505.
549.
304.

196.
86.

612.
53.

549, 597.
13.

Naz. Lit. and Benev. Inst. vs. Com-
monwealth,
Ned vs. The State,
' Nefifs Appeal,
Nelson vs. Allen and Harris,
NeUis vs. Clark,
Nesmith vs. Sheldon,
New Bedford and Bridgewater

Turnpike Co. vs. Adams,
Newcomb vs. Butterfield,
New Orleans vs. Graihle,
Newburgh Turnpike Co. vs. Miller,
New Orleans vs. The United States,
Newell vs. The People,

14 B. Monroe, 266,

7 Porter, 187,
21 Penn. 243,
1 Yerg. 376,

4 Hill, 424,

8 How. 812,

8 Mass. 188,

8 J. R. 266,

9 La. Ann. R. 561,

5 John Ch. R. 112,

10 Pet. 662, 737,
8 Selden, 997,

415.

647.

407.

254, 628.

85.

431.

403.
391.

464, 605.
440.

456, 609.
86, 246.

TABLE OP CASES CITED.

XXXV

Newell vs. The People,

Newton vs. Tibbats,

Nichols vs. Bridgeport,

Nicholson vs. Leavitt,

Nichols vs. Squire,

Nixon vs. Hyseratt,

Noble vs. Durell,

Norman vs. Heist,

Norris vs. Boston,

Norris vs. Clymer,

Norris vs. Crocker,

North Penn. R. R. Co. vs. Davis,

North Hempstead vs. Hempstead,
Northern Railroad Co. m. Miller,
Notlejr vs. Buck,

8 Seld. 109,

2 Eng. R. 150,
23 Conn. l89,

4 Sandf. 252,

5 Pick. 168,

6 J, R. 58,

3 T. R. 721,

6 Watts&Ser.m

4 Met. 288,

2 Penn. 277, ■
13 How. 429,
26 Penn. R.

Casey) 238,
2 Wend. 109,
10 Barb. 260,
8 Barn. & Cres. 160

164,

482.

647.

604.

91.

126, 891, 430.

386.

257.

410.

489.

487.

130.

612.
455.
94.

244.

Oakley vs. Aspinwall,

O'Conner vs. Pittsburgh,
O'Donnell vs. Kelsey,
O'Donnell vs. Sweeney,
OflScer vs. Young,
Ogden vs. Saunders,

Ohio L. I. Co. vs. Debolt,
Olcott vs. Robinson,
Olmsted vs. Elder,
Omit vs. Commonwealth,
Oriental Bank vs. Freese,
Oriental Bank vs. Freese,
Orr vs. Baker,
Osborne vs. Humphrey,
Osbom vs. The U. S. Bank,
Osgood vs. Breed,
Owen vs. Slatter ef al.
Owings vs. Speed,

Coms. 547, 548,
568,

6 Harr. (Penn.) 187,

4 Sandf. 202,

5 Ala. 467,
5 Yerg. 320.

12 Wheat. 213, 267,

278, 295,
16 How. 416,430,

20 Barb. 148,
1 Seld. 144,

21 Penn. 426,

18 Maine Rep. 109,
18 Maine, 112,

4 Indiana, 36,

7 Conn. 335,

9 Wheat. 738,
12 Mass. 630,
26 Alabama, 547,

5 Wheai 420,

109,487.

522.

458.

85.

169.

494,593,595, 596,

597, 641. •
627, 630.
355.

351, 689.
85, 123.
197.
686.
344.

559, 631.
577.
303.
420.
618.

Packard vs. Richardson,

17 Mass, 121, 143,

252.

Packer vs. Sunbuiy and Erie Rail- 7 Harris (Penn.) R.

road Co.,

211,

415.

Paddon vs. Bartlett,

3 Ad. & Ell. 884,

134, 13

Page vs. Pearce,

8Mees.&Wel. 677,

302.

Paget vs. Foley,

2 Ring. N. C. 679,

124.

Palmer M. Conly,

4 Denio, 374,

99,135

Palmer vs. Lawrence,

3 8a,nd. S. C. 162,

90.

Palmer vs. York Bank,

18 Maine, 166,

391.

XXXVl

TABLE OF CASES CITED.

Paup vs. Drew,
Parsons vs. Bedford,

Parsons vs. Chamberlin,
Parker vs. Oommonwealth,
Parmiter vs. Coupland,
Parmelee vs. Thompson,
Partridge vs. Naylor,
Parker vs. Foote,
Parton vs. Hervey,
Parker et al vs. Overman,
Parker vs. Redfield,

W How. 218,

3 Pet. 4S3, 446,
447, 448,

4 Wend. 512,
6 Barr, 507,

6 M. & W., 105,

7 Hill, 77,
Oro. Eliz. 480,
19 Wend; 309,
1 Gray, 119,
18 Howard, 187,
10 Conn. 490,

Parker vs. Sunbury and Erie Kail- 7 Harris (Penn.) R,

road Co.,

Parmlee vs. Thompson,

Patin vs. Prejean,

Pattison vs. Bankes,

Pattee vs. Greeley,

Patterson vs. Jenks, et at,

Patterson vs. Philbrook,

Patterson vs. Winn,

Paul vs. Carver,

PauU vs. Lewis,

Peabody vs. Hayt,

Pearce vs. Hitchcock,

Pearson vs. Isles,

Pease vs. Morrice,

Pease vs. Peck,

Pease vs. Whitney et at,

Pellicat vs. Angel,

Pennington vs. Townsend,

Pennsylvania Railroad Co. vs. Ca-
nal Commissioners,

Pennock & Sellers vs. Dialogue,

People vs. Adams,

People vs. Allen,

People vs. Berberrick & Toynbee,

301,

211
2 Hill, 77,
7 Louis Rep
Oowper, 540,
13 Met. 284,
2 Pet. 227,

9 Mass. 151,
5 Peters, 233,
11 Wheat. 380,
26 Penn. 223,

4 Watts, 402,

10 Mass. 36,
2 Coms. 388,
2 Doug. 556,
2 A. & E. 94,

18 Howard, 595,

5 Mass. 380, 382,

2 0. M. & Ros. 311,
7 Wend. 276,

21 Penn. 9,

2 Peters, 1, 18,

3 Denio, 190,

6 Wend. 487, 488,
5 Denio, 77,

11 How. Pr. 289,
318, 333,

People vs. Board of Education of

Brooklyn, 13 Barb. 400, 409,

People vs. Brooks, 4 Denio, 469,

People vs. Brooks, 1 Denio, 457,

People vs. Compton, 1 Duer, 512,

People vs. Cook, 14 Barb. 259,

People vs. Cooper, 6 Hill, 516,
People vs. Dorr» Same vs. Hussey, not yet reported

People vs. Edmonds, 15 Barb. 529 '

People vs. Gilbert, 18 J. R. 227,'

People vs. Green, 2 Wend. 266, 274

People vs. Hayden, 6 Hill, 369, '

People vs. Hennessey, 16 Wend. 147

People vs. Holley, 12 Wend! 481*

People vs. Hulse, 3 Hill, 809,

People vs. John Doe, 1 Mich. 452, 463,

628.

593, 614, 613.

420.

165.

616.

170, 429.

13.
90.
353.
559.

339.

57.

647.

58.

85.

456.

199, 685.

456.

522.

257.

391.

118.

93.

302.

484.

416.

397.

85.

342.

426.

80.

372.

116.

63, 151, 541, 549.

813.

892.

101.

472.

374.

387.

558.

158.

106. .

488.

627, 628.

442.

374, 377,

890,440,

875.

TABLE OF CASES CITED.

XXX Vll

People vs. Herkimer,

People vs. Lemmon,

People vs. Livingston,

People vs. Mauran,

People vs. Mayor of Brodklyn,

People ex rel. Lynch vs. Mayor;

C. P. 4 Wend.
210,

5 Sandf. 681,

6 Wend. 531,
5 Denio, 389,
A Corns. 423,
25 Wend. 680,

People vs. Mayor, &c., of New York, 10 Wend. 393,

People vs. Meighan,
People vs. Mitchell,
People vs. Morris,
People vs. Payne,
People vs. Peck,
People vs. Piatt,
People vs. Price,

People vs. Rathbun,
People vs. Rossiter,
People vs. Runkel,
People vs. Schermerhom,

I Hill, 298,
4 Sandf. 466,
13 Wend. 325,

3 Denio, 88,

II Wend. 604,
IT J. R. 195,

1 Barb. S. C.

666,
21 Wend. 609,

4 Cowen, 143,
9 J. R. 147,

19 Barb. S. C.

540,
19 Barb. 657,

People va. Schoonmaker,

People vs. Supervisors of Westches-
ter, 4 Barb. 64, 74,

People vs. Taylor, 2 Mich. 250,

People vs. The Corporation of Al-
bany, 11 Wend. 539,

People vs. The Mayor of Brooklyn, 6 Barb. 214,

People exreL GrifBuus. The Mayor, 4 Corns. 419,

People vs. The Supervisors of Che-
nango, 4 Seld. 317,

People vs. Utica Ins. Co., 15 J. R. 358, 380,

PhiUips' Case, 1 Moody's Crown

Cases, 264, 273,

Philbrook vs. Handley, 27 Maine, 53,

Philadelphia and Wilmington Rail-
road Co. vs. Maryland, 10 Howard, 393,

Philadelphia and Trenton Railroad

Co. vs. Stimpson, 14 Peters, 448,

Pickup vs. Wharton, 2 C. & M. 401, '

Pierce vs. City of Boston, 3 Met. 520,

Pierce vs. Delamater, 1 Conais. 17,

Pierpont vs. Graham, 4 Wash. C. 0. R.

Pierce vs. Kimball,
Peirce vs. The State,
Pike vs. Jenkins,
Pilkington vs. Green,
Piscataqua Bridge vs. N. H. Bridge,
Pitt vs. She^,.
Pittsburgh vs. Scott,
Plank Road Co. vs. Thomas,
Plantei*' Bank vs. Sharp,
Plumb vs. Sawyer;,
Police Jury vs. M'Donough's Sucr.
cession,

9 Greenleaf, 54,
13 N. H. R. 536,
12 N. H. 255,
2 B. & P. 151,
7N.H. 35,65, ■
4 B.-& Aid. 208,
1 Penn. 309,

20 Penn. R. 93,
6 How. 301,

21 Conn. 351,

8 La. Ann. R. 341,

200.

76, 604.

137, 671.

466, 457, 458.

186, 602, 503.

573.

420,

91.

573.

116.

373.

165.

616.
80.
396.
361, 373.

374, 456, 457.

156.
436.

46S.
603.
503.

377.
234,298,368.

437.
390.

632.

456.
190.
565.
129.

418.

33.

616.

328.

111.

626, 665.

418.

528.

516.

654, 656.

197.

578.

XXXVIU

TABLE OF CASES CITED.

Polk's Lessee vs. Wendell et al,

5 Wheat. 293,

456.

Polk's Lessee vs. "Wendell et al,

9 Cranch, 87,

481,456.

Pollard & Pickett vs. Dwight etal

, 4 Oranch, 421,

456.

Pollard vs. Hagan,

3 How. 212,

509.

Ponder vs. Graham,

4 Florida, 23,

637.

Pond vs. Negus et al.,

8 i/ifiss. 230,

373.

Portland Bank vs. Apthorp,

12 Mass. 252,

558.

Portland Bank vs. Maine Bank,

11 Mass. 204,

418.

Portsmouth Livery Co. vs. Watson, 10 Mass. 91,

33.

Port Wardens of New York vs

Cartwright,

'4Sandf. 236,

315.

Potter vs. Bank of Ithaca,

5 Hill, 490,

90.

Potter vs. Sturdivant,

4 Greenleaf, 154,

686.

PoweU vs. Tuttle,

3 Comst. 396,

351.

Powers et al. vs. Bergen,

2 Seld. 358,

154, 157, 174, 175

Presb. Church vs. City of New

York,

5 Cowen, 542,

634, 636.

Presbrey vs. Williams,

15 Mass. 193,

418.

President and Trustees of the tU

lage of Romeo vs. Chapman,

2 Mich. 179,

436.

Preston vs. Drew,

5 Law Reporter, N.

S. 189,

197.

Priestman vs. The United States,

4 Dallas, 28,30,34,

311, 38&

Prigg vs. The Commonwealth of

Peimsylvania,

16 Peters, 540,

607.

Proprietors of Kennebec Purchase

vs. Laboree et al.,

2 Greenleaf R. 275,

197, 671.

Prosser vs. Secor,

5 Barb. 607,

102.

Providence Bank vs. Billings,

4 Peters, 514,

555, 665, 682.

Putnam vs. Longley,

11 Pick. 487, 490,

310.

Puckle vs. Moor,

1 Vent. 191,

35.

Purdy vs. The People,

4 Hill, 384,

69, 101, -468, 573.

Purgey vs. Washburn,

1 Ack. 264,

67.

Quackenbush vs. Danks, 1 Denio, 128,

Queen vs. Corporation of Durham, 10 Mod. 146, 147,
Queen vs. Eastern Counties R. Co., 10 Ad. & Ell. 531,
Queen vs. Mathews, 10 Mod. 27,

;Quimby vs. Carter, 20 Maine, 218,

Quinebaug Bank vs. Leavens, 20 Conn. 87,

658.
369.
523.
394.
390.
422.

Radcliff's Ex'rs vs. Mayor, &c., of

Brooklyn,
Railroad Co. vs. Davis,
Rathbun vs. Acker,
Raynham vs. Canton,

4 Corns. 195,

2 Dev. & Bat. 451,
18 Barb. 393,

3 Pick. 293,

520.
159.
366w

42-7.

TABLE OF CASES CITED.

XXXIX

Eea vs. M'Eachron, 13 Wend. 466,

Redmond vs. Smith, 7 Man. & Gr. 457,

Eeed vs. Davis et al., 8 Pick. 516, 517,

Reed vs. PuUum, 2 Pick. 158,

Reed vs. Ingham, 3 Ellis & Black. Q.

B. 889,
Reed vs. Northfield, 13 P. 94,

Reed vs. Rice, 2 J. J. -Marsh, 45,

Reed vs. Wright, 2 Greene, Iowa, 22,

Reg. vs. Inhabs. of Fordham, 11 A. & E. 88,

Reg. vs. Justices of Cambridgeshire, 7 A. & E. 480,
Reg. vs. Justices of Shropshire, 7 A. & E. 480,
Reg. vs. Justices of Gloucestershire, 7 A. & E., 480,
Reiford vs. Knight, 15 Barb. 627,

Reitenbaugh vs. Chester Valley R.

R. Co.,
Renwick vs. Morris,
Renss Glass Factory vs. Reid,
Rex vs. Archbishop of Armagh,
Rex vs. Bagg,
Rex vs. Bailey,
Rex vs. Baines,
Rex et Regina vs. Barlow,
Rex vs. Bleasdaie,
Rex'ug. Cator,
Rex vs. Clark,
Reg. vs. Corns, of Poor Laws of

Holbom Union,
Rex vs. Cox,
Reg. vs. Davis,
Rex vs. Davis,
Rex vs. Handy,
Rex vs. Hymon,
Reg. vs. Inhab. of Birmingham,
Reg. vs. Inhabs. of Fordham,
Rex vs. Inhabs. of Glastonby,

Rex vs. Inhabs. of Hipswell,
Reg. vs. Inhabs. of St. Edmunds,

Salisbury,
Rex vs. Jarvis,
Rex vs. Johnson,
Rex vs. Justices of Leicester,

Rex vs. Justices of London,
Rex vs. Justices of Middlesex,
Rex vs. Loxdale,

Rex vs. Lumsdaine,
Reg. vs. Merionethshire,
Rex vs. Morgan,
'Rex vs. Pawlyn,
Reg. vs. Pembridge,

21 Penn. 100,

3 Hill, 621,

5 Cow. 587, 604,
8 Mod. 8,
Skin. 429,
R. & R. C. C. 1,
12 A. & E. 227,
2 Salk. 609,

4 T. R. 809,
4 Burr. 2026,
Cowp. 610,

6 A. & El. 68, 69,
2 Burr. 787,
Say. 163,
Leach's Cases, 271,

6 T. R. 288,

7 T. R. 536,
8B. &C.29,
11 A. & E. 83,
Cases Temp. Hard.

357

8 B. & C. 466,

2 Q. B. 72,
Burr. 148,

6 East, 583,

7 B. & C. 6; 9 D.
& R. 772,

3 Burr. 1456,
2 B. & Adol. 818,
1 Burr. 445, 447,

Reg. vs. Preston,
Rex vs. Pugh,

10 Ad. & Ellis, 160,

6 Q. B. R. 343,
2 Str. 1066,
Sid. 209,
12 Law J. (1843)

part 2, Q. B. 47,

7 Dowl. P. C. 593,
1 Doug. 188,

348.
399.

303, 391.
685.

340.

391.

597.

539.

878.

59.

249.

521.

93.

336.

60.

32, 33.

81.

64,

438.

394.

125, 126.

99.

264.

254.

96.

126.

325.

302, 371.

302.

358.
302, 371.

125.

68.

80.

302, 370.

130.

62, 81.

248, 250, 252, 256,

323, 370.
126.
250.
117.
84.

801. , .

301.

124.

TABLE OF CASES CITED,

Rex vs. Robinson,

Eex vs. Rogers,

Reg. vs. Stock,

Rex vs. Sutton,

Rex vs. Tooley,

Rex vs. Upper Papworth,

Rex vs. ITtterby, ^

Rex vs. Williams,

Rexford vs. Knight,

Rhodes vs. Smethurst,

Rice vs. Parkman, '

Richmond F. and P. R. R. vs. Lou-
isa R. R.,

Richardson vs. Muryson,

Ripley vs. Sampson.

Ritter vs. Ritter,

River Dun Navigation Co. vs. North
Midland Railway Co.

Roach vs. Cozine,

Robinson vs. AUsop,

Roberts vs. Goff,

Roby vs. Vest,

Roberts vs. Wetherall,

Rockwell vs. Hubbell,

Rodman vs. Munson,

Rogers vs. Bradshaw,

Rogers vs. Goodwin,

Rogers vs. Jones,

Rogers vs. Kennebec and Portland
Railroad Co.,

Rogers vs. Rogers,

Rogers' Adm'rs vs. The State,

Ross's Case,

Rowan vs. Runnels,

Rowning vs. GoodchUd,

Rubottam vs. M'Clure,

Ruckman vs. Cowell,

Rue vs. Alter,

Russell vs. The Mayor, &c., of New
York,

Ruthbun vs. Acker,

Ryman vs. Clark,

2 Burr. 799,

405.

10 Bast, 569,

129.

8 Ad. & El. 405, 410,

250.

4 M. & Sel. 532,

56.

3 T. R. 69,

125.

3 East, 413,

301.

2 PhU. Ev. 127,

119.

1 W. Bl. 85,

50.

1 Kern. 308,

527, 532.

4 Mees. & W. 63,

309.

16 Mass. 326,

171.

13 How. 83,

512, 665, 666.

23 Conn. 94,

408.

10 Pick. 370,

403.

5 Blackf. 81,

690.

1 Railway Cases,

135,

466.

9 Wend. 227,

319.

6 B. & A. 142,

321.

4 B. & A. 92,

337.

4 N. H. R. 285,

132.

Salk. 223,

97.

2 Doug. Mich. 197,

647.

18 Barb. 63,

86, 161.

20 J. R. 735, 744,

155, 248.

3 Mass. 477, 478,

252.

1 Wend. 237,

465,457.

36 Maine, 319,

523.

1 Paige, 184,

601.

6 Indiana, 31,

573.

2 Pick. 165,

551.

5 Howard, 139,

434.

2 W. Bl. 906,

96.

4 Blackf. 505,

528.

1 Corns. 505,

367.

5 Denio, 119,

315.

2 Denio, 461,

366, 464, 573

18 Barb. 393,

440.

4 Blackf. 329,

418.

Sackett's Harbor Bank vs. Lewis

Co. Bank, 11 Barb. 213,

Sackett vs. Sackett, 8 Pick. 309, 315,

Sailly vs. Smith, 11 J. R. 500,

Salkeld vs. Johnston, 1 Hare, 196,

Salem Turnpike and C. B. Co. vs.

Hayes, , 5 Cushing, 458,

Sampeyreao and Stewart vs. The

United States, 7 Peters, 222,

90.
11.
609.
55, 423.

95.

456.

TABLE OF CASES CITED.

xli

Sandiman vs. Breach,
Sandford iis. Nichols,
Sarah vs. Borders,
Satterlee ««. Mattiliewson,

Satterlee «s. Matthewson,

Satd vs. His Creditors,

Savacool vs. Boughton,

Savage et al. vs. Walshe et al.,

Savoye vs. Marsh,

Sawyer vs. City of Alton,

Schenley and Wife vs. City of Alle-
gheny,

Schroeppell vs. Corning,

Schneider vs. Macfarland,

Schooner Rachel vs. The United
States,

Schooner Paulina's Cargo vs. The

7 B. & C. 100,
13 Mass. 288,

4 Scam. 344,

16 Serg. & Rawle,
179

2 Peters, 880, 413,

17 Martin, 569,

5 Wend. 170,

26 Alab. 619, 620,
10 Met. 594,

8 Scam. 127,

25 Penn. 128,
2 Ooms. 182,
2 Coms. 459,

6 Cranch, 829,

7 Cranch, 52, 60,
14 J. R. 338,

8 Cowen, 89,

1 Mich. 295,

2 Gray, 43,

4 Serg. & R. 159,
4 Serg. & R. 166,
18 Ohio, 489,
P. Co., 18 Conn. 453,

9 Pick. 414,
2 Corns. 464,

United States,
Scovill vs. Canfield,
Scofield vs. Collins,
Scott vs. Smart's Ex'rs,
Scribner vs Fisher,
Seidenbender vs. Charles,
Seidenbender vs. Charles,
Sellers vs. Dugan,
Selleck vs. Sugar Hollow T.
Sewall vs. Jones,

Seymour vs. Judd, ^ ^^lx.c. =«»,

Sharpless vs. City of Philadelphia, 9 Harris, 147,
Sharp vs. Johnson, 4 Hill, 92,

Sharpless vs. The Mayor of Phila- 21 (9 Harris) Penn.

delphia, 147, 161, 162,

Sharp vs. Speir, 4 Hill, 76,

Shaw vs. Tobias, 8 Coms. 188,

Sheffield vs. Ratcliffe, Hobart. 346,

Shelby vs. Guy, 11 Wheat. 361,

Sheldon vs. Miller, 9 La. Ann. R. 187,

Sherman vs. Barnard, 19 Barb. 291,

Sherwood vs. Reade, 7 Hill, 431, '

Shrewsbury vs. Boylston, 1 Pick. 108,

Shrewsbury and Birmingham R.

Co. vs. London and North Wes^ 2 Macwaghten & G.

tern Co.
Shuttleworth vs. Cocker,
Sibley vs. Smith et <d, ■
Sickles vs. Sharp,
Sims vs. Hampton,
Simpson vs. Unwin,
Sir Wollaston Dixie's Case,
Sleight vs. Read,
Slick vs. Maysyille and Lexington

R. R. Co. 13 B; Monroe,

Smith vs. Argall, 6 Hill, 4^79,

Smith vs. Brown, 1 Wend. 231,

824,

1 M. & G. 829,

2 Michigan, 486,
13 J. R. 498, 499,
1 S. & R. 411,

3 B. & Adol. 134,
1 Leon. 96,
18 Barbour, 159,

423.
553.
597.

531.

192, 411, 597, 600,'

639.
72.
886.

370,376,441.
642.
557.

503.
117.
349.

130.

243.

79.

234.

408.

642.

88.

55, 398.

85.

422.

346.

110, 322.

503.

354.

179, 187,. 464, 482,

605.
354, 356.
114.
204.

804, 481, 432.
491.
87.
352.
417.

67.

302.

856.

328.

418.

301.

420.

511.

464, 505.

367.

99.

xlii

TABLE OF CASES CITED.

Smith vs. Burley, 9 New Hampshire,

423,

Smith M. Drew, 6 Mass. 514,

Small M. Edrick, 5 Wend. 137,

Smith vs. Godfrey, 8 Foster, 379,

Smith vs. Helmer, • 7 Barbour, 416,

Smith vs. Lockwood, 13 Barb. 209,

Smith vs. Moffat, 1 Barb. S. C. R. 65,

Smith vs. Morrison, 22 Pick. 481,

Smith vs. Rues, 2 Sumn. 354, 355,

Smith vs. Saxton, . 6 Pick. 483,

Smith vs. Sparrow, 4 Bmg. 84,

Smith vs. Spooner, 3 Pick. 229, 230,

Smith vs. The State, 19 Conn. 493,'

' Smith vs. The Earl of Jersey, 2 Bred. & B. 598,

Smith vs. Morrison, 22 Pick. 430,

Smith vs. Wilcox, 19 Barbour, 581,

^Snell vs. Bridgewater Cotton Gin

Manufacturing Co. 24 Pick. 296,

Snyder vs. Warren, 2 Oowen, 518,

Society, &c. vs. New Haven, 8 Wheat. 494,

Soc. Prop. Gospel, , 2 GaU. 105,

Southport vs. Ogden, 23 Conn. R. 128,
Southwark Bank vs. Common- 26 Penn. Reps. 448,

-wealth, 449,
Southworth vs. Palmyra and J. R.

R. Co.
Spear vs. Crawford,
Specht vs. The Commonwealth,

Spiers vs. Parker,
Sprague vs. Birdsall,
Springfield vs. Hampden Commis-
sioners of Highway,
Springfield Bank vs. Merrick,
S. P. Norton vs. Pettibone,
Spring vs. Russell et al.
State vs. Allen,
State vs. Buchanan,

State vs. Buzine,

State vs. Clark, ,

State of Ohio vs. Commercial Bank

of Cincinnati,
State vs. Dawson,
State of Illinois vs. Delafield,
State vs. Ellis,
State of Louisiana vs. Executors of

2 Michigan, 287,
14 Wend. 20,
24 Penn. 103;
Barr, 312,

1 Term R. 141,

2 Cowen, 419,

420,

John McDonogh,
State vs. Knight,

6 Pick. 501,
14 Mass. 322,

7 Conn. 319,

7 Greenleaf, 292,

2 M'Cord, 55,
5 Harris & J. R.

317,
4 Harrington, 572,

8 Foster, 176,

7 Ohio R. 125,

3 Hill R. 100,

8 Paige, 527, ■
3 Conn. 185,

8 La. Ann. R. 171,
Taylor's N. C. Rep,

65,-
16 Ohio, 369,
16 Howard, 369,

State Bank of Ohio vs. Knoop,

State use of Sprigg vs. Jones et al, 8 Maryland, 88,

State vs. McGinley, 4 Indiana Reports,

632.

92, 95.

418.

399

66, 457, 527, 528.

94, 96.

319.

660.

309.

303.

85.

345.

422.

256.

691.

85.

262.
420.
450.
188.
470.

416.

674.
403.

85, 593,

63.

392.

88.
669.

510, 513.
353.

84.

605.

463.

341.

186, 494.
385.
80.

464.

79.
630.
664.
361.

375.

TABLE OF CASES CITED.

xliii

State of Rhode Island vs. Massa-
chusetts,

State ««. Moore,

State vs. Noyes,

State vs. Rollins,

State vs. Schlemn,

State vs. Springfield Township,

State vs. Stephenson,

State of Pennsyluania vs. The
Wheeling Bridge Oo.

State vs. Thompson,

12 Peters, 657,
6 Indiana, 436,
10 Foster, 279,
8 N. H. R. 550,
4 Harrington, 577,
6 Indiana, 84,
2 Bailey, 334,

13 Howard, 519,
10 La. Ann. R. 122,

123,
7 Cranch, 164,
3 Hill, 39,
1 Atk. 315,

ptate of New Jersey vs. Wilson,

Stafford vs. Ingersoll,

Staniford vs. Barry,

Stanhope vs. Bishop of Lincoln et

at Hob. 243,

Stamper vs. Miller, 3 Atk. 211,

Staniels and another vs. Raymond,

&c., Trustee, 4 Gush. 314,

Stark vs. M'Gowan,

Starr vs. Pease,
Stanley vs. Wharton,
Stanton vs. Schell,

Stanton vs. Unirersity of Oxford,

Steam Navigation -Co. vs. Weed,

Steers vs. Lashley,

Stephens- w. Reynolds,

Stevens vs. Jeacocke,

Stevens vs. Wilson,

Stewart vs. Mayor,

Stidger vs. Rodgers,

Siief «s. Hart,

Stoddard et al. vs. Chambers,

1 Nott & McCord,
387,

8 Conn. 648,

9 Price, 301,
3 Sandf. S. C

328,

1 Jon. 26,

17 Barb. 378,

6 T. R. 61,

2 Seld. 454,
11 Q. B. 731,

3 Denio, 472, 475,

7 Maryland, 501,
Pr. Dec. 64,

1 Coms. 20,

2 Howard U. S. R.
284,

1 Watts, 258,

Stoever vs. Immell,

Stockton & Darlington R. R. Co. vs.

Barrett, 3 Scott N. R. 803,

Stockdale vs. Hansard, 9 Ad. & Ell. 1,

Stockdale vs. Hansard, 11 Ad. & Ell. 253.,

Stocking vs. Hunt, 8 Denio, 274,

Stokes & Gilbert vs. The Corpora-
tion of New York, 14 Wend. 87,
Stourbridge Canal Co. ««. Wheeley, 2 Barn, & Ad. 792,
Stradling vs. Morgan, Plowden, 203,
Street vs. Commonwealth, 6 W. & S. 209,
Striker vs. KelLy, 7 Hill, 9, 25,
Striker vs. Kelly, 2 Denio, 323,
Stringer et al. vs. Lessee of Young,

et al. 3 Pet. 320, 340,

Strode vs. The Stafford Justices, 1 Brock, 162,
Stuart vs. Laird, 1 Cranch, 299,

Sturges vs. Crowninshield, 4 Wheat. 150, 200,

202, 203, 206,

74.

406.

463.

11.

605.

486.

51. •

17.

254.

558, 629, 656.

93.

168.

395.
488.

364.

494.
637.
390.

103.

61.

90.

85.

578.

96.

367.

528, 549.

546.

93.

456.
131.

340.
23.
154.
658.

463.

340.

50.

127.

374, 364.

356.

466.
58.

251, 487, 593.
133", 594, 617, 641,
643, 659.

xliv

TABLE OF OASES CITED.

St. Peters, York, Dean and Ch. vs.

Mideborough, 2 T. & J. 196,

Succession of Lanzetti, 0 La. Ann. 829,

Suffolk Bank vs. Worcester Bank, 5 Pick. 106,
Supervisors of Onondaga «s;Briggs, 8 Denio, 173,
Supervisors of Niagara vs. People, 4 Hill, 20 ; 7 Hill,

504,
Surtees vs. Ellison, 9 B. & C. 750,

Sun Mutual Insurance Co. vs. The

City of New York, 5 Sandford, 10,

Sun Mutual Insurance Co. vs. The

Mayor, 4 Selden, 241,

Susquehanna Canal Co. vs. Wright, 9 Watts & Serg. 9,

Sutton's Heirs vs. Louisville,
Suydam vs. Broadway,
Suydam vs. Keys,
Suydam vs. Morris Canal

Banking Co.
Swan ««.• Williams,
Swearingen vs. United States,
Swift vs. Tyson,
Syracuse City Bank vs, Davis,

and

6 Dana, 80,
14 Peters, 67,
18 J. R. 444,

5 Hill, 491,
2 Michigan, 427,
11 Gill. & J. 878,
16 Peters, 1 and 18,
16 Barb. S. C. E.
188,

360.
570..
391,
200.

573.
130. 135.

483.

52.

523.

503.

601.

102.

90.

519.

106.

432, 434, 591.

164, 201.

TaUman vs. White,
Tate vs. Stooltzfoos,

Tatem vs. Wright,
Taunton and S. B. T. Co. vs. Whit-
ing,
Taylor vs. Boardman,
Taylor vs. Delancy,

Taylor vs. Porter,
Terrington vs. Hargreaves,

Terrett vs. Taylor,
Terrett vs. Taylor;
Thacher vs. Jones,
Thames Manufacturing Co. vs. La-

throp,
Thatcher vs. Morris,
Thatcher vs. Powell,
Thayer vs. Lewis,
The Bishop of Roches'rM. Bridges,
The City Council of Charleston

vs. Benjamin,
The Commonwealth vs. Bacon,
The Commonwealth vs. Mann,
The Company of Cutlers in York

shire vs. Ruslin,

2 Comst. 66,
16 Serg. & Rawle,

86,

3 Zabriskie, 429,

10 Mass. 327,
25 Vermont, 681,

2 0. C. in Error,
150,

4 Hill, 140,

3 Moore & Payne,
137, 143,

9 Cranch, 50,
9 Cranch, 43,
31 Maine, 528,

7 Conn. R. 550,
1 Kern. 437,
6 Wheat. 119,

4 Denio, 269,

1 B. & Ad. 847,

2 Strob. Law R.
508,

6 Serg. & R. 822,
6 W. & Serg. 418,

Skinner, 368,

355.

201.
603.

403.
120.

235, 429.

156, 175, 615, 539.

133.

679.

9, 187, 622, 656.

390.

866.

88.

353.

393.

96.

85.

633.

638.

135.

TABLE OF CASES CITED.

xlv

The Dean of Ely «s. Bliss, 5 Beavan, 374,

The Derby Turnpike Co. vs. Parks, 10 Conn. 640, 541,

The Earl of Ailesbury vs. Pattison, Doug. 30,

The Gloucester Ins. Co. vs. Youn-
ger, 2 Curtis, 338,

The Inhabs. of Norwich vs. The
County jCommissioners of Hamp-
shire, 13 Pick. 60,

The King vs. Inhabs. of Hodnett, 1 T. R. 96,

The King vs. Inhabs. of Stoke Dam- 7 Barn. & Ores. 563,
«rel, 568, 569,

The King vs. Inhabs. of St. Greg-
ory, 2 Ad. & Ell. 99,

The King vs. John Hogg, 1 T. R. 721, '

The King vs. Jukes, 8 T. R. 542',

The King vs.- Poor Law Commis-
sioners, 6 A. & E. 1, 7,

The King vs. Stone and Rex vs. Jar-

•vis, , 1 East, 644,

The King vs. The Inhabs. of Great 10 Barn. & Cres.
~ " 520,526, 527,

Bentiy,

The Leeds and Liverpool Co,
Hutter,

The Mayor of Hull vs. Horner,

The People vs. Barrett,

The People vs. Bartow,

The People vs: Carnal,

The People vs. Comstodk,

The People vs. Denton,

The People vs. Duffy,

The People vs. Fleming,

The People vs. Goodwin,

The People vs. Hadden,

The People vs. Imlay,
■ The People vs. Lambier,

The People vs. Mayor, &c., of
Brooklyn,

The People vs. Moores,

The People vs. Morris,

The People vs. Murray,

The People vs. Olcott,

The People ®s. Piatt,

The People m. Purdy,

The People vs. Rynders,

The People »». Supervisors of
Queens,

The People vs. Stone,

The People vs. Supervisors of Alle-
ghany, 15 Wend,

The Proprietors of the Charles Riv-
er Bridge vs. The Proprietors of
the Warren Bridge, 11 Peters, 420,

The Protector vs. Ashfield, Hard. 62,

The Queen vs. Justices of Lanca-
shire, 11 A. & E. 157,

The Queen M. Mayor, &c. of Leeds, 11 A. & E. 512,

1 Barn. & Cres. 424,
Cowper, 103,

2 Caines, 305,
6 Cowen, 290, 293,
2 Selden, 463,
8 Wend. 549,
2 Johns. Cases, 275,
6 Hill, 75,

2 Corns. 484, 485,
18 J. R. 187,

3 Denio, 220,
20 Barb. 68,
5 Denio, 1,

4 Comstock, 429,

4 Denio, 518,
13 Wend. 325,

5 Hill, 468,
2 J.- C. 301,
17 Johns. R. 215,
2 Hill, 31,
12 Wend. 425,

1 Hill, 196,
5 Wend. 39,

198,

125.
622, 625.

247.

591.

558.
242,326.

244.

302.
257.
63.

245.

63.

258.

340.
121.
647.
328.
195.
610.
547.
649.
323,
610.
314.
601,
343.

305.

101.

633.

111.

647.

625.

68.

116.

103.
610.

103.

627.

309.
323.

xlvi

TABLE OF CASES CITED.

The Second Eocl. Soc. Portland w.

The First Eccl. Soo. of Portland, 23 Conn. 255,

The Southwark Bank w. The Com- 26 Penn. State E,
monwealth, 446,

The State of Maryland vs. Balti-
more and Ohio R. R., 3 Howard, 651,

The State vs. Branin, 3 Zabriskie, 485,

The State ««. Fry, 4 Miss. 130,

The State of Louisiana vs. Judge of

Sixth District, 9 La. Ann. R. 62,

The State of Indiana vs. Springfield

Township,
The State vs. Wolcott,
The United States vs. Jones,

6 Indiana, 83,
21 Conn. 272,
3 Wash. C. C.
209,

The Union Bank of Tennessee vs.

Jolly's Adm'rs, 18 How. 504,

The Warden of All Souls vs. Tan-
worth, Cro. Eliz. 232,
The Watervliet and Turnpike Co.

vs. M'Kean, 6 Hill, 616,

Theriat vs. Hart, 2 Hill, 380,

Thicknesse m. Lancaster Canal Co., 4 Mees. & W. 473,
Thomas vs. Acklam, 2 B. & Cres. 779,

Thomas vs. Clapp, 20 Barb. 165,

Thomas vs. Daken, 22 Wend. 9,

Thompson vs. Alger, 12 Met. 428,

Thompson vs. Gibson, 8 Mees. & W. 288,

Thompson vs. Grand Gulf R. R. and

Banking Co., 3 How. Miss. 240,

Thompson vs. Schermerbom, 2 Selden, 92,

Thompson vs. The Commissioner 2 Abbott's Pr. Rep.

of the Canal Fund, > 248,

Thome vs. Cramer, ' 15 Barb. 112,

Thurston vs. Prentiss et al., 1 Michigan, 193,

Thurston vs. Whitney, 2 Cush. 104,

Tillman vs. Lansing, 4 J. R. 45,

Tims vs. The State, 26 Ala. 165,

Tombs vs. Rochester and Syracuse

R. Co. 18 Barb. 683,

Tomkins vs. Ashby, 6 B. & C. 641,

Tonawanda Railroad Co. vs. Mun-

Tonnele vs. Hall,

Toulmin vs. Anderson,

Towler vs. Chatterton,

Towle vs. Larrabee,

Town of Pawlet vs. Clark,

Town of Guildford BS. Cornell,

Town of Guilford vs. Superrisors 3 Kernan, 147"
of Chenango Co.,

Townsend vs. The State,

Treat vs. Chapman,

Trotter vs. Mills,

Trustees of Phillips Limerick Acad-
emy vs. Davis, 11 Mass. 113,

5 Denio, 255,

4 Comstock, 140,
1 Taunt. 227,

6 Bing. 258,
26 Maine, 464,

9 Cranch, 292, 333,
18 Barb. 616, 640,

2 Blackf. 152,
35 Maine, 34,
6 Wend. 512,

565,

241.

633.
632.
636.

576.

250.
650.

262.

601.

263.

326.

235, 429.
528.
37.
373.
68, 573.
425.
303.

626,528.
468.

677.
165.
405.
562.
194.
548,580.

110.
358.

616.

233.

397.

190.

85.

9, 666.

52, 186, 467, 602.

414, 502.
616.
468.
34.

403.

TABLE OF CASES CITED.

xlvii

Trustees of Clintonville vs. Eeet-

ing, 4 Denio, 841,

Trustees of C. F. R. E. A. vs.

M'Caughy et al, 22 Ohio, 152,

Trustees of F. P. 0. in Hebron vs.

Quackenbush, 10 J. R. 217,

Troy and Boston R. R. Co. vs. Tib-

bitts, 18 Barb. 29T,

Turner vs. 2d Precinct in Brook-

fleld, 7 Mass. 60,

Turner et al. vs. The Sheffield and

Rotherham R. R. Co., 10 Mees. & W. 425.

Tyler vs. Yates, 3 Barb. S. 0. R. 222,

Two Hundred Chests of Tea, 9 Wheat. 430, 438,

474.

202.

403.

94.

564.

523.

85.
388.

Underbill vs. EUicombe,

M'Clel. & Y. 450,

96.

Underwood vs. Lilly,

10 S. & R. 97, 101,

201, 687.

Union Bank vs. State of Tennessee, 9 Yerger, 490,

■341.

United States vs. 1,960 Bags of Cof-

fee,

8 Cranch, 398,

98.

United States vs. Arredondo,

6 Peters, 735,

450.

United States vs. Bainbridge,

1 Mason, 71,

102.

United States vs. Battiste,

2 Sumner, 240,

616.

United States vs. Breed,

1 Sumner, 159, 163,

164,

836,389

United States DS. Coffin,

1 Sumner, 394,

437.

United States vs. Conway,

Hempstead's Ark.

C. C. Rep. 313,

652.

United States vs. Daniel,

6 "Wheat. 642,

610.

United States vs. Fisher,

2 Cranch. R. 358,

886,

51, 806.

United States vs. Gilbert,

2 Sumner, 60,

610.

United States vs. Grundy,

8 Cranch, 387,

97.

United States vs. Grush,

5 Mason, 290,

437.

United States Bank vs. Halstead,

lOWheat.51,53,63,

593, 256.

United States vs. Hall,

6 Cranch, l7l, 178,

417.

United States OS. Haskell & Fran- 4 "Wash. C. C. R.

cois.

402, 410.

610.

United States vs. Hewes,

U.S.D.C. for Penn-
sylvania, July,

1840,

895.

United States vs. Hoar,

2 Mason, 311, 314,

106,395

United States vs. Knight,

8 Sumner, 369,

590.

United States vs. Morris,

1 Curtis, 60,

616.

United States vs. Morris,

14 Peters, 464,

327.

United States vs. Palmer,

3 "Wheat. 610,

51.

United States vs. Passmorei

4 Ball. 372,

130.

United States vs. Perchemau,

V Peters, 61,

450.

United States vs. Perez,

9 "Wheat. 579,

610.

United States vs. Ross,

1 GaU. 624,

437.

United States vs. Ruggles,

6 Mason, 192,

437.

xlviii

TABLE OF CASES CITED.

United States vs. Sampeyrac, 7 Peters, 222,

United States vs. Schooner Peggy, 1 Cranch, 109,
United States m. Stowell, 2 Curtis, 163,

United States vs. Winn, 3 Sumner, 209, 211,

212,
United States vs. Wiltberger, 5 Wheat. 76, 95, 96,

105,
United States vs. Wonson, 1 Gallison, 4 & 18,

Utica Insurance Co. vs. Scott, 6 Cowen, 606,

693.
449.
607.

330.

334.
693.
219.

Vail vs. Owen,
Vanderbilt vs. Adams,
Van Deusen vs. Hayward,
Vandine's Case,

Van Home's Lessee vs. Dorrance,
Van Hook vs. Whitlock,
Van Ness vs. Pacard,
Van Swartow vs. The Common-
wealth,-
Ventress vs. Smith,
Varick BS.'Briggs,
Varick's Bx'rs vs. Briggs,
Varick vs. Smith,
Vidal vs. Gerard's Executors,
Voorhees vs. Bank of U. S.

19 Barb. 22,

102.

7 Cowen, 849,

506.

17 Wend. 67,

91.

6 Pick. 191,

472.

2 Dall. 313,

478, 529, 531

2 Edw. 304,

108.

2. Peters, 137,

144,

9,13.

24 Penri. 131,

548.

10 Peters, 161,

349.

6 Paige, 332,

661.

22 Wend. 646,

661.

6Paige,137,169,160

155, 600, 513

2 Howard, 127,

18.

10 Peters, 449,

62, 350.

W-

Wainhouse vs. Cowie,
Wales vs. Webb,
Wales vs. Stetson,
Walker vs. Caldwell,
Waller vs. Bacon,
Waller vs. Harris,
Wallace vs. Karlenowefski,
Walter vs. Bacon,
Walwin vs. Smith,
Warder m. Adrell,
Ward vs. Barnard,
Ware vs. Hylton,
Wame vs: Varley,
Warnell vs. Reed,
Warner vs. Beers,
Warner vs. Fowler,
Warner vs. The People,
Warren vs. Doolittle, .
Warren va. Windle,
Warrington vs. Furbor,

4 Taunt. 178,

5 Conn. R. 154,
2 Mass. 146,

4 La. Ann. R. 298,
8 Mass. 471,

20 Wend. 555,
19 Barb. 118,
8 Mass. 468,

1 Salk. 177, 178,

2 Wash. R. 288,

1 Aik. 121,

3 Dall. 236,

6 T. R. 443,

5 D. & B. 599,
28 Wend. 103,
8 Maryland, 25,

2 Denio, 272,
5 Cowen, 478,
8 East, 206,

8 East, 242,

897.

422.

619.

569.

685.

240, 261.

516.

199, 647.

825.

74.

168.

448.

825.

897.

68, 573.

814.

678.

99.

129.

358.

TABLE OF CASES CITED.

xlix

Washington vs. Murray,
Washington Bridge Co. vs. The

State,
Watervliet Turnpike Comp. vs.

M'Kean,
Watkins vs. Holman,
Watts vs. Griffin,
Watson vs. Mercer,
Watts vs. Van Ness,
Wayman vs. Southard,
Wayman vs. Southard,
Weaver vs. Devendorf,
Weatherhead vs. Bledsoe,

Webb vs. Baird,
Webster vs. Alton & N. D.
Webster vs. Cooper,

Wells vs. Caldwell,
Wells vs. City of Weston;
Welts vs. Iggulden,
Wells vs. Porter,
Welsford vs. Todd,
West River Bridge vs. Dix,
Westervelt vs. Gregg,
Wetherell vs. Jones,
Wetmore vs. Story,

30,
46,

Wheaton vs. Peters,

Wheeler vs. Eoberts,
White vs. Boot,
White vs. Carpenter,
Whittington vs. Polk,

White vs. Syracuse and Utica Rail-
road Co.

White vs. White,

Willard vs. The People,

WiUard vs. Wetherbee,

Wilbur vs. Crane,

Wilbur vs. Gilmour,

Wilderman vs. Mayor aiad City
Council of Baltimore,

Wilcox qui iam. vs. Pitch,

Wilcox vs. Wood,

Wilkins vs. Despard,

Wilkinson vs. Leland,

Williams vs. County Commission-
ers,

Williams vs. Insurance Co. of
North America,

Williams vs. Mayor of Detroit,

Williams vs. Peyton's Lessee,

Williams vs. Potter,

William vs. Pritchard,

4 California, 3.88,

18 Conn, 65,

6 Hill, 616,

16 Peters, 25, 60,61

6 Litt. 247,

8 Peters, 110,

1 Hill, 76,
10 Wheaton, 1
10 Wheaton, 1
3 Denio, 117,

2 Overton (Tenn.)
R. 352,

6 Indiana, 13,

9 Foster, 369, 384,
14 Howard, U.S.K.

488,

1 A. K. Marsh. 441,
22 Miss. 385,

5 Dowl. & Ryl. 13,

2 Bing. N. C. 722,
8 East, 580,

6 How. 507,

2 Kernan, 202,

3 Barn. & Ad. 221,
3 Abbott's Practice

Cases, 263,
8 Peters' R.
659, 668,

7 Cowen, 536,
2 T. R. 274,
2 Paig||E17, 229,
1 Harr. & Johns.

236,

591

14 Barbour, 561,

5 Barb. 474,

4 Scammon, 461,

4 N. H. R. 118,
18 Pick. 284,
21 Pick. 250,

8 Maryland, 551,
20 Johnson R. 472,

9 Wend. 348,

5 T. R. 112,
2 Peters, 627,

35 Maine, 345,

9 How. Pr. R. 365,
2 Michigan, 560,
4 Wheat. 77,
2Barb.S.O.R.316.
4 D. & E. 2,

570.

625.

416.

163, 171, 176.

548.

411, 599, 639, 655.

85.

62.

166, 590.

102.

106.

344, 560.
542.

197, 431, 590, 611.

549.

675.

391.

423.

125.

512, 664.

636.

400.

473.

17, 139.
137.
121.
362, 364.

478.

425.

511, 637.
76.
353.

303, 318.
692.

407.

107.

419.

97.

160, 645, 658, 687.

131.

117.
504.

358, 357.
128.
124.

TABLE OF CASES CITED.

Williams vs. School Dist.
Williams vs. Tappan,
Williams vs. Williams,
Williamson et al. vs. Berry,
Wilmot vs. Eose,

Wills vs. Wilkins,

Wilson vs. Baptist Education SO'

ciety of New York,
Wilson vs. Knubley,
Wilton vs. Wentworth,
Winslow vs. Anderson,
Winslow vs. Giflford,
Wires & Peck vs. Farr,
Withnell vs. Gartham,
Woart vs. Winnick,

Wood vs. City of Brooklyn,
Wood vs. Oakley,
Wood vs. Wood,
Woodbridge vs. Allen,
Woodbury vs. Thompson,
Woodruff »s. Trappnall,
Woodward vs. Oolton,
Woodfin vs. Hooper,

Worcester Turnpike Co. vs. Wil-

lard.
Work vs. State of Ohio,

Worsely vs. De Mattos,
Woolsey vs. Dodge,
Wyndham vs. Chetwynd, ft'
Wynehamer vs. The People,

21 Pick. 75,

373.

3 Foster, 385, •

392.

4 Seld. 525,526,585

18, 51, 124

8 How. 495, 643,

433.

3 Ellis & Black-

burn, (J. B. 568,

56.

6 Mod. 62,

50.

-10 Barb. S. C. E.

308,

200.

7 East, 128,

56.

5 Foster, N. H. 247,

328.

4 Mass. 376,

101.

6 Gushing, 827,

622.

25 Vermont, 41,

197.

6 T. E. 388,

387.

3 New Hampshire,

473,

198.

14 Barb. 425,

474.

11 Paige, |00,

195.

2 Cowen, 819,

549.

12 Met. 470,

642.

3 N. H. 194,

328.

10 Howard, 191,

628.

10. M. &E.44,47,

119.

4 Humph. Tenn. E.

13,

647.

5 Mass. 80,

403.

22 OHio State E.

296,

546.

1 Burr. 467,

321.

6 M'Lean, 142,

433, 631.

1 Burrow, 419,

254.

8 Kernan, 378,

541, 549.

Yates' Case,

Yeaton vs. United States,

Young vs. Bank of Alexandria,

Young vs. Dake,

Young vs. The State Bank,

4 J. E. 359,

5 Cranch, 281,' ,
4 Cranch, 884,

1 Selden, 463,
4 Indiana, 801,

429.

130.

33, 120, 644.

232, 429.

170.

Zack vs. Penn. Eailroad Co. 25 Penn. E. 894, I 342.

ADDENDA. (Omitted above.)

Congr. Soc. in Lanesboro' »s. Curtis, 22 Pick. 832, I 633.

Gardner vs. Collins et al., 2 Pet. 58, 43 1.

CHAPTER I.

The sources of Municipal or Civil Law usually 't-wp-fold : Usage, or Common
Law ; and Statute Law — In America a third superadded : Coristitutional
Law — ^The two last written; of these, the Interpretation and Construction
belong to the Judiciary— The object of this volume, to define the limits of
legislative and judicial power; and to give the rules which govern the
application of Constitutionah and Statute, in other words, of written Law.

Mait, in wliatever situation lie may be placed, finds
himself under the control of rules of action emanating
from, an authority to which he is compelled to bow, —
in other words, of Law. The moment that he comes
into existence, he is the subject of the will of God, as
declared, in what we term the laws of nature. As soon
as he enters into society, he finds himself controlled
by the moral law (more or less perfect and active
according to the condition of the community to which
he belongs, and the degree in which, it has accepted
the divine precepts of our religion), and also by the
municipal or civil law.* "When States come to be
organized as separate and independent governments,
and their relations grow frequent and complicated,
there is superadded the law of nations. These codes
are variously enforced, but each has its own peculiar

* Blackstone, in his introductory lecture, has referred to the inappropriate-
ness of the phrase municipal law. " I call it the municipal law," he says,
" in compliance with common spedch, for though strictly that expression de-
notes the particular customs of one single municipal or free town, yet it
may, with sufficient propriety, be applied to any one state or na,tion which
is governed by the same laws or customs."
1

MUNICIPAL LAW.

sanction. They are curiously interwoven together, and
in their combination tend to produce that progress and
improvement of the race which we believe Christianity
teaches, and to which we hope civilization leads.

Thus, the law of iiature, the moral law, the
municipal law, and the law of nations, form a system
of restraints before which the most consummate genius,
the most vehement will, the angriest passions, and the
fiercest desires, are compelled to bend, and the pres-
sure of which the individual is forced to acknowl-
edge his incapacity to resist.

Of these various systems of rules for the government
and control of men, the municipal or civil law asserts
its claim emphatically as a distinct branch of knowl-
edge, and is that to whicli we refer when we speak of
the profession of the law, the study of the law, the
science of the law.

Municipal law is defined by the great English com-
mentator, as " a rule of civil conduct prescribed by the
supreme power in a state, commanding what is righ^
and prohibiting what is wrong." Our American
Kent describes it " as a rule of civil conduct prescribed
by the supreme power of a state.'

, 55*

* Kent, Com. i. 446. Legis wrim Tioec eat, imperare, vetare, permit-
tere, punire. L. 1 Ff. dje Leg. There has been much scholastic dis-
cussion as to the proper definition of the term Law ; and when we
come to the subject of the boundaries of legislative and judicial power,
we shall find that in practice it is not very easy to give the phrase an
accurate or fitting interpretation. Cicero, XI. Philip. 12, aqd after him
Bracton, Coke, and Blackstone (as in the text), define it to be a
holy sanction commanding whatever is honest, and forbidding the
contrary. Sanciio justa, juhem honesta et prokibens coniraria. — Black.
Com., Lib. i. ch. i. Blackstone's citation is incorrect, the precise words
are, Ust enim lex nihil aliud nisi recta et a numine deorum tracla ratio, im-
perariB honesta, proMbera contraria.

Bentham, in his Fragment on Government, attacks Blackstone's doctrines

MUNICIPAL LAW. o

Botli of these definitions are perhaps obnoxious to
criticism. Either of them sufficiently answers our
present purpose.

Before entering on the precise subject of this trea-
tise, it is necessary to have an vaccurate idea of the
various elements constituting that system of municipal
law which controls the conduct of the active millions
who compose our race.

The two great sources of municipal or civil law, in all
countries of which we have the means of tracing the,
jurisprudence, are unwritten law or usage, and written
or statute law; in other words, custom and positive
enactment.

The first general rules of action in all young socie-
ties before the working of any central authority is
firmly established or extensively recognized, must neces-
sarily result from the adoption of customs or usages
recommended by their practical utility, the growth of
religious zeal, or local necessity, and established as law

on the subject of the nature of law in general, with great severity. Hobbes
defines a law to be "the command of him or them that have sovereign
power, given to those that be his or tfieir subjects, fully and plainly de-
claring what any one of them may do and what they must forbear to do." —
Dialogue between a Lawyer and a Philosopher. Montesquieu says, {Esprit
des I/ris. Lib. i. ch. i.) "Lea his, dans la signification la plus itendue,sont
lea rapports necessairea qui dirivent de la nature dea choaea; el dans ce sens
torn les etrea ont leurs lois.'" Of which Toullier says, (Droit Citiil Frxn-
eais, vol. i. p. 3) " On a oiaerve, avec raison, que ceite definition etait plus ob-
scure que^ la cJwae A definir.''^ See Grotius de Jure Belli et Pads, liv. i.
ch. i. as to the distinction between Jus et Lex ; and see also Fortescue de
Laudibvs Legum Anglioe. Amos edition, p. 8, in notes.

As to the origin of the term, Cicero says that lex is derived from legendo,
or choosing: "Ego nostra (nomine) a legendo — nos delectus mrriin legeponimus
et proprium legia eat." De Leg i. 6. " Quoniam in lege inent vis delectus,
jubet enim qum honesta jaunt, proTiibet contraria^" says Vinnius, Coram.
Just. Inst., Lib. i. Tit. ii. §4. Turnebus says (Cicero, Olivet edition, vol. iii.
p. 160, note) that it is called Lex, quod Ugenda eognoscenda populo propon-
ereiur. . • '

CUSTOM.

by gradual and general recognition. Every system of
jurisprudence declares this truth. The civil law and
its great expounders are all full on the binding force of
custom. " Oonsuetudinis ususque longcevi" says the
Code, " non vilis auctoritas est* And again :f Inveter-
ata Gonsuetudo pro lege non immerito custodittir^ et hoo
est jus, quod diaitur mm^ibus constitutum. Nam mm
ipsc^ leges nulla alia ex causa nos teneant^ quam quod
judioio populi receptee sunt / merito et ea quce sine ullo
scripto populus prohavit, te^iehunt omnes. Nam quid
interest suffragio populus voluntatem suam declaret^ an
rebvjS ipsis et factis f Quare rectissime etiam illud
receptum est, ut leges non solum, suffragio legislatoris
sed etiam tacito consensu omnium per desuetudinem
abrogentur.X

■ " Custom," says Voet, " is in many respects like statu-
tory enactment. It is an unwritten law gradually
introduced ; by the usages of those who adopt it, and
thus acquiring the force of enactment." J^egi in
multis similis est consueUido ' Jus non scriptum,, mori-
his utentium paullaUm inti^oductum, legis Jiabens vigo^

rem?^i

Forti states well and simply, the manner in which
custom establishes its empire. "In the infancy of hu-
man society, as writing is little used, and affairs are
not yet complicated, differences are adjusted ratter
according to notions of natural right than statutory
enactment. The example of one generation becomes
a law for their descendants, and the rules found in
the past, furnish a guide for the present and the

* Code, Lib. viii. Tit. 53, Quae sit long, consuet.

t 32 § Ff. Lib. i. Tit. 3, de Legibus.

i " Gonsuetudo Eegni est communis lex" — Anon. Cro. Eliz. 10.

§ Voet, Comm. Lib. i,, Tit. iii., § 27, de legibus.

THE COMMON LAW. 5

future. Thus is introduced a kind of law that is
called custom." * '

So France, before the Revolution of 1789, was to
no small extent governed by the unwritten customs
(usages) of her different provinces.f

To this source is also chiefly to be traced the great
body of the original English law, " that ancient collec-
tion of unwritten maxims and customs called the
Common Law "J which still ex!ercises such extensive

* " Nell infanzia delle humane societa, perche non vi e usd di lettere ne
gran complicazione d'affari le discordie tra gli uomini assoeiati ad uno
stesso vivere civile si compongono piutosto secondo la ragion naturale che
per autorita di leggi autenticate della scrittura. Poi I'es^mpio dei mag-
giori divien legge pei nepoti, e le regole che furon formate pel passato
danno norma al preaente ed al future. In questa guisa s'introduce una
specie di gius che dicesi, di consuetudine."-^Forti, Institusioni Civile, Lib. i.
Cap. ii. § 11, p. 19.

' Franceso Forti, of Pescia, a nephew of Sismondi the historian, born in
1806, died in 183S. He is, in the domain of the law, one of the most
eminent instances of the inextinguishable genius of his unhappy country.

* t TouUier, Tit. Prel, Sect. xi.,. § 1 88.

" E'etude du Droit Francois," says Camus, " comprend la connoissance des
coutumes, des ordonnances, et de la jurisprudence etablie par les arrets

* * Chaque province a sa coutume particuliere quelquefois diam^tralement
opposee a, celle d'une province voisine. * * Les coutumes sont plus
generales que les ordonnances dans ce sens que leurs dispositions embrassent
plus de questions de notre droit. * * C'est I'etude des coutumes qui
doit ^tre la premiere, par la raison qui j'ai touchee qu'eUes s'appliquent a
un plus grand nombre de questions."

These provincial customs, or common law, formed the subject of separate
treatises written by the most eminent of the French legists. Thus, the
customary law of Normandy was discussed by Basnage; of Orleans, by
Pothier ; of Paris, by Dumoulin. — Camus, Made du Droit Francais, 4th Let- '
ter, pp. 81, 110.

X Blackstpne, Introd. Sect. 1.

" Cffnsitetado" says Coke, " is one of the main triangles of the laws of
England, those laws being divided info common law, statute law, and cus-
tom."— Coke, Imt. 110, S. — "particular customs. I say, particular customs,
for if it be the general custom of the realm, it is part of the common law."
— Coke, Inst. 115, 6.

THE COMMON LAW.

sway in, both England and America, and on whicli
we daily see engrafted regulations owing their origin
to the same principle * Sine scripto jus venit^ quod
usus approbavit, nam diutumi mores consensu uten-
tium comprohati legem, imitantwr.\

As, however, societies advance, and become consoli-
dated or crystallized into regular governments, they
do not wait for the slow process of custom to establish
general rules. In order to create more certain and
rapid uniformity, they resort to positive enactments,
to statute laws. And these enactments, in many cases,
more or less supplant the usages which precede them.
Such is the gradual tendency of civilization.

So, the first demand of that extraordinary people
which has been to the world the great exemplar of or-
ganization and administration, of order and discipline, —
its first serious internal struggle, was for a body of writ-
ten law to replace the vague and undefined customs
and usages by which they had till then been governed.
This was the origin of the law of the Twelve Tables,
which united the functions of a constitution and a
code, and was for nearly a thousand years, until the
time of Justinian, the basis of the jurisprudence of
Eome.J

* Among the most marked instances of the constant tendency of custom
to become law, may be noticed the American Marine Insurance doctrine
of one third new for old, entirely the creature of a usage which has grad-
ually grown up with the last half century.

t Inst. Lib. i. Tit. 2, § 9.

X "The most striking point," says Arnold (Hist, of Rome, ch. vi. p. 70),
" in the character of the Romans, and that which has so permanently in-
fluenced the condition of mankind,- was their love of institutions and of or-
3er ; their reverence for law, their habit of considering the individual as
living only for that society of which he was a member. This character, the
opposite to that of the barbarian and the savage, belongs apparently to that

THE COMMON LAW. 7

So, we see in France, tlie old multifarious customs
wiich, before the Revolution, ruled the various pro-
vinces of the kingdoiii, giving way to the code, the
greatest and most permanent work of the central
authority of the empire*

So again in England, although the common law, the
great customary law, as fixed by the art of printing,
expounded and extended by judicial interpretation,
retains, even to our time, so great a sway, still, we
daily see it modified by and giving way before the
inroads of the lawgiver.

But wherever a great body of customary law exists,
or has ever existed, a familiar knowledge of its pro-
visions and its history is indispensable to the jurist.
First, in point of time, it is often first in point of im-
portance, as explaining and even to a certain extent
controlling the statute law to which it apparently
gives place.

« The importance of bearing this in view in the con-
sideration of our present subject, will be recognized
when it is recollected that the great body of unwritten

race to which the Greeks and Romans both belong, by whatever name, Pe-
lasgian, Tyrrhenian, or Sikelian, we choose to distinguish it."

The Deeermin legihm seribendk, were appointed to frame as well a Consti-
, tution as a Code of laws. Like the Greek no/iiStroi, " they were to provide
for the whole life of their citizens, in all its relations, social, civil, political,
moral, and religious," — Arnold's History nf Rome, ch. xiii. p. 146.

* But even this great body of statute or written law bears traces of the
controlling force of ancient usage. " Whatever is ambiguous," says the
6ode (Art. 1159, speaking of the Interpretation of Contracts), " is to be in-
terpreted by the usage of the district where the contract was made." Ce
qui est ambigu s'interprete par ce qui est i usige dans le pays oii le contrat
est pass6." And again (Art. 1648), " L' action resultant des vices redhibi-
tbires doit ^tre intente par I'acquereur dans un href delai suivant la nature
des vices redhibitoires et I'usage du lieu oii la vente a ete faite." See also,
Art. 1736 and 1748.

THE COMMOK LAW.

usages called the Common Law of England, is also. the
basis of the law of this country. The sources, indeed,
of American and English jurisprudence, are identical.
This is universally true, with the exception only
of those States, like Louisiana, Florida, Texas, and
California, which, before they were annexed to
the United States, belonged to countries governed
by the civil law. The colonists who settled this
country, were Englishmen, with the feelings, the
attachments, and the prejudices of Englishmen.
It became necessary for them to establish or recog-
nize and adhere to some system of law from the
moment they landed. That system was of necessity
the English, and accordingly, we find the doctrine to
have always been that the colonists were subject to,
and, as it were, brought with them, the great princi-
ples of the common law of the mother country, with
such modifications as the legislative enactments of Par-
liament had at that time introduced into it, or the
particular situation of the colonists in their new
condition required. It is to be understood, then,
as a general principle, — that the basis, the funda-
mental element, the starting point, of the jurispru-
dence of the States of the Union, is the common
law of England, so far as the same is not actually
repugnant to our system. The exceptions we shall
hereafter consider ; but so it has been repeatedly de-
cided and affirmed in the thirteen old States, as they are
called, which in 1116, threw off the English sovereignty.
The declaration of rights made by the first Continental
Congress, in 1114:, declares that " the respective colo-
nies are entitled to the common law of England,
and to the benefit of such of the English statutes

THE COMMON LAW. 9

as existed, at the time of . their colonization, and
which they have, by experience, found to be applic-
able to their social, local, and other circumstances."*

This is the uniform language of our judicial de-
cisions, whether of the federal or State tribunals.
It has been declared by the Supreme Court df the
United States, that our ancestors brought with them
the general principles of the common law as in force at
their emigration, and claimed them as their birthrightf
Nevertheless, that the common law of America is not
to be taken in all respects, to be that of England, but
that the settlers brought with them, and adopted, only ,
that portion which was applicable to their situation. J

The Supreme Court has also declared that English
statutes passed before the emigration of our ancestors,
being applicable to our situation, and in amendment of
the law, constitute a part of our common lawi§ and the
construction of such statutes which prevailed at the
Revolution, is the rule for the Courts of the United
States. English judicial decisions, therefore, pro-
nounced previous to our Declaration of Independence,
construing or interpreting such statute law of the
mother country as we have adopted, are to be received
here as a part of such statutes ; but judicial decisions
on such statutes, pronounced subsequently to our Re-
volution, though treated with great respect, are not to
be admitted as authority.!

So, the Court of Chancery of the State of New York
has said : " It is a natural presumption,, and therefore

* Declar. in Shepard's Cons. Text Book, App. p. 262.

+ Terrett vs. Taylor, 9 Cranch; 43 ; Town of Pallet vs. Clark, 9 Cranoh,
292 and 333.

t Van Ness vs. Pacard, 2 Peters, p. 137 and 144.

§ Cathcart vs. Robinson,. 5 Peters, 264—280; Fowler vs. Stoneum, 11
Texas, 478.

8 Patterson vs. Winn, 5 Peters, 233 ; Cathcart vs. Eobinson, 5 Peters, 264.

10 THE COMMOK LAW.

adopted as a rule of law, ttat on the settlement of a
new territory, by a CQlony from another country, and
where the colonists continue subject to the government
of the mother country, they carry with them the gene-
ral laws of that country, so far as those laws are applic-
able to the colonists in their new situation, which thus
become the unwritten law of the colony, until altered
by common consent or legislative enactment ;"* and
it was said to be evident that there was a com-
mon law existing in the State of New York, re-
straining religious corporations from alienating church
property, which colonial common law resulted from the
importation of the English restraining acts in force at
the settlement of the colony.f

In Maryland, it has been decided under the consti-
tution of that State, J that their adoption of the
common law has no reference to adjudications in
England anterior to the- colonization or to judicial
adoptions here of any part of the common law
during the continuance of the colonial government,
but to the common law in mass, as it existed here
either potentially or practically, and as it prevailed in
England at the time, except such portions of it as were
inconsistent with the spirit of the State Constitution
and the nature of our new political institutions ; and
on this ground it was held that the emigrants brought
with them into that colony, the common law of
conspiracy.

So it has been held by the Supreme Court of New
Hampshire, that the body of the English common law

* De Ruyter m. the Trustees of St Peter's Church, 3 Barb. Ch. R. 119 ;
S. C. 3 Corns. 238.

t Canal Commissioners vs. The People, 6 Wend. R. 445 ; Canal Ap-
praisers vs. The People, 17 Wend. 584.

tDecl. ofRights, Sec. 3.

THE COMMON LAW. 11

and tlie statutes in amendment of it, so far as they
were applicable to the government and to the condition
of the people, were in force as a part of the law of that
province, before the Revolution, except when other pro-
vision was made by express statute or by local usage ;
and they decided that an indictment at common law
could be sustained for an assault and false imprison-
ment, and for kidnapping, though there were no
statute of the State in force creating the offence*

In Massachusetts, it has been expressly declaredf
that the first settlers " on coming to that State, brought
with them the rights and privileges of Englishmen and
the common law of that country, so far as it should
be found applicable tp their new state and condition.
They brought with them also, a charter containing
power to make such new laws as their exigency might
require. They could live under t;he old laws, or make
new ones. Whenever they legislated upon any sub-
ject, their own law regulated them ; when they did not
legislate, the law they brought with them was their
rule of conduct." And the Supreme Court held " that
the law by which the emigrants were governed in re-
gard to waste committed by tenants, was the law in
force in England at the time of the emigration. Un-
less our ancestors can be supposed to have settled this
country and to have held real estate without any law
to protect and preserve it, the law which was in force
in the country which they had left, was the law, and
remained so in regard to the descent, '^alienation, &c., of
real property, and the remedies for injury to it, until
they saw fit to supersede it by a law of their own mak-
ing." This principle also, has been held in that State,

* state vs. Rollins, 8 N. H. K., p. 550.
t Sackett vs. Sackett, 8 Pick. 809, 815.

12 THE COMMON LAW.

to apply to the Englisli statutes amending or altering
the common law, and in force at the time of the emigra-
tion. But the statut,es passed subsequently, are only
understood to be in force so far as they may have
been practically received into their system.* The
common law of Massachusetts is also said to em-
brace some ancient usages originating probably from
laws passed by the colony of the Massachusetts Bay,
annulled by th« repeal of the first charter, but by
the former practice of the colonial courts accommo-
dated to the habits and manners of the people.f

And this adoption of the common law, even in
criminal cases, appears 'equally established in Maine, J
it having been held in that State, that to cast a dead
body into a river without the rites of Christian sepul-
ture, is indictable as an offence against common
decency.

It is very important to bear in mind the exception
already mentioned, that only so much of the English
common law was adopted by the colonies as was appli-
cable to their condition. So, the English law of fixtures
permitting the tenant to remove trade fixtures, but
forbidding him to disturb those made for agricul-
tural purposes, was never the law of this country.
"The country- was a wilderness, and the universal
policy was to procure its cultivation and improvement.
The owner of the soil, as well as the public, had every
motive to encourage the tenant to devote himself to
agriculture, and to favor any exertion that should aid this
result." Such is the intimation of the Supreme Court

* Commonwealth vs. Knowltop, 2 Mass. 530, 684. See also, Common-
■wealth vs. Leach, 1 Mass. '59.
t Commonwealth vs. Knowllon, 2 Mass. R. 680, 684.
X Kanavan's Case, 1 Greenl. 226.

THE COMMON LAW. 13

of the TJ. S. ;* and in the State, of New York,^tlie right
of the tenant to remove any " erections that he may have
had occasion to make for his own use or enjoyment, if
he can do so without injury to the itoheritance " and
without reference to. their particular character, has
been apecifically declared.f

So, again, on the same principle, it has been
held in the same State that the English law of
ancient lights was never adopted in this country; J
and, in the absence of any special covenant, that
when an owner of two adjoining lots in a city
leased one of them on which was a building receiv-
ing its light and air thrdugh an open space on the
adjacent lot, that the proprietor had a right to build
on the lot in question, so as even to darken or stop the
windows of his tenant, and that his absolute right of
property could not be interfered with by injunction. §

Such then, we learn from the highest authority, was
the sUent and practical adoption of the common law,
by the Colonists who on the shores of the Atlantic laid
the foundations of empire. But when the Revolution
broke out, and the inhabitants of the new States with
that provident forecast to which attention will here-
after be called, undertook by solemn instruments, to
declare and fence in their rights and liberties, it
became necessary to determine the fundamental
law of the soyereignties just springing into life. So
we shall find that at the Revolution of 17Y6, by
the constitutions of most if not all the States, the great
body of the common law, and such of the English

* Van Ness vs. Paeard, 2 Peters, 13T, 144.
t Dubois V3. Kelly, 10 Barb. 4fl6.
J Parker vs. Foote, 19 Wend. 309..
§ Myers vs. Gemmel, 10 Barb. 537.

14 THE COMMOlf LAV.

statutes as were not repugnant to our system, were
preserved and adopted as binding on us. But the
common law of England is perpetually fluctuating;
and it would have been altogether inconsistent with
proper notions of national independence to give
the law of a foreign country any permanent con-
trol over our tribunals or our people. It was,
therefore, necessary to fix a time after which any
changes effected in the common law of the mother
country would have no effect 'here. And that period
is the Revolution. That epoch is the era of our in-
dependence, legal as well as political, and we recognize
no foreign law posterior to that period, binding on us
as authority.

So, the Constitution of the State of New York
of 1777 provided (Art. xxxv.) that "such parts of
the common law of England, and of the statute
law of England and Great Britain, and of the acts
of the Legislature of the Colony of New York, as
together did form, the law of the said Colony on
the nineteenth day of April, in the year of our
Lord, 1775, should be, and continue the law of
the State, subject to such alterations and provisions
as the Legislature of the State should from time
to time make concerning the same." The Con-
stitution ajso adopted such resolves or resolutions of
the congresses and of the Colony of New York, and of
the Convention of the State of New York, as were then
in force, and not repugnant to the new Government,
subject also to the power of the Legislature to alter;
and they abrogated and abolished all such pai'ts of the
English common and statute law, and of the colonial
enactments, as established any particular denomination
of Christians, or as created allegiance to the king of

THE COMMON LAW. 15

Great Britain, or as were repugnant to the new Consti-
tution. The amended Constitution Of the same State,
of 182^1 (Art. 7, § 13), adopted such parts of the com-
mon law, and of the acts of the Legislature of the
Colony of New York, as formed the law of the Colony
on the 19th of April, IV 75, and the resolutions of the
Congress of the Colony, and of the Convention of the
State of New York, in force on the 20th April, 1111,
not since expired, repealed, or altered, and not repug-
nant to the Constitution, and subject to the power of
the Legislature.^ The Constitution of the same State,
of 1846 (Art. i. §17), contained the same provision
which, as it will be seen, omits all mention of the
statute law of Great Britain.

The Constitution of Maryland (1-776) declared (Art.
iii.), that the inhabitants of Maryland are entitled to
the common law of England, and to the benefit of such
of the English statutes as existed at the time of the
first emigration, and which, by experience, have been
found applicable to their social and other circumstances,
and of such others as have since been made in England
and Great Britain, and have been introduced and prac-
ticed by the courts of law and equity, and also to all
acts of Assembly in force on the 1st of June, 1774, ex-
cept such as may have since expired or have been
altered by acts of Convention, or the Declaration of
Kights, subject to the revision of the Legislature..

The Constitution of Massachusetts (1780) <3ontained
this simpler provision (Chapter vi. Art. vi.) "All the
laws which have heretofore been adopted, nsed, and
approved in the province, colony, or State, of Massa-
, chusetts Bay, and usually practiced on in the courts of
law, shall still remain and be in full force until altered
or repealed by the Legislature,- only excepting those

16 THE COMMON LAW.

parts repugnant to the rights and liberties contained in
.this Constitution." And the Supreme Court of this
State, as we have seen, has said that the first settlers
of the colony regarded the law of England as their
law, and governed themselves by it.*

The Constitution of New Hampshire (1792) adopted
substantially the same provision as the one last cited
from that of Massachusetts.

The Constitution of New Jersey (1*776) de-
clared, § 21, that the laws contained in the edition
lately published by Mr. Allison, such ogly excepted as
are incompatible with the Constitution, should be and
remain in full force until altered by the Legislature of
the colony ; and, § 22, that the common law of England
as well as so much of the statute law, as has been here-
tofore practiced in the colony, shall still remain in force
till altered by the Legislature, such parts only ex-
cepted as are repugnant to the rights and privileges
contained in the new constitution.

"We see, that by these constitutions the common law,
as such,, was recognized ; and such may be assumed to
be generally the law of those States the Constitutions
of which contain no such affirmative provision.

At the same . time it has been declared by the
Supreme Court of the United States, to be clear that
there can be no common law of the Union. The
federal Government is composed of twenty-four sove-
reign and independent States, each of which may have
its local usages and common law; but there is no prin-
ciple which pervades the' Union, and has the authority
of law, that is not embodied in the Constitution or

* Commonwealth vs. Alger, 7 OusMng, 63, 66. See this case for a very
interesting discussion on the "Body of Liberties" adopted in 1641, by the
Colony of Massachusetts.

THE COMMON LAW. 17

Laws of tlie Union. The common law could be made
a part of the federal system only by legislative adop-
tion. It is settled that the federal courts have no juris-
diction of common law offences, and that there is no
common law of the tJnion.* When, therefore, a
comBion-law right is asserted, we must look to the
State ' where the controversy originated. What is
common law in one State may not be, and fre-
quently is not so considered, in another. The
judicial decisions, the usages and customs of the re-
spective States,, must determine how far the common
law has been introduced and sanctioned in each.f

It is often said that Christianity is part and parcel
of the common law ; but this is true only in a modified
sense. Blasphemy is an indictable offence at com-
mon law ; but no person is liable to be punished by the
civil power who refuses to embrace the doctrines or
follow the, precepts, of Christianity ; our Constitutions
extend the same protection to every form of religion,
and give no preference to any. Still, though Chris-
tianity is not the religion of the State, considered as a
political corporation, it is nevertheless closely inter-

* state of Pennsylvania vs. The "Wieeling Bridge Co., 13 Howard, 519.

t Wheaton m, Peters, 8 Peters, R. 591 and 659. iSut see the very able
opinion of the late Vice-Chancellor Sandford, in 'Lynch vs. Clarke, 1
Sandf. 583, where he says, p. 654, " In my judgment there is no room for
doubt, but that to a limited extent the common law (or the principles of the
common law, as some prefer to express the doctrine) prevails in the United
States as a system of national jurisprudence. To what extent it is applicable,
I need not hazard an opinion, either in general terms or in particular in-
stances, beyond the case in hand ; but it seems to be a necessary conse-
quence, from the laws and jurisprudence of the colonies, and of the United
States imder the articles of confederation, that- in a matter whiqh by the
Union has become a national subject, to be controlled by a principle coex-
tensive with the United States, in the absence of constitutional or congres-
sional provision on the subject, it must be regulated by the principles of the
common law, if they are pertinent and applicable."

18 CONSTITUTIONAL LAW.

■woven into the texture of our society, and is intimately
connected with all our social habits and customs, and
modes of life *

The grfeat body of the common law of England, and
of the statutes of that country as they existed in 17*76,
are, then, so far as applicable to our condition, the
basis of our jurisprudence. Upon this foundation we
have erected a great superstructure of law, the fabric
of judicial decisions and the product of the numerous
legislative bodies to which the government of the
States and of the Union iS' confided. As we shall have
occasion to see in the progress of this work, the statute
law of the United States, and of the different members
of the confederacy, form a vast body of jurisprudence,
in many cases complicated, peculiar, and novel, but
eminently adapted to our unprecedented situation, and
of equal iritei'est for the citizen and the lawyer.

To these two sources of municipal law, viz. common
and statute law, must be added in America a third.
"We have thought it wise to set limits to the law-
making authority, and by the direct action of the
people themselves to establish certain rules and prin-
ciples of action which can be varied by no power
less than that supreme will which calls the legislator
into being. In other words, we have imposed con-
stil/atiofial restraints on the legislature.

Something of this same disposition is to be found in
the annals of the mother country. The history of the
race to which the people of America belong, in all their

* WilliaiDs vs. Waiiams, 4 Seld, 625, 553 ; Ayres vs. The Methodist Epis-
copal Church, 3 Sandf. 351 ; Andrews vs. N. Y. Bible and Prayer Book So-
ciety, 4 Sandf. 166; Yidal vs. Gerard's Executors, 2 Howard, 127; Going
vs. Emery, 16 Pick. 107 ; Executors of Burr vs. Smith, 7 Verm. 241 ; and
other cases as to the doctrine of charitable and pious uses in this country.

CONSTITUTIOlfAL LAW. 19

struggles for tlie attainment and preservation of free-
doni, shows their marked and sedulous care in obtain-
ing and preserving formal acknowledgments and
records of their rights and liberties, muniments of
title, as they might in technical language be ter;med. ^

So early ais the 1st of Eichard III., Parliament " de-
clared that the court of Parliament is of such authority
and the people of this land of such a nature and dis-
position, as experience teacheth that manifestation and
declaration of any trut];i or right made by the three
estates of this realm assembled in Parliamentj and by
authority of the same, tnaketh before all other things,
niost faith and certain quieting of men's minds, and
removeth the occasion of doubts."*

^o, the Barons of England were not satisfied with
humbling the power of John. The^ exacted and ob-^
tained the execution of the great Charter. The re*
formers in the time of Charles I. demanded his assent
to the Petition of Eight ; and the throne of England
now rests on the Bill of Eights, the fruit of the revo-
lution of 1688, a bill prepared by the Convention
Parliament, in its own emphatic language, "as their
ancestors in such cases had usually done."f

These, however, are all but parliamentary enact-
nients, or regal concessions, intended to operate as
checks on the kingly prerogative. They furnish no
safeguard: against abuse of the legislative authority.

Our ancestors went further, and seeking to guard
against the abuses of popular, as their English pro-
genitors did against those of monarchical power, both in
the formation of the government of the separate States,

* Cotton's Abr. of Records, Y13 — 714, quoted in Haddock's Life of
Somers, 1. p. 294.
t BiU of Rights, 1 W. and M., Sess. 2, c. 2.

20 CONSTITUTIONAL LAW.

and in laying the foundation of the great confederacy
of the Union, they carefully asserted and defined
those individual rights which not even the law-making
power, not even the people itself, shall be permitted to
infringe. But this is not the proper place for an in-
quiry into the formation of written constitutJ.ons. In-
teresting as that investigation would be, and pregnant
with interest to the student of history and the lover q£
liberty, it is foreign to my present subject. So far,
indeed, as our Constitutions relate merely -to po-
litical organization, they are entirely beyond the limits
of this work. It is as forming a system of written
limitations or restraints on legislative power that we
shall have to consider them, and in this aspect it wiU
be interesting and instructive to study their operation,
to compare their analogies, and to observe their inter-
pretation.. For the present, it is sufficient to remark,
as we ^hall leaf n more fully hereafter when we
come to consider the true boundaries of legislative
and judicial authority, that the parliamentary or
legislative history of this country is remarkable for
nothing more than for the care with which we have
endeavored to define the boundaries of the various
powers which in the aggregate form the complex
machine of government, and the rigor with which
restraints have been imposed by the people itself
on its immediate mandataries and agents. Such are
some of the most prominent functions of the con-
stitutions .of the ■ several States. The Constitution
of the United States, designed to operate on State
sovereignties, as well as on the people directly, par-
takes of the character of a league as well as of a con-
stitution, as the latter term is more strictly used.
Of these three great components, then, Constittj-

JUDICIAL mTEBPRETATION. 21

TioNAL Law, Statute Law, and Customaey or Com-
mon Law, tlie jurisprudence of our municipal system is
chiefly composed. Of the two first of these, this
volume is intended to treat. They are entirely writ-
ten law, governed, like all branches of our science, by
rules peculiar to themselves, and subject to the neces-
sity, incident to the imperfection of language, of con-
stant interpretation and construction. The object
of this treatise is to explain the technical termin-
ology that belongs to them, to give their classifica-
tion, describe their incidents, and finally, with what
accuracy I can attain, to define the mode of their
application, to declare the rules of interpretation by
which they are in cases of doubt to be expounded, and
to illustrate these rules by the light of adjudged cases.

Both constitutional and statute law have two great
attributes common to each other, which render it in-
dispensable to examine them together. They are' both
written ; in cases of doubt they are both submitted to
the same judicial arbiter. It is plain that differences
will arise in the construction of written laws. The his-
tory of private discussions and of public controversies,
of contracts and of trfeaties, and more than all the
religious annals of our race, show the feebleness and
imperfection of language, and the sad facility with
which it lends itself to the various interpretations put
upon it by ambition, fraud, or even honest difference
of judgment. To settle these differences in regard to
the civil conduct of mankind, some tribunal is necessary.
On this point, as we shall see more fully hereafter,
various systems have existed. '

The earliest body of jurisprudence of which we
know any thing accurately, is the law of the
twelve tables of Rome j wrung from the Patrician

22 JUDICIAL INTERPKETATIOK.

burghers by tlie - courage and constancy of the
Plebeians, it wa^ intended to define and declare
the whole body of rights, public and private, that con-
stituted the existence of a Roman citizen, and for
nearly a thousand years it was the basis of their sys-
tem; but during that time, it was vastly expanded and
altered by the practice of interpretation. The Eoman
jurisconsults construed or interpreted the written code
with a very liberal spirit ; and the responsa prudentmn,
as we know, formed one of the leading elements of
the law as Justinian compiled it* When, however,
the imperial constitutions had subverted the freedom
of the republic and the independence of the law, the
despotic dispositions of the empire arrogated to the
sovereign alone the power of interpreting as well; as of
making laws. Leges coTidere soli imperatori conces-
swn est, et leges interpreta/ri solo dignum imperio esse
oportet.f

The modern civilians adopted the same maxim.
^ws est mterpreiari legem cujus est condere. Such was
the system under the government of the French em-
pire.J

The terrible absolutism of this doctrrae found, how-
ever, opposition or at least encountered doubt even
among the continental jurists ; and Voet, in his com-
mentaries on the Pandects, discusses at length the ques-
tion whether the right of interpretation belongs to the

* The jurisprudentes, " though they professed only to interpret the
twelve tables, not to make laws, their notion of interpretation was so wide
that it included every thing which could be brought within the spirit of any
thing which the twelve tables enacted " * * « tjjg regpoma pmdmtum
thus came to be enumerated among the direct sources of law." — Sanders'
Imtitutes, Introd. p. 19 and 20.

t Cod., Lib. i. Tit. xiv. de legibus, 12.

X See TouUier, Tit. Prel. des lois en general, section x.

JUDICIAL INTERPRETATION. 23

sovereign, should be abandoned to usage, or confided
to the judiciary*

In the early ages of the English system, it appears
that the line between the Judiciary and the Legisla-
ture was not distinctly marked, and that Parliament,
consisting of one great chamber in which sat both Lords
and Commons, not only made, but interpreted the law.f
But it has now long been settled in England, that the
iuterpretation of statute law belongs to the judi-
ciary alone, and in this country they have claimed
and obtained an equal control over the construction
of constitutional provisions.^ This treatise is, then,
devoted -mainly to a consideration of constitutional and
statute law, and of the control exercised by the judi-
ciary over it.

It is plain that the matter is of great moment. On
the one hand, the nature of the case, the frequency
of doubt, the impossibility of recurring to the legisla-
ture or to popular sovereignties for the removal of diffi-
culties, and the general analogies of our system, require
the power of th& judiciary to be extended over the
subject ; while, on the other hand, unless their authority
be very carefully exercised and confined within strict
limits, the boundary between the legislature and the
judiciary would be gradually effaced and the most
valuable parts of the law-making power practically fall
into the hands of that branch of the government which

* Comm., Lib. i. Tit. iii. de legibus.

+ " Originally, the Houses of Lords and Commons sat together. The
courts of law were clearly subordinate to the Parliament. A writ of error
lay from them to the Parliament, and they were accustomBd even to consult
Parliament before they decided points of difficulty and importance." — Sit J.
Campbell, argitendo, in Stockdale vs. Hansard, 9 Ad. and Ell. 1 ; see, post,
cb, V. * )i

t Kent, Part iii. Leo. xx. vol. i. p. 449 et seq.

24 THE - GENERAL SUBJECT.

is not intended to have any sliai-e whatever in the en-
actment of laws.

Having thus endeavored to give a general idea of the
various sources of our jurisprudence, and of the princi-
pal objects of this treatise, we proceed now to a more
particular examination of our immediate subject, de-
siring, however, that the results at which we have
thus far arrived, maybe borne in mind: That the
common law is the great i basis of both JJnglish and
American municipal law; that the interpretation
01* construction of the written law belongs to the
judiciary; that the rules governing the application
of statutes may, as a general proposition, be con-
sidered the same in both countries, but that on the
contrary, the head of constitutional law is wlwlly
peculiar to American jurisprudence.

As the authority of Congress is subordinate to that
of the Constitution of the United States, and that of
each Legislature both to the federal charter and
the constitution of its own State, it is plain that the
inquiry of the American student in all new cases, must
be directed to constitutional provisions before it turns to
the statute law. The prominent question in any case of
first impression growing out of the pfovisions of writ-
ten law, wUl usually be with every legal mind : does the
alleged right initerfere with any constitutional provision,
State or federal ? And it might, therefore,' appear pro-
per first to speak of constitutional law ; but, as has been
observed, the basis of our jurisprudence is the English
system, the general rules of interpretation are the
same, whether applied to statutes or constitutions;
^and as constitutions for the purpose of this work will
be considered mainly in the light of restraints or limi-
tations upon legislative power, it will be found better

THE OEKERAL SUBJECT. 25

at the outset to examiae those rules and discuss those
doctrines common to the legal science of both coun-
tries. I shall first, therefore, consider the subject of
Statutes.

It will be remembered, however, that my leading
object is not to give the actual interpretation of
particular constitutional or statutory provisions. This
would require a work of vast magnitude, and w6uld lead
me far beyond my present purpose. That purpose is
to consider the rules which govern the application of
written law, to exhibit the leading principles of inter-
pretation, and in regard to constitutions, to observe
their analogies ^nd study their general operation. The
construction of special provisions, whether of statutes
or constitutions, will be carried no further than shall
appear to be necessaiy for a complete understanding
of the subject.

Before discussing the subject of the construction of
statutes in doubtful cases, it is necessary first, however,
as I have , said, to imderstand the rules which govern
their application where no doubt arises. . Having first
examined their division and classification, their separate
parts and their various incidents^ we shall be then better
prepared to understand the rules which are adopted
where cases of difficult or doubtful interpretation
arise.

CHAPTER II.

GENEEAL CLASSEFIOATION AND DIVISION OF STATUTES»

• ' '*'
Dmsion of Statutes— In England divided into ancient and modem— DiTision

.in the United States— Public and Private Acts— Declaratory and Innova-
ting Statutes — Affirmative and Negative Statutes — ^Remedial Statutes —
Penal Statutes — ^Kepealing Statutes.

Those wlio desire to know the origin and Mstory of
tlie formation of statutes, from tlie earliest periods, in
the country from which our legislation derives its source,
will do well particularly to consult Mr. Dwarris' very
valuahle work on Statutes* The inquiry involves
some of the most interesting questions connected with
the early annals of England, the power of the Nor-
man Conqueror and of his first successors, the rise
and progress of parliaments, and many other subjects
equally curious and attractive.

For our present purpose it is sufficient to observe,

that the original term for all laws was Assises or

* Treatise on Statutes, by Fortunatus Dwarris, Kt.) and W. H. Armyot
Second edition, 1848. The first volume js devoted to the origin and history
of statutes, and the course of proceedings in Parliament The second vol-
ume treats of the construction of statutes, their division, parts, authority,
and incidents. '«.

This latter part has been republished in the ninth volume of the first
series of that valuable compilation, the Law Library, and is familiarly
known to our legal scholars. The whole work has, I believe, never been
republished in this country. Barrington's Observations on the Statutes is
also fuU of curious learning on the same subject.

ENGLISH DIVISIOBT OF STATUTES. 27

GmsUtutiones (rexprecepii vel constiPmt) ; and among
the earliest monuments of Englisli legislation, there
are statutes wMcL. bear the traces of a great council
assisting the king, besides ordinances, grants, charters,
and patents, emana;ting from the crown alone. The
first statutes appear to have been enacted upon
petitions which were presented, discussed, and acted
on in Parliament, the statute being, at the end of each
parliament, drawn up by,tthe judges, and entered on
the statute roll. This was found suTbject to great
irregularity and abuse; and finally, in the time of
Henry "VI., bills were in the first place, as now, drawn
up and presented to the two Houses.* But as this in-
vestigation to us would be interesting mainly if not
solely in an historical and antiquarian point of view, I
shall content myself with this brief notice of so much
of my subject as is entirely peculiar to England, and
proceed at once to the enumeration ©f the different
classes into which statutes are divided. Here we shall
find the basis of the classification to be derived from
the English law.

The English have, however, a division of statutes
which is unknown to us, viz. : into ancient and mpdern.
The earliest statutes in the printed collections are
those of the ninth year of Henry III., A.D. 1220. , The
statutes from Magna Charta down to the end of Ed-
ward II., 1326 (including also, some which, becatise it
is doubtful to which of the three reigns of Henry III.,
Edward I-, or J^dward II., to assign them, are termed
mcef'ti terr^oris)^ compose what have been called the
Vetera siafwla^ or ancient statutes ; those from the be-
gmning^f the reign of Edward IH. (1327) being con-

* Dwarris on Statutes, vol. ii. eh. i.

28 LANGUAGE OF OLD STATUTES.

tra-distinguished by the appellation nova staimta. The
former also, from some accidental circumstance of col-
lection or publication, are sometimes spofeen of as
prima aut secunda pars mterwrn stabutorvm* Of tne
earlier statutes some are in Latin, some in French. On
the accession of Richard III. (1483) the laws were first
printed and promulgated in English. Since the time
of his successor, Henry VII., all the statutes have been
drawn in English.f %-_

* Dwarris on Statutes, p. 460.

t The history of the English language is very curiously illustrated by the
history of the law. As late as the middle of the lith century, all the oral
proceedings in open court were in the French tongue, when by the 36th
Edward IIL c. xv. (1362), the English was introduced into the tribunals.
That statute recites that the laws of England are disregarded because the
proceedings in court are in French, "a tongue much unknown in the said
realm," so that clients do not understand what is said for or against them;
that in other countries the laws are better obseryed because juslce is done
in the vernacular ; and it then goes on to declare that thenceforth all pleas
shall be pleaded, shWed, defended, answered, debated, and judged in the
English tongue. The Latin was, however, by the same statute, preserved
as the language of the written pleadings and of the record.

The statutes, however, stiU continued to be enacted in Law French, till
the reign of Richard III., when they first appear in English ; and so ten-
acious was the hold that the language of France had acquired, that it re-
mained the language of the reports till the time of the Commonwealth. Nor
did theLatin disappear from the records till the 4 Geo. II. c. 26 (1731) ;
when, the oral discussions and reports being in English, the final triumph
of the language was achieved, and Latin was prohibited as the language of
the records also. It appears by this, that for nearly 300 years, viz. : from the
36th Edward III. (1362), to the time of the Commonwealth, English was
the language of oral discussion ; Frencfi, of the reports, and Latin of the
records; French also being mainly the language of the statutes from 1275,
or thereabouts, till the accession of Richard III. (1483). The first laws in
the English statute book, a,re in Latin. The earliest statute in the French
language, is the Statutum de ^caccario, 51 Hen. III. (A. D. 1266) ; and it is
remarkable not only that French continued to be used as the parliamen-
tary language after it had been abolished in the courts of justice, viz. :
from the 36 Edward III. (1362) to the 1st of Richard III. (1483), but
still more that it should ever have been the language of the laws. Bar-
rington says there is no other instance of atiy country in Europe per-

AMERICAN DIVISION OF STATUTES. 29

In the early periods of Englisli legislation, all the
statutes of each session of Parliament were consolidated
and styled one statute, each being called merely a
separate chapter. In the time of Henry VIII. it
first became usual to prefix a distinct title to each
particular chapter of the statute*

In this country we have no knowledge of the
division of statutes into ancient and modern, of which
we have spoken. The only divisions which we rec-
ognize, spring from the authority to which the stat-
utes owe their origin. We have ,,^

The Colonial Statutes, passed by the governments of
the old thirteen colonies, before the authority of the
mother country was thrown off:

The Acts of the United States, passed by the Federal
Government :

TJie Laws of the States, passed by the States re-
spectively; and

mitting their laws to be enacted in a modern Eu/ropecm language. See his
remarks on the subject, under the head of the Statutum de Skaepa/rio, 51
Henry III. A. D. 1266, p. 57.

Fortescue, writing in the reign of Henry VI., states that in the Uni-
versities of England, the sciences are only taught in Latin, but that the
law is taught in the three languages, English, French, and Latin. Leges
terne illius in tripUd lingua addiscuntur, videlicet, Anglia, GaUica, et Laiina.
Fortescue de Laudibus Leg, Angl. c. 48.

Chaucer's slur at the Anglo-French in common use in his time is well
known: ^

" And Frenche she spake full fetously,
After the scole of Stratforde at Bowe,
For Frenche of Paris was to her unknowe."

Peologce to the Pkioeess' Tale.

The great Poet showed ,at once his sense and patriotism, by using the
English tongue. But so slow has been the growth of that strong and ner-
vous speech which now bids fair to assert a successful claim to univer-
sal dominion. See Tyrwhitt's Essay on Language of Chaucer.
* Dwarris on Statutes, vol. 2, p. 463.

30 PUBLIC STATUTES.

The Acts of the Territories, passed by the govern-
ments of the new territories "before they are "admitted
into the Union as States.

We shall also have occasion to speak of the muni-
cipal ordinances of our cities,, some of which are
quite equal in importance to the acts of legislation of
many of the States *

When we come to consider statutes not as to tiieir
origin, but with reference to their subject matter, we
find the leading division to Ibe into

,1'uhliG or General, and

Private or Special.

PiMic or General Statutes are in England, those
which relate to the Mngdom at large. In this country,
they are those which relate to or bind all within the
jurisdiction of the law-making power, limited as that
power may be in its territorial, operation, or 'by con-
stitutional restraints. Primate or Special Statutes relate
to certain individuals or particular classes of men.f

* Coke, Inst. 116, thus envuneiates the " diyers laws within the reahn of
England:"

(1) The law of the Crown.

(2) The law of custom of Parliament.

(3) The law of nature.

(4) The common law.

(5) Statute law.

(6) Customs reasonahle.

(7) The law of arms, war, and chivalry.

(8) Ecclesiastical or canon law.

(9) Civil law as in the courts of the constable and marshal.

(10) Forest law.

(11) The kw of marque.
(13) The law merchant.

(13) The laws and customs of the isles of Jersey, &c.

(14) The law and privilege of the stannaries.

(15) The laws of the east, west, and middle marches — ^now abrogated.

t Mr. D warns, p. 463, gives the English parliamentary division of statutes
as follows :— " The first and principal division is into general and special, pub-

PUBUO STATUTES. 31

Laws wMcli concern tlie sovereign or lieir apparejit,
all officers in general, tlie wtole spirituality, all lords
of manors, such, also as relate to trade in general, are
in England public acts. A statute concerning aU per-
sons generally, tljough. with, relation to a special or

lie and private. For the convenience of citation to a_ practicing lawyer, the
printed book is again divided into public general acts; local and personal
acts, declared public and to be judicially noticed ; private acts printed by
the king's printer, and of which printed copies may be given in evidence ;
an^ private acts not printed.

"In Parliament are adopted other distinctions resting upon different
grounds ; there, all bills whatever from which private persons, corporations,
&c., derive benefit, are subject to the payment of fees, and such bills are in
this respect denominated private bUls; while among the public acts
are included some merely personal, as acts of attainder and patent acts.
Of private acts, some, as has been already 'shown, are local, as inclo-
sure acts, and some personal, viz. — such as relate to naturalization,
names, estates, divorces, &c. ; of the latter, some are fiscal^ as bills
for compounding debts due to the crown, &c. In the Lords, the term 'pri-
vate ' is applied technically to estate bills only, all other bills being distin-
guished as local and personal.

" After they have received the royal assent, private bills are divided into
three classes. 1. Local and personal acts, declared public. 2. Private acts
printed by the King's printer. And 3. Private acts not printed.

" Every local and personal act contains a clause declaring that ' it shall
be a public act and shall be judicially taken notice of as such, and receives
the royal assent as a public act."

Those who are desirous to consider the subject of English statutes, and
the ancient laws more particularly, will do well to consult the coUeo-
tions of English statutes. There are several, and they are full, of very
ciifious and interesting matter.

The oldest abridgment of the English Statutes, comes no lower than
the 81st year of Henry VI. (1452), -and is understood to have been
printed .in 1481. It is known as The Old Abridgement, arid is in French.

There are one or two other, later abridgments, also in French. The
first English abridgment of the statutes, is that of John Eastell. This was
was 6rst printed in the 19 Henry VIII. (1527).

Petyt's great Abridgment of the Statutes belongs to the year 1642, and
Pulton pubhshed an Abstract of them in 1577.

Mr. John Cay published his valuable Abridgment of the Public Stat-
utes, 2 vols, folio, in 1739 ; and in 1743—1766, Mr. Owen Ruffhead pub-
lished his Statute^ at large, in 9 vols. 4to. This last edition is perhaps the
most convenient and satisfactory for the purposes of reference.

32 PRIVATE STATUTES.

particular thing, as appeals, assizes, or woods in a
forest, is also a public act.

On the contrary, such statutes as concern only a par-
ticular species, thing, or person,— as, bishops only ; acts
for the toleration of dissenters ; relating only to specific
traders ; acts relating to only one particular place or to
several particular towns, or to one or more particular
counties, or to colleges only in the universities, — ^have
been in England treated as private acts.* .

In this country the disposition has been, on the
whole, to enlarge the limits of the class of public acts,
and to bring within it all enactments of a general
character, or which in any way affect the community
at large. The subject has been considered, as we shall
hereafter see, with reference to the provisions of the
federal Constitution ; and it has been held that the

* Dwarris on Statutes, 464; Gilh. Evidence, 39, 40 ; PhiL on Evidence,
238 ; Com. Dig. Tit. Parliament, R. 6 ; 4 Kep. 76, b. ; Kirk vs. Nowill, 1 T.
R. 118 ; 4 Rep. 79 ; 4 Co. 76, a. b.79.

Mr. Dwarris, vol. ii. p. 464, gives at length the distinction in England
between pubUc and private acts, as I have stated it in the text, and then
proceeds : —

" Thus the statute 21 Henry VIII. c. 13, which makes the acceptance of
a second living by a clergyman an avoidance of the first, is a general law,
because it concerns all spiritual persons (4 Rep. 79).

"In a general act there may be a private clause (1 Salk. 168), as in the
statute 3 Jac. I. c. 5 (10 Rep. 57, b.), the clause which gives the benefices
of recusants in particular counties, to the University. So, a statute which
concerns the public revenue, is a pubUc statute ; but some clauses therein,-
may, if they relate to private persons only, be private ; for a statute may
be public in one part and private in another. — 12 Mod. 249 ; 12 Mod. 613 ;
Hob. 2^7; Sid. 24.

" Yet, although a statute be of a private nature (as, if it concerp a par-
ticular mystery or trade), yet if a forfeiture be thereby given to the king
it is a public statute (R. vs. Baggs, Skin. 429). And a private act, if recog-
nized by a public act, must afterwards be noticed by the courts as a
general law. — 2 Term Rep. 569.

" A general or public act, then, regards the whole community ; special
or private acts relate only to particular persons or private concerns."

PUBLIC STATUTES. 33

•

establisTiment of towns and counties and their bound-
aries, court houses, jails, bridges, and ferries, are all
matters of public policy, and acts relating to them are
of course public acts.* So, in this country it has been
intimated that acts in relation to banks are to be held
public,f the reasons assigned being that their bills are
a legal tender unless specially objected to, and their
charters concern the currency of the country. So
in Massachusetts, acts creating public ^corporations,
whether sole or aggregate, are public statutes. J Acts,
too, which although aflfecting only a particular locality
apply to all persons, are public acts. So, an act
passed for the survey of timber in the county of Pen-
obscot, in the State of Maine-,§ and an act relating to
the preservatioji of a particular fish in Dunston river,
in Massachusetts,! were each held public acts.

Although a statute be of a private character, yet if it
contain any provisions giving penalties to the State, or
declares or punishes any public offense, it will be
held a public statute. 1" Gfenerally, if the act affects in
any way public interests, it will be held public. So,
an act for the creation of a wotk-house in the county
of Middlesex, and for the discharge of certain poor

* Bast Hartford vs. Hartford Bridge Co., 10 Howard, 511 ; Mills vs. St.
Clair Co., 8 Howard,. 569; Bass vs. Fontleroy, 11 Texas, 698; Common-
wealth vs. Inhabitants of Springfield, 7 Mass. 9.

t Bank of Utica vs. Smedes, 3 Cowen, 662 ; 2 R. S. 374, § 3. In Missouri
also, 'Douglas vs. Bank of ^ssourij 1 Missouri E. 20 ; Young vs. Bank of
Alexandria, 4, Cranch, 384.

J Portsmouth Liyery Co. vs. Watson^ 10 Mass. 91.

§ Pierce vs. Kimball, 9 Greenleaf, 54.

II Burnham vs. Webster, 5 Mass. K. 268 ; Commonwealth vs. McCurdy, 5
Mass. 324.

T Eex vs. Bagg, Skin. 429 ; Case of Rogers, 2 Greenleaf, 303 ; Heridia
vs. Ayres, 12 Pick. 334.

• 3

34 PRIVATE STATUTES.

•

prisoners, were held public acts* If a private act be
recognized by a public statute, it thereby becomes a

public act.f

In order accurately to comprehend the distinction
between public and private statutes, it is important to
understand their incidents. Courts of justice are bound,
eoo-offido, to take notice of public acts without being
fuUy set forth. The tribunals are bound to give them
fuU effect, so soon as they are called to their attention.
They cannot, therefore, be denied by a plea of nul tiel
record; and the existence of a public act is determined
by the judges themselves, who, if there be any diflB.-
culty, are to make use of ancient copies^ transcripts,
books, pleadings, or any other memorial, to inform
themselves-J

Of Private Acts, on the contrary, the judges are
not bound to take notice unless they be previously
ghown and pleaded. They may, consequently be put
in issue and tried by the record. Such parts of pri-
vate acts as are essential to an action* or defence, must
be specially recited in pleading.§ The result of these
rules is, that the courts always decide whether an act
be public or private.

Such are the general principles. It is not meant,
however, that courts of justice are always bound to

* Rex vs. Pawlyn, Sid. 209, Bacon Ab. Stat. F. ; Jones vs. Axen, 1 Lord
Baymond, 119.

t Rogers' Case, 2 Greenl. 303 ;,BuUer's N. P. 224, Bacon Ab. SUt P. note.

X Dwarris, 467, Kent Com. v. ii, p. 460 ; Trotter vs. Mills, 6 Wend'. 512.

§ Dwarris, p. 465. It is probable, however, that these rules are mate-
mlly modified in this country, in those States which have adopted the re-
cent innovations on the common-law system of pleading. The code of pro-
cedure of New York, provides (§ 163) " that in pleading a private statute, or
a right derived therefrom, it shall be sufficient to refer to such statute by its
title and the day of its passage, and the court shall thereupon take judicial
notice thereof."

PRIVATE STATUTES. . 35

take notice of general acts, and that parties will in all
cases have the benefit of them unless they set them out
in the pleading, and show that they, rely on them.
Thus, it is necessary to set out and rely on the statute
of limitations if the defendant intends to have the
benefit of it* So as to the statute against usury,
although under the general issue in assumpsit, this de-
fence might he set up, it could not in debt on bond,
unless specially pleaded.f In England, however, by
the pleading rules of Hil. Term, 4 William IV., these
technical distinctions were very much done away, and
a general rule declared, that if a good cause of
action at common law appear in the declaration,
the defendant must plead any statutable illegality iq.
the contract on which it is founded. J

The instances which we have been here noticing
relate, it will be "observed, to defences. As a general
rule, it may be safely assumed that whether the
ground of defence^arise on a public or private statute,
it must be so far stated as to refer to the act, and ap-
prise the plaintiff of the resistance which he is to meet.
In regard to declarations or complaints, the original
distinction holds good, the courts being bound to take
notice of and give effect to public general laws
whether pleaded or not, and not' obliged to do so in
reg£|rd to private laws unless distinctly set forth.

Private acts do not bind or conclude third parties or
strangers ; and they are not bound to take notice of a
private act, though there be no general saving clause of

* Dwarris on Statutes, 467 ; Puckle vs. Moor, 1 Vent. 191 ; Lee vs.
Rogers, 1 Lev. 110 ; Gould vs. Johnson, 2 Lord Baym., 838. This was at
first doubted.

+ Dwarris on Statutes, 467 ; Hob 72 ; 5 Rep. 92 ; Mason vs. Fulwood,
1 Lutw. 466 ; Lord Bernard vL Saul, 1 Strange, 498 ; BuU N. P. 152, S. 0.

X Dwarris on Stat. 469, for fule and exceptions.

36 DECLARATORY STATUTES.

th^ir riglits. This is a rale of ancient date, and has
been steadily adhered to *

In England it is held that words of a statute apply-
ing to private rights, do not affect those of the crown.
This principle is well established, and is there con-
sidered indispensable to the security of the public
rights. It has been recognized also in this country ;
and. on this ground it was held in Pennsylvania,
in regard to Windmill Island, in the Delaware river
opposite Philadelphia, though it was claimed under
a legislative grant, that as the rights of the com-
monwealth were not ceded by the act, no title
was acquired as against the State.f But in this
country generally, I should doubt whether this con-
struction could be safely assumed as a universal rule.
The English precedents are based on the old feudal
ideas of royal dignity and prerogative ; and where the
terms of an act are sweeping and universal, I see no
good reason for excluding the government, if not
specially named, merely because it is the government.

The next great division-line to which our at-
tention should be directed, is that between those
statutes which simply declare or explain the law or the
right as it stood previous to the statute, and those
which introduce new legislative provisions. The
former are termed Deda/ratory ; for the latter, no
general phrase has been adopted. For want of a
better term, I venture to call them Innovating, or
introductive of new matter.

It will be borne in mind that the earliest legislators

* ■

■ Lucy vs. Levington, 1 Vent. 175; Kent Com. i., p. 459; Dwarris, vol.
iL p. 471 ; Barrington's Case, 8 Rep. 138 ; Jackson rs. CatUn, 2 J. R. 248 ;
S.C. 8 J. R. 406.

+ Jones vs. Tatham, 20 Penn. R. 399.

DECLAEATOEY STATUTES. ST

found a great body of law estaUisfied under cover and
color of custom. Sucli rules are now growing up
every day around us. "WTien the attention of the law-
ilaaking power is turned to new subjects, and a
law is enacted in regard to them, defining rights
or imposing prohibitions which are new on the stat-
ute book, it often becomes a question whether the
new few is declaratory of the old, or whether it is in-
tended to introduce any new principle. In this laitter
case, as^I have said, for want of a settled terminology,
I call it innovating. Thus, for instance, to give an idea
of a declaratory act, an old English law, 25 Edward
III., 2, De natis ultrd mare^ recites, " Because that some
people be in doubt if the children born in parts be-
yond the sea, out of the ligeance of England, should
be able to demand any inheritance withitf the same
ligeance or not," and then goes on to enact that the
children of subjects born abroad, should be deemed
liege subjects of the English crown. And it has been
held that this does not establish any new rule, but that
the act was a merely declaratbry statute, and that 'the
rule was the same at common law.*

Declaratory acts, says Mr. DwarriSjf are made
when the old custom of the jnngdom is almost fallen
into disuse, or become disputable, in which case the
Parliaifient thinks proper in perpetuum rei iestimoniuniy
and for avoiding all doubts and difficulties, to declare
what the conimon law is and ever hath been. Declar-
atory acts are also passed to explain doubts in previous
statutory provisions^ and they are then what the old.

* Dyer's Reports, 324 a. ; Bacon vs. Bacon, Oro. Oar. 601 ; Doe dem.
Thomas ns, Acklam, 2 B. and Ores. 779 ; Lynch vs. Clarke, 1 Sa,ndf. Ch. B.
683, 660 ; 2 Kent Com. 50, 51.

t Vol. ii., p. 473.

38 APFIEMATIVE STATUTES.

writers on the Roman law called acts of authentic
interpretation.

A very nice question arose in regard to declar-
atory statutes and their effect. The old rule was, that
a custom could be alleged, or prescribed against the
■ common law ; that is to say, although the common law
prohibited a particular act, yet as the common law
is but custom, if particular and positive evidence«could-
be shotv^n of the antiquity of the practice of the act
complained of, the custom might be set up in defence,
and would prevail. But if a statute be passed de-
claratory of the common-law rule, and prohibit the act
in question by positive enactment, can the particular
custom still be alleged ? This seems so, if the statute
be in affirmative terms ; but if in negative terms,
whether declaratory of the common law or introduc-
tive of a new law, it seems that no j)rescription or
custom can be set up against it.*

This leads us to the consideration of the division of
statutes into affirmative and negative, terms which
readily explain themselves.

Affl/rmatiwe Statutes are statutes passed in the
affirmative ; and it has been held, with that reverence
for the ancient common law which characterizes the
early decisions of the English courts, that a statute
containing a mere affirmative provision, without any
negative expressed or implied, does not alter any com-
mon-law rule existing in regard to its subject matter
before the statute. Thus, by the 43 Edward III
c. ii. it was enacted " that the panel of assize shall
'be arrayed four days before the day of assize;"
yet if this be done two days before the day of

* Dwarris on Statutes, p. 475, 477 ; Lord Lovelace's Case, "W. Jon. 270 ;
Jones vs. Smith, 2 Bulst. 36 ; King vs. Bishop of London, Shower, 420.

AFFIRMATIVE STATUTES. 39

assize, it is good, for two days are sufficient at
common law, and when the statute is affirmative
it does not toll the common kw* So, it is said
that a statute authorizing a tenant in fee simple to
lease for twenty-one years, would not restrain him
from making a lease for sixty years ; for this power he
had at common law, and there are no negative words.f
So, where a remedy is given by an affirmative statute,
if a remedy previously existed at common law, and is
not prohibited by express words, it is nat takeji away,
but the party has his election.^ Thus, it has been held
in this country, that where- a statute authorizing the
erection of a miU-dam, provided a summary mode of
appraising and paying the damages resulting front such
erection, that the common-law redress by actiQn never-
theless stUl remaiQed.§ If, on the other hand, the
statute does not merely aflBx a new penalty- but intro-
duce new rights, then there can be no doubt that the
statutory remedy must* be strictly followed, j If a
new power be given by an affirmative statute, to a cer-
tain person, by a particular designation, although it be
an affirmative statute, still, all other persons are in
general excluded from the exercise of the power, since
ea^essio , unius est exclusio. alt&rius. Thus, if an
action founded upon a statute be directed to be
brought before, the justices of Glamorgan in Sessions,
it catanot be brought before any other person or
in any other place.^ So by the Scotch law, "stat-

*Dwarris, p. 474; 3 Inst. 200 ; Bro.Tarl. pi. 70.
t Dwarris, p. 475.

I Dwarris, p. 474. ,

§ Crittenden vs. Wilson, 5 Cow. 165. See also, Livingston vs. Van
Jngen, 9 J. R. 507 ; Bardan vs. Crocker, 10 Pick. 383. -

I Lang vs. Scott, 1 Black, Ind. 405 ; Almy vs. Harris, 5 J. K. 175.
T 11 Rep. 59, Foster's Case, 64.

iO NEGATIVE STATUTES.

Titory provisions cannot be supplied by ' equipol-
lents.' "* But the designation of a certain person to
whom a new poVer is given, does not exclude another
person who was by a precedent statute authorized t&
do it, from doing the same thing.f

Negative Statutes are so called because they are
penned in negative terms, — as the statute of Marlbridge,
which is " Won ideo puhialAir dommus per redemp-
tionem /" and Magna Charta, " Nullus. capiatm' aut im-
prisdneiMfP In regard to these, the rule is that if a
subsequent statute, contrary to a former, have negative
woMs, it shall operate as a repeal of the former ; and a
negative statute controls and takes away any common-
law right or remedy previously existing. J " The dif-
ferent operation of affirmative and negative statutes,**
says Mr. Dwarris,§ is thus illustrated : — " If a statute
were td provide that it should be lawfuj for tenant in
fee simple, to make a lease for twenty-one years, and
that such lease should be good, this affirmative statute
could not restrain him from making a lease for sixty
years; but the lease for tWenty-one years would be
good, because it was good by the common law, and to
restrain him it ought to have words negative, — as that
it shall not be lawful for him to make a lease for above
twenty-one years •, or, that a lease for more shall not
be good." So, an affirmative statute does not repeal a
precedent affirmative statute, and if the substaice of
both may stand together, they should both be enforced.
So, the statute 23 Elizabeth, c i. which gave £20 per
month against any recusant, did not take away the

* Alison's Practice.

1 11 Rep. 39, Poster's Case, ib. 64 ; Dwarris, p. 478.

% Bro. Pari. pi. 72.

§ Page 475.

REPEALING STATUTES. 41

penalty of 12d for every Sunday, given by statute 1
Elizabeth, c. ii.* The next head ii that of

Memedial Stai/aUs. — Eemedial acts are those made
from time to time to supply defects in the existing
law, whether arising from the inevitable imperfection
of human legislation, from change of circumstances,
from mistake, or any other cause. The object is some-
times effected by imposing restrictions^ in which case
the statute is a restraining or disabling statute ; some-
times by granting powers, in which case it is an
enabling or enlarging statute.f

Penal Staimtes.-^'Pe-n.a]. statutes are acts by which
a forfeiture is imposed for transgressing the provisions
of the act. A penal law may also be remedial, and a
statute may be penal in one part and remedial in
another.J We shall have occasion hereafter to notice
the incidents of penal statutes, but we may here men-
tion the general principle that a penalty implies a pro-
hibition, though there are no prohibitory words in the
statute.§

R&pealmg Statutes are revocations of former statut-
ory enactments ;| an(|^the effects of the repeal of laws,

* Dwarris, 474, 11 Rep. 63.

tDwarris, p. 478.

In illustration of this ctecision and distinction, Mr. Dwarris says, — " A
statute which gave bishops and other sole ecclesiastical corporations (except
parson^ and vicars) a power of leasing which they did not possess before,
viz. : Stat. 32 Henry Till. c. zzxviii. was an enabling statute. The Stat.
13 Elizabeth, c. x. which afterwards limited that power, is on the contrary
a disabling statute." — Dwarris, p. 479.

X 1 Wils. 126.

§ Griffith vs. "Wells, 3 Denio, 226.

I Mr. Dwarris says, p. 478, " Repeal acts are revocations of former stat-
utory laws authorizing and permitting the parties to whoni the repeal
extend's, to forbear from acts which they were before commanded to do.
Hence they are often named permissive laws; or, more briefly, iiw-
missiom." This, however, seems a very narrow definition of a repeal act It

43 FOREIGN STATUTES.

we shall have occasion to notice hereafter, when we
come to speak of the Incidents of Statutes.*

It may be useful to close this branch of our subject
by stating briefly the division of statutes according to
the continental jurists, with a brief sketch of their
general nature and distinctive qualities. But it is
necessary to premise, that by statutes the civil-
ians do not mean merely the positive le^lation
which in England and America is known by the same
name, — viz. Acts of Parliament and of other legisla-
tive bodies, as contradistinguished from the common
law, — but the whole municipal law of the state, from
whatever source emanating. Sometimes the word is
used by civilians in contradistinction to the Koman Im-
perial Law, which they sometimes style, by way of
eminence, " The Common Law," since it constitutes
the general basis of the jurisprudence of all conti-
nental Europe, modified and restrained by local cus-
toms and usages, and positive legislation. Paul Voet
says, " Sequitur jus particulare, seu non cormnwWy
quod uno vocabulo usitatissiim, Statutum dicitur^ quasi
statum pubUcum tuens. Merlin |B,ys, " Oe term statui,
s'appUque en general a toutes sortes des his et des regie-
ments ; chaque disposition d''un^ hi est un statwt, — qui
permet, ordonne, ou defend quelque chose.

Statutes are divided by the civilians into personal,
real, and mixed. Personal statutes are those which act
upon the person directly, as their subject or object;

would be difficult, for instance, to find any permission contained in the act
repealing the general bankrupt law of the United States.

* Mr. Dwarris, in his very valuable work, makes one class of statutes to
consist of those which are void. It seems hardly proper to make a class of
statutes which are in the eye of the law no statutes at all ; and we shall con-
side^ this subject under another head, when speaking of the restrictions upon
Legislative Power.

CONFLICT OF LAWS. 43

fixiog and determining its state and condition, as
Witt reference to birth, legitimacy, freedom, majority,
&c., without mentioning things or property, except
incidentally. These personal statutes are of general
force and obligation everywhere.

Keal statutes are those which have for their direct
object or motive, things or property, whether mov-
able or immovable, and independently of the personal
state of the proprietor or possessor; as laws which
concern the disposition which one may make of what
belongs to him, whUfe living or by his will.

Mixed statutes affect both persons and property, and
constitute a third class, which it has been found neces-
sary to admit ; there being so many statutes which are
neither purely personal nor purely reial, or in regard to
whichit is doubtful whether the personal or real char-
acteristics prevail. The rules for distinguishing the
several kinds, and the application of these rules to the
particular case, are much discussed and controverted
by th^ civilians, who have treated the subject with
theiy accustomed learning, acumen, and metaphysical
subtlety. In iis defmendis mvrum est qua/m sudcmt
doctores.

But this subject has been so fully discussed in that
which is perhaps the greatest monument of the intel-
lect and the labors of the late Mr. Justice Story, that
I win here only refer to the " ComFLiOT of Laws."

It would encumber the text too much to go at length into any antiqua-
rian discussion as to the history of the early legislation of this country ; but
I cannot refrain from giving, in this note, a brief sketch of the mode in
which the first laws of at least one of the Colonies were framed^

The State of Massachusetts has, with a comiftendable liberality and re-
spect for its early history, recently (1853-1855) published, in six handsome
4to. Tolumes, the legislative records of the Colony, from 1628 to 1686.

44 EARLY COLONIAL LEGISLATION.

"Records of the Governor & Company of the Massachusetts Bay, in New
Jlngland, printed by order of the Legislature, edited by Nathaniel B. Shurt-
leff." They are extremely valuable, and throw great light not only on the
character but the formation of the laws of the infant State. The early and
constant attention to the subject of legislation, the care shown and the
modes devised to secure a representation of all the interests to be provided
for, the intermixture of the "Word of God" \yith their temporal adminis-
tration, aiid the eminently equal and republican nature of the whole pro-
ceedings, are of great interest with reference to the formation of some of the
earliest institutions of our empire.

The charter of Charles L to Sir Henry Bosewell and others, founded on
the cession from the Plymouth Council, and creating the corporation
called "The Governor & Company of the Mattachusett Bay in Newe
England," was granted in March, 1628. , It contained the following pro-
vision as to the. making of laws for the new State. (Colony Records 1, p. 16.)
"And wee doe of our further grace, certen knowledg, and mere mocon,
give & graunt to the Saide Governor & Company and theu: successors,, that
it shall and will be lawful to and for the Governor, or Deputie Governor &
Buch of the Assistants & Freemen of the saide Company for the Tyme being
as shall be assembled in any of their Generall Courtes aforesaide, or in any
other Courtes, to be specially sumoned and assembled for that purpose or
the greater part of them, (whereof the Governor & Deputie Governor and
six of the assistants to be alwaies seaven) from tyme to tyme to make, or-
deine & establishe all manner of wholesome and reasonable orders, LaweS
Statutes & ordinnces, du:eccons & instruccons not contrarieto the Uiwes of
this our realme of England as well for setting of the formes & ceremonies
of government & magistracy fitt & necessary for the said plantacon & the
inhabitants there & for nameing & stiling of all sortes of officers both supe-
rior and inferior which they shall flnde needefuU for that government and
plantacon Sf the distinguishing & setting forth of the severall duties powers
and lymy tte of every such office & place and the formes of such oathes war-
rantable by the lawes & statutes of this our realme of England as shalbe
respectiveUe ministred unto them for the execucon of the said severall offi-
ces and places, as also for the disposing and ordering of the elecons of such
of the said officers as shallbe annuall & of such others as shallbe to succeede
in case of death or removeall & ministring the said oathes to the newe elected
officers and fbr imposicons of lawfull fynes & mulcte, imprisonment or other
lawfull correcon according to the course of other corporacons in this our realme
of England and for the directing ruling and disposeing of all other matters
& thinges whereby our said people inhabitante there male be soe religiously
peaceablie & civilly governed as their good life and orderlie conversacon
male wynn and incite the natives of country to the knowledg and obedience
of the onlie true God & Saviour of mankinde & the Christian fayth which
in our royal intencon and the adventurers free profession is the principall
end Of this Plantacon."

EARLY COLONIAL LEGISLATION. 45

At a meeting of the Oompany, held at London on the SOth of April,
1629, the Governor and Oompany were directed "to make ordeyne and
establish all manner of wholsome & resonable orders, laws, statutes, ordinan-
ces, directions &instrucktyons not contrary to the lawes of the Realme of
England fibr the present gouernment of our plantacon and the inhabitants
residinge within ye lymitts of our Plantacon ; a coppy of all which orders is
from tyme to tyme to bee sent the Comp. in London." — [Colony Records, L,
p. 38.]

This charter created a mere Commercial Company, but in 1630 the seat
of government of the association was transferred to the Colony. . With-
in four years, says Mr. Bancroft, it was determined that the whole body of
the freemen should be convened to elect the magistrates, and that to them,
with the deputies of the several towns, the powers of legislation should b«
intrusted. And thus, in the historian's expressive language, " the trading
corporation was become a representative Democracy." — Bancroft, i., p. 363.

I find, however, under date of 19th October, 1680, the following entry.
If this be the change to which Mr. Bancroft refers, it was one of the first
steps taken after the transfer of the seat of government to this country.

At a general court holden at Boston the 19th of October, 1630, "it was
ppounded if it were not the best course that the fireemen should have the
Power of chuseing Assistants when, there are to be chosen & the Assistants
from amongst themselves ta chuse a Gounr. & Deputy Gounr. whoe with the
Assistants should have the power of makeing lawes and chuseing officers
to execute the same. This was fully assented imto by the gen'all vote of
the People and ereccon of hands. "-T-Colony Records, i., p. V9.

A collection of the orders or laws very soon became a subject of consid-
eration. On the 4th March, 1634, Winthrop and Bellingham appointed a
committee to prepare a revision of "all orders already made," and report to
the next General Court.— C. R., i., p. 13T,

On the 6th May, 1635, the Governor, Deputy Governor, Mr. Winthrop
and Mr. Dudley " are deputed by the court to make a Draught of such Laws
as they shall iudge needefuU for the well ordering of the plantacon & to
psent the same to the Court."^C. R., i., p. 147.

On the 25th May, 1636, it was ordered (i., p. 174, 175) as follows:

" The GbuM., Deputy Gounr., Tho Dudley, John Haynes, Rich: Belling-
ham Esqr. MrCotton, Mr Peters, & Mr Shepheard, are intreated to niake a,
draught of Lawes agreeable to the word of God wch may be the fiundamen-
tall of this comonwealth and to present the same to the next Genall Court.
And it i^ ordered, that in the taeane tyme the magistrates and their a,ssoci-
ates shall pceede in the courts to heare and determine all causes according
to the lawes nowe established & where there is noe law then as neare the
law of God as they can, and for all business out of Court for wch there is noe
certaine rule yet sett downe those of the standing counsell or some two of
them shall take order by their best discrecon that they may be ordered &
ended according to the rule of God's Word, and to take care for all military
affaires till the nexte Genall Court."

46 EABLY COLONIAL LEGISLATION.

On the 12th March, 1637 (0. R., i.'222) it was ordered as follows:

" For the well ordering of these plantacons now in the begining thereof
it haveing been found by the little time of experience wee have heare had
that the want of written Lawes have put the court into many doubts and
much trouble in many perticuler cases this Court hath therefore ordered
that the freemenof every towne (or Some part thereof chosen by the rest)
wthin this iurisdiction shall assemble together in their severall townes &
collect the heads of such necessary and fundamentall lawes as may bee suta-
ble to the times and places whear God by his pvidence hath cast us, & the
heads of such lawes to deliver in writing to the Governor for the time being
before the 5th day of the 4th month called June next to the intent that the
same Governor, together wth the rest of the standing counsell and Richrd
Bellingham Esq, Mr Bulkley, Mr Philips, Mr Peters, and Mr Sheopard elders
of severall churches, Mr Nathaniell Ward, Mr WiUi : Mr Spencer & Mr Wilh
Hauthorne or the maior part of them may upon the survey of suche heads
of Lawes make a compendious abrigment of the same by the Generall Court
in autume next adding yet to the same or detracting therefrom what in
their wisdomes shall seeme meets that so the whole worke being pfected to
the best of their skill it may bee psented to the Generall Court for confir-
mation or reiection as the Court shall adiudge."

In 1640, 13th -May, it was ordered as follows:

"Whereas a breviate of Lawes was formerly sent to be considered by
the Elders of the Churches and other freemen of this Comonwealth it is now
desired that they will endeavour to ripen their thoughts & counsells about
the same by the Generall Court in the next 8 mo: ." — C. R., i., p. 292.

Ob the 7th October, 1641, " The Gov. & Mr. Hauthorne were desired to
Speake to Mr. Ward for a Coppey of the liberties & of the Capitall lawes to
bee transcribed-sfc sent to the Generall townes." — C. R., i., p. 340.

It appears from this that the laws were still in manuscript only, and so
we find [C. R., v. iL, p. 14] that on the 14th June, 1642, " Goodman Stowe
is granted 100 acres of Land where he can find it convenient wthout piudice
to any towne for recompence of his paines in writing the lawes already &
to write such as are still to bee written."

On the 7th March, 1643, the subject of a modification of the Laws is
again considered & conunitted to the Govr., Mr. Dudley, Mr. Hibbens, the
Magistrates residing at Ipswich and Mr. Bellingham. — C. R., ii., p. 61.

On the 14th May, 1645, the subject seems to have been more systemati-
cally taken up, and Committees of six members each are raised froni the
respective counties of Suffolk, Middlesex, and Essex, " to consider & draw
up a body of Lawes to present theili to the consideration of the next Gen-
eral Court."— C. R., ii., p. 109.

On the 1st of October, 1645, these Committees are called together at
times and places designated for the accomplishment of the work so "that
the Courte may pceede thereupon to satisfy ye expectation of the Counfry
in establishing a Body of Lawes." — C. R., v. ii., p. 128.

On the 22d May, 1646, is made the following entry :

EARLY COLONIAL LEGISLATION. 47

" This Corte thankfully accepts of ye labors returned by ye sevrall
eomittees of ye sevrall shfeires & being very unwiling such pcious labors
should fall to ye ground wthout yt good successe as is genrally hoped for,
have thought it meete to desire Richrd Bellingham Esqr, Mr Symonds,
Leift Duncan, Leift Johnson, &' Mr Ward do cause each eomittees returne
about a body of lawes to be transcribed, so as each comittee may have ye
sight ofye others labors, and that ye psons mentioned^ in this order be
pleased to meete together at or before ye 10th of August at Salem or Ips-
wich, & on their pusing & exanlimng ye whole labors of all ye eomittees,
with ye abreviation of ye lawes in force, wch Mr Bellingham tooke greate
store of paines & to good purpose, in and upon ye whole & make return to
ye next session of this Corte, at wch time ye Oort intends, by ye favor and
blessing of God, pceed to ye establishing of so many of them as shalbe
thought most fit for a body of Lawes amongst us." — 0, R., vol. ii., p. 157.

On the 4:th November, 1649, this entry is made :

" The Oorte, being deeply sensible of ye earnest expectation of the coun-
try in genrall for this Gorts compleating of a body of Lawes for ye bettr &
more ordely wielding all ye affaires of this comon wealth, wiling also to their
utmost to answer their honest & harty desires therein, unexpectedly p'vented
by multitude of othr pressing occasions thinke fit & necessary yt this Corte
make choyce of two or three of or honored magistrats, wth as many of ye depu-
ties to puse, examine, compare, transcribe, correct, & compose in good order all
ye liberties, Lawes, & orders extant wth us, & furthr to puse & pfect all
such othrs as are drawne up & to psent sudh of them as they find necessary
for us, as also to suggest what they deeme needfull to be aded, as also to
consider and contriue some good methode & order, titles, & tables for com-
piling ye whole, so as we may have ready recourse to any of them upon all
occasions, whereby we may n^anifest or uttr disaffection to arbitrary.gov-
ermt, & so all relations be safely & sweetly directed & pfected in all their
iust rights ^nd priviledges, desireing thereby to make way for printing or
Lawes for more publike & pfitable use of us and or successors. Or honored
Govmr, Mr Bellingham, Mr Hibbens, Mr Hill, & Mr Duncan, as a comittee
for ye business above mentioned, or any three of them meeting, ye othr
haveing notice thereof, shallbe sufficient to carry on ye worke." — C. R.,
vol. ii., p. 168.

On the 26th May, 1647, the Court finding that the Committee for per-
fecting the laws have " through streights of time & other things interven-
ing," not completed their work, commit the task to another committee.-^
0. R., vol. ii., p. 196.

Oh the 11th November, 1647, it appears that the work was done, and
arrangements were made about printing. — C. R., vol. ii., p. 209.

And it is farther "agrefed by ye Corte to ye end We may have ye bet-
ter light for making & pceeding about laws yt yr. shal be these books fol-
lowing poured for yr use of ye Courte from time to time : Two of Sir Ed-
ward Cooke upon Littleton ; two of ye Bookesof Entryes; two of Sir Ed vrd

48 EARLY COLONIAL LEGISLATION.

Oooke upon Magna Charta ; two of ye Newe Tearmes of ye Lawe ; two
Dalton's ^Tustice of Peace; two of Sir Edwd Cook's Keports." — Vol. ii.,
p. 213.

On the same date, it appears that the " Lawes are now in a manner
agreed upon," and a Committee is appointed in regard to alterations. — C. R.,
ToL ii., p. 217, 218.

On the 10th May 1648 [0. R., vol. ii., p. 346], they are "at presse."
And on the 27th October, 1648, the price of the printed copy is fixed. — 0.
R., vol. ii., p. 262.

I .have thus traced the growth of the first body of printed laws in Massa-
chusetts; and on the 17th October, 1649, the Court "fijiding by experience
the great benefit that doth redoimd to the Court by putting of the law in
|H-int," direct the printing of all laws passed since the first publication.^
C. B., vol, ii, p. 286.

CHAPTER III.

THE PAETS OF STATUTES.

Blaokstone's Enumeration of the Parta of a Statute : Practical Division— Title—
Commencement— Preamble — Purviev — Clauses — ProTisoes — Bj^oepUons-^
Schedules.

Blackstoio! says * that every law may be said to
consist of four several parts :

The Deda/ratory^ or that which defines the rights
to he observed and the wrongs to be eschewed ;

The Dvrecfory, commanding the subject to observe
the right and abstain from the wrong ;

The Remedial, pointing out the method to recover
the right or redress the wrong ; and

The Vindicatory, or sanction, declaring the penalty
to be inflicted for a violation of the law.

This division is correct and philosophical, but has
little practical value. A statute for practical purposes
is divided into the following parts : —

The Title.

The Gommencement.

The Preamble.

The Purview, or Body of the Act.

Special Glauses.

Provisoes.

Exceptions.

Schedules.

* Introduction, § 2.

50 THE TITLK

the Title.— Ike custom of prefixing titles to stat-
utes, was not regularly introduced prior to the eleventh
year of the reign of Henry VII. ; though particular in-
stances may have occurred before that time. The title
was formerly called the Eubric, from being written in
red characters.*

In the early English cases, the courts held the title
to be no part of the statute ; " no more," says Lord
Holt, "than the title of a book is part of the book."f
This is not a very good illustration. The reason of
the rule in England is better stated by Mr. Dwarris,
who says that the title is usually framed only by the
clerk of that house in which the bill first passes, and
is seldom read more than once.J In accordance with
this, the title has been said to afford no clue to the
legislative intent.§

But it now seems that where the meaning of the
body of the act is doubtful, the title may be relied on
as an assistance in arriving at a conclusion.! The title,
however, being, in strictness, no part of the act in a
legal sense, it would be absurd to attempt to use it for
the purpose of restraining or controlling any positive
provision of the act. It can only be used for the fact
of the maker's having given the law a certain name, if
that fact can render any assistance in doubtful cases.
Taken in connection with the other parts of the statute,
the title, where the intent is not plain, may somewhat
assist in removing ambiguities.^

* Dwarris, p. 500 ; Chanceus. Adams, Hard. 324.

t Rex vs. WiUiams, I. W. Bl. 85; Poulter's Case, 3 Rep. 33 ; "Wills vs.
Wilkjns, 6 Mod. 62.

X Dwarris, p. 601. 'I

§ 1 Ambler, 22.

il Stradling vs. Morgan, Plowden, 203 ; King vs. Cartwright, 4 T. R. 490;
King vs. George Marks, 3 East. 160.

T Dwarris, p. 502.

THE TITLE 51

In this country it has been said, on the same prin-
ciple,^ though the title cannot control the plain intent
of the statute, that where the words are doubtful, it
may be resorted to to remove ambiguities*

"It seems to me, on the whole, however, that the
original rule is the true one. The title is rarely a
matter of legislative debate or scrutiny ; and though it
may, and doubtless does, give a general idea of the
purport of the act, still, it is precisely in cases of nicety*
and doubt that it cannot with safety be relied on.f

In another point of view, the title of the statute has
recently received much importance in some of the
States of the Union. The 16th Section of the 3d Art.
of the Constitution of New York, adopted in the year
1846, declares that "No private or local bill which
may be passed by the Legislature, shall embrace more
than one subject, and that shall be expressed in the
title." The design of this constitutional provision has
been judicially declared J to have been " to prevent the
uniting of various objects, having no necessary or nat-
ural connection with each other, in one bill, for the
purpose of combining various pecuniary interests in
support of the whole, which could not be combined in
favor of either by itself ;"and^ on the ground that the
provision was to be so construed as to reach this mis-
chief alone, it has been held, that an act entitled " an
Act in relation to the fees and compensation of certain
officers in the city and county of New York," by which
salaries were given to four officers of that city, in place

* U. S. vs. Fisher, 2 Cranch R. 386 ; TJ. S. vs. Palmer, 3 Wheat. 610 ;
State vs. Stephenson, 2 Bailey, 334'; Burgettjjs. Burgett, 1 Ham. 219.

t See reference to Title for aid in case of ambiguity ; Williams vs. Wil-
liams, 4 Seld. S25, 535.

t Conner vs. The Mayor, 1 Seld. 285, 293.

52 THE TITLE.

of the fees of their respective offices, and providing also
that the fees should be paid into the city treasury and
the salaries paid out of them, even assuming it to be a
private bill, was not within the constitutional restriction
above referred to ; that it embraced but one subjectj
and that the subject was sufficiently expressed in the
title* So again, where an act was passed entitled " For
the relief of certain parties," and it contained, besides
^provisions for their relief, a clause repealing another
statute on the same matter, which had been acted on
and therefore ceased to be operative, it was held,
that this did not add another subject to the bill.f
So, an act entitled " an Act to enable, &c* to raise
money by tax," does not violate this provision, although
the law contains special provisions, and designates the
objects for which the tax is to be levied ; and the Court
of Appeals said, " There must be but one subject; but
the mode in which the subject is treated, and the rea-
sons which influenced the Legislature, cannot and need
not be stated in the title, according to the letter and
spirit of the Constitution.''^ The purpose of the pro-
vision was, that neither the members of the Legisla-
ture nor the public should be misled by the title, not
that the latter should embody all the distinct pro-
visions of the bill in detail.

The Constitution of the State of Texas contains the
same provision, and makes it applicable to all bills,
whether public or private. " Every law enacted by
the Legislature shall embrace but one object, and that
shall be expressed in the title."§ And in that State

* Conner vs. The Mayor, 1 Seld, 285.

t Town of Guildford vs. Cornell, 18 Barb. 640.

t Sun Mutual Insurance Co. vs. The Mayor, 4 Selden, 241.

§ Cons, of Texas, 1845, Art. vii. § 24.

THE COMMENCEMENT. 53

also, it is held that the provision is to be liberally-
construed. So, where an act which was entitled,
*' to regulate Proceedings in the County Court," gave
an appeal from the County Court to the District
Court, and regulated proceedings therein, it was held
that this was not within the mischief contemplated
by the Constitution, and that the act was valid.*

Tike Corrnnencemenf.— This clause, with which where
there is no preamble each bill commences, varies accord-
ing to the character of the authority from which the law
emanates. In England, says Mr. Dwarris, The mode of
stating the enacting authority, has Varied at different
times,. Regulations having the force of laws^ assumed
multiform shapes, appearing sometimes as ordinances ;
then as grants, patents, and charters ; again, as mere
directions or prohibitions of the king, but sanctioned,
nevertheless, directly or indirectly, by the Lords and
Commons. Formerly, the bill was in the nature of
a, .petition, and these petitions were entered upon the
Parliament roll; and upon these rolls the royal
assent was likewise entered. Upon this ground-
work the judges used, at the. end of the Parliament, '
"to draw up the act of parliament into the form
of a statute, which was afterwards entered upon
the statute roll. In Henry 6th's time, the former
method was altered, and bUls continent's formam

* Murphey vs. Menard, 11 Texas^ 673.

The evil which these constitutional proyisions are intended to correct, is
not of recent date. Mr. Barrington says (Obs. on Statutes, p. 44i9), " It
becomes indeed, impossible, when statutes relate to matterS; of a very mis-
cellaneous nature, that the title can be coextensive with the views of the
Legislature. It' is, therefore, to be wished that such acts of Parliament
were distinctlaws, arid not thrown together in that very strange confusion
which hath now obtained the name of a Hodge Podge Act."

54 THE PREAMBLE.

actus Pmiiamenti, came to be at once brought into tlie
house*

The established form of the commencement of a
statute in England, now is: "Be it enacted by the
King's Most Excellent Majesty, by and with the
advice and consent of the Lords spiritual and temporal,
and Commons, in this present Parliament assembled,
and by the authority of the same, that," &c. •

The enacting clause of the laws of the American
Union, runs thus:' "Be it enacted by the Senate and
House of Representatives of the United States of Am-
erica, iu Congress assembled."

The enacting clause in the States differs with their
different organization. In New York, it runs thus:
"' The People of the State of New York, represented
in Senate and Assembly, do enact as follows."

The Preamble. — Both in England and this country,
it was at one time a common practice to prejfix to
each law a preface, prologue, or preamble, stating the
motives and inducements to the making of it ; but it
is not an essential part of the statute, and is now fre-
quently, if not generally, omitted.

"With the" civilians, the preamble is a matter of
much consequence. They say, Gessante legis procemia,
cessat et ipMlex. In our law it holds a far lower rank.
A preamble is not only not essential and often, now
indeed generally, omitted, but it is without force in a
legislative sense, being but a guide to the intentions of
the framer. Still, as such guide, it is often of import-
ance. It is in this sense that, as Lord Coke and Lord
Bacon say, the preamble is a key to open the under-
standing of a statute.

" The influence of the preamble," says Mr. Justice

* Dwarris, p. 503.

THE PREAMBLE. 65

Story, in his Commentaries on the Constitution of the
United States, " has a foundation in the exposition of
every code of written law, upon the universal principle
of interpretation, that the will and intention of the
Legislature is to be regarded and followed. The pre-
amble is properly referred to when doubts or ambig-
uities arise upon the words of the enacting part. The
preamble can never enlarge, it cannot confer any
powers per se: Its true ofl&ce is to expound powers
conferred, not substantially to create them."* " The
preamble to a statute," say the Supreme Court in
Illinois, "is no part of the act, still it may assist
in ascertaining the true intent and meaning of the
Legislature."f

In the modern English cases, it is said that the pre-
amble may be used to ascertain and fix the subject
matter to which the enacting part is to be applied. J .
So, the purview or body of the act may even be
restrained by the preamble, when no inconsistency or
contradiction results.§ But it is well settled that where
the intention of the Legislature is clearly expressed
in the purview, the preamble shall not restrain it,
although it be of much narrower import. | "If the
words of this section," says Lord Campbell, C. J., in a

* See, to same effect, Crespigny vs. Wittenoom, 4 T. R., 193 ; Edwards
■OS. Pope, 3 Scam. 465.

t Edwards vs. Pope, 3 Scam. 466.

X Salkeld vs. Johnson, 1 Hare, 196 ; Emanuel vs. Constable, 3 Kussel,
436 ; Foster vs. Banbury, 3 Sim. 40 ; Crespigny vs. Wittenoom, 4 T. K.
193.

§ Seidenbender vs. Charles, 4 S. and E. 166 ; Kent vs. Somerville, 7 Gill
and J. 266.

II King vs. Marks, 3 East. 165 ; Kinaston m. Clarke, 2 Atk. 205; Hol-
brook vs. Holbrook, 1 Pick. 251 ; Copeman vs. Gallant, 1 P. Wm. K. 320 ;
King vs. Athos, 8 Mod. 144 j Kent vs. Somerrille, 7 Gill and J. 265 ; Lees
vs. Somersgill, 17 Ves. 510.

56 THE PREAMBLE.

recent case, "admitted of any reasonable doubt, -we
■would look to the title and preamble, and endeavor td
construe the enactments consistently with them."* So,
if a clear and definite remedy is given by the act, the
preamble cannot be used to introduce one more ex-
tensive.f

A question has arisen as to the effect of the pre-
amble as matter of evidence ; or, in other words,
whether the allegation by the Legislature ,in the
preamble of a statute, of the existence of certain facts,
can be offered as evidence of these facts in courts of
justice, when private rights come in question. On this
point it has been held in England, where an information
for a libel contained an introductory averment that
great outrages had been committed in certain parts of
the country, that the preamble of an act of Parlia-
• ment reciting the existence of outrages of that descrip-
tion, was admissible for the purpose of proving the
averment.J

This decision, however, gives more weight to the
preamble than would probably be allowed to it in this
country. The court of Kentucky, on the question,
whether the p'reamble of a private' statute could be
used as evidence of the matters recited in it, said,
" The fact recited in the preamble of a private statute
may be evidence between the commonwealth and the
applicant or party for whose benefit the act was passed.
But as between the applicant and another individual
Whose rights are affected, the facts recited ought not

*'WUmot vs. Rose, 3 EUis and Blackburn, Q. B. 663 ; Free vs. Bur-
goyne, 5 B. and C. 400.

t Wilson vs. Knubley, 7 East. 128, Bac. Abr. Stat. 1 ; Adams vs. Wood,
2 Oranch, 386.

t Rex vs. Sutton, 4 Maule and Sel. 582. '

THE PURVIEW. 57

to be evidence. We well know that such applications
are made frequently ex parte. The Legislature, in all
its inquiring forms by committees, makes no issue.
Once adopt the principle that such facts are conclusive
or even prima facie, evidence against private rights,
and many individual controversies may be prejudged,
and drawn from the sanctions of the judiciary into the
vortex of legislative usurpation. The appropriate
functions of the legislature are to make laws to oper-
ate on future incidents, and not a decision or forestall-
iBg of rights accrued or vested under previous laws.
Such a preamble is evidence that the facts were so rep-
resented to the legislature, and not that they are really
true."* This reasoning applies with as much force to
public as to private statutes ; and the Supreme Court of
Ifew York has well said that the legislature has n,o
jurisdiction to determine facts touching the rights of
individuals.f

A preamble is sometimes prefixed to a particular
clause, the tenor of which it is meant to explain or
which it is intended to elucidate.J

The Pwrviem, or Body of the Act. — The true mean-
ing of the statute is generally to be sought in the
purview, providing part or body, of the act. As we
have seen, it is well settled that when the words in
this, part are broad enough to take in the mischief

* Elmend«rf vs. Carmichael, 4 Litt. R. 47.

t Parmlee vs. Thompson, 2 Ml, 77.

% Mr. Barrington, in his Observations on the Ancient Statutes, a rambling,
but shrewd, sensible, and learned work, manifests considerable hostility to
preambles. He says, " The most common recital for the introduction of any
new regulation, is to set forth that ' doubts have arisen at, common law '
which frequently never existed." And again, with great truth, " the pre-
amble often dwells upon a pretense which was not the real occstsion of the
law, when perhaps the proposer had very different views in contempla-
tion."—06s. ore Stat. p. 394.

58 CLAUSES.

alleged to be included, they shall be so construed
though the preamble does not warrant it; in other
■words, the purview of the statute may carry the act
]?eyond the preamble. " There are a variety of cases,"
said Lord Mansfield, "where it has been determined
that strong words in the enacting part of a statute,
may extend beyond the preamble*

This, then, seems to be the general principle. The
title may be resorted to in cases of ambiguity, and is a
guide of some, though slight, value. The preamble
may be consulted to ascertain the intention of the law-
making power. But it is chiefly from the main body, the
purview df the act, that the will of the legislature is to
be learned ; and when this is clear and express, neither
preamble nor title will avail to contradict or overrule
it. Aisolufa seAtentia easpositore non indiget. " This
is the case," says Lord Coke, " where the words are
plain without any scruple, and absolute without any
saving."f "We shaU. discuss other branches of this
part of our subject, when we come to examine the
rules of interpretation.

Clauses. — Of these in bUls, there are various kinds.
Bills frequently contain an interpretation clause ; and
this clause, says Mr. Dwarris, should precede the mere
body of the act, since, as he says, agreeably to right
reason and common sense, definitions should precede
the matter to which they have reference. In America,
however, the interpretation clause, where it occurs, is
generally to be found at the end of the statute.

The practical use of the interpretation clause will

* Dwarris p. SOT ; Strode vs. The Stafford Justices, 1 Brock, 162 ; 3
Atk. 204 ; Pattison vs. Bankes, Cowper, 640 ; Doe dem. Bywater & Brand-
ling, 7 B. and 0. 643.

1 2 Inst. 533 ; Dwarris, p. 519.

INTERPRETATION CLAUSE. 69

te best understood from an fexample— thus : "The
words and expressions hereinafter mentioned, which in
their ordinary signification have a more confined or a
diffei:ent meaning, shall, in this act (except where the
nature of the provision or context of the act shall ex-
clude such construction), be interpreted as follows:
that is to say, the word Land shall extend to manors,
advowsons, messuages, and all other hereditaments,
whether corporeal or incorporeal, or of other tenure,"
&c. And again ; " Every word importing the plural
number, shall extend and be applied to a female as
well as to a male," &c. <fec.*

In England, the judicial inclination seems to be that
interpretation clauses are by no means to be strictly
construed.f In a recent case. Lord Denman said, " A
difficulty is raised from the interpretation clause, which
enumerates all such persons as shall be meant and in-
cluded in the term overseers. And it is argued that
the legislature could not intend the majority of this
indefinite and fluctuating body to concur in giving' a
notice. The argument goes rather to show the incon-
venience of requiring the majority to act, than to de-
termine whether a church-warden is an overseer, the
real question in these cases. But we apprehend that
an interpretation clause is not to receive so rigid a con-
struction, that it is not to be taken as substituting one
set of words for another ; nor as strictly defining what
the meaning of a word must be under all circum-
stances. We rather think that it merely declares what
persons may be comprehended within that term, where
the circumstances require that they should. We can-

* DwarriSj p. 508, 509.

t Reg. vs. Justices of Cambridgeshire, Reg. vs. Justices of Shropshiie,
and Reg. vs. Justices of Gloucestershire, 7 A. and E. 480.

60 SAVING CLAUSES.

not, however, refrain from expressing a serious doubt,
"whetlier interpretation clauses of so extensive a range
will not rather embarrass the courts in their decision
than afford that assistance which they contemplate. For
the principles on which they are themselves to be
interpreted, may become matter of controversy ; and
the application of them to particular cases, may give
rise to endless doubts."

The purview of an act may be qualified or restrained
by a saving clause in the statute.* A saving in the statr
ute is only an exemption of a special thing out of the
^general things mentioned in the law;f but a saving
clause iu a statute where it is directly repugnant to the
purview or body of the act, and cannot stand without
the rendering the act inconsistent and destructive of
itself, is to be rejected. J This is iuconsistent, as we
shall presently see, with the rule in regard to pro-
visoes ; and the inconsistency has been clearly pointed
oi^t by Mr. Chancellor Kent, who well says,§ "A proviso
repugnant to the purview of the statute renders it
equally nugatory and void as a repugnant saving clause ;
and it is difficult to see why the act ■ should be de-
stroyed by the one and not by the other, or why the
proviso and the saving clause, when inconsistent with
the body of the act, should not both of them be
equally rejected." But apart from a direct repug-
nancy, the general words in one clause of a statute may
be restraiaed by the particular words in a subsequent
clause of the same statute. || When a general intention

* 1 Jon. 339 ; 10 Mod. 155 ; DwarriB, p. 513.

t HoUewell vs. Corporation of Bridge water, 2 And. 192.

t Plowden, 564; Dwarris, 513 ; Mitford vs. ElUott, 8 Taunt 13.

§ Kent Com. i., 463.

11 R. vs. Archbishop of Armagh, 8 Mod. 8.

EEPEALmG CLAUSES. 61

is expressed, arid .the act also expresses a particular
intentiou incompatible with, the general intention, the
partictdar intention is to be considered in the nature of.
an exception.* But a particular thing given by the
preceding part of statute, shall not be taken away or
altered by any subsequent general words.f
^ Mepealin^ Olause.-^Th.& next clause in order, in
those cases in which it is used, should be the repealing
clause, showing what prior acts are totally repealed,
except so far as they repeal any other act or acts, or
part or parts thereof, and what acts are partially re-
pealed ; and what statutes are recognized as being in
full force, and as having immediate connection with
the enactments of such former act. The object of this
clause is to point out that either it is the only statute
of force upon the subject, by the repeal of all others,
or to show what other statutes are to be considered in
connection with it, so that the student may be better
prepared to enter on the consideration of the details
in the last statute.^ In this country, the repealing
clause is too often omitted, owing to the multiplicity
of our legislation and the haste consequent thereupon.
It would undoubtedly lead to greater care and preci-
sion if it were practicable to make it necessary in every
statute to refer at length to the prior enactments on
the subjects, and to designate such provisions as it was
intended tp repeal.§

* Churchill vs. Crease, 5 Bing. 180 ; Terrington and Hargraves, ib. 493.

t Stanton vs. University of Oxford, 1 Jon. 26.

} Dwarris, p. 611.

§ In New York, this was much attended to by the Revisors of the general
legislation of the State, and the Codifiers of the system of pleading. In the
constitution of some of the new States, there is inserted a provision in regard
to the revision and amendment of laws with reference to the title, the analogy
of which might perhaps be followed in regard to the repeal of statutes. So

62 EXCEPTIONS.

The remaining claiises in most general use, are, be-
sides those already mentioned, an appeal clause; a
clause showing to what places the operation of the act
shall extend; a clause showing from what date the
operation of the act is to commence, and how long it
shall continue in force ; and lastly, in England, the con-
cluding clause of a public general act, the clause pro-
viding that the act may be altered and repealed in the
same session of Parliament.

"We come next to Provisoes. — "A proviso in deeds
or laws," says the Supreme Court of the United States,
"is a limitation or exception to a grant made or autho-
rity conferred, the effect of which is to declare that the
one shall not operate or the other be exercised unless
in the case provided."* A curious rule of a very arbi-
trary nature, to which I have already alluded, prevails
with regard to provisoes. It is that when the
proviso of an act of Parliament is directly repug-
nant to the main body of it, the proviso shall stand
and be held a repeal of the purview, as it speaks the
last intention of the makers.f

Moc&ptions. — There is a well-known distinction be-
tween an exception in the purview of the act and a
proviso. If there be an exception in the enacting clause

the Constitutions of California [Art. iv. § 25] and Indiana [Art. iv. § 21], both
declare that " no act shall be revised or amended by mere reference to its
title, but the act revised or section amended, shall be re-enacted and pub-
lished at full length ;" and the same provision has been adopted in Texas.
[Art. vii. § 25.]

* Voorhees vs. Bank of U. S., 10 Peters, 449, per Baldwin, J. " The pro-
viso is generally intended to restrain the enacting clause, and to except
something which would otherwise have been within it, or in some measure
to modify the enacting clause." Wayman vs. Southard, 10 Wheaton, 1, 30.

t Attorney General vs. Chelsea Water Works Co., Pitzgibbon, 195; 2
Dwarrls on Statutes, 615 ; Rex vs. Justices of Middlesex, 2 B. and Adol.
818 ; Supra, p. 60.

EXCEPTIONS. 68

of a statute, it must be negatived in pleading, but a
separate proviso need not; and, that although it is
found in the same section of the act, if it be not referred
to, and engrafted on the enacting clause. The rule is,
said Mr. Justice Ashurst,* "that any man who will
bring an action for a penalty on an act of Parliament,
must show himself entitled under the enacting clause ;
but if there be a subsequent exemption, that is a matter
of defence, and the other party must show it to exempt"
himself from the penalty." Mr. Justice Buller said, " I
do not know any case for a penalty on a statute, where
there is an exception in the enacting clause, that the
plaintiff must not show that the party whom he sues,
is not within it." So ia a criminal case. Lord Mans-
field said, " What comes by way of proviso in a stat-
ute, must be insisted on for the purposes of defense by
the party accused ; but where exceptions are in the
enacting part of the law, it must in the indictment
charge that the indictment is not within any of
them."f This rule as to prosecutions upon penal
statutes, that it is necessary to show, by negative
averments, that the defendant is not within any of
the exceptions of the enacting part of the statute, has
been frequently recognized in this country. So, if a
statute provides that no person shall retail spirituous
liquors except for sacramental, mechanical, chemical,
medical, or culinary purposes, an indictment on the
statute must negative that the liquor was sold for these
purposes. J

* Spiers vs. Parker, 1 Term, 141.

t Dwarris, p. 616 ; Rex m. Jarvis, Burr, 148 ; Spiers vs. Parker, 1 T.
K. 141 ; The King m. Jukes, 8 T. R. 542, Poster, 430 ; The KiQg m. Stone,
and Rex w. Jarvis, 1 East. 644 ; Kent Com. i. 462, and People vs Berber-
rich and Toynbee, 11 Howard Pr. E. p. 333.

t Chit. Crim. Law, vol. i. p. 284 ; Brutton usthe State, 4 Indiana, 602 ;
People »s. Berberrich & Toynbee, 11 Howard Pr. R. p. 289, 333.

64 SCHEDULES.

Schedules. — "When, for tlie purpose of a more than
usually comprehensive enactment, it is deemed neces-
sary to iticlude the intended meaning of numerous
words in the arbitrary import of one, or that there
should he numerous words bearing the same construc-
tive import, that -end should be attained by means of
a schedule annexed to the act. But the act of Parlia-
ment and the schedule, are sometimes found to differ ;
and what will be the result of such discrepancy ? If
there be any contradiction between the two, and they
cannot be reconciled, then, said Lord Denman, " upon
ordinary principles the form which is made to suit
rather the generality of cases than all cases, must give
way." " Words in schedules must be received as exam-
ples, not as overruling provisions," said Tindal, C. J.*

* Reg vs. Baines, 12 A. and B. 227; Dwarris, p. 511.

CHAPTER.IV.

THE ATTRIBUTES AND INCIDENTS OP STATUTES.

Applications for the passage of Statutes — dontracts to obtain the passage of
., Statutes, or to -withdraw opposition — ^Authority and Jurisdiction of
Statutes — ^Time •when Statutes take effeot-r-Effect of Statutes to avoid
contracts in" violation of them^-Eemedies for the violation of Statutes —
Statutory Forfeitures — Ignorance of Statute no excuse — ^Limitations of
actions — Waiver of Statutes by consent — Pleading and Proof of Statutes —
Bepeal.

"We have now to consider tlie more important at-
tributes and incidents of statutes from the time of the
first steps taken for their enactment to that of their re-
peal. This will embrace, among other subjects, appli--
cations to the legislature for the passage of laws ; the
effect of contracts to obtain or oppose their enactment;
their authority and jurisdiction ; remedies and waiver ;
the rules of pleading and of proof with regard to them ;
and finally, the results of their repeal.

As a general rule, no public notice is necessary pre-
vious to the introduction or passage of an act. Bills
are framed either upon petitions, or upon the mere mo-
tion of members of the legislative body ; and parties
interested have only such notice of their introduction
as the wisdom of the legislator sees fit to require.* To

* The Constitution of New York declares, Art. iii. § 14, " that no law
shall be enacted except by bill." The Constitution of Wisconsin contains a
similar provision. Art. iv. § XT'.
5

66 NOTICE OF APPLICATION.

this general practice there is an exception in ITorth
Carolina, the constitution of which State provides
" that the General Assembly shall not pass any private
law unless it shall be made to appear that thirty days'
notice of application to pass such law shall have been
given, under such directions and in such manner as
shall be provided by law " ;* and also in the State of
New York, where the revised statutes declaref that,
in regard to applications for acts of incorporation, alter-
ation of county, city, or village boundaries, local taxes,
escheats, and certain other public objects, notice of the
intention to apply to the legislature shall be given, by
newspaper advertisement. But it has been held, in re-
gard to a statute of this class, that it was not necessary
to furnish any proof of the publication of the notice
having been in fact made ; and it was said, " that, the
notice was a direction to the public, calculated merely
to guard the legislature from surprise and fraud, and
to prevent hasty tod improvident legislation ; that the
rule was made by the legislature for its own conve-
nience and might be entirely disregarded ; and that a
law would be valid althcftigh no notice whatever of the
application was published," J

This decision, though perhaps sound, is evidently
calculated to defeat the intent of the statutory provi-
sion ; but in general the effort of our law is, as far as
possible to guard against undue private interference
with the functions of government. So in this country,
contracts made with a view to secure the passage of
legislative enactments, or the performance of executive
acts, have been held to be void, as against public policy.

* Amendments to Constitution, Art. i. § 5.

t 1 R. S. 155, Part i. Ch. vii. Title 3, §§ 1; 2, et seq.

I Smith vs. Helmer, 7 Barbour,- 41 6.

COUTRACTS TO OBTAIN PASSAGE OF LAWS. 67

Thus a, contract founded on an agreement to obtain
signatures for a pardon * to procure the passage of an
act by the legislature by ufeing personal influence,f to
pay a sum for withdrawing opposition to the passage
of a law touching the interests of a corporation^ have
all been held vo'id. In like manner, in New York, it
has been decided that no action will lie for services as
a lobby agent, in attending to a claim against the State
pending before the legislature ; Mr. Justice Hand, in
the language of a high-toned morality, alike creditable
to himself and to the court of which he is a rQembei",
saying, " It is to be intended that the legislature always
have truth and justice before their eyes. It would cer-
tainly imply a most unjustifiable dereliction of duty, to
hold that the enaployment of individuals to visit and
importune the members is necessary to obtain justice."§
In England, however, it seems that an agreement to
withdraw opposition to a railway bill for a pecuniary
or Other consideration, is not illegal in itself; and such
an agreement will be upheld unless it contains some-
thing against other acts of Parliament, or injurious to
the public or the shareholders. | * ,

An interesting question in regard to the passage of .
laws, has presented itself in this country, growing out
of the constitutional provisions in some of the States,
requiring the concurrence and assent of certain pre-
scribed legislative majorities, as two-thirds of the mem-

* Hatzfield «s. Gulden, 7 Watts, 152.

t Olippinger vs. Hepbaugh, 5 Watts and Serg., 316.

% Purgey vs. Waahburn, 1 Ack., 264.

§ Harris vs. Koof's Executors, 10 Barb., 489. But does not the learned
judge, too probably, '' paint men as they should be, not as they are ?"

1 Shrewsbury and Birmingham R.Co. vs. London and North "Western
Co., 2 Macnaghten and (J. 324.

68 CONSTITUTIONAL MAJORITIES.

bers present, or a majority of all the members elected*
In these cases, it was for some time doubted how it
was to be ascertained whether the requisite number of
Yotes had been obtained ;f whether" the printed statute
book, or the certificate of the secretary of State, should

* Thus the former constitution of New York (of 1821) declared, Art. i.
§ 12, that — Where a bill, having once passed the two branches, is returned
by the governor for reconsideration, it must be passed by two thirds of the
members present of each branch. The same provision exists in the Con-
stitution of 1846, Art iv. § 9. So again, Art. vii. § 9, declared that " the'
assent of two-thirds of the members elected to each branch of the legisla-
ture, shall be requisite to every bill appropriating the public moneys or
property for local or private purposes, or creating, continuing, altering, or
renewing any body politic or corporate."

In the same State, the Constitution of 1846 provides, by Art. i. § 9, that
" the assent of two thirds of the members elected to each branch of the leg-
islature, shall be requisite to every bill appropriating the public moneys or
property for local or private purposes." And again, by Art iii. §15, that "no
bill shall be passed unless by the assent of a majority of all the members elected
to each branch of the legislature." And again, by Art. vii. § 14, that " on the
final passage, in either house of the legisla|:ure, of every act which imposes,
continues^ or revives a tax, or creates a debt or charge, or makes,continues,
or revives any appropriation of public or trust money, or property or re-
leases, discharges or commutes any claim or demand of the State, — the ques-
tion shall be taken by ayes and noes, which shall be duly entered on the
Journals, and three fifths of all the members elected to either house shall
in all such cases be necessary to constitute a quorum therein." And again,
■ by Art. xi. § 6, that " in case the mode of election and appointment of militia
oflBcers hereby directed shall not be found conducive to the improvement
of the militia, the legislature may abolish the same and provide by law for
their appointment and removal, if two thirds of the members present in each
house shall concur therein."

So in Michigan, "The assent of two thirds of the members elected to
each house of the legislature, shall be requisite to every bill appropriating
the public money or property for local or private purposes." — Cons., Art i.
§45.

So in Indiana, Cons., Art iv. § 35. " A majority of the members elected
to each house shall be necessary to pass any bill or joint resolution."

So in Illinois, Art iii. § 21. " No bill shall become a law without the
concurrence of a majority of all the members elect in each house."

t Thomas M. Dakin, 22 Wend., 9 ; Warner t>s. Beers, 28 id., 103 ; The
People M. Purdy, 2 Hill, 31.

CONSTITUTIONAL MAJORITIES. 69

be received as conclusive evidence, or not. But tli?it
doubt is now f esolved, and it is settled that the judges
ihay, and if they deem it necessary should, look beyond
the printed statute book and examine the original
engrossed bills on file in the office of the secretary of
State ; and it seems that the journals kept by the two
houses may also be consulted.*

We have thus far considered statutes in their incip-
ient stages ; we are now to consider the attributes and
incidents of laws regularly and constitutionally passed ;
and, first, let us examine their

Authority and Jurisdiction.^ — It is well settled, that

* Purdy vs. The People, 4 Hill, 384; De Bow -vs. The People, 1 Denio,
9 ; Commercial Bank of Buffalo m Sparrow, 2 Denio, 97.

t Mr. Dwarris (vol. ii. p. 516) thus enumerates the incidents of statutes.
His enumeration includes some ma3?i.ms which are equally applicable to the
conmion law; and those I have omitted :

I. An act of Parliament binds all persons, but such as are specially saved
by it.— And. 148, pi. 82.

II. A statute which gives corporal punishn^ent, does not bind an infant.
Centra of other statutes, if they do not except infants. — Doc. and Stud.,
lib. 2, fol. 113.

III. Every statute made against an injury gives a remedy by action, ex-
pressly or impliedly. — 2 Inst., 55.

rV. An act of Parliament cannot alter by reason of time ; but the com-
mon law may, since cessamte ratione, cetsat l&ii. — Str. 190.

V. When statutes are made, there are some things which are exempted
sxiAforepmed out of the provisions thereof, by the law of reason, though
not expressly mentioned; thus, things for necessity's sake, or to prevent a
failure of justice, are excepted out of statutes. — Plowd. Com., 13 b; 2 Inst.,
118.

VI. Whenever an act gives any thing generally, and without any special
intention declared or rationally to be fiiferred, it gives it always subject to
the general control and order of the common law. — Show., 455.

VII. Whenever a statute gives or provides any thing, the common law
provides all necessary remedies and requisites.-^The Protector ^s. Ashfleld,
Hard. 62 ; 1 Inst. 235 ; 2 Inst. 225 ; Bao. Ab., Tit. Statute.

VIII. In statutes, incidents are always supplied by intendipents ; in
other words, wherever a power is given by a statute, every thing necessary
to the making pf it effectual is given by implication, iot the maxim is.

70 AUTHORITY AND JURISDICTION.

while every nation possesses an exclusive jurisdiction
within its own bound^ayies, neither constitutions nor
statutes have any intrinsic force, exproppio vigor e^ be-
yond the territory of the sovereignty which enacts
them, and the respect which is paid to them elsewhere
depends on comity alone.* A modification of this prin-
ciple is contained in the proposition that,' although the
laws of a country have no direct controlling force except
within its own limits, yet that every nation has a right
to bind it8 own subjects by its own laws in any place,
that is to say when they return within its territorial
jurisdiction so as to give an opportunity to exercise
sovereignty over them.f This, however, involves the
consideration of the question of allegiance and of its
duration, which do not properly fall within the scope of
this work. As a general proposition, the rule is good,
that no nation is bound to respect the laws of another
nation, except as to persons or property within the
limits of the latter. This is the general rule of our
law, and this, too, is the language of the great civilians.
" Constat, igitwr,^'' says Eodenburg,;]: '■'•extra territoriAim
legem d/lcere Ucere nemmi, idque sifecerit quis^ im/pv/ne
ei non pa/reri, quippe ibi cessat statutorum fundamen-
Mrriy robur, et jwrisdictioT " Nullum statutum^'' says P.

Quando lex aliguid amcedit, coneedere videtwr et id per quod decenitur ad ilhd.
2 Inst., 366; 12 Rep., 130, 131 ; and Quando aliquod prohiietur, prohHetwr
et omneper quod deomiiur ad, ilhd.

IX. If an offense be made felony by a statute, such statute does, by
necessary consequence, subject the offender to the like attainder and forfeit-
ure, and does require the like construction as to those who shall be accounted
accessories before or after the fact, and to all other intents and purposes, as
a, felony at the common law does. — ^Dwarris, p. 517.

* Story, Confl. Laws, p. 7, § 7 ; p. 19, § 18 ; p. 20, § 20. Commonwealth
of Kentucky m. Bassford, 6 Hill, p. 627. Blanchard vs. Russell, 13 Mass. 1.
Bank of Augusta vs. Earle, 18 Peters, p. 519. Op. of Taney, C. J., p. 584-

t Story, Conflict Laws, p. 21, § 21 ; p. 23, § 22.

X De Stat., ch. 8, § 1, p. T; Story, Confl. of Laws, § 21.

AUTHORITY AND JURISDICTION. 71

Voet * " sive in rem^ sive in personam^ si de ratione
jv/ris ciwiis s&rmo instituatur sese., exiendit ultra statu-
enies territori/um." And so says BouUenois: "Of
strict riglit, no la^s made by a sovereign have any
force or authority except within the limits of his do-
minion."f " A sovereign," says Toullier, " can issue his
commands to his own subjects only ; his power does
not extend to foreigners." J

Within each jurisdiction, however, the law binds all
alike. IJex uno ore omnes alloquitur. This maxim,
says Lord Coke, is the pride of the English law.§ It
is, indeed, proper to bear in mind that this principle,
that within the limits of its jurisdiction the law con-
trols alike, without distinction, the property and con-
dition of all those who inhabit the territory, paying no
regard, as a general thing, to the birth-place or origin
of any particular individual, is of modern introduction,
and results from the increased equality and intercourse
that our times have created. At Eome, there were
two systems of law, one for citizens and the other for
foreigners; and in the middle ages the distinction
was even more striking. "In the same district," says
S^vigny, "in the same town, the Lombard lived un-
der the Lombard law, the Roman imder the Eoman
law. The characteristics of personal laws are equally
visible in the individuals of the different Germanic
tribes ; and the Franks, the Burgundians, the Goths,

* De Stat., § 4, ch. 3, n. 7, p. 124. Id., 130, 138 ; ed. 1661.

t " De droit etroit, toutes les lois que fait un souverain n'ont force et
autorite que dans I'eteadue de sa domination." — ;1 BoullenoiSj Prin, Gen., 6,
p. 4.

X " Le souverain ne peut commander qu'Ji ses sujets ; sa puissance ne
s'etend point sur les etrangers," — Toullier, vol. i. p. 92 ; Tit. prel. sect. 8,
§112. ■

§ 2 Inst. 184.

72 COMITY OF NATIONS.

lived on tlie same soil, each under his own law. This
is the explanation of the following passage, in a letter
from Agdba/fdus to Louis le Debonnaire : ' We often
see talking together five persons of whom no two obey
the same law.' "* The most prominent remains of this
system in our time are to be found, in the disabilities of
aliens, fast giving way before a more enlightened civil-
ization ; but in this country the peculiar and anomalous
position of the Indian and African races furnish an
illustration of an analogous state of things.

To the general rule thus stated, there exists, however,
one marked exception, growing out of what is called
international comity. How far the laws of other states
or nations will be regarded as a matter of comity,
depends on various considerations. " Whatever extra-
territorial force," says Mr. Justice Story, " laws are to
have, is the result not of any original power to ex-
tend them abroad, but of that respect which, from mo-
tives of public policy, other nations are disposed to
yield to them, giving them effect, as the phrase is, sub
mutuce vidssitvdinia dbtentu^ with a wise and liberal
regard to common convenience and mutual benefits and
necessities."f " Whatever force and obligation," says
the same learned writer, J " the laws of one country have
in another, depend solely upon the laws or municipal

* " Dans le m^me pays, dans la meme ville, le Lombard vivait d'apres la
loi Lombarde, le Remain d'apres la loi Remain. L'esprit des lois personelles
regnait egalement parmi les individus des divers tribus Germaniques ; et les
Francs, les Bourguignons, les Goths, vivaient sur le mime sol chacun d'apres
son droit. Aussi s'explique le passage suiyant d'une lettre d'Agobardus i
Louis le Debonnaire : ' On voit souvent converser ensemble cinq personnes
dont aucun n'obeit aux mimes lois." "— Savigny, Hist. Droit Romain au
Moyen Age, ch. 3, § 80.

t Conflict of Laws, p. 7, § 7. Saul «s. His Creditors, 17 Martin, 569.

% Confl., § 28, p. 28.

COMITY OF NATIONS. 73

regulations of the latter, tliat is to say, upon its own
proper jurisprudence and polity, and upon its own ex-
press or tacit consent." The principles of coftiity which,
regulate the action of the municipal law, in the recog-
nition and application of foreign law, have been so ela-
borately examined by Mr. Justice Story, that I shall
dismiss this branch of my subject with the following
extract from his great work.

" No nation," he says,* " can be justly required to yield up its own
fundamental policy and institutions in favor of those of another nation.
Much less can any nation be required to sacrifice its own interests in
favor of another, or to enforce doctrines which, in a moral or political
view, are incompatible with its own safety or happiness, or conscien-
tious regard to justice and duty. It is difficult to conceive," he says
again,f " upon what ground a claim can be rested to give to any muni-
cipal laws an extra-territorial effect, when those laws are prejudicial to the
rights of other nations or to those of the subjects." And again,J " The
true foundation on which th«i,adniinistration of international law must
rest, is that the rules which are to govern are those which mse from
mutual interest and utility, from a sense of the inconvenience which
would result from a contrary doctrine, and from a sort of moral neces-
sity to do justice, in order that justice may be done in return."
And again,§ "There is, then, not only no impropriety in the use of the
phrase ' Comity of Nations,' but it is the most appropriate phrase to
express the true foundation and extent of the obligation of the laws of
one nation within the territories of another. It is derived altogether
from the voluntary consent of the latter, and is inadmissible when it is
contrary to its known policy or prejudicial to its interests. In the si-
lence of any positive rule affirming or denying, or restraining the opera-
tions of foreign laws, courts of justice presume the tacit adoption of
them by their own government, unless they are repugnant to its policy
or prejudicial to its interests. It is not the comity of the courts, but
the comity of the natiouj which is administered and ascertained in the
same way and guided by the same reasoning by which all other prin-
ciples of the municipal law are ascertained and guided."

* Oonfl. of Laws, p. 25, § 25. t Page 32, § 32.

X Page 84, § 35. § Page 36, § 38.

74 COMITY BETWEEN THE STATES.

The general principlee to wMcli I have been refer-
ring have been declared applicable to the States of this
Union. While recognizing the central federal authority,
resulting from the Constitution of the United States,
they hold in regard to each other, with the exception of
the cases governed by that instrument, the position of
independent and foreign powers. So it has been held,
that bills drawn in one of the States on persons in
another, are to be treated as foreign bills; and the
Supreme ^ourt of the United States has said, " For all
purposes embraced by the federal constitution, the
States and the citizens thereof are one, united under
the same sovereign authority, and governed by the
same laws. In all other respects, the States are neces-
sarily foreign to and independent of each other, their
constitutions and forms of government being, although
republican, altogether different, as are their laws and in-
stitutions,"* and their acts have,t!bnsec[uently, no extra-
territorial authority .f But at the same time, the States
of the Union recognize in regard to each other, to a cer-
tain extent, the existence of the same principles of inter-
national comity which, with reference to nations wholly
independent of each other, we have already attempted
to define. In a case, very elaborately argued in the
Supreme Court of the United States, where suit was
brought in the State of Alabama by a bank incorpor-
ated by the State of Greorgia, on a bill of exchange nego-
tiated to the agent of the plaintiffe within the State of

* Buckner vs. Finley, 2 Peters, 586. See, to same point, Lonsdale vs.
Brown, 4 Wash. 0. R., 86, and 2 Peters, approving, p. 688. Warder vs.
Adrell, 2 Wash. R., 283. Bank of U. S. d«. Daniel et aL, 12 Peters, p. 32 ;
and State Of Rhode Island vs. Massachusetts, 12 Peters, p. 657.

t Blanchard vs. RusseD, 13 Mass., 1. Bank of Augusta vs. Earle, 13
Peters, 519. Opinion of Taney, p. 584. Commonwealth of Kentucky vs.
Bassford, 6 HiU, p. 527.

COMITY BETWEEN THE STATES. 75

Alabama, it w(is insisted, that a corporation could not
contract in any State of the Union but in that by the
law of which it was created, and that its existence would
not be recognized on any principle of comity ; and the
Circuit Court of the United States so decided ; but on
writ of error to the Supreme Court, the judgment was
reversed,* the Court holding this language : —

" It has, however, been supposed that the rules of . comity between
foreign nations do not apply to the States of this Union; that, they
extend to one another no other rights than those which are given by
the Constitution of the United States ; and that the courts of the gen-
eral government are not at liberty to presume, in the absence of all legis-
lation on the subject, that a State has adopted the comity of nations
towards the other States as a part of its jurisprudence, or that it ac-
knowledges any rights but those which are secured by the Constitution
of the United States. The Court think otherwise. The intimate union
of these States as members of the same great political family, the
deep and vital interests which bind them so closely together, should
lead us, in the absence of proof to the contrary, to presume a greater
degree of comity, and friendship, and kindness toward one another,
than we should be authorized to presume between foreign nations.
And when (as without doubt must occasionally happen) the interest or
policy of any State requires it to restrict the rule, it has hut to declare
its will, and the legal presumption is at once at an end. But until
this is done, upon what grounds could this court refuse to administer
the law of international comity between these States ? They are sov-
ereign States ; and the history of the past, and the events which are
daily occurring, furnish the strongest evidence that they have adopted
toward each other the laws of comity in their fullest extent."

It was certainly very difficult successfully to con-
tend for the principle insisted on in this case by the
defendants, for it amounted substantially to the prop-
osition that a corporation of one State can do no com-
mercial business, can make no contract, can, indeed, do

* Bank of Augusta vs. Bai-le, 13 Peters, 519. Mr. Justice McKinley dis-
sented.

76 COMITY BETWEEN THE STATES.

nothing in any other State of the Union but in that
in which, by the law of the State, it has been created.
But the doctrine of comity between the States, pre-
sents itself in other and more important aspects.

So in regard to slavery, the question has arisen
whether the owner of slaves which are brought from
a State where domestic servitude is allowed, and taken
into a State where that institution is absolutely forbid-
den by its municipal legislation, can be protected in
his property by the fact that the slaves are merely in
transitu, and brought in with the bona fide intention
of taking them to some State where their proprietor
may lawfully hold them. This proposition has been
affirmed in Elinois ;* it has been denied in New York,f
and has been left in doubt by the Supreme Court of
Massachusetts.J It is not seriously asserted that the
owner's right can be maintained under the Constitution
of the United States, nor that in this sense the absolute
prohibition of domestic slavery by the State laws is un-
constitutional ; but it is very earnestly insisted that prop-
erty in slaves under these circumstances, is protected by
the doctrine of comity which we have above discussed.

The point is very far from being free of difiSlculty,
and if the rule of comity is to be considered as set-
tled to the full extent of the language of the Supreme
Court above cited, it will be difficult to show that it
does not cover this case ; but before it shall be so
finally determined, much reflection is necessary. The
doctrine of comity has been established and applied
by powers wholly foreign, entirely distinct from and
independent of each other, the mutual relations of

* Willard vs. The People, 4 Scammon, 461.

t People vs. Lemon, 5 Sandford, 681.

I Commonwealth vs. Aves, 18 Pickering, 193.

COMITY BETWEEN THE STATES. 11

whose citizens are comparatively rare, and almost, if
not quite, exclusively commercial, and the rules of
whose intercourse rest entirely on the great unwritten
law of nations, of which this comity forms in fact but a
part.

Such is not at all the condition of the States of this
Union. They are mutually dependent on each other
in various ways, and all recognize in certain cases, a
common sovereign ; their intercourse is in the highest
degree frequent and, intimate; their relations quite as
much political as comraercial; and they have under-
tpiken by the terms of a carefully prepared instru-
ment; to declare with precision, their relative rights
and duties. In this case, to substitute for the clear
and definite language of the Constitution any thing so
vague and uncertain as the comity of nations, is not
only to subject the relations and independence of the
States to a condition of alarming perplexity, but to
make the judiciary the sole arbiter of the gravest polit-
ical questions, and to give them, in framing their decis-
ions, no better guide than a fluctuating and unsettled
notion of international courtesy.

The federal Constitution contains a provision in
regard to the laws of the States, and the judicial pro-
ceedings of their tribunals, which, though it gives
them no extra-territorial effect, has still some bearing
on our present subject. The Constitutioii of the United
States, by Article IV. Section 1 of that instrument, de-
clares that, "Full faith and credit shall be given in
each State to the public acts, records, and judicial pro-
ceedings of every other State ; and the Congress may,
by general laws, prescribe the manner in which such
acts; records, and proceedings shall be proved, and the
effect thereof" In pursuance of this power, the

78 PROOF OF STATE LAWS.

Congress of the United States^ by act of May 26,
1^90, ch. 38, provided the mode "by which records
and judicial proceedings should be authenticated.
Under these constitutional and statutory provisions,
various decisions have been made, the general re-
sult of which is, that -a judgment is conclusive in
every other State, if a court of the particular
State where it was rendered would hold it so*
But Congress has never acted on the power in the
Constitution as to the public acts or laws of the States,
any further than to declare that they shall be authen-
ticated by having the seal of the respective States
affixed thereto ;f nor is this method regarded as
exclusive of any other which the States may adopt.J
And the States have differed as to the manner in which
they should be proved. In some cases^ strict proof of
them, as foreign laws, has been required; but the
courts of other States, and the Supreme Court of the
United States, influenced by the peculiar aiid intimate
connection of the States, have shown a disposition to
relax the usual rules of proof . in this respect; in
regard, however, to the details of this matter, which
properly belongs to the domain of evidence, I refer th^ •
reader to Mr. Grreenleaf 's very valuable work, where
the authorities wiU be found coUected.§

The student of American law, in his consideration of
the subject which we are now discussing, will not for-
get that the laws of the States, as has been alreadv
intimated, are subject in many important cases to

* Mills m Duryee, 7 Cranch, 481. Hampton vs. McOonnel, 3 Wheat.,
2-34. i Kent Comm., p. 250, and cases there cited,
t Act of 26th May, 1790, ch. 38.

t Bank of Augusta vs. Earle, 13 Peters, 526. Ogden, arguendo.
§ Qreenleaf on Evidence, § 489.

LAWS OF THE STATES. 19

the power of the Union ; the second section of the
sixth article of the federal Constitution declaring;
that, "The constitution and the laws of the United
States, which shall be made in pursuance thereof,
and all treaties made, or which shall be made under
the authority of the United States, shaU be the
supreme law of the land; and the judges in every
State shall be bound thereby, any thing in the
constitution or laws of any State to the contrary nof
withstanding." This provision necessarily makes the
States subordinate to the government of the Union, in
all matters which, by the federal charter, fall within
the demesne of Congress ; and the supremacy of the
federal government, in these respects, is maintained and
enforced, as we shall hereafter see, by the Supreme
Court of the United States.

WhUe discussing the question of the territorial
effect of statutes, we have also to notice an interesting
question which has been presented in this country with
reference to the jurisdiction of the States over criminal
acts, planned or contrived in a State of which the of-
fending party is a citizen, but consummated in another
and without the culprit ever being actually present in
the latter State. It is well settled, as a general rule
that penal laws have no extra-territorial effect.* And
so a State cannot pass an act making the offense of
counterfeiting its current bills, committed out of the
State, indictable and punishable in its courts.f But,
on the other hand, it is equally well settled, that
in the case put, where the offense is contrived in one
State and executed in another, the party is liable to the

* Sooville vs. Canfield, 14 J. R., 888.

t State M. Knight, Taylor's N. C. Rep., 65,

80 LAWS OF THE STATES.

criminal jurisdiction of the State where thq offense is
consummated, though he have never himself been within
the limits of the latter State. So, where an indictment
was found in Massachusetts against a resident of New
York for uttering forged notes in the first-mentioned
State, through an innocent agent, the defendant
remaining all the while in New Yerk, the defendant
was held guUty in Massachusetts* So again, where
one Was indicted in New York for obtaining money by
fraudulent pretenses from a firm in that State, by ex-
hibiting to them fictitious receipts for property signed
by a person in Ohio, although the defendant was a
citizen of Ohio and had never been in New York, and
the receipts were drawn and signed in Ohio, and the
offense was committed by the receipts being presented
in New York by innocent agents employed by the
parties in Ohio, — it was held that the culprit was liable
to the civil jurisdiction of New York.f It will be
observed that these are cases which apply to mala per
se, — to offenses against persons or property which" are
such in all civUized countries; and it may well be
^oubted whether the rule would hold good as to mere
mala prohibita, as, for instance, laws to protect the
revenue or the currency, of which the alleged offender
may be not merely ignorant, but not chargeable with
knowledge.

An interesting question connected with the present

* Commonwealth is. Harvey, 8 Am. Jur., 69. *

t People M. Adams, 3 Denio, 190; S. C. on appeal, 1 Coms. 173. See,
to the same point, State m Ellis, 3 Conn., 185 ; Barkhamstead vs. Parsons,
3 Conn. 1; Commonwealth to. Gillespie, 7 Serg. &Rawle, 469 ; People w.
Rathbun, 21 Wend. 609. In England, the rule that the offense is consid-
ered to be committed where it is consummated, holds good as between the
different counties, and as between Ireland and England. — King w. Brisac,
i East, 164; Kex w, Johnson, 6 East, 583; S. C, 7 id. 65.

TIME "WHEN STATUTES TAKE EFFECT. 81

branch, of our subject arises, as to the time when stat-
utes are to take effect. The old English rule was, that
if the act was not directed to operate from any partic-
ular tiine, it took effect frdna the first day of the "ses-
sion at which it passed, though this date was purely
fictitious, and might be weeks or indeed months before
the act was assented to by the sovereign, or, in fact,
even before the bill was brought in ; and this extraor-
dinary application of the doctrine of relS,tion was actu-
ally adhered to and acted upon in England as late as
the latter part of the last 'century.* The rule was
finally altered by the statute 33 George III., c. 13, which
declared that laws shall operate from the time of their
receiving the royal assent. Where two statutes, passed
in the same session and to conie into operation on the
same day, are repugnant to each other, it is held that the
act which last received the royal assent must prevaiLf
This affords a curious instance how difficult it is to
make the ancient rules of law conform to those of logic
and reason. It is very plain that both of these provi-

* 33 Henry Yl., 18 Bro., 33 ; 1 Lev., 91, Attorney General to. Pan-
ter, 6 Bro. P. C.,'486. Latless V8. Holmes, 4 T. R., 486. Dwdrris on
Stat., p. 544. R. m. Bailey, R. & R. C. 0. 1 ; 1 Russ., 0. & M., 109. The
severity of. the old English rule is -well illustrated by the trial of Sir William
Parkyns for iigh treason, in 1696, before Lord C. J. Holt, Lord C. J. Treby,
and Mr. Justice Rokeby. He prayed to be allowed counsel, but was re-
fused, because the statute, 7 William IIL c. 3, allowing counsel to persons
indicted for treason, did not go into efiect till the next day after that on
which he was tried. It was in vain that the prisoner quoted a part of the
preapble, which said that such an allowance was just and reasonable. The
reply of Lord 0. J. Holt was, that he must administer the law as he found
it, and could not anticipate the operation of an act of parliament by even a
single day. Sir William Parkyns was convicted and executed. See the
case reported in the thirteenth volume of the State Trials, Howell's ed. and
cited in Mr. Lieber's Hermeneuties, p. 118. See also, Kent's Com, vol. i.,
p. 456.

t Rex DS. Justices of Middlesex, 2 B. & A. 818; 2 Bing. N. 0. 682.
Dwarris, p. 544.

82 TIME "WHEN STATUTES TAKE EFFECT.

sions are contrary to common sense, and may often pro-
duce great injustice. It is impossible that the citizens
or subjects of an extensive and populous country, can
obtain any accurate knowledge of the purport of an
act on the day of its passage ; and the doctrine that
the act last signed is to prevail over one assented to a
few hours previous, is obviously arbitrary and unre-
liable. The evils likely to result from the first of
these rules are now often obviated by a section declar-
ing when the act shall go into effect ; and on a clause
of this kind it has been decided, that although in an
act it is expressly declared that it shall commence and
take effect from a day named, yet if the royal assent
be not obtained till a day subsequent, the provisions,
of a particular section, in its terms prospective, do not
take effect till such subsequent day.*

The Code Napoleon first established the true prin-
ciple as to when laws should take effect. It declared
laws to be binding from the moment that their pro-
mulgation should be known ; and that the promulgation
should be considered as known in the department of
the consular or imperial residence one day after the
promulgation, and in each of the departments after the
expiration of the same space of time, augmented by as
many days as there were distances of twenty leagues
between the sea,t of government and the place.f

In this country, the mischievous results of the ori-
ginal English rule are usually obviated either by con-
stitutional or statutory provisions. So in Michigan, a
constitutional provision declares J that " no public act
shall take effect or be in force until the expiration of

* Burn vs. Carvalho, 4 Nev. and Man, 889.
t Code Civil, Art. i. ; Kent Com. i., p. 458.
I Cons. Art. iv. § 20.

TIME WHEI# STATUTES TAKE EFFECT. 83

ninety d^ys from the end of the session at whicli the
same is passed, unless the legislature, shall otherwise
direct by a two-thirds vote of the members elected to
each house." In Mississippi, the constitution provides,
"that no law of a general nature, unless otherwise pro-
vided, for, shall be enforced until sixty days after the
passage thereof."* And in New York it is declared,
by a general statute,f that " every law, unless a differ-
ent time shall be prescribed therein, shall commence
and take effect throughout the State, on and not before
the twentieth day after the day of its final passage, as
certified by the secretary of state." But, in regard to
federal legislation, the rule is supposed to be identical
with that now in force in England: that eveiy law
takes effect on the day of its passage.^ "JThis subject
is of no small consequence, as the law is assumed
to be known by every citizen from the time fixed for, it
to go into operation ; ignorantialegis nmmwm exeusat.
This maxim has, however, no more than the laws them-
selves any extra-territorial application ; for the doc-
trine has been declared to be, that citizens of another
country, and even, in America, of another State of the
Union, are not chargeable with a knowledge of the
laws emanating from any jurisdiction, except that to
which they belong. This, however, must be certainly
taken with the qualification in regard to mala pro-
Tidhita and mala p&r se, to which I have already re-
ferred, and also with the general limitation . that it is
to apply rather to civil than to criminal law.§

* Cons. Art. vii. § 6.

t 1 R. S. 157, Part i. Ch. vii. Tit. v. § 13,

X Matthews vs. Zane, 7 Wheaton, 164; The Ann, 1 Gallison, 62j 1
Kent's Com. 455. But see 1 Paine, 23.

§ Curtis w. Leavitt, 17 Barb., 312, 317; and Merchants' Bank m Spald-
ing, Court of Appeals ; cited in the same.

84: CONTRACTS IN VIOLATION %F STATUTES.

Connected with this branch of our subject is another
arbitrary rule of the English law, as to amendatory
statutes. An act of Parliament made to correct an
error of omission, committed in a former statute of the
same session, relates back to the time when the first act
passed ; and the two must be taken together as if they
were one and the same act, and the first must be read
as containing in itself, in words, the amendment sup-
plied by the last ; therefore, goods eaoported before a
second law passed, but only shipped before the first, of
which the second was an amendment, was enacted,
were held liable to duties imposed by the latter statute
on the exportation of goods*

It may be observed in this connection, in regard
to the authority and operation of laws, that in con-
quered or ceded countries which have laws of their
own, those laws remain in force till actually altered ;
but it has been said in this country, that this rule " is
for the benefit and convenience of the conquered, who
submit to the government of the conquerors, or in the
case of cession, for the benefit of the people" who by
treaty submit to the^ovemment of those to whom their
country is ceded, and was not applicable to the condi-
tion of our ancestors, as the Indians did not submit to
the government, but withdrew themselves from the
territory acquired."f

Contracts in Violation of Statutes. — ^The principle
which enforces obedience to laws, is carried out by
declaring contracts growing out of or based upon the
infringement of a statute to be void, the courts refus-
ing to aid either party in enforcing them. This is the
general course of the decisions in England, and in this

* Att. General vs. Pougett, 2 Price, 381 ; 2 Dwarris, 547.
t State vs. Buchanan, 5 Harris and J. R., 317.

CONTRACTS IN VIOLATION OF STATUTES. 85

country* So, wliere sales of spirituous liquors are
made in violation of the positive provisions of a statute,
the sale being illegal the whole transaction is void, and
the seller can sustain no action therefpr.f Sp, where
contracts are made on Sunday, in violation of the laws
forbidding labor and business on that day.J Nor is it
necessary that the contract should violate the express

* steers vs. Lashley, 6 T. E. 61 ; Aiibert vs. Maze, 2 B. & P. STl ; Can-
nan vs. Bryce, 3 B. & Aid. 179 ; Brown vs. Duncan, 10 B. & Cres, 93 ; Arm-
strong vs. Toler, 11 Wheat. 258 ; Exparte Dyster, in re Moline, 1 Meriy. 1S5 ;
Bloom vs. Richards, 22 Ohio, 388.

t Boutwell vs. Foster, 24 Vemit. 485 ; Bancroft vs. Dumas, 21 Verm. 456 ;
Barton vs. Port Jackson and U. F. Plank Road Co., 17 Barb. 397; Nellis vs.
Clark, 4 Hill, 424 ; Hook vs. Gray, 6 Barb. 398 ; S. C, 4 Comst. 449 ; Pen-
nington vs. Townsend, 7 Wend. 276 ; Tylee vs. Yates, 3 Barb. S. C. R. 223.
t Fennell wRidler, 5 B. & C. 406; Smith to. Sparrow, 4 Bing. 84;
Towle vs. Larrabee, 26 Maine, 464; Lovejoy vs. Whipple, 18 Verm. 379 ;
Pattee vs. Greely, 13 Met. 284 ; O'Donnell vs. Sweeney, 5 Ala. 467 ; Ad-
ams vs. Hamell, 2,Doug. Mich, R. 73 ; Bloom vs. Richards, 22 Ohio, 388;
oyerruling. Sellers vs. Dugan, 18 Ohio, 489 ; Omit vs. Commonwealth, 21
Penn. 426 ; and other cases on the Sunday acts.

In Ohio, where the constitution declares the indefeasible right of all
men to worship God according to the dictates of their conscience ; that no
human authbrity can interfere with the rights of conscience; that no man shall
be compelled to attend or support any mode of worship without his consent ;
that no preference shall be given by law t<y-any religious society ; and pro-
hibits all religious tests, — it has been expressly decided, that neither Christi-
anity nor any other system of religion is a part of the law of the State, and
that the statute prohibiting labor on the Sabbath is a mere municipal or
police regulation ; Bloom vs. Richards, 22 Ohio, 387. In Pennsylyania and
South Carolina, also, the Sunday laws seem to have been sustained on the
same ground ; Specht vs. The Qommbnwealth, 8 Barr, 312 ; The City Coun-
cil of Charleston vs. Benjamin, 2 Strob. Law R. 608i The language of the
Sunday laws varies in the different States. In New York, the statute, in
addition to the prohibition of certain sports and the sale of goods (with cer-
tain exceptions), declares that " there shall be no servile laboring or work-
ing on that day, excepting works of necessity and charity." [R. S., Part I.
Ch^p. XX., Tit. 8, Art., 8, vol. j., p. 676.] Under this statute it has .been
held that an attorney's clerk could not recover for work in the oflttce of his
employer, done on Sunday, Watts vs. Van Ness, 1 Hill, 76 ; ^nd that an
agreement to insert an advertisement in a newspaper published on Sunday,
is equally void ; Smith vs. Wilcox, 19 Barbour, 681.

86 CONTRACTS IN VIOLATION OF STATUTES.

worda of a law, for agreements contrary to the policy
of statutes are equally void; so, an agreement to pay
a creditor a sum of money if he -will withdraw Ms op-
position to an insolvent's discharge, is void, as contrary
to the policy of the insolvent act.* 'Nov does it make
any difference whether the law is a general one, or
merely of local or municipal application. So, where the
amended charter of the city of New York provided
" that no member of either board of the common coun-
cil should, during the period fOr which he was elected,
be directly or indirectly interested in any contract
the expenses or consideration whereof are to be paid
under any ordinance of the common council," it was
held that a note growing out of a purchase for supply-
ing the city alms-house with coal, under a contract in
which a member of the city government was interested,
given for the share of profits accruing to such mem-
ber, was void, and could not be enforced either by the
party himself or his assignee.f So an agreement to
construct a roof, in the city of New York, qf a kind
prohibited by a statute entitled " an act to amend an act
for the more effectual prevention of fires " in that city,
is void, and the contract price cannot be recovered.J

So, on the same principle, in New York, where an
act for the enlargement of the canals of that State
(July 10, 1851) was declared unconstitutional and void ;
contracts under the act were also held to be void.§ It
has also beein decided that the transfer of such a con-
tract did not constitute a good consideration for a

* Nerot vs. WaUace, 3 T. R. 17; Murray w. Reeves, 8 B. & C. 421;
Hall VI. Dyson, 17 Ad. & Ell. N. S. 785.
t Bell va. Quin, 2 Sandf. 146.
t Beman m. Tugnot, 5 Sandf. 164.
§ NeweU vs. The People, 8 Selden, 9 ; Rodman vs. Munson, 13 Barb. 63.

CONTRACTS IN VIOLATION OF STATUTES. 87

promise to pay money ; and the circumstance that the
purchasers stipulated to take the risk as to the validity
of the act .of the legislature, while the question was
pending in the courts, and of the contract, does not
vary the law of the case* The pension acts of the
United States, generally, provide that the pay allowed
by them shall not be in any way transfera,ble, but shall
accrue wholly to the personal benefit of the soldier en-
titled to the same. This is the provision of the act of
•June, 1832,. and any agreement for such trainsfer, in any
way, whatever, would be void. But it has been held,
that an agreement w^th a pensioner entitled to an ad-
dition to his pension, under the act above referred to,
to prosecute the claim for the augmentation, and in
consideration to receive one-third of the addition ob-
tained, would be valid.f '

We have also to notice the rule, that if a statute in-
flict a penalty for doing an act, the penalty implies a
prohibition and the thing is^ unlawful, though there be
no prohibitory words in the statute. So where a stat-
ute inflicts a penalty on a simoniacal or usurious con-
tract f this, ipso factOynisik&B the contract void4 This
has been said to be subject to the general exception,
-that where a license is necessary to carry on a particu-
lar trade for the sole purpose of raising revenue, and
-the statute only inflicts a penalty by way of securing
payinent of the license money, a sale without a license
would be valid.§ But if the statute looks beyond the
question of revenue, and has in view the protectipn of

* Sherman vs. Banuixd, 19 Barb. 2&1.
t Jenkins vs. Hooker, 19 Barb. 435.
X Bartlett vs. Viner, Skin. 322; CartHew, 351.

§ Johnson vs. Hudson, 11 East, 160 ; Brown ts, Duncan, 10 Bam. &
Ores. 98,'

8p CONTRACTS IN VIOLATION OF STATUTES.

the public health or morals, or the prevention of fraud,
then, though there be nothing but a penalty, a contract
which infringes the statute cannot be supported.* So
where an excise law does not, in terms, prohibit the sale
of strong liquors without a license^fnor declare the act
illegalj but only inflicts a penalty upon the offender, a
contract for the sale of such liquors is void.f

It follows, from these general ^considerations, that
when a party seeks to enforce in the courts of one State
a contract which, by its laws, is forbidden and void, he
must aver and prove that it was made in a State where,
by law, it was authorized and valid. So, where in a suit
brought in New York to recover prize moiiey drawn
by tickets owned by the plaintiff in a lottery^drawn in
Maryland, and alleged to be authorized by that State,
the complaint did not show where the tickets were sold
or purchased, it was held on demurrer that the plaintiff
showed no cause of action in New York, where lot-
teries are absolutely forbidden by law. Gardiner, J.,
said, " The plaintiff is bound to show, on the face of his
cpmplaint, that his title was acquired in a jurisdiction
where gambling is authorized by law."J

A grave question has arisen upon this branch of our
subject, and distinctions have been sought to be drawn
between contracts violating acts relating to mere po-
lice regulations or the revenue, and those contrived to

* De Begnis vs. Armistead, 10 Bing. 107 ; Cope m. Rowland, 2 M. & W.
149 ; Mitchell vs. Smith, 1 Bin. 110 ; Springfield Bank m. Merrick, 14 Mass.
322; Leidenbender vs. Charles, 4 Scog. & Rawl^ 159; Hallet m. Noonar,
14 J. R. 273 ; Griffith vs. Wells, and cases there cited, 8 Denio, 226.

t Griffith vs. Wells, 3 Denio, 226.

i Thatcher vs. Morris, 1 Kern. 437. But why should not the objectioft
go further? Why should our courts sit to enforce a contract which the
State utterly prohibits as immoral, and the morality of which certainly
does not depend on its locality ? ' ^

CONTRACTS IN VIOLATION OF STATUTES. 89

defeat the operation of ^aws intended to declare gen-
eral principles. In England, however, these distinc-
tions appear no longer to exist ; and, in a recent, case,
Baron Parke sa,id, "Notwithstanding some dicta appa-
rently to the contrary, if the contract be rendered
illegal, it can make no difference in point of law
whether the statute which makes it so has in view
the protection of the revenue, or any other object,"*
This would result in a simple and uniform rule, mak-
ing void all contracts growing out of acts forbidden by
law, and barring all actions upon them ; but the Su-
preme Court of- the United States has said " that what-
ever may be the structure of the statute in regard to
the prohibition and penalty, or penalty alone, it
is not to be taken for granted that the legislature
meant that contracts in contravention of it are void, in
the sense that th^y are not to be enforced in a court of
justice ; that the statute must be examined as a whole,
to find out whether or not the makers meant that a
contract in contravention-of it was to be void, so as not
to be enforced in a court of justice ;" and applying^this
rule of construction to the case of a note ^ven for
slaves exported into Mississippi, in violation of the
statute of that State regarding the importation of
slaves, they held that an action would lie;"f I cannot
but think that this decision introduces a distinction
altogether too nice and refined to be susceptible of
practical application.

It does not, however, follow that when an act is for-
bidden by statute, every thing done in contravention
of the act is to be considered void. This would
lead to results of too serious a character. So, in regard

* Copers. Rowland, 2 Mees. & W. 157.
t Harris vs. Runnels, 12 Howard, 79.

90 CONTEACTS IK VIOLATION OP STATUTES.

to marriage, wliefe a statute imposes a pena,lty on an
officer for solemnizing the union, but does not in words
declare the marriage void, as in Massachusetts in re-
gard to persons ahove the age of consent but below
certain other periods of life ; the marriage is valid, and
the penalty only attaches to the officer who performs
the act expressly prohibited,*

It must be further borne in mind, that the invalidity
of contracts made in violation of statutes, is subject to
the equitable exception that, although a corporation,
in making a contract, acts in disagreement with
its charter, where it is a simple question of capacity
or authority to contract, arising either on a question
of regularity of organization or of power conferred
by the charter, a party who has had the benefit
of the agreement cannot be permitted, in an action
founded on it, to question its validity. It would be in
the highest degree inequitable and unjust, to permit
the defendant to repudiate a contract the fiiiits of
which he retains.f And the principle of this excep-
tioi» has been extended to other cases. So a person
who has borrowed money of a savings institution upon
his promissory note secured by a pledge of bank stock,
is not entitled to an injunction to prevent the prosecu-
tion of the note, upon the ground that the savings bank
was prohibited by its charter from making loans of
that description, J

* King vs. Birmingham, 8 B. & 0. 29 ; Milford vs. Worcester, 7 Mass. 48 ;
Parton us. Hervey, 1 Gray, 119.

t Palmer vs. Lawrence, 3 Sand. S. C. 162 ; Steam Navigation Co. vs.
Weed, 17 Barb. 378 ; Chester Glass Co. vs. Dewey, 16 Mass. 94; M'Cut-
cheon vs. Steamboat Co., 13 Penn. R. 13 ; Potter vs. Bank of Ithaca, 6 Hill,
490; Suydam vs. Morris Canal and Banking Co., 5 HiU, 491 ; Sackett'a
Harbor Bank vs. Lewis Co. Bank, 11 Barb. 218.

X Mott vs. XJ. S. Trust Co., 19 Barb. 668.

REMEDIES FOR THE VIOLATIOK OF STATUTES. 91

The deference paid to tlie statute law is expressed in
the rule, that where an instrument contravenes a rule,
of common law, the invalidity is confined to the par-
ticular clause; but where an instrument contains a
clause or provision in contravention of a statute, it
renders the whole instrument invalid* A bond, exe-
cuted in pursuance of a compulsory statute, must be
precisely in accordance with it ; and if it contains pro-
visions not warranted by the statute, it is void.f

Statutes are not to be evaded, any more than they
are to be disobeyed. So, where a law fixes perempto-
rily the period of taking an appeal from a judgtnent,
the court cstnnot, by setting aside the judgment and
directing it to be entered anew of a later date, effect
the object of extending the time to appeaLJ ,

Of R&inediea for the violation of Statutes.-^Tke
general rule of the English law is, that where a man
has a temporal loss or damage by the wrong of another,
he may have an action on the case to be repaired in
damages-! This principle is carried out and applied
to statutes by an old English enactment, which gives
a remedy, by action on the case, to all who are
aggrieved by the neglect of any duty created by -law.|

* Nicholson vs. Leavitt, 4 Ssndf. 252.

t People vs. Mitchell, 4 Sandf. 466 • People vs. Meighan, 1 Hill, 298 ; in
this case, the bond was void by express provision of the statute ; and
generally, I suppose, if a bond given under a statute contains pro-nsions
which the statute does not contemplate, the instrument is void only foi* the
excess. Armstrong vs. The United States, 1 Peters, Oy 0. U. S., p. 46 ; Van
Deusen vs. Hayward, 17 Wend. 67.

t Bank of Monroe vs. Widner, 11 Paige, 629 ; Humphrey vs. Cham-
berlain, 1 Kern. 274.

§ Com. Dig., Action upon the Case, A.

\ 1 Stat. 13 Edw. I. c. 50, A. D. 1285. So says Lofd Campbell, 0. J., in
Couch vs. Steel, 3 Ellis and Blackburn, Q. B. 402 and seq.; but I should
think the provision only applied to the acts of that particular parliament, —
'^ Omnia pradicta statuta." See 2d Inst. 486.

92 EEMEDIES FOR THE VIOLATION OF STATUTES.

And the general rule, that in every case wliere a
statute enacts or proH]bits a thing for the benefit of a
person, he shall have a remedy upon the same statute
for the thing enacted for his advantage, or for the
recompense of a wrong done to him contrary to the
law in question, is declared by the text-writers of our
jurisprudence* K a new right is created by statute,
and no r^nedy prescribed for the party aggrieved by
the violation of such right, the court, upon the principle
of a liberal or comprehensive interpretation of the
statute, wiU presume that it was the intention of the
legislature to give the party aggrieved a remedy by a
common-law action for the violation of his statutory
right; and he will be permitted to recover in an
appropriate action founded upon the statute.f As
a general rule, it may be assumed that wherever
a power is given by statute, every thing necessary to
make it effectual, or requisite to attain the end, is im-
plied; J and that where the law requires a thing to be
done it authorizes the performance of whatever may'be
necessary for executing its commands.§ So, where a
statute authorized a sheriff to sell the right and inter-
est of a pledgor on execution against him, but did not
confer any authority on him to seize or take into his
possession the property in the hands of the pledgee, it
was held that he had it ex necessitate, as another stat-
utory provision declared that no personal property
should be exposed for sale by a sheriff unless the same

* Com. Big., Action upon Statute, F. ; Dudley vs. Mayhew, 3 Corn-
stock, 9.

t 2 Coke's Inst. 74, 118 ; Bacon's Abr. 16 ; Clark vs. Brown, 18 Wend.
213, 220 ; Smith vs. Drew, 5 Mass. 514.

\ 1 Kent Com. 464.

§ Foliamb's Case, 5 Coke, 115.

REMEDIES FOR THE VIOLATIOIf OF STATUTES. 93

•

were produced at the time* Quando lex aUgwid con-
cedit, conc^dere videtur et id per guod devenitur ad
Mud.-

Questions often arise as to the election of remedies
for the Tiolation of statutes. Where a right orig-
inally exists at common law, and a statute is passed
giving a new remedy without any negative, express
or implied, upon the old common law, the party
has his election either to sue at common law or
to proceed upon the statute. The statutory remedy
is merely cumulative.f So against a witness who
neglects to attend in obedience to a subpoena, the in-
jured party may have either an action on the case for
damages, or an action on the statute for the penalty. J
This old Englisli rule has been repeatedly recognized
and declared in this country .§ So, the statutory
remedy by distress' against beasts doing damage,
does not take away the common-law action of tres-
pass.! ^°-i g^'^g ^ superadded penalty for the
eviction or continuance of a nuisance, does not prevent
the common-law right of the public to have it indicted
and removed, nor does it prevent its being abated in
the usual way by individuals.^ So, a clause in a rail-
road act, authorizing the directors to exact a forfeiture
of the stock and previous payment, as a penalty for
non-payment of installm'ents, does not, before any
forfeiture has been declared, impair the remedy of the
directors to €aiforce.payment by action at common law

* Stief »s. Hart, 1 Corns. 20 ; decided, however, by a, divided court
t Oomyn's Digest, Action on Statute, Gl
X Pearson vs. Isles, 2 Douglas, 656.

§ Almy vs. Harris,,5 J. R. 175 ; Smith vs. Drew, 5 Mass. 514:.
1 Golden tis.EMred, 15 i. R. 220. See also, Olark us. Brown, 18 Wend.
213, 220 ; Stafifbrd vs. IngersoU, 3 Hill, 39. ,

t Renwick vs. Morris, 3 Hill, 621, and S. G. in error, 7 Hill, 675.

94 REMEDIES FOB THE VIOLATION OP STATUTES.

on the incfplied promise. The statute remedy of for-
feiture is affirmative, and contains no words excluding
the common-law relief; in such case it is well settled
that both remedies exist.*

But, on the other hand, where hj statute a new
offense is created and a penalty is given for it, or a new
right is given and specific relief given for the violation
of such right, the punishment or remedy is con-
fined to that given 'by the statute.f " Where a new
right^ says the Supreme Court of New York, or the
the means of acquiringit, is conferred, and an adequate
remedy for its invasion is given by the same statute,
parties injured are confined to the statutory redress."J
Sometimes, however, doubts will arise as to whether
the statute does or does not intend to take away
the common-law remedy; and the answer wUl de-
pend on the subject matter. So, where the charter
of a turnpike corporation provided that any per-
son guilty of certain injuries to the road, as break-
ing down gates or digging up earth, should forfeit
and pay a fine of fifty dollars, it was held that
this provision was not intended to take away any com-
mon-law remedies for such injury or obstruction, upon

* Northern Railroad Go. vs. Miller, 10 Barb. 260 ; Clark vs. Brown, 18
Wend. 220 ; Golden vs. Eldred, 15 J. R. 220 ; Troy and Boston Railroad
Co. vs. Tibbitts, 18 Barbour, 297. As to the remedies for non-payment of
stock, it would seem that if the act of incorporation, or any public statute,
declares that the subscriber to the stock shall pay the calls made thereon,
or if he actually agree to do so, he is liable, and the remedy of forfeiture
for nonpayment is merely cumulative. But where there is a right of for-
feiture given, and no duty imposed to pay, and no promise, then the sub-
scriber is not personally liable, and the remedy is limited to the forfeiture.
Port Miller dnd Port Edward Plank Road Co. vs. Payne, 17 Barb. 567, and
cases there cited.

t City of Boston vs. Shaw, 1 Met. 180 ; Crosby vs. Bennett, 7 Met. 17.

X Smith vs. Lookwood, 13 Barb. 209 ; Dudley vs. Mayhew, 3 Corns. 9,

REMEDIES FOR • THE VIOLATION OF STATUTES. ^5

the ground that the penalty fixed by the charter was,
in many cases that might occur, wholly inadequate to
indemnify the company.* "Where a statute does
hot vest a right in a person, but merely prohibits
the doing of sonae act under a penalty, in such a
case the party violating the statute ig liable to .the
penalty only; but where a right of property is
vested in consequence of the statute, it may be
vindicated by the common-law remedy of action,
unless the statute expressly confines the remedy to
the penalty. So in Massachusetts, where a party was
sued for obstructing the passage of fish up a river,
it was objected that the franchise of the plaintiff in
the fishing was created by a statute, and that as the
same statute imposed a penalty for the infringement,
the plaintiff's remedy was confined to the penalty ; but
the objection was considered bad, and it was held that
the plaintiff was at liberty to sue at common law for
the injury done to his franchise.f Nor is the common-
law right to maintain an action in respect of a special
damage resulting from the breach of a public dlity
whether such duty exists at common-law or is created
by statute, taken away by reason of a penalty recov-
erable by a common informer being annexed as a
punishment for the non-rperforn^ance of the public
duty. So, where a statute^ makes it a duty of a ship-
owner to keep on board his vessel a proper supply
of medicines, and imposes a penalty recoverable by a
common informer as the specific punishment for the
breach of that duty as to the public, sailors sustaining
a private injury from the breach of the' statutable

* Salem Turnpike & 0. B. Co. vs. Hayes, 5 Gushing, 458.
t Smith vs. Drew. 5 Mass. 614 ; Almy vs. Harris, 5 J. E. 175.
t 7 and 8. Vict., c. 112, s.«18.

9d REMEDIES FOE THE VIOLATrOlT OF STATUTES.

duty, are entitled to maintain an action to recover
damages*

But if the performance of a new duty created
by act of parliament, is enforced hj a penalty re-
coverable by the party aggrieved by the non-per-
formance, then there is no other remedy than that
given by the act, cither for the public or private
wrong. So too, if there is no private damage ; then if a
statute points out a particular mode of procedure, it
must be pursued. So it has been decided in regard
to the recovery of a high-way rate and a land tax.f It
is to be observed in general, that the infraction of
a public prohibitory statute, even if passed chiefly for
the protection of a particular class, does not confer
any individual right unless the party alleging himself
to be a^rieved, has sustained a special damage pecu-
liar to himself. J As to criminal legislation, it may be
remarked, that where a statute prohibits an act to be
done under a certain penalty, though no mention is
made of indictment, the piarty offending may be
indicted and fined to the amount of the penalty ; but
where it is merely provided that if any person do a
certain act he shall forfeit a sum to be recovered by
action of debt, no indictment can be supported.§ K a
statute enjoin an act to be done without pointing out
any mode of punishment, an indictment will lie fgr
disobeying the injunction of the legislature.] The

* Couch vs. steel, 3 Ellis and Blackburn, Q. B. 402; Rowning vs.
Goodchild, 2 W. Bl. 906.

t TJnderhm vs. Ellicombe, M'Clel. and Y. 450 ; Doe dem. the Bishop
of Rochester vS. Bridges, 1 B. and Ad. 847. See also, Stevens vs. Jeacocke,
11 Q. B. 731.

% Butler vs. Kent, 19 J. R. 223 ; JLansing vs. Smith, 8 Cowen, 146 ;
Smith vs. Lockwood, 13 Barb. 209.

§ Chitty's Criminal Law, i. p. 162 ; Cro. Eliz. 635, 2 Inst. 131.

I Rex vs. Dayis, Say, 163.

STATUTORY FORFEITURES. 97

revised statutes of New YoTk* declare in conformity
with these rules of the common law, that where the
performance of an act is prohibited by any statute,
and no penalty for the violation of such statute is
imposed either in the same sectioi^ containing such pro-
hibition, or in any other section or statute, the doing
such act shall be deemed a misdemeanor.

Statnitory Forfeitures. — -Property is often forfeited
by illegal acts. This sometimes, results from the. rules
of the common law, and sometimes froria the provisions
of statutes. But there ■ is a marked difference in the
two cases. A forfeiture at common law does jiot oper-
ate to change the property until some legal step has
been taken by the government for the assertion of its
rights ; but where a forfeiture is given by statute, the
rules of the common law are dispensed with,, and the
thing forfeited may either vest immediately or upon
the performance of some future act, according to the
will of the legislature ;f and if no future time or future
act is pointed out then, where, by the words of a
statute, a forfeiture is attached to the commission of
an offense, its immediate operation is to divest wholly
the title of the owner, so as to deprive him of the
right of maintaining any action or defence to whieh,^
as owner, he would otherwise be entitled. So, where
the English navigation act had been violated, it was
held that the property was forfeited though there had
been no previous oondemnation.J So, where an act of
the Congress of the UniteiJ States, declaring that

* Part iv. chap. i. title T, voL iL p. 696.

t Bennett vs. Am. Art Union, 5 Sandford, 614, 636 ; U. S. vs. Grundy,
3 Cranch, 387.

X Wilkina vs. Despard, 5 T. R. 112 ; Roberts vs. Wetherall, Salk.
223 ; S. 0., 12 Mod. 92.

98 SEVERAL PENALTIEa

whenever certain articles "should be imported int»
the United States after the 20th day of May next, all
such articles shall be forfeited to the U. S. ;" it was
held thajt an absolute and instantaneous forfeiture was
created by the mere act of importation, that no seizure
was necessary to vest the title in the government, and
that even a hona fide ^purchaser acquired no title.* So,
again, where a statute in New York, in relation to
lotteries, provided that "all property offered for
sale, distribution, or disposition against the provisions
of law, shall be forfeited to the people of the State,"
it was held that the mere offer for sale worked an
immediate change and transfer of the title.f

8&veral Penalties. — Where a penalty is imposed
upon the commission of an act, and the act is com-
mitted by several persons, the question sometimes
arises whether only one penalty can be recovered
against all, or whether the whole amount of the statut-
ory forfeiture can be demanded against each of the
offenders. And the rule is, that where the offense is
in its nature single, and cannot be severed, there the
penalty shall be single ; because, though several persons
join in committing it, it still constitutes but one offense.
So, if a distress is wrongfully impounded, though
several may cooperate, it is but one act of impounding.
So, under the English game laws, killing a hare is but
one offense, whether one or twenty kill it. So again,
if partridges are netted by night, though two, three,
or more may draw the net, still it is but one offense ;
and in these cases there can be but one penalty against

* U. states vs. 1,960 bags of coffee, 8 Cranch, 398, overruling Mr. Jus-
tice Story's decision in the Mars, 1 Gallison, 192 ; Fontaine vs. Phoenix Ins.
Co., 11 J. R. 298 ; Kennedy vs. Strong, 14 J. R. 128.

t Bennett vs. Am. Art Union, 5 Sandf. 614.

GOOD, FAITH NO EXCUSE. 99

all the parties found guilty* So too, in this country,
with regard to the removal of property liable to rent
frojji off demised premises, before the remedy of dis-
tress for rent was abolished, it has been held to be but
one act, and to subject all parties concerned to but one
penalty.f

But on the other hand, where the statute relates to
an offense in its nature several, as, for instance, to the
resistance of process, the acts of each are to be sever-
ally regarded, and the penalty to be imposed on each.
One may resist, another molest, another run away with
goods ; one may break the offender's arm^ another put
out his eye ; all these are distinct acts, and the offense
of each is entire and complete in its nature. There-
fore, .each person is liable to a penalty for his own
separate offense. $

Grood faith no excuse for violation of Statutes. —
We have already had occasion to notice the rule,
that ignorance of the law cannot be set up in defence.
All are bound to know the law ; and this holds good
as well in regard to common as to statute law, , as
well in regard to criminal as to civil cases. In
regard even to penal laws, it is striclly true that
ignorance is no excuse for the violation of a statute.§
So in regard to frequent attempts which have been
made to exonerate individuals charged with disobedi-
ence to penal laws, on the ground of good faith or^error
of judgment; it has been held that no excuse of this

* Partridge vs. Naylor, Cro. Eliz. 480 ; S. 0., F. Moore, 453.

t Warren Ds^ Doolittle, 5 Cowen, 678; Palmer vs. Oonly, 4 Denio, 376;
Conley vs. Palmer, 2 Corns. 183.

X Eex vs. Clark, Cowp. 610 ; Palmer vs. Conly, 4 Denio, 375 ; Conley
vs. Palmer, 2 Coms. 182.

§ Smith vs. Brown, 1 Wend. 231 ; Caswell vs. Allen, 7 J. R. 63.

100 GOOD FAITH NO EXCtTSE.

kind will avail against the peremptory words of a stat-
ute imposing a penalty. If the prohibited act has been
done, the penalty must be paid. So in England, in debt,
for a penalty under the game laws, for shooting without
license, it was urged that the defendant acted in good
faith, and relied on a license which proved insufficient ;
but it was held that acting honafde was no excuse* So,
where an act directed town supervisors to raise certain
sums of money for ^;he erection of public buildings, and
declared that if they neglected or refused, each super-
visor should forfeit the sum of $250, it was argued that
the supervisors had a discretion, and that it must be
shown that they abused this discretion or exercised it
corruptly ; but t"he act was declared to be imperative,
and the supervisors to be liable.f So where supervisors
were by law directed to audit and allow the accounts of
certain judicial officers, and in case of neglect or refusal
were subjected to a penalty of $250; a mayor of a
city, acting as supervisor, refused to audit an account
of this class ; and, in his defence, it was urged that he
was not liable unless his intention in not auditing the
account was corrupt; and that, in fact, he honestly
believed the officers whose account had been offered
for audit, had been unconstitutionally appointed ; but
it was held to be no excuse. " The offense," said Mr.
Senator Lott, in delivering the judgment of the Court
of Errors, " consists in the refusal to perform the duty
required by law, and not in the intent or motive by
which the supervisors are actuated." J So, a justice of

* Calcraft vs. Gibbs, 5 T. R. 19.

t Caswell vs. Allen, 7 J. R. 63.

X Morris vs. The People, 3 Denio, pp. 381 and 402. It was contended
that the unconstitutionality of the act under which the judicial officers in
question had been appointed, had been settled by the court of last resort

* INFANTS. 101

tJhe peace was held liable for a misdemeanor, as
for a wUlful neglect of duty, in refusing 1^o take an affi-
davit in a cause Before Mm, though he acted in good
faith in his refusal. The j30urt said, " The justice
knew what was asked of him, and he knew what he
refused. There was nothing like surprise, inadvert-
ence, or even apprehension on his part. He refused to
administer the oath, and he intended to refuse. This
is a willful violation of duty."*

Statutes with Tegard to Infants. — Where a statute
obliges an infant to indemnify the city, town, or county
against the expenses of supporting his iUegitimate
child, and makes it necessary for hioi to enter into a
bond with sureties for the purpose, as the only means
by which he can obta.in a discharge from arrest ; that
provision, without further words, gives the infant a
legal capacity to make a binding obligation, and his
infancy is no defence to an action on the bond.f
" "Whenever," says Mr. Justice Story, " a;ny disability
created by the common law, is removed by the enact-
ment of a statute, the competency of the infant to do
all acts within the purview of such statute, is 'as com-
plete as that of a person of full age. And whenever
a statute has authorized a contract for the public ser-
vice, which, from its nature and objects, is manifestly
intended to be performed by ifafants, such a contract
must in point of law be deemed to be for their benefit
and for the public benefit, so that when hona fide

(Purdy vs. The People, 4 Hill, 384), and that this was a conclusive defence ;
but Mr. Senator Lott held that neither the supervisors nor the court in that
suit, to which the officers were not parties, could' determine the point.

* People vs. Brooks, 1 Denio, 457.

t The People vs. MoOres, 4 Denio, 518 ; See also, Winslow vs. Anderson,
4 Mass. 376.

102 RELIEF AGAINST PUBLfC OFFICERS.

made it is neitlier void nor voidable, but is strictly
obligatory upon them."*

Melief against acts of p%ibliG officers created hj
Statute. — Questions often arise as to the remedy against
persons exercising a statutory authority, for erroneous
exercise of power, as, for instance, in regard to the
assessment and collection of taxes ; and the general
principle seems to be that where the officer acquires
jurisdiction, then an error of judgment does not ren-
der him liable to suit ; but if he undertakes to act in
cases over which he has no jurisdiction, he commits a
tresjpass and an action lies. So where a statute
authorized the trustees of a school district to vote and
levy a tax " upon the resident inhabitants of the
district," and a warrant was issued to collect the tax
of parties who were actually non-residents, it was held
that no jurisdiction had been acquired, and that an
action would lie against the parties acting under the
tax-warrant.f So again, on the other hand, where an
action was brought against a tax collector for levying
a tax on a theater which had been erroneously assessed
as a dwelling house, it was held that the assessors
were clothed with power to assess the property accord-
ing' to the class to which, in their judgment, it be-
longed ; that they had jurisdiction of the silbject, and
that though they might have erred, still no action
would lie against parties acting under their authority.J
This distinction is in analogy to the rule founded on

* United states vs. Bainbridge, 1 Mason, 71.

+ Suydam vs. Keys, 13 J. R. 444.

X Henderson vs. Brown, 1 Caines, 92. See also, Prosser vst Secor, 5
Barb. 607 ; and Vail vs. Owen, 19 Barb. 22, which leave the question as to
the power of assessors in New York, in doubt. See also, as to power of
assessors, Wearer vs. Devendorf, 3 Denio, 117.

RELIEF AftAINST PUBUC OFFICERS. 103

public policy, wliicli has been long and well settled,
that a judicial officer is protected whenever he has
jurisdiction and a case is presented calling for his de-
cision, no matter how great the error of judgment
which he commits, no matter how gross the malice
with which he is charged.*

Indeed, even in cases where public officers exceed '
their authority, there is manifested a disposition
by the courts not to interfere, and where their dis-
cretionary authority is appealed to, they often refuse.
So where writs of certiorari have been "applied for to
bring up the proceedings of town and county officers
in. regard to the assessment or iijaposition of taxes, the
courts have declined to grant them. The writ of cer-
tiorari, at common law, lies to officers exercising
judicial powers, and to bring up proceedings of that
character ; but the allowance of the writ is discretion-
ary ; and on grounds of public policy and convenience,
in cases of this kind it is generally denied.f So too,
in this country, an indisposition is manifested in regard
to officers clothed with statutory powers for the prose-
cution of great public works, to interfere with them by
the preventive power of injunction, unless a very
strong case for interference is made out. Thus, where
a canal company were authorized to make and m,ain-
tain a canal of "suitajble" width, and they undertook

* Mills vs. Collett, 6 Bing. 8S ; Brittain vs. Einnaird, 1 Brod. & Bihg-
432 ; Dicas vs. Lord Brougham, 6 C. & P. 249 ; Doswell us. Jmpey^ 1 B. &
0. 163 ; Cunningham vs. Bucklin, 8 Cowen, 178 ; Horton vs. Auchmoody,
T Wend. 200 ; Easton vs. Calendar, 11 Wend. 90 ; Harman vs. Brother-
son, 1 Denio, 637; Weaver vs. Devendorf, 3 Denio, 117, and cases cited ;
Stanton vs. Schell, 3 Sandf., S. C. K. 323 ; Landt vs. Hilts, 19 Barb. 283.

t The People vs. Supervisors of Alleghany, 15 Wend. 198; The People
vs. Supervisors of Queens, 1 Hill, 195 ; Weaver vs. Devendorf, 3 Denio,
117.

104 LIMITATION OF ACTIONS.

to enlarge it, and a mill owner applied for an injunc-
tion against the making of a dam, it was refused:*

No relief in Equiiy agaimst a Statute. — ^Wliile speak-
ing of the remedies for the violation of a statute^ we
may briefly refer to the relief which has been sought
in equity from the operation of the positive terms of a
statute. The limits of t^is .work will not permit me
to define the Taoundaries nor describe the attributes
of. the two great branches of equity and common law.
But it is familiar learning, that from a very early period'
in English jurisprudence, the courts of eqxiity, proceed--
iug according to the course of the civil law, undertook
to enlarge the remedies and modify the rigoi" of the
common-law tribunals. Seeking to act on this idea,i
attempts have been repeatedly made to obtain the
protection which courts of chancery give in cases of
attempted fraud, and to induce those tribunals to
relieve:, against express statutory provisions, upon an
allegation that they were inequitably or immorally set
up. But these eflforts have been generally discounten^
anced ; and the rule is, that equity will give no relief
against a statute, " There can be no relief in equity,"
said Lord Eldon, " if the act has positively said so. On,
the other hand, if that is not expressly declared, nor
the relief clearly excluded by the policy of th,e act,
the equitable jurisdiction upon fraud exi8ts."f

Limitation of Actions on Statutes. — We have thus
far spoken of the various reme^dies for the infringe-
ment or violation of statutory rights and duties. We
have now to consider a restriction upon these remedies^
consisting in the limitation of the tim^ within whicli

* Bruce vs. President of Del. and Hudson Canal Co., 19 Barb. 371.
t Mestader ds. Gillespie, 11 Vcs. 621, 627.

LIMITATION OP ACTIONS. 105

actions of this class must Ibe brought.' At common
law — and it is among those of its attiifeutes which
consid,«ralbly deduct from the e^ravagant demands
upon our respect and admiration that its devotees
haye made.; — at common law, it would appear that
lapse of time in no case formed any bar to the prose-
cution of a right. A rule so fatal as this to the peace
and repose of society, could not long withstand the
progress of civilization. But it seems that the first
statutory limitations of actions date no farther back,
than the peijod of Henry VIII.* In 'the reign of that
monarch, a statute of this description was passed; but
it was only of limited application; and it was not uutil
the reign of James I.f that a general act of this nature
was introduced into the legislation of England, The
details, of this statute have been since materially
modified ; but it asserted the principle of limitation in
its broadest terms, and has formed the bas^ of the
analogous legislation of this country. The rule, as
now universally adopted, applies as well to actions
founded on statutes as to all other suits. The period
of limitation, however, depends : on the laws of each
jurisdiction; and into these questions of local enact*
ment I do not propose to enter. I shall only briefly
refer to some questions of more immediate interest
connected with this part of my subject. '■

The old English maxim is, nulhim tempus occv/r-
rit regi', and the rule founded upon it is, that
the king is not bound by~ any statute of limitations
unless there be an express provision to that effect.

* Dwarris, vol. ii. p. 805 and 815 ; 32 Hen. VIII. c. 2, 4 Bl. Com.
431.

t Dwarris, vol. ii. p. 831 ; 21 Jac. I. c. 16.

106 LIMITATION OF ACTIONS.

This rule also applies to the government of the United
States,* which is in nowise affected by the statutes of
limitation of the V8,rious Statesf (though in consult-
ing the State laws on this subject, the federal tribunals
accept the construction which the State courts have put
on them J) ; and also to the States themselves, except
where the doctrine has been abrogated by statute.§

This rule has been defended on the assertion of the
policy of preserving the public, rights, resources, and
property from injury and loss by the negligence of
public officers. But the doctrine rather appears trace-
able to the old feudal deference for power and pre-
rogative; and if statutes of limitations are to be
considered as statutes of repose, and as such favorably
regarded, there seems little reason why the government
should be excepted from their operation, or why a power
so abundantly able to protect itself, should be armed
with the formidable weapon of a perpetual claim.

The justness of these observations is confirmed by
the practice of some of the States, which, with a
wise and liberal policy, have consented to put the
government in this respecl^ on an equality with the
citizen. So, the statutes of New York have limited
the rights of the people of that State, as well in regard
to penalties and forfeitures as with regard to claims
for real estate ; and in regard to actions other than for
the recovery of real property, have declared generally
that the limitations prescribed by the statute " shall
apply to actions brought in the name of the people of

* tJnited States vs. Hoar, 2 Mason, 811.
t Swearingen vs. United States, 11 Gill. & J. 373.
X Harpending is. Dutch Church, 16 Peters, 455.
§ Inhabitants of Stoughton vs. Baker, 4 Mass. 622 ; Weatherhead vs.
Bledsoe, 2 Overton (Tenn.) R. 352 ; People vs. Gilbert, 18 J. R., 227.

LIMITATION OF ACTIONS. 107

the State, or for their benefit, in tlie same manner as
to actions by private parties."*

The statutes of the State of New York were revised
in 1830. At that time, the period of limitation
barring suits for land by the State, was forty years ; but
the revisors reduced it to twenty years. This, how-
ever, has been held to have no retroactive effect where
the statute began to run under the former law,
although twenty years have elapsed since 1830; as
the revised statutes declared that its provisions in this
respect should not apply to any actions commenced,
nor to any cases where the right of action shall have
accrued or the right of entry shall exist, before the
time it took effect.f

• By the New York Code of Procedure, § 92, it is
provided that an action upon a statute for a penalty
or forfeiture, where the action is given to the party
aggrieved or to such party and the people of this
State, liiust be brought within three years, except
where the statute imposing it prescribes a different
limitation.J Under the analogous provision in the
revised statutes § of the same State, it was held tha,t a

* Code of Procedure, part ii. title 2, § 75, § 96, § 98.

t 2 R. S. 300, § 45 ; Champlain and St. Lawrence Railroad Co. vs.
Valentine, 19 Barb. 484, and cases there cited.

% This provision as to " Such party and the people," relates to qui tarn
actions brought by an informer, and was first introduced into the statutes of
New York at the time of the revision of 1830. Before that, it was held
that there was no statute of limitation to actions of this class. 2 R. S.
Part iii. c. iv. Title 2, Article 3, § 31, vol. ii. p. 298;and Revisors" note;
Wilcox qui tam vs. Fitch, 20 Johnson R. 472 ; Freeland vs. M'OuUough, 1
Denio, 414.

§ " All actions upon any statute made or to be made for any forifeiture
or cause the benefit and suit whereof is limited to the party aggrieved, or
to such party and the people of this State, shall be cbmmenced within three
years after the oflense committed or the cause of action accrued, and not
after." 2 R. S. 298, § 31, Part iii. c. iv. Title 2, Art. 3. •

108 LIMITATION OF ACnONS.

suit against a stockliolder of a corporation, to charge
him individually witli a debt contracted by it pursuant
to a provision in the act of incorporation, is no^ within
the section ; and it was intimated, if not decided, that
this short statute of liqiitation is intended only to em-
brace penalties and forfeitures properly so called, and
other causes of action penal in their nature, and where
both the cause of action and the remedy ar^ given by
statute, but does npt extend to cases wh'erethe action
is partly given by common law and partly by statute*
We may here take notice of the fact that statutes of
limitations belong to a class of legislative enactments,
embracing the laws passed for the prevention of usury,
and some others, on which the judiciary have generally
looked with disfavor. Where they are regularly in-
sisted upon, of course full effect is given to their pro^
visions ; but when it becomes necessary, as in case of
laches,^to apply to the court for leave to set them up,
permission has often been refused, on the ground that
they are statutes of which it is inequitable, if not im-
moral, to seek the protection. We shall have to con-
sider this subject again, when we come to speak of the
boundaries of legislative and judicial power ; but I may
here express the opinion, that, however desirous an hon-
est and intelligent judiciary must ever be to repress all
attempts at fraud, and to use their powers vigorously for
that purpose, still, they should ever remember, that
they hold in our system a position subordinate to the
legislature; tha,t their duty is to give full effect to the
legislative wiU ; and that any effort by them to throw
discredit on statutory provisions as unjust or inexpe-

* Cpming vs. M'Oullough, 1 Corns, 47. This case must, I suppose, be
considered as overruling Van Hook vs. Whitlock, 2 Edw. 304 ; S. 0., 7
Payge, 373; S. 0.. again, 26 "Wend. 43.

WAIVER OF STATUTES. 109

dient, is but to arrogate to ttemselves a censorship over
tte law-making power, whicli our constitutions have no-
where intrusted to them. All laws emanate from the
same supreme power ; and while they remain on the
statute book, all laws are entitled tq equal respect and
obedience.

Waiver of- Statutory Provisions. — ^It often becomes
an interesting question how far a statute can be over-
reached by private compact or stipulation ; how far its
requisitions may be waived by private consent, express
or implied. The general rule is, that no contract or
agreement can modify a law : jus pvMiawm prvvatortDm
pacHs Tjmtari vion potest* Priv^torwm conventio §wi
pvhlieo non dierogat.'^ So it is well settled, that not even
the most formal and solemn consent can give jurisdiction
to a court not authorized to take it. And whenever
the objection is raised, although it may be a breach of
faith and good morals to insist upon it, still it will be
fataLJ

To this rule, however, there is a large class of excep-
tions, expressed by the maxim. Modus et conventio vin-
cimt legem. These are cases where the party is held at
liberty to waive statutory provisions, which, if insisted
on, would enure to his benefit ; and generally, it is true
that where no principle of public policy is violated, par-
ties are at liberty to forego the protection of the law.
The maxim here applies as to private acts, — consensus
toUit errorem. So, in Massachusetts, as to the statutory

requisition in actions against absent defendants, of a con-

* L. 38, ffi de Pact. ; see also, 1. 20, ff. de KeKgiosis.
t L. 45, § i, ff. de Reg. Jur.; Domat., Liv. Prel. Tit. i. § 2.
' I CofSn vs. Tracy, 3 Caines' Rep. 129; Davis vs. Packard, 7 Peters,
276 ; Dudley vs. Mayhew, 3 Corns. 9 ; Oakley vs. Aspin-wall, 3 Corns. 548 ;
Low, us. Rice, 8 J. R. 409.

110 WAIVER OF STATUTES.

tinuance of suit from term to term, till notice is given,
as the court may order ; but to have this effect, however,
jurisdiction must first have been obtained* So, in
general terms, it has been said in "New York, " A party-
may always waive a right in his favor, created by stat-
ute, the same as any other.f And the principle was
pplied in regard to a statute requiring railway corpor-
ations to fence in their tract; it being held that an
adjacent land- owner might waive his right resulting
from the statute, as it was passed for his benefit and
protection. So, on the same principle, if statutory re-
quisitions in regard to process are disregarded, which
would render all subsequent proceedings fatally defec-
tive ; still, if the party waive the objection, by appear-
ing and contesting the suit on the merits, a valid judg-
ment may be rendered.^ But the waiver can only be
made by the party in interest. So, a mere occupant of
lands sold for taxes cannot waive the provisions of law
intended for the benefit of the owner.§ The right
of waiver is subject, as I have said, to the gen-
eral control of public policy; whenever the object
of the statute is to promote great public interests, lib-
erty, or morals, it cannot be defeated by any private
stipulation. So, where the directors of a corporation
were prohibited from being concerned, directly or indi-
rectly, in any contract on the road of the corporation,
it was held, that a contract made in violation of this
provision was void ; and it was intimated that neither

* Morrison vs. Underwood, 5 Gushing, 52.

t Tombs vs. Rochester and Syracuse R. Co., 18 Barb. 583. See also
Buel vs. Trustees of Lockport, 3 Come. 197.
J Seymour vs. Judd, 2 Coms. 464.
§ Jackson vs. Esty, 7 Wend. 148.

PLEADING. Ill

the directors nor stockholders could waive the pro-
hibition*

The general rule holds good, as well in regard
to constitutions as to statutes. A party may waive a
constitutional as well as a statutory provision made for
his benefit. . So it has been repeatedly decided that
a party may waive the right to a trial by jury, al-
though that mode of proceeding be guaranteed to him
by the ponstitution.f So, if a private road be laid out
in an unconstitutional manner, if the owner consent,
the proceeding will be held valid. J It is on this same
doctrine of waiver that it has been frequently held,
that the acts of a public officer exceeding his legal au-
thority, may be adopted by the party for whose benefit
the illegal act is done. Sd where a sheriff had arrested
a defendant on a ca sa, and discharged the debtor on
receiving his promissory note ; though the act of the
sheriff was illegal, and the note void in his hands, it
was held that the plaintiff might affirm the sheriff's act
and claim the note.§

Pleading in actions founded on iStatmtes. — The heads
of pleading and evidence, in regard to statutes, are so
fully discussed in various familiar treatises that I shall
here only refer to them, and give a brief outline of the
general rules relating to this part of my subject. |

At common law, under the technical system of forms

* Barton vs. Port Jackson and Union Falls Plank Road Co., 17 Barb.
397.

t Lee vs. Tillotson, 24 Wend. 837; The People vs. Murray, 5 Hill, 468.

X Baker vs. Braman, 6 Hill, 47. See also Keator vs. Ulster and Dela-
ware Plank Road Co., 7 Howard Pr. E. 41 ; Embury vs. Conner, 3 Corns.
611, 518.

§ Armstrong vs. Garrow, 6 Cowen, 465; Pilkington vs. Green', 2 B. & P.
151 ; Farmers' Loan and Trust Co. vs. Walworth, 1 Coms. 433.

I Archbold's Criminal Fleading ; •Chitty''s Pleadings ; Chitty on Crimi-'
nal Law ; Greenleaf on Evidence.

112 PLEADING.

of action, the remedy in civil suits brought upon stat-
utes was by assumpsit, debt, or case * Although a
statute is, at common law, in some points of view con-
sidered and treated as a specialty, yet assumpsit would
lie for money accruing to the plaintiff under its provi-
sions, if he were not, by the statute itself, restricted to
any particular remedy .f Debt was also, at common law,
frequently the proper remedy on statutes, in actions
brought either at the suit of the party grieved or a
common informer. And if a statute prohibits the
doing an act under a penalty or a forfeiture to be paid
to a party grieved, and do not prescribe any particu-
lar mode of recovery, it might be recovered in this
form of action. Where a penal statute expressly gives
the whole or a part of a penalty to a common in-
former, and enabled him generally to sue for the same,
debt might be sustained ; and he need not declare qui
tarn unless where a penalty is given for a contempt; but
if there be no express provision enabling an informer
to sue, debt could not be supported in his name for the
recovery of the penalty.^ An action on the case is
frequently given by the express provision of a statute,
to a party grieved. "Whenever a statute prohibits an
injury to an individual, or enacts that he shall recover
a penalty or damages for such injury, though the stat-
ute be silent as to the form of the remedy, this action
(in some instances also the action of debt) may be sup-
ported. Thus an action on the case may be supported
by implication, and if a statute gives a remedy iu the
affirmative without a negative, express or implied, for
a matter which was actionable at common law, the

* Ohitty on Pleading, i. 120, 127, 163.
+ Ohitty, i. 120, &c. and cases cited.
X Ohitty, i. p. 127.

PLEADING. 113

party may sue at common law as well as upon the stat-
ute.* But, in some instances, the statute, in conferring
a new right creating a liability, prescribes a particular
remedy ; and in that case the remedy pointed out and
no other, can be pursued. We have stated above that
a common informer cannot sue unless an action be ex-
pressly given him.f

These technical and nice distinctions are, however,
now rapidly ceasing to be of interest, except as matter
of legal history. The great changes recently effected
in this country and in England, have laid the ax to
the root of the old fabric of the common law as far as
its procedure is concerned ; J and wherever the modern

* Chitty on Pleadings, i. p. 163.

t Chitty, i. p. lU.

t Two acts,-^15 and 16 Vict., c. 76, and 17 and 18 Vict., c. 125, — com-
monly known as the Common Law Procedure Acts of 1852 and 1,854, — and
the new rules of Hilary Term, 1853, have wrought such extensive changes in
the English procedure that I hesitate to speak with oorifldence of any subject
to which they relate. I have examined them with some care, hut I can find
nothing directly on the subject of pleading in actions on statutes, except
rule 21, authorizing reference in certain pleas to statutes by date, chapter,
and section. §§ lix., xCi., and schedule B, of the act of 1852, give the new*
forms, or rather precedents for declaration. They entirely abolish all the
old forms of action ; but I find no precedent for declaring on a statute.

The New York Code of Procedure has no particular provision as to how
actions are to be brought on public statutes. It simply declares that, in all
cases, "the complaint shall contain the title of the cause, specifying the name
of the court, the name of the county where trial to be had, and the names of
the parties ; then is to foUow a plain and concise statement of the fads consti-
tuting the cause of action, without unnecessary repetition, and a demand of
the relief sought against the defendant." — Code, Tit. vi. § 142. As to
private statutes, it declares, § 163, " That in pleading a private statute, or
a right derived therefrom, it shall be sufiBcient to refer to such statute by its
title, and the day of its passage, and the court shall thereupon take judicial
notice thereof." As to complaints on penal laws, see Morehouse vs. Orilley,
.8 How. Pr. R. p. 431.

The New York Code of Procedure is, as I understand from my learned
friend, D. D. Field, Esq., one of the Commissioners who prepared it, sub-
stantially adopted in the following States of the Union : Ohio, Indiana,
8 1

114 PLEADING.

and simple mode of pleading has been adopted, actions
on statutes are to be bronglit, no doubt, as in other
instances, by a concise statement of tbe facts on which
the alleged claim is sought to be maintained.

How far, in actions at law upon statutes brought \ia-
der the new system to enforce civil rights and remedies,
it will be necessary that the declaration or complaint
refer to the statute, does not yet appear to be fuUy
settled. Probably, as we have already seen,* a public
statute need not be set out, or even referred to, in the
declaration ; but must be set up, if relied on, by way of
defence.f As we have seen, it is not necessary, at com-
mon law, in pleading, to state any matter which the
court is bound to know ; and so it is unnecessary to
state matter of common or public statute law. J So, in
an action on a statutory security, as a replevin bond, it
is not necessary to aver in terms that the bond was
taken in pursuance of the statute.§ But in New York,
in criminal prosecutions for offenses created by statute,
it has been declared, under the old system, that a refer-
ence to the statute is necessary, in order to inform the
defendant distinctly of the nature of the offense ; and
so in penal actions founded on a statute, f

Kentucky, Missouri, California, Minnesota, and Oregon ; and in Iowa, Texas,
and Mississippi, systems very similar have been introduced. Massachusetts,
by her act of 23d May, 1851, c. 233, reduced personal actions to three,— as-
sumpsit, covenant, and debt, — and all actions of tort to one class, excepting
replevin, which was retained. See Sedgwick on Damages, 2d ed. p. 48 in
note, for an abstract of the act. — It is very plain, that what is left of the old
common-law system of pleading, cannot long survive. Its forms still sub-
sist, however, in some of the federal tribunals, which would, perhaps, be
wise to imitate so many precedents of demolition.

* Ante, p. 34. '

t Lewin vs. Stewart et al., 10 Howard Pr. R. 509.

X Stephens on Pleading, 351-2-3 ; Chitty on Bills, 578, Am. ed. of 1836.

§ Shaw vs. Tobias, 8 Corns. 188.

1 Shaw vs. Tobias, 3 Corns. 188. In criminal cases, Mr. Chitty gives,

PLEADING. 115

Great, indeed, as are the changes which have been
wrought, both in England and the United States, hf
legislation on this subjept, it is still important to bear
in mind the old rules, as they will no doubt more, or
less affect, and in some cases may control, the appli-
cation of the new system. An indictment for an offense
against a statute must, by the ancient rules of plead-
ing, with precision and certainty charge the defendant
to have committed or omitted the acts, under the cir-
cumstances and with the intent mentioned in the stat-
ute; and if any one of these ingredients be omitted, the
defendant may demur and move in arrest of judgment,
or bring a writ of error. The defect will not be aided
by verdict, nor be cured by the formal conclusion that
the defendant's acts are contra f&i'mam statuti* So in
New York, it has been said, that "An indictment on
a statute must state all such facts aild circumstances as
constitute the statute offense, so as to bring the party
indicted precisely within the provisions of the statute.
If the statute is confined to , certain classes of persons,
or to acts done at some particular time or place, the
indictment must show that the party indicted and the
time and place where the alleged criminal acts were
perpetrated, were such as to bring the supposed offense
directly within the statute. Thus, an indictment under

as the common-law rule, that the parts otapmaU act on which an indict-
ment is framed must he set out specially ; hut that there is no necessity, in
any indictment or information on a puhlic statute, whether the offense he
evil in its own nature or only becomes so by the prohibition of the legisla-
tor, to recite the statutes on which it is founded; for the judges are bound,
ex offido, to take notice of all public acts of Parliament, and where there are
more than one, by which the proceedings can be maintained, they will refer
to that which is most for the public advantage. — Ohitty's Criminal Zcm,
vol. 1, p. 376. '

* Archbold's Criminal Pleading ; Indictment, p. 61, and cases cited.

116 PLEADING.

the statute against embezzlement by civics and sermnts^
is bad if it allege that the defendant received the
money or property as an agent* So, in the same State,
where the statute against lotteries prohibits any person,
unauthorized by special laws, from opening, &c., any
lottery, <fec., for the purpose of exposing, setting to sale,
or disposing of any real or personal property, the
indictment must state that the lottery is set on foot for
the purpose of disposing of property ; and if not, it is
bad, on demurrer.f But where the fact appears from
the advertisement, set out at large in the indictment,,
it was held to be sufficientj

Mere surplusage in an indictment wiU not vitiate,
and therefore where an indictment alleges facts which
constitute a misdemeanor, it will be good for that
offense, although it state other facts which go to con-
stitute a felony, but all the facts alleged fall short of
the charge of felony, in consequence of some other fact
essential to that charge, e. g., the intent of the party
accused, not being averred.§

By the Kevised Statutes of New York, if property
was received contrary to the provisions of any statute,
and an action was brought against the offending party,
it was declared sufficient without setting forth the
special matter, to declare that the property was re-
ceived or converted, &c., contrary to the provisions of
the statute in question, describing it in some brief and
general way, as " the statute against betting and

* People w. Allen, 5 Denio, 77 ; 1 Chit. Grim. Law, 281 et aeq.; Archb.
.Orim. PL 50; 3 Chit. Grim. Law, 962; Archb. Grim. PI. 275; 3 Maule &
Sel. 639.

t People e«. Payne, 3 Denio, 88.

X Charles «s. The People, 1 Corns. 180 ; see The People m. Rynders, 12
Wend. 4:25.

§ Lohman^^w. The People, 1 Corns. 879.

PLEADING. 117

gaming ;" and under this act it was held essential that
the reference should be made in the declaration ; and
in an action of this description a new trial was ordered,
on the ground that an objection founded on the omission,
was taken and overruled.* Sometimes an act is contin-
ued by a subsequent statute, and then proceedings may
be laid to have been taken by the first act ; as " when
an act is continued," says Chfef Justice Kaymond,
"" everybody is estopped to say it is not in force."f

"We have already seenj that if there be any excep-
tion contained in the same clause of the act which
creates the offense, — *. e., by way of proviso,— the indict-
ment must show negatively that the defendant, or the
subject of the indictment, does not come within the
-exception. But if the exception or proviso be in a
subsequent clause or statute, it is in that case matter
of defence, and need not be negatived in pleading.§
Where, however, a statute makes a deed or agreeinfent
or other act void, unless made upOn a specified consid-
eration, or under specified circumstances, the plaintiff
must show that the circumstances exist under which
alone it can have validity. So in New York, where a
statute declares all wagers void, but also declares that
this shall not apply to insurances made in good faith
for the indemnity of a party insured ; it was held, that
it being the intention of the statute to prevent wager
policies, a declaration on a policy must contain an aver-
ment of interest. || The rule at common law is, that in

* 2 R. S. 352, §§ 1, 2, and 3 ; Schroeppell w. Coming, 2 Corns. 132.

t Rex vs. Morgan, 2 Str. 1066.

t AnU, p. 63.

§ Archbold's Oriminal Law, i. p. B3 ; Chitty, Oriminal Law, i. p. 284.
This last work contains, under the head of IndUtmmis on Statutes, toI. i. p-
STS, a very full discussion of this branch of the subject.

1 Williams vs. Insurance Co. of North Aiinerica, per Wtiodruff, J., 9
Howard P. R. 365.

118 PROOF OF STATUTES.

suits on bonds or deeds, all the obligees or covenantees,
if alive, must join as plaintiff in bringing the action.
But this rule may be altered by statute ; and where an
act declared that a bond given for the benefit of attach-
ing creditors might be prosecuted "by them jointly, or
by any one of them separately," it was held that a suit
might be brought by a single creditor on the bond, in
his own name.*

Proof of Statutes. — We have already had occasion
to call attention to some of the rules in regard to the
proof of statutes.f Public statutes require, indeed, no
proof ;J the courts are bound, to take notice of them,
and are assumed to select the best and most accurate
mode of informing themselves of their precise tenor.

* Pearce vs. Hitchcock, 2 Corns. 888 ; overruling Arnold m. Tallmadge,
19 "Wend. 627.

t Ante, p. 34 et seq., and p. 68.

X Mr. Dwarris thus states the reason of the distinction between public
and private acts, as to the proof of them : — " The probable grounds of the
declared difference in the judicial notice of statutes, pubhc and private, may
be, besides the solemnity and intrinsic authority of a public act of the
legislature and the supposed greater notoriety of a matter of universal con-
cern, the extreme inconvenience of a contrary rule, and the difficulty and
uncertainty of which it would be productive.

From the extensive destruction of ancient documents, particularly in the
Barons' wars, some early acts are entirely lost, while others are only
parti?,lly and doubtfully preserved.

A few of the most important of the early statutes (those of Merton and
Marlbridge, for instance) are not on record, but have been found in books
and memorials. It is important that the existence of these acts should not
be put on the issue of nul tiel record. I

Being made within the time of legal memory, they have authority only,
it is important to bear in mind, as statutes; and are not (like statutes
passed before that time) a part of the common law.

According, however, to the received doctrine, though not found upon
the statute roll, they are held not to lose their force as statutes, if any
authentic, memorials of their being such are to be found in books, seconded
with a generally received tradition attesting and approving the^same."
Dwarris, vol. ii. p. 466; Hale's EM. Com. law, p. 16.

PROOF OF STATUTES. 119

So, the courts are "bound to take notice oi, the statutes
establishing banks and regulating the rates of ex-
change*

Private Statutes, on the other hand, must be proved,
either by an examined copy or by an exemplification
under the great seal. But if a clause is inserted in a
private statute that it shall be taken notice of as if it
• were a public act, the necessity of proving it is dis-
pensed with.f So, a private act may contain clauses of
a public nature; and then the act, so far as those*
clauses, are concerned, is to be regarded as a public
act. J Thus, a clause relating to a public highway,
occurring in a private inclosure act, ha;S been held
provable in the same way as a public act.§. In En-
gland, the regular proof of private acts of Parliament
is by an examined copy, compared with the original
in the parliament office at Westminster. |

These distinctions^ only apply to the laws of
the state or country to which the courts belong
in which the question is raised. As to foreign laws,
they have always to be proved as facts. And in
this country, where the States are held to be, for all
purposes not coming within the scope of the federal
Constitution, wholly independent of each other, the
statutes of the sister States are to be proved as facts ;

* Bronson vs. Wiman, 10 Barb. 406.

t Beaumont vs. Mountain, 10 Bing. 404 ; see, on this point, Brett vs.
Beale, 1 M. and M. 416 ; and Woodward vs. Cotton, 1 C. M. and R.
44,47.

% Dwarris, vol. ii. pp. 464 and 472.

§ Kex vs. Utterby, 2 Phil. Ev. p. 127; Dwarris, vol. ii. p. 472.

I Dwarris, vol. ii. p. 466.

IT In Biddes vs. James, 6 Binney, 321, C. J. Tilgham says, these , dis-
tinctions as to the proof of public and private laws, are no longer satisfac-
tory in the present State of the world.

120 PROOF OP STATUTES.

and no judicial notice can be taken of them, whether
they be public or private* Nor can they be
proved by parol evidence, any more than any other
written document the original or a proved copy of
which can be obtained.f It is the general practice,
however, in this country, to have the laws of each
State printed by authority; and official publications
of this kind will, it seems, be received in the sister
States, and treated with the same respect as exempli-
fications under seaLJ In England also, npw, by the
statute 41 Geo. III., c. 90, s. 9, made for the better and
more effectual proof of the statute law, it has been en-
acted that the copies. of the statutes of Great Britain
and Ireland prior to the union, printed by the printer
duly authorized, shall be received as conclusive of the
several statutes in the courts of either kingdom.§

We may notice in this connection, an interesting
application of the doctrine of presumptions to the
proof of statutes. It has been repeatedly held in
England in cases of long and uninterrupted possession,
defective, however, in not showing a regular origin of
title, that it might be left to the jury to presume the
existence of a statute or royal grant in whicl^ the
occupancy might be supposed to have taken its com-
mencement.! And so in an early case, it was said, "For
that the possession had gone otherwise ever since, the

* Taylor vs. Boardman, 25 Vermont, 681.

t Martin m. Payne, 11 Texas, 292.

t Biddes vs. James, p Binney, 321, where C. J. Tilghman says, " I am
for admitting the printed copies authorized by the legislature of this or any
other State, whether the laws be public or private.'' Martin vs. Payne, 11
Texas, 292 ; Young vs. Bank of Alexandria, 4 Cranch, 384 ; Greenleaf on
Evidence, § 479 et seq.

§ Dwarris, vol. ii. p. 472.

II Best on Presumptions, p. 145.

REPEAL OF STATUTES. 121

court presumed that there had been such an act of
Parliament, though not now to be found. So, the court
here was ready to recommend it to the jury as a strong
presumption."* So again, in a more modern case;
"There is a great difference," said Lord Mansfield, with
his usual felicity of style and clearness of reasoning,
" between length of time which operates as a bar to a
daim, and that which is used only by way of evidence.

* * Length of time used merely by way of evidence,
may be left to the jury, to be credited or not, and to
draw their inference one way or the other according
to circumstances."f

• ^efpeoH. — If the repeal of a statute is effected by ex-
press and positive words, the only question is the effect
of the repeal. But statutes are often held to be con-
structively repealed, and on this subject many nice and
important cases have arisen.

It is sometimes laid down as a rule, that a statute can-
not be repealed by the mere absence of all practice or
proceedings under it, or as it is called by non us&ir. Est
conveniens nattiraU equitaU unumquodque dissol/oi eo
Ugamme quo Ugatum est. Nothing short of a statute
can repeal a statute. J But we shall hereafter see that
custom is of great force in the construction of statutes ;
and on the same principle, it seems difficult to deny
that long and uniform disuse might amount in some
cases to a practical repeal. So, where there had been
a constant practice not to file an affidavit under an old
Statute, the court held the act unnecessary. § The

* Viscountess Stafford & Lewellin, Skinn. p. 78.
t The Mayor of Hull vs. Homer, Cowper, 102 ; Eldridge vs. Knott,
Cowper, 215; Lopez vs. Andrew, 3 Man,& EyL 329.
t Dwarris, vol. ii., p. 529 ; White vs. Boot, 2 T. R. 274.
§ Leigh vs. Kent, 3 T. K. 362.

122 REPEAL OF STATDTEa

philosopliical legislators who in framing the Code Na-
poleon, raised to their memories an imperishable monu-
ment, say, in their preliminary report, " It might be
dangerous formally to authorize repeal by desuetude
or non user. But it is impossible to overlook or
underrate the influence and utility of that spontaneous
concert of action, that invisible power, by which with-
out shock or commotion a people does justice upon
bad laws, protects society against hasty or inconsider-
ate legislation, and in fact guards the legislator ag'ainst
himself."* In Scotland, indeed, it is said that a stat-
ute loses its force by desuetude, if it has not been put
in force for sixty years. By others, this term has been
extended to a century, and a -distinction is made
between statutes half obsolete and those in vividi
dbserv(mtia.\

In the English houses of ParliHanent, a rule prevails
that no bill can be introduced in repeal of or in oppo-
sition to any law passed at the same session. And in
order to obviate this, it is there the practice to insert
in every bUl, a clause providing that the act may be
amended or repealed at the same session. J No general
rule or practice of this kind, prevails in this country.
But the constitution of the State of Texas contains

* " Les lois conservent levir effet, tant qu'elles ne sont point abrogees par
d'autres lois, ou qu'elles ne sont point tombees en desuetude. Si nons
n'avons pas formellement autoiise le mode d'abrogation par la desuetude ou
le non usage, c'est qu'il eut pent etre ete dangereux de le faire. Mais peut
on se dissimuler I'influence et I'utilite de ce concert delibere, de cette puis-
sance invisible, par laquelle sa£s secousse et sans conunotion, les peuples se
font justice des mauyaises lois, et qui semblent protegerla society centre les
surprises faites au legislateur, et le legi^ateur contre lui meme !" — Dixmn
PreMminaire.

t Dwarris, p. 629.

J Dwarris, vol. i., p. 269.

REPEAL OF STATUTES. 123

ihis clause : " After a bill or resolution lias been re-
jected by either branch of the legislature, no bill or
resolution containing the same substance, shall be
passed into a law during the same session."*

In regard to the mode in which laws may be re-
pealed by subsequent legislation, it is laid down as a
rule, that a general statute without negative words, will
not repeal the particular provisions of a former one,
unless the two acts are irreconcilably inconsistent ;f
as, for instance, the statute 6 Elizabeth, c. 4, that none
sTiaU use a trade "without being apprentice, did not
take away .the previous statute 4 <fe 5 Philip and
Mary, c. 5, deel&ring liiat no wea/ver shall use, &c.
The reason and phijosophy of the rule is, that when
the mind of the legislator has been turned to the de-
tailaof a subject, and he has acted upon it, a subsequent
statute in general^ terms, or treating the subject in a
general manner, and not expressly contradicting the
original act, shall not be considered as intended to affect
the more particular or positive previous provisions, un-
less it is absolutely necessary to give the latter act such
a construction, in order that its words shall have any
meaning at all. So where an act of Parliament had
authorized individuals to inclose and embank portions
of the soil under the river Thames, and had declared
that such land should be "free from all taxes and
assessments whatsoever." The land tax act, subset
quently passed, by, general words embraced all the
land in the kingdom; and the question came before
the King's Bench, whether the land mentioned in the

* Cons, of Texas, Art. iii., § 22.

t Dwarris on Statutes, 532; 6 Eep. ige,; Brown w. County Com,, 21
Penn. 37; Omit vs. Commonwealth, 21 Penn. 427.

124 REPEAL BY IMPLICATION.

former act had been legally taxed ; and it was held
that the tax was illegal. Lord Kenyon said, " It can-
not be contended that a subsequent act of Parliament
will not control the provisions of a prior statute, if it
were intended to have that operation ; but there are
several cases in the books to show, that where the
intention of the legislature was apparent that the sub-
sequent act should not have such an operation, then,'
even though the words of such statute, taken strictly
and grammatically, would repeal the former act, the
courts of law judging for the benefit of the subject,
have held that they ought not to receive such a con-
struction."* It has been said that, even if there be
negative words in the latter statute, it shaU not be con-
sidered as a repeal of the former, provided they can
both reasonably stand together. So it was held that
the statute 1 & 2 Philip and Mary, c. 10, declaring ,
that aU trials for treason should, be according to. the
course of the common law, and not otherwise, did not
work a repeal of the statute, 35 Henry VIII. c. 2,'
which authorized trial for treason beyond the sea.f

But, on the other hand, it is equally well settled
that a subsequent statute, which is clearly repugnant
to a prior one, necessarily repeals the former, although
it do not do so in terms ; and even if the subsequent
statute be hot repugnant, in aU its provisions, to a
prior one, yet if the later statute was clearly in-
tended to prescribe the only rule that should govern
in the case provided for, it repeals the original act.

* Waiiam »s. Pritchard, 4 D. & E. 2; Dwams, p. 614; Williams M.
Williams, 4 Seld. 626 ; Lyn vs. Wyn, Bridgman's JudgmmU, 122 ; Darcy's
Case, Cro. Eliz. 512 ; Paget vs. Foley, 2 Bing. N. C. 679 ; R. vs. Pugh, 1
Dougl. 188,

t Forster's Case, 11 Rep. 63.

REPEAL BY IMPLICATION. 125

I^ges posteriores, priores contrarias cibrogmit.* "If
two inconsistent acts "be passed at different times,
the last," said the Master of the Rolls," "is to be
obeyed ; and if obedience cannot be observed without
derogating from the first, it is the first which must give
way. Every act of Parliament must be considered with
reference to the state of the law subsisting when it
came into operation, and when it is to be applied ; it
cannot otherwise be rationally construed. Every act
is made, either for the purpose of making a change in
the law, or for the purpose of better declaring the law ;
and its operation is not to be impeded by the mere
fact that it is inconsistent with some previous enact-
ment."f

It has been repeatedly declared that every statute is,
by; implication, a repeal of all prior statutes, so far as
it is contrary and repugnant thereto, and that without
any repealing clause ; and, on this principle, when an
act prohibited an unlicensed person from selling rum
under a penalty of twenty dollars for each offense, and
a subsequent statute prohibited the same act on pain
of forfeiting not more than twenty dollars nor less than
ten dollars for each offense, the old statute being abso-
lute and imperative, and the other allowing a latitude
of discretion, it was declared that they were essentially
and substantially inconsistent, and the former statute
was held to be repealed. J So, in general, where a

* Davies vs. Fairbairn, 3 How. U. S, R. 636 ; Dexter and Limerick Plank
Road Co. TO. Allen, 16 Barb. S. C. R. 15.

t The Dean of Ely vs. Bliss, 5 Beavan, 374; Reg. vs. Inhabitants of St.
Edmunds, Salisbury, 2 Q. B. 72 ; Brown vs. M'Millan, 7 Mees. & Wels. 196 ;
Crisp vs. Bunbury, 8 Bing. 394 ; 11 Rep. 632 ; Rex vs. Lumsdaine, 10 Ad.
& Ellis, 160; Rex vs. Tooley, 8 T. R. 69; Welsford vs. Todd, 8 East, 580.

X Commonwealth vs. Kimball, 21 Pick. 373 ; see Rex vs. Catpr, 4 Bur.
2026, where Lord Mansfield made a similar intimation.

126 REPEAL BY IMPLICATION.

statute imposes a new penalty for an offense, it repeals,
by implication, so much of a former statute as estab-
lished a different penalty. So Lord Mansfield held,
that the statute 5 George I. c. 27, inflicting a fine not
exceeding £100 and three months' imprisonment, for
seducing artificers, was repealed by s. subsequent act,
23 George II. c. 13, inflicting a penalty of £500 and
twelve months' imprisonment for the same offense.*
So, on the same principle, a statute is impliedly re-
pealed by a subsequent one, revising'the whole subject-
matter of the first.f And in the case of a statute revis-
ing the common law, the implication is equally strong.
So where an act is an offense at common law, and the
whole subject is revised by the legislature, the common
law is repealed. J So in Pennsylvania, it has been said
that when two statutes are so flatly repugnant that
both cannot be executed, and we are obliged to choose
between them, the later is always deemed a repeal of
the earlier. This rule applies with equal force to a case
of absolute and irreconcilable conflict between different
sections or parts of the same statute. The last words
stand, and others which cannot stand with them go to
the ground.§

But, though it is thus clearly settled, that statutes
may be repealed by implication, and without any ex-

* Rex vs. Cator, 4 Burr. 2026 ; Rex vs. Davis, Leach's Cases, 271 ;
Nichols vs. Squire, 5 Pick, 168.

t Bartlett vs. King, 12 Mass. R. 537 ; Nichols vs. Squire, 5 Pick. 168.

X Commonwealth vs. Cooley, 10 Pick. 37 ; Commonwealth vs. Marshall,
11 Pick. 850.

§ Brown vs. County Com., 21 Penn. 37. But in this case it was also
said, that whenever two acts can he made to stand together, it is the duty
of the court to give them full effect. And so the act of 10th April, 1834,
creating the county board of Philadelphia county, was held not to be re-
pealed by the act of 15th April, 1834, relating to counties and townships.

REPEAL BY IMPLICATION NOT FAVORED. 127

press words, still the leaning of the courts is against the
doctrine, if it be possible to reconcile the two acts of
legislature together. " It must be known," says Lord
Coke, " that forasmuch as acts of Parliament are estab-
lished with such gravity, wisdom, and universal consent
of the whole realm, for the advancement of the com-
monwealth, they ought not, by any constrained con-
struction out of the general and ambiguous words of
a subsequent act, to be abrogated; sed hu^usmodi
statuta tanta solemnitate etprudentia edMa (as Fortescue
speaks, cap. 18, fol. 21) ought to be maintained and
supported with a benign and favorable construction."*
So in this country, on the same principle, it has been
said that laws are presumed to be passed with deliber-
ation, and with full knowledge of all existing ones on
the same subject ; and it is, therefore, but reasonable
to conclude that the legislature, in passing a statute,
did not intend to interfere with or abrogate any prior
law relating to the same matter, unless the repugnancy
between the two is irreconcilable ; and hence, a repeal
by implication is not favored ; on the contrary, courts
are bound to uphold the prior law, if the two acts may
well subsist together.f So, in Pennsylvania, it has been
decided that repeals by implication are not favored ;
and it has been declared, that one act of Assembly is held
to repeal another by implication only in cases of very
strong repugnancy or irreconcilable inconsistency. J So
again in a recent case in New York, it is said that the

* Dr. Foster's Cafie, 11 Rep. 63 ; Dyer, 347; King vs. The Justices, &c.,
15 East, 377 ; Dwarris, vol. ii. 533.

t Bowen vs. Lease, 5 Hill, 221 ; Canal Co. vs. Railroad Co., 4 Gill. &
John. 1.

\ Sfreet vs. Commonwealth, 6 W. & S. 209 ; Commonwealth vs. Easton
Bank, 10 Barr, 442; Brown vs. County Commis., 21 Penn. 37.

128 EEPEAL BY IMPLICATIOF.

repeal of a statute by implication is not favored. Unless
the latter statute is manifestly inconsistent with and re-
pugnant to the former, both remain in force. Courts are
bound to uphold the prior law, if the two may subsist
together.* So, too, in Massachusetts, to annul the prior
statute, the latter act must be clearly repugnant to the
former, and the implication by repeal will not be
favored. Where an act was passed in 1836, prohibit-
ing the sale of " spiritous " liquors, and in 1850 an act
was passed professing to amend the prior statute, by
inserting the word '■'■ intoxicating'''' in the place of the
word " spiritoits,'''' it was argued that the act of 1850
repealed that of 1836 ; but on the ground that the
word "intoxicating'''' includes a larger class of cases
than '■'■ spiritous^'' that all spiritous liquors are intoxi-
cating but all intoxicating liquors are not spiritous, it
was held that they might well stand together.f

On the very opposite of these general principles, it
has been said in England, with that deference for the
rights of the crown which we have already had occasion
to notice, that clauses which limit in any way the right
of the sovereign, must be considered as repealed by
subsequent statutes, unless expressly re-enacted.J But,
I believe the principle has never been recognized ia
this country ; nor do I understand why the government
should be exempted from the operation of general rules
of law, or the fair interpretation of language.

In this country it has been held, that a statute may
be repealed by the abrogation of a State constitution.
So the statute of the State of New York, passed under
the constitution of 1821, which prohibited the judges

* Williams vs. Potter, 2 Barb. S. C. R. 316.
t Commonwealth vs. Herrick, 6 Gushing, 465.
X Attorney General vs. Newman, 1 Price, 438.

EFFECTS OF EEPEAL. 129

of appellate courts from taking part in tie decisions of
causes determined by them when sittirlg as the judges
of any other court, was held t6 be virtually repealed by
the constitution of 1846, which abrogaited the constitu-
tion of 1821*

Some special rules may be here noticed. We have
already had occasion to observe the doctrine, that if the
latter part of a statute be repugnant to a former part
of it, the latter part shall stand, and, so far as it is
repugnant, be a repeal of the former part, because it
was last agreed to by the makers of the statute.f
Questions may arise as to whether a repealing act is to
operate as a total, paitial, or temporary repeal; and it
is said that the word repealed is not to be taken in an
absolute, if it appear on the whole act to be used in a
limited sense.J If a statute, originally perpetual, be
continued by an affirmative statute for a limited time,
this does not amount to a irepeal of it at the end of
that time.§ But when a statute absolutely repeals a
prior law, and substitutes other provisions, to continue
only for a limited time, the prior law does not Tevive
at the expiration of the time fixed by the repealing
law. 1

"We have next to consider the effects of the repeal,
which, when it is clear and absolute, are of a very
sweeping character. " The effect of a repealing statute,"
says a very eminent judge,^ "I take to be, to obliterate

* Pierce ««. Delamater, 1 Coins. 17.

t Attorney General m. Governor and Company of Chelsea Water Works,
Fitzgibbons, 195 ; Pwarris, vol. ii. 515 and 534; Ante, pp. 60 and 63.
t Rex us. Rogers, 10 East, 569 ; Camden w. Anderson, 6 T. R. 723.
§Raym. 397.

Warren vs. Windle, 3 East, 205.
T Tindal, 0. J., in Key vs. Goodwin, 4 Moore and Payne, 341.
9

130 EFFECTS OF EEPEAL.

tte statute repealed as completely from the records of
Parliament as if it had never passed, and that it must
te considered as a law that never existed, except for the
purpose of those actions or suits which were commenced,
prosecuted, and concluded while it was an existing law."*
Upon this principle, the repeal of a statute puts an end
to all prosecutions under the statute repealed, and to all
proceedings growing out of it pending at the time of
the repeal. There can be no legal conviction, unless
the act is contrary to law at the time it is committed ;
nor can there be a judgment, unless the law is in force
at the time of the indictment and of the judgment.
Hence, a repealing law is sometimes made to operate
prospectively, and a saving clause is inserted to prevent
the operation of the repeal, and continuing the repealed
law in force as to all pending proceedings and prosecu-
tions.f So in the Supreme Court of the United States,
it has been held that the repeal of a statute giving a
penalty, puts an end to all actions pending for penalties
under the act, at the time of the passage of the repeal-
ing statute.^ So in the Circuit Court of the United
States, where a man was indicted for perjury under the
bankrupt law, which had been repealed before indict-
ment, "Washington, J., said, " Every offense for which
a man is indicted must be laid against some law, and it
must be shown to come within it, and the law must be

* See also, in England, as to effect of repeal of bankrupt laws. Sartees
vs. Ellison, 9 B. & C. 750 ; Maggs vs. Hunt, 4 Bing. 212; and Kay vs. Gor-
don, 6 Bing. 576.

+ Miller's Case, 1 "W.Bl. 451 ; RexM. Justices of London, 3 Burr. 1456;
Commonwealth vs. Cooley, 10 Pick. 37 ; Commonwealth vs. Marshall, 11
Pick. 350 ; see also, Butler vs. Palmer, 1 Hill, 324.

X Yeaton vs. United States, 5 Cranch, 281 ; Schooner Rachel vs. United
States, 6 Cranch, 329 ; Norris vs. Crocker, 13 How. 429 ; United States us.
Passmore, 4 Dall. 372.

EFFECTS OF REPEAL. 131

subsisting. If the legislature lias ceased to consider
the act in the light of an offense, the purposes of pun-
ishment are no longer to be answered."* So the repeal
of a law imposing a penalty, though after conviction,
arrests the judgment.f And the same rule applies to
all proceedings, whether civil or criminal, going on by
virtue of a statute at the time of its repeal. So if a
statute confers jurisdiction in civil cases, and though
suits may be instituted and be pending at the time of
the repeal, the jurisdiction is gone, and with it the
whole proceeding falls to the ground. J So the repeal
of an act authorizing a course of proceeding by a public
officer, invalidates the proceedings^ if unfinished, at
"whatever stage they had arrived.§ Thus, in Pennsyl-
vania, where an act was passed authorizing the
opening of a street in Pittsburgh, and providing for
the assessment of damagesj it was held, that the repeal
of the act before the street was opened, rendered void
all proceedings taken, aSnd that the parties in whose
favor damages had been assessed could not recover the
compensation reported in their favor. [ So in New
York, in May, 1837, a law was passed authorizing
mortgage debtors to redeem their property sold under
foreclosure decrees, within one year from the date of
the sale. In April, 1838, an act was passed repealing
the act of 1837, to take effect in November, 1838. In
a case where the sale took place in December, 1837,
before the repealing law had passed, it was held that no
redemption could take place after the time fixed for the

* Anon. 1 Wash. C. C. K. 84.

+ Commonwealth vs. Duane, 1 Binn. 601, 608.

t Stoever vs. Immell, 1 Watts, 258 ; Butler vs. Palmer, 1 Hill, 324.

§ Williams vs. County Commissioners, 35 Maine, p. 345.

I Hampton vs. Commonwealth, 7 Harris (Penn.), 329.

132 EFFECTS OF REPEAL.

act to go into effect; ttat the right of redemption
was a mere inchoate right, and necessarily destroyed
by the abrogation of tke statute which conferred it.*

In connection with this subject we may observe, that
an act declared illegal by statute is not made good by
a subsequent repeal of the statute, if it was originally
illegaLf And so, the repeal of a prohibitory act
does not give validity to acts which were invalid
under the operation of the prohibitory act repealed.
Thus in New York, the revised statutes declared
that no person, unauthorized by law, who should
practice physic or surgery for any fee or reward, should
be capable of bringing suit for such fees. In 1844 this
was repealed. An action was brought by an unlicensed
practitioner, in 1845, to recover compensation for ser-
vices rendered in 1840, prior to the repealing act. It
was held that the repeal of the previous prohibitory
laws had no effect on cases which arose before the pas-
sage of that act. J

It will be noticed, that the operation of the general
rule is to give repealing statutes a very retroactive effect.
In regard to criminal matters, this is perhaps unobjec-
tionable ; but in regard to civil rights, the case is often
very different. Trouble and expense may have been
incurred ; suits may have been instituted ; but the effect
of a retrospective construction of repealing statutes is
entirely to derange the plans and defeat the arrange-
ments of parties who have proceeded on the faith
of the antecedent legislation. Efforts have been

* Butler vs. Palmer, i Hill, 324.

t Jaques vs. Withy, 1 H. Bl. 65 ; Roby vs. West, 4 New Hampshire R.
285.

J Bailey vs. Mogg, 4 Denio, 60.

EFFECTS OF REPEAL. 133

made to resist ttese results, and certain exceptions
have been made to this retroactive application.
The first is that where a right in the na,ture of
a contract has vested under the original statute,
then the repeal does not disturb it.* And, in
this country, this principle is carried out and firmly-
established by the clause in the Constitution of the
United. States, that no State can pass any law impair-
ing the obligation of contracts ; to which we shall have
occasion more particularly to refer, when we come to
consider the subject of the restrictions imposed upon
State legislatures by the federal charter. An unfortu-
nate distinction has been drawn by the highest of the
federal tribunals, between the obligation of a contract
and its remedy. It has been repeatedly regretted ; but
the State courts have adopted it, and it is now too late,
perhaps, to hope for its abandonment.f What relates
to the remedy is understood to be at the mercy of
legislation, but the obligation of contracts is covered
by the segis of the federal charter. We shall, as

* Fletcher vs. Peck, 6 Cranch, 87 ; Gillmore vs. Shooter's Ex'or, 2 Mod.
310 ; Couch g'. t. vs. Jeffries, 4 Burr. 2460-2 ; Churchill vs. Crease, 2 Moore
and Payne, 415 ; 5 Bing. 177, S. C. ; Terrington vs. Hargreayes, 3 Mopre
and Payne, 137, 143 ; 5 Bing, 489, S. C. ; Butler vs. Palmer, 1 Hill, 324.

t " Were the notion res nova, we might feel great difficulty in distinguish-
ing between the obligation of a contract, and a remedy given by the law to
enforce it. It is difficult, under the notion that obligation and remedy are
essential to each other, to see how. the latter can be impaired without pro-
ducing the same consequence to the former." Cowen, J., in Butler vs. Pal-
mer, 1 Hill, 324. Mr. Chancellor Kent has said, " Ch. J., Marshall, in Sturges
vs. Crowninshield, 4 Wheaton, 200, 207, spoke on this subject in a general
and latitudinary manner, which was rather hazardous. It seems to
me, that to lessen or take away from the extent and efficiency of tlie remedy
to enforce the contract legally existing when the contract was made, int
pairs its value and obligation ;" Com. i. p. 455, note. See, too, the
opinion of Mr. Justice Washington, in Mason vs. Haile, 12 Wheaton, 370.

134 EFFECTS OF REPEAL.

I have above said, have occasion to consider this . more
fully, when we come to speak of the Constitution of the
United States.

There is another class of cases which virtually form
a second exception to the general rule, declaring as we
have seen, the operation of repealing statutes. It
has been held in many instances that enactments of the
legislature, creating new exceptions or defences, or
modifying previous remedies, shall be so construed as
not to affect rights of action which have attached and
become vested under the original law, and existing at
the time of the repealing statute.* " "We are of opin-
ion," said Lord Dfenman, C. J., in a case of this kind,
" that the law, as it existed when the action was com-
menced, must decide the rights of the parties to the
suit, unless the legislature express a clear intention to
vary the rela,tion of litigant parties to each other."f
So in regard to the limitation of actions, the same
learned judge saiid, in regard to a la,w changing the
period, that the prior law must control. "A, different
construction, even if the words permitted it, would
cause the greatest hardship ; for a person who, as the
law stood before the passing of this act, was in ample
time to bring his ejectment, and recover property that
undoubtedly was his, would, by the operation of the
statute, be suddenly deprived of the means of assert-
ing his right, there being no clause for the postpone-
ment of the operation of the statute for such a period
as would enable persons who would be otherwise af-

* Bedford vs. Shilling, 4 Serg. & Rawle, 401 ; Duffleld vs. Smith, 8 id.
590-9 ; Butler vs. Palmer, 1 Hill, 324.

t Hitchcock vs. Way, 6 Ad. & Ell, 943 ; Paddon vs. Bartlett,'3 Ad. & EU.
884.

EFFECTS OF REPEAL. 135

fected by it to asserf tlieir rights."* So in New York,
where distress for rent originally existed, as in England,
it was made by statutef a penal offense to remove goods
from the demised premises for the purpose of avoiding
the payment of rent; a forfeiture beipg given to the
landlord of double the value of the goods removed.
In May, 1846, an act was passed abolishing, generally,
the remedy of distress, though not in terms repealing
the above statute. A suit brought for a violation
of the statute, alleged to have been committed in 1844,
came on to be tried in June, 1846 ; and it was suggested
that the abolition of the remedy of distress necessarily
carried with it the provision as to the removal of goods,
and on the general doctrine which we have above stated, ,
that the penalty was gone. But it was said that there
were no express words of repeal, that the moment that
the offense was committed the penalty became a debt,
or duty vested in the plaintiff, J and that the action
would still lie.§ So it is intilnated in a recent case in
New York,- that the legislature cannot take away a
right of appeal which has already attiaqhed.f

It has been attempted to reconcile this class of cases
Tvith the others, which we have heretofore in this con-
nection, considered, on the ground that they contain no
express words of repeal ;•[[ but, it being settled that

* Doe dem. Evans vs. Richard, Q. B. R. ; Dwams, vol. ii. p. 542 ; Sed
Tide contra, Freeman vs. Moyes, 1 A. & E. 338 ; Paddon vs. Bartlett, 3 A, &
B. 884; Surtees m. Ellison, 9 B. & C. 760.

t 2 B. S. 603, § 17, Part iii. Oh. viii. Title 9, Art. 1,

X The Company of Cutlers in Yorkshire vs. Buslin, Skinner, 363 ; Gtos-
set vs. Ogilvie, 6 Brown P. C. 527 ; College of Physicians vs. Harrison, 9
Bam. & ,Cres. 524.,

§ Palmer vs. Oonly, 4 Denio, 374; S. C. on Appeal, 2 Coms. 182.

I Groyer vs. Coon, 1 Corns. 536,

IT Butler vs. Pahner, 1 Hill, 324.

136 EFFECTS OF REPEAL.

repeals may be as clearly made Tfty implication as by
positive words, that position becomes untenable. TKey
are, in fact, far more defensible on tbe general doctrine,
that no statute should ever be permitted to have a
retroactive effect, a rule which we shall have occasion
to consider in the next chapter. Indeed, no attention
can be paid to our statutory law without observing the
mischiefs' resulting from ill-considered legislation, vio-
lent and sweeping innovation, or the hastyrepeal of
previous enactments. The inconveniences consequent
upon retroactive statutes are often of the most serious
character, and cannot be too frequently pointed out^
nor too often insisted on.*

* We may, however, take sonle consolation in the consideration that
these are no modern evils, nor confined to our coantry. Those who deplore
the haste with which our statutes are drawn, the inaccuracies which they
often present, and the injustice they too frequently work, may take comfort
in the words of Blackstone : " To say the truth, almost aU the niceties,
intricacies, and delays, which have sometimes disgraced the English as well
as other courts ofjusticej owe their original not to the coiHfmon law itself,
but to innovations that have been made in it by acts of Parliament, over-
laden (as Sir Edward Coke expresses it) with provisoes and additions ; and
many times, on a sudden, penned or corrected by men of none or very little
judgment in law;'' and he goes on to quote fjirther from Coke, as to the
evils resulting from the ignorance and incompetency of the law-makers. —
Blackstone, Com-, Introductory Lecture. Both Coke and Blackstone, how-
ever, were devotees to the common law. But the complaint has been
repeated, in England, down to our time. "The same cause," says a writer
in the Law Review for August, 1850, " which has produced bad booksupon
English law (the discontinuance of regular academical institutions in our
terms of court) has produced bad statutes." " The real evil," said the Lord
Chief Justice, in debate in the House of Lords, July 9, 1850, "under the
present system, was, that nine-tenths of the time of the judges was taken up
in endeavoring to reduce to intelligibility the ill-digested legislation of their
Lordships' House."

In New York, the Revisers of 1830 prepared a very careM general
repealing act; 3 R. S. 130, act of December 10, 1828; in which it is en-
acted by —

§ 5. "That the repeal of any statutory provision by this act, shall not.

REPEAL OF A REPEALING STATUTE. 137

The question next presents itself as to the effect of
the repeal of a repealing statute. The rule of the com-
mon law is, that the unqualified repeal of a repealing
statute, substitu,ting no other provisions in place of
those repealed, revives the original statute ; and this is
generally received in this country * The principle has
been applied in New York to the resolutions of school
districts to lay taxes.f In Massachusetts, also, it has
been held, that the repeal of a repealing statute revives
the original act ; and that the doctrine is the same where
the repeal is effected by implication only.J But in Ohio§
and Illinois,! statutes have been passed abolishing the
rule of the common law.^ If a repealing statute and
part of the original statute, be repealed by a subsequent
act, the residue of the original statute is revived.**

We have thus far considered the attributes and inci-
dents of statutes, so far as they do not depend on any
ambiguity of their own language. We are now better
prepared to consider those cases where it is necessary
to call in the aid of judicial construction or interpreta-

affect any act done, or right accrued or established, or any proceeding^ suit,
or prosecution, had or commenced in any civil case previous to the time
when such repeal shall take effect ; but every such act, right, and proceed-
ing shall remain as valid and efiectual as if the provision so repealed had
remained in force.'' See, also, the subsequent sections of the act, and Peo-
ple vs. Livingston, 6 Wend. 526 ; Bradstreet vs. Clarke, 4 Wend. 211 5 and
Lansing vs. Caswell, 4 Paige, 519.

* Case of. the Bishops, 12 Co. 7; 2 Inst. 686 ; Doe vs. Naylor, 2 Black-
ford, 82 ; M'Nair vs. Ragland, 1 Dev. & Bat. ^. Cases, 525 ; Wheeler vs.
Roberts, 7 Oowen^ 536; Finch vs. M'Dowall, 7 Cowen, 537; Common-
wealth vs. Churchill, 2 Met. 118.

t Gale vs. Mead, 4 Hill, 109.

} Hastings vs. Aiken, 1 Gray, 165.

§ 14th February, 1809.

1 19th January, 1S26.

IT 1 Kent. Com. 466.

** Doe dem. Broughton vs. Gully, 9 B. & C. 344, 354.

138 COPYRIGHT m STATUTES.

tion. But before quitting this branch of our subject,
I permit myself a short digression in order to
take notice of the relation of statutes to the law
of copyright. It was originally considered, in En-
gland, that the crown had a prerogative copyright
in the Bible and Common Prayer Book, the Statutes
of the realm, the Almanacs, and the Latin grammar;
and the sovereign granted, by letters patent, the exclu-
sive right of printing these works. In regard to the
statutes, the doctrine has been vindicated on the groimd
of the necessity of some responsibility for correct print-
ing, and because the laws can only be obtained from
the rolls of Parliament, which are within the authority
of the crown. Originally, the copies of the statutes of
the kingdom were transmitted to the sheriff, who caused
them to be publicly read in the county courts. "When
the introduction of printing produced an increased de-
mand for the laws, and at the same time facilitated the
supply, the laws were published by the patentee of the
crown ; and this exclusive right was not only repeat-
edly recognized in the earlier cases, but carried so far
as to enibrace the Keports, Year Books, and Rolle's
Abridgment. These latter pretensions have been
abandoned, but the exclusive title of the crown to the
publication of the statutes has been sustained ; and the
sole right to print the laws in England, is now held to
be vested in the sovereign and his patentee, who shares
it, however, in consequence of certain ancient grants,
with the imiversities of Oxford and Cambridge.* But it
seems to be settled, that the statutes may be printed

* Baskett vs. The University of Cambridge, 1 W. Black. 105, 121 ; Bas-
kett vs. Ounningham et al, 1 Black. 870; Manners vs. Blair, 3 Bligh. 891,
402 ; Curtis on Copyright, 116, 128.

by others than those claiming under a patent, provided
the publication is accompanied by honafi^e notes.*

Of the English doctrine of prerogative copyright,
there is, it is believed, no trace in this country. The
laws, whether of the Union or of the States, may be
published by any one ; though, generally, the editor of
a newspaper is appointed by the government as state
printer, who publishes the first regular copy of the
federal or State statutes. In regard to the decisions of
the Supreme Court of the United States, it has been
determined that, under the act of Congress by which
an official reporter is appointed, there can be no
copyright in the written opinions of the court ; but
that the reporter may have a copyright in his own
marginal notes, and his arrangement of the arguments
of counseLf

Several of the State constitutions contain provisions
on this subject. In California the constitution declares,
that " the legislature shall provide for the speedy pub-
lication of all statute laws, and of such judicial deci-
sions as it may deem expedient ; and all laws and
judicial decisions shall be free for publication by any
person.":}; The constitution of Iowa provides,§ that " no
law of the General Assembly, of a public nature, shall
take effect until the same shall be published and circu-
lated in the several counties of the State, by authority.
If the General Assembly shall deem any law of imme-
diate importance, they may provide that the same
shall take effect by publication in newspapers in the

* Maugham on Copyright, p. 106; 2 Evan's SlaUitee, 19, note 11.
t Wheaton vs. Peters, 8 Peters, 691, 668 ; Gray vs. Russell, 1 Story, 11.
X Constitution, Art. vi. § 12.
§ Art. iT. § 27.

140 PUBLICATION OF JUDICIAL DECISIONS.

State." The constitution of Wisconsin declares * that
"the legislature shall provide, by law, for the speedy
publication of all statute laws, and of such judicial
decisions, made within the State, as may be deemed
expedient. And no general law shall be in force nntil
published." The constitution of Michigan declares,f
that " the legislature shall not establish a State paper.
Every newspaper in the State, which shall publish all
the general laws of a session within forty days of
their passage, shall be entitled to receive a sum not
exceeding fifteen dollars therefor. The legislature
shall provide for the speedy publication of all laws of
a public nature, and of such judicial decisions as it
may deem expedient. , All laws and judicial decisions
shall be free for publication for any person." In New
York, the constitution provides,;]; that " the legislature
shall provide for the speedy publication of all statute
laws, and of such judicial decisions as it may deem ex-
pedient. And all laws and judicial decisions shall be
free for publication by any person."

The greater the publicity that is given to the stat-
ute law, of course, the better ; but, notwithstanding
these constitutional enactments of so many of the
States, it appears to me not difficult to prove that
our governments should retain some control over the
publication of the judicial decisions of their courts.
The publication of decisions in individual cases may,
indeed, with propriety, be left free ; but the publica-
tion of collections of reports is a matter too immedi-
^ately connected with legislation to be left without any
supervision whatever. As it is now, we are, in some
of the States, flooded with reports of cases, a great

* Art. vii. § 21. t Art. iv. §§ 35 and 36. % Art. vi. § 22.

PUBLICATIOlf PF JUDICIAL DEg|SIONS. 141

many of wHcL. are entirely trivial, or only tend to
increase the uncertainty and perplexity of the law, and
greatly to augment tlie labor of all those concerned in
thfe administration of justice. Our reports are our law,
and the publication of reports is, in fact, the enactment
of laws.

CHAPTER V.

OF THE BOTINDAKIES OF LEGISLATIVE AND JUDICIAL
POWEE.

DiTision of Legislative and Judicial functions in England — ^Bills of Attainder —
Division in this country — Disputed power of judiciary, independently of
interpretation and constitutional limitation — ^What is a Law! — Power
of the State Legislatures examined — Retrospective Laws — Eesiilt of the
examination — Judicial power of construing doubtful provisions of written
law — ^History of its exercise in England — ^In France — ^Present condition of
the law on the subject — ^Power of the judiciary to enforce constitutional
restrictions.

Haying endeavored, in the preceding pages, to give
a general idea of the sources of our jurisprudence, of
the classification of laws, and of their various parts
and incidents, we now approach the subject of the
construction of statutes in doubtful cases. But some
preliminary considerations still present themselves.
Before entering on the details of interpretation, it is
indispensable to , have as correct an idea as is practi-
cable of the division of power in the political systems
which derive their origin from the great English
sources ; in other words, to understand, if possible, the
precise boundaries of the legislative and judicial fanc-
tions.* The questions which we are now about to

* Part of Mr. Dwarris' eleventh chapter, pp. 694 to 712, is devoted to a
very intelligent treatment of this subject. " The ioundariea of legislation and
of judicial imierpretaiion sought to be ascertained." He puts it, however, after
the discussion of the rules of construction. It seems to me that a correct
notion of the division of power should precede the consideration of the exer-

IMPERIAL INTERPRETATION. 14S

consider have no place in absolutely despotic govern-
ments ; where all power is centered in a single hand,
there now, as under the absolute forms of the later
Eoman government, the will of the sovereign makes,
applies, modifies, and interprets the law : quodprincipi
placet, hgis Twheb vigorem. The Emperor Justinian,
in a rescript to his prefect, Demosthenes, uses this
language: "We declare the imjierial construction of
laws, whether made on petition or in suits, or in any
way whatever, to be absolute and final. For if the sov-
ereign alone can make laws, he alone should interpret
them; why else, when questions have arisen in litiga-
ted controversies, have they been brought to us ? and
why, too, have judicial doubts reached our ears, if in-
terpretation does not proceed from us alone? Who,
indeed, is competent to solve the enigmas of the law,
except he to whom alone the power of legislation is
conceded? These absurd cavilings are, therefore, to
cease, and the emperor to be regarded the only inter-
preter, as he is the only maker of laws."* Under a

cise of the power. This part of Mr. Dwarris' eleventh chapter is reprinted
by Mr. Smith, and forms his tenth chapter on Legislation and Judicial Inter-
pretation.

* Definimus, autem, ornnem imperafomm legvm interpretationem, me in
preeibtii, give injudieiis, me alio qwcumque medofaetam, raiam etindvMtatam
hdberi. Si mim inpraaenti leges condere soli imperatori cqncessum est, et legei
interpretaH solo dignum imperio esse oportet; cur autem ex mggestionibus pro-
eerwm, si dvMtatio in litibus oriatur, et sese non esse idoneos vel svfficientes ad
deeimnem litis illi edstknent,, ad nosdeeurratw, et quare omnes amJnguitate»
judicum, quas ex legibus oriri eoemt, awes ampiimtrmtrce, d non a nobis inter-
pretatio mera proceditf Yelquis legvm cmigmata solvere, et omnibus aperire
idoneus esse videbitur, nisi iseui soli legislatorem esse concesmm est f Exphm,
itaque, his ridicuhsis arnliguitatHms, tarn eortditor quam interpres legum solus
imperator juste «cistimaMiur. — Cod. de Legibus, Lib. i. Tit. xiv. § 12. Such
was the language that the master of the ancient world could, with impunity,
make use of. Christendom now happily offers no parallel, unless, indeed,
it be Russia;

144 DIVISION OF POWER IN ENGLAND.

system of government wliicli breathes this spirit, all
rules of interpretation, indeed, disappear. The ques-
tions upon the consideration of which we are now enter-
ing, can only present themselves under those forms of
government the effort of which is to establish liberty
by regulating the exercise of power* The first step
in this regulation consists in the division of authority ;
and just in proportion to the restraints imposed upon
absolute and arbitrary acts of government by the care-
ful distribution of authority, just in that proportion
does the science of jurisprudence acquire form and cer-
tainty; just in that proportion do the law and its
ministers rise in influence and importance.

It is familiar to the student of history that, from an
early period, the functions of the English government
have been, like those of our own, distributed between
the legislative, the judicial, and the executive branches
of the system ; out of this division arise the questions
that we now proceed to consider.f The separation of
the functions of government, in the mother country,
has, however, been the result of a long struggle, waged

* Terrxpopuli omnes ad aquilonem podti, libertaUm quamdam ipirant. —
Bodin de Eeipub., Lib. i. cap. viiL p. 117 ; ed. 1591.

t We are to recollect, says Mr. Grote, that the division of powers into
legislatiye, executive, and judicial, and especially of the two latter, is quite
of modern origin. The archon of Athens was a judge as well as an admin-
istrator. The Roman kings and the consuls, before the appointment of the
praetors, sat as magistrates, as well as ruled as executive ofBcers ; and, in
modem Europe, the same confusion of powers is to be found. — History of
Greece, vol v. ch. xlvi. pp. 477 and 478.

It would be curious accurately to investigate the results of the division.
The community has doubtless gained ; but has not the individual lost ?
Were not the Roman or Grecian public men, who alternately conducted
every branch of affairs, more accomplished and complete personages than
our modems, subdivided as we are, into generals, admirals, ministers,
diplomatists, and orators?

DIVISION OF POWER IN ENGLAND. 145

for centuries, "witli various fortunes, between its differ-
ent component parts. So little was tte importance of
the distribution at first understood, that, originally,
the English legislature habitually exercised judicial
powers. Cases of first impression, matters presenting
serious doubt or difficulty, were adjourned by the
courts into Parliament, there to be resolved and de-
cided.* So says Bracton : Si aliqua nova et mconsueta
emerserint, et qucB nuTiquampriibs evenerint, et ohscurum
et diffioUe sit eorum judidum,^ tunc ponantur judida in
respeoPwrn usque admagnam ouria/m^ ut ibiper consilium
cwricB ter'minen1m'.\ But this jurisdiction has long

* Bracton, lib. i. c. 2 ; Coke, 2 Inst 408 ; Dwarris, 695 ; and ante, p. 23.

+ The second chapter of Petyts' Jm Parliamentiwkmh, a curious work,
to which I shall hereafter again refer, is entitled, " Several authorities to
prove that, by the ancient laws and customs of England, when any case of
difficulty did happen to arise in Westminster Hall, the judges adjourned

such cases^(2»i«9'dt^'"^'''''**™) ■"*?■"* ''''^i''''''''*''*'"'"-^'*''^'''''"*'**'''''-'' Indeed,
we learn from one of the most sagacious, as well as one of the most profound
among the students of the early institutions of the mother country, that the
primary functions of the representative bodies of the middle ages were to
administer or execute their law. Their legislative powers were introduced
in a secondary stage. Sir Francis Palgrave says, " It must be recollected,
however, that the sphere of action anciently belonging to popular represen-
tation, was not that to which we are now accustomed. Legislation was an
accidental incident ; their primary intent was the administration of the law.
The mode, by which the change of functions of the select bodies was ef-
fected, can be traced with sufficient distinctness. They were the judges, as
well as the witnesses, both of law and fact ; for the law itself^ unwritten and
unrecorded, living in custom and usage, and not gathered from volumes or
parchments, was a fact to be ascertained like any other, from the testiiliony
of the judges or representatives of the community. Language, therefore,
which is very inaccurate, if considered with reference to the jbrtsprudence
of modern England, may be applied with propriety to the. Noeemda or the
Echevins; and hence the acquisition of their legislative powers. Called in
first for the purpose of delivering the law, they easily accepted 'the duty of
suggesting any amendments wliich it required ; a task for which they w^e
well fitted, both by station and by knowledge."^-PjJgrave's Englisli
Commonwealth, voL i. ch. 3, p. 127.
10

146 BILLS OF ATTAINDER.

since disappeared, and tlie only remains of tlie exercise
of judicial power by Parliament consist in its capacity
to pass bills of attainder, and of pains and penalties.
These, says Mr. Dwarris,* " are instances of tlie trans-
cendent power of the legislature to punish offenses
otherwise than according to pre-ordained law, by a
discretionary severity in lieu of an invariable standard.
They furnish an instance of the legislature quitting its
proper province and superseding the judicial functions,
and that, in order to punish the transgression of laws
which they have neglected to propound. In punishing
criminals by biU, the king, lords, and commons are
accusers and judges, charging, convicting, and con-
demning uno flatii. * * This is the only familiar
instance of the legislature quitting its proper province
and superseding the judicial functions."f

In this country, this vicious exception has been
cut up by the root; our State legislatures are pro-
hibited, by the Constitution of the United States, from
using the terrible weapon of attainder; and all our
constitutions, State and federal, declare the distinction
to be observed between the three great powers of gov-
ernment, without, however, as we shall see hereafter,
making any very precise or careful definition of the
nature or extent of these powers.

It is, then, as a general rule, equally true of England
and of the United States, that while the law-making
power is exclusively confided to one branch of the
government, that department neither construes nor
enforces its own acts. The enactment of laws belongs
to the legislature, their construction and application to

* Page 254. t Dwarris, Part i. p. 254, and Part iL p. 712.

JUDICIAL POWER. 147

the judiciary, the enforcement to the executive. The
first point, then, that solicits our attention is to ascer-
tain if practicable, with precision, the boundaries that
separate the legislative from the judicial functions.

In our system there are two certain and unquestioned
checks on legislative power, the application of both of
which is placed in the hands of the judiciary. The
first limitation of legislative power arises from the
power of construction vested in the courts, and is applied
to written law of every kind of which the language is
ambiguous or contradictory. The second limitation,
and one peculiar to this country, consists of the consti-
tutional restrictions imposed on the legislature by the
people, and the enforcement of which, as we shall here-
after see, is confided to the judiciary.

The Subject, therefore, naturally resolves itself into
two heads :

First. The judicial power over acts of the legisla-
ture, independently of any constitutional restraints
on legislative action.

Second. The judicial power as used to apply and en-
force constitutional restrictions.

First. The judicial prnjom" over acts of the legislature,
independently/ of any constitutvmal resi^adnts on legis-
lative action. — In examining this subject, it is neces-
sary, first, to consider whether the power of the
judiciary, in any case, goes beyond that of construction
or interpretation, and the enforcement of constitutional
restraints; whether, in any instance of heedless, im-
proper, unjust, or immoral legislation, where no doubt
exists either as to the meaning of the enactment, or the
intention of the legislature, where no question either
of constitutional law or interpretation arises, — whether

148 JUDICIAL POWER.

the courts can, then, on any other ground, interpose to
arrest or nullify the action of the legislature.

This discussion necessarily involves the question of
the absolute or supreme authority of the legislature, in
cases where it is not fettered by constitutional impedi-
ments ; and is one of much interest. It has been fre-
quently examined- in various points of view, and by
writers of great authority; some contending for the
absolute supremacy of the legislature, others for the
superior authority of the courts as competent to declare
and enforce the doctrines of natural justice. Much ana-
logous decision has also been had as to the true source
of government, the nature of its origin, and the mode
in which its functions should be exercised — the rights
of man in a state of nature, and the power of society
to abridge those rights. For those who are ctirious in
abstract speculations of this kind, the works of Locke,
Hooker, Domat, Grotius, Burlamaqui, Puffendorf,*
Woodeson, Hall, Paley, and other-writers of this class,
may be consulted with interest.

Mr. Locke thus defines the limits of the legislative
power : " These are the bounds which the trust that
is put in them by the society and the law of God and
nature, have set to the legislative power of any com-
monwealth, in all forms of government :

'■'■First. They are to govern by promulgated, estab-
lished laws, not to be varied in established cases, but
to have one rule for rich and poor, for the favored at
court and the countrymen at plough.

"Second. These laws, also, ought to be designed ulti-
mately for the good of the people.

* Copious citations from these authors will be found in the 7th chapter
of Mr. Smith's work on Statutes.

JUDICIAL POWER. 149

'■'■Third. They must not raise taxes on the property
of the people without the consent of the people, given
by themselves or their deputies.

'■'■Fourth. The legislature'neither must nor can trans-
fer the power of making laws to anybody else, or place
it anywhere but where the people have."*

But discussions of this kind throw little light on the
question now before us. The great writers of the two
last centuries, of the class to which Mr. Locke belongs,
were bold and adventurous pioneers in paths in
which we now securely and familiarly tread. The
truths that they elaborately argued, are our axioms ;
and the profound disquisitions which have rendered
their names immortal, tend but little to solve the
novel and complex questions which our age has called
into being. The precise question for our consideration
is whether, under those governments which, like the
ifeiglish and American, profess to divide the powers of
the great machine of government, to give the legislative
fimctions to one and the judicial to another, — whether
under these systems the judiciary can arrest the opera-
tions of the legislative branch, on the sole ground that
they are repugnant to natural justice or morality. The
subject of the retroactive effect of statutes will be sep-
arately discussed. And, first, let us see how the doctrine
stands in the mothei! country.

It has been there contended, that there are certain
fundamental principles of right and justice which even
parliamentary power cannot with impunity infringe
or disregard; and that if the legislature contemns
them and passes acts in violation of them, it is the duty

* Locke on CivU GoTemment, qd. of 1769, toI. ii. p. 273, Book ii. cap.
xi. ; Of the Extent of the Legislative Power.

150 PARLIAMENTARY SUPREMACY.

of the judiciary to declare sucli acts null and void.
This principle was laid down in England, and at an
early period, "bj persons of high authority. Day sued
Savadge, in trespass ; the defendant justified, as collec-
tor of the city of London, and alleged that the goods
were subject to be distrained for wharfage, and th£|,t he
had thus taken them. The plaintiff replied, that he
was a freeman of the city of London ; and that, as such
freeman, he was by custom of the city, exempt from
the payment of taxes; the defendant rejoined, denying
the custom, and averring that whenever a custom of
the city of London came in issue, it was a custom to
refer it to the mayor, &c.f to certify as to the alleged
custom ; and prayed a writ to issue to obtain such cer-
tificate. The plaintiff insisted that the case should be
heard by a jury, on the ground that the custom alleged
for the trial by certificate, was against law and common
reason ; and on demurrer, judgment was given for the
plaintiff, on this among other grounds; that it was
against right and justice and against natural equity,
to allow the mayor, <fec., their certificate, when they
are to try and judge their own cause; and this lan-
guage was used : " By that that hath been said, it appears
that though, in pleading, it were confessed that the
custom of certificate of the customs of London is con-
jwmed Tyy Parliament^ yet it made no change in this
case, both because it is none of the customs intended,
and because even an act of Parliament made against
naturall equitie— as, to make a man judge in his own
case — is void in itself; ior jura naturce sunt immuta-
hilia, and they are leges legumP* So again, where a

* Day vs. Savage, Hobart, 85 ; Dr. Bonbam's Case, Eep. part viii. p.
118.

' PAELIAMENTARY SUPREMACY. 151

physician was arrested for a fine imposed by the College
of Doctors, Lord Coke said, "The censors cannot be
judges, ministers, and parties ; judges to give sentence
or judgment, ministers to make summons, and parties
to have the moiety of the forfeiture ; quia aliquis non
Mxet essejudeao in propria causa', imo, iniquvm est aid-
quern sum rei esse judicem. And it appears, by our
books, that in many cases the common law will control
acts of Parliament, and sometimes adjudge them to be
utterly void ; for when an act of Parliament is against
common right and reason, or repugnant or impossible to
be performed, the common law controls it and adjudges
such act to be void." And Lord Holt, to the dismay,
says Mr. Dwarris, "of all mere lawyers, manfully
expressed his opinion, that the observation of Lord.
Coke was not extravagant, but was a very reasonable
and true saying."*

These early cases are replete with the spirit of lib-
erty ; but they do not seem to be sustained, in England,
by the language of modern authority!. The English
Parliaments have been the chief bulwarks of English
liberty,f and the leading aim of liberal minds there has

* City of London iis. Wood, 12 Mod. 669 ; Dwarris, p. 480. Lord Elles-
mere, in his observations on Coke's Beporte, denounces the opinion with
great severity. Dwarris, p. 481. As to parliamentary omnipotence, Lord
Holt has quaintly said, "that it may do several things that look pretty
odd ;" it can make Malta in Burope, and can make a woman a mayor or a
justice of the peace; but it cannot change the laws of nature so as to make
a woman a man, or a man a woman. 2 Joi#12; Stephen Elec. L. p. 110;
Dwarris, p. 623.

t Mr. Justice Brown has put this well, in the recent case of The
People «s. Berberrioh & Toynbee, 11 Howard Pr. E. 318. " The provisions
of the great charter, and the acts of later times for the prdtection of life,
liberty, and property, are statutory regulations which Parliament may repeal
or modify at pleasure. They are limitations upon the power of the crown,
and not upon that of the Parliament. * * It is an historical truth, that

152 PARLIAMENTARY SUPREMACY.

been to magnify their power and authority. Coke,
himself, siays * '^ That the power and jurisdiction of
Parliament is so transcendent and absolute, that it can-
not be considered, either for causes or persons, within
any bounds ;" and, says Blackstone, " It hath sovereign
and. uncontrollable authority in making, confining,
enlarging, restraining, abrogating, repealing, revising,
and expounding of laws, covering matters of all possible
denominations, ecclesiastical or temporal^ civil, military,
maritime, or criminal ; this being the place where that
absolute despotic power which must in all govern-
ments reside somewhere, is intended by the constitu-
tion of these kingdoms." * * "So long as the
English constitution- lasts, we may venture to affirm
that the power of Parliament is absolute and without
eontrol."f " There is no court," he says again, J " that
has power to defeat the intent of the legislature, when
couched in such evident and express words as to leave
no doubt whether it was the intent of the legislature or
no." " Absolute power," says Mr. Dwarris,§ " must be
placed somewhere, and to it implicit obedience must be
paid. It can nowhere be so safely placed as in the
hands of those who frame the laws, though the laws
they establish may sometimes be pernicious, opposed
to morality, and, as we can collect it, to the divine
wDl as measured by the laws of God, which must be

the struggle there has constaimy heen, to put the real or pretended prerog-
atives of the crown under restraint; sometimes by the barons, as in the
time of the great charter ; sometimes by the judges, as in the time of Lord
Coke ; and sometimes by the Parliament, and especially the House of Com-
mons, as in the times of the great rebellion, and the act for the settlement
of the succession, in 1688."

* 4 Inst. 86. + Bl. Gmn., Book i. ch. 2.

X Introd. § 810. § Page 483.

PARLIAMENTARY SUPREMACY. 153

the ultimate test; however laws may be unjust, but
they will still be obligatory." He suggests only two
limitations: first, that aU laws which attempt to
bind future Parliaments are, ipso facto ^ void ;* and sec-
ondly, that if any provision of a statute conflicts with the
law of God and nature, the law itself will be respected,
but the vicious part will be deemed excepted out of
the statute. He says, " The English lawyers adopt a
more cautious and a very characteristic mode of pro-
ceeding. They do not inculcate impHcit obedience to
a law which leads to absurd consequences, or to an in-
fraction erf the natural or divine law ; neither do they
proclaim the law itself (which, may be immoral, but
cannot be illegal) of no validity, and null and void.
They only hold it inapplicable, and declare that the
particular case is excepted out of the statute.f For
this position Mr. Dwarris cites no more recent authority
than a dictum of Lord Coke ;% nor can I reconcile it
with his previous reasoning. The distinction is, I be-
lieve one of a metaphysical and not a practical char-
acter; and I apprehend that no modern case can be
found where the English judiciary have attempted to
question the supremacy of Parliament. " Mr. Dwarris,
himself, closes by Baying,§ "The general and received
doctrine certainly is, that an act of Parliament of which
the terms are explicit and the meaning plain, cannqt
be questioned, or its authority controlled in any court
of justice." In the recent discussion which took place
in the English courts, on the subject of the privilege of
the House of Commons, the house printer having been

* Dwarris, p. AtQ ; Jeiik. Cent. 27.
t Part ii. pages 484 and 628.
X 2 Inst. 25; 2 Inst. 84; Dwarris, 624.
§ Pag© 484,

154 LEGISLATIVE POWER.

sued for an alleged libel, and pleading in defence the
orders and privileges of the house, though the court of
King's Bench denied the validity of the plea, the ab-
solute power of Parliament was admitted. " ParUoh
ment" said Lord Denman, " is said to be supreme ; I
most fully acknowledge its supremacy."* It is on this
principle too, that it is understood that private acts of
Parliament are upheld as a common mode of assurance.f
In this country, however, a disposition has been mani-
fested, and by high .authority, to adhere to the doc-
trine of the earlier English cases which we have cited,
to deny the existence of any despotic or arbitrary au-
thority in the legislature, and to assert an inherent power
in the judiciary, independently of constitutional pro-
visions, to annul a legislative enactment considered by
them to be contrary to the fundamental principles of
natural justice or morality. It will be useful to refer
to some of the cases. The clause in the Constitution
of the United States, Art. 5, of Amendments, that pri-
vate property shall not be taken for public use without
just compensation, relates only to the power of the
federal government, and operates as a restraint on that
government alone. And no similar provision was in-
troduced into the constitution of the State of New
York till the adoption of the constitution of 1821 ; but
in a case decided by the Supreme Court of that
State, before the adoption of that constitution, where
the canal commissioners had been authorized to take
land, but no provision had been made for compen-
sation, the court said that the constitutional pro-

* Stockdale vs. Hansard, 11 Ad. & Ell. 263 ; also, see Mr. Justice Coler-
idge's opinion in the same case ; 11 Ad. & EU. 263.

t 2 Bl. Cm. 814; 2 Kent Om. 448; Powers vs. Bergen, 2 Seld. 858.

LEGISLATIVE POWER. 155

vision was merely declaratory of a ^eat and funda-
mental principle of government, and that any law
violating that principle would be deemed a nxdlity, as
against natural right and justice. This case was re-
versed in the Court of Errors on various grounds, but
in doing so, they said, " This equitable and constitu-
tional right to compensation, undoubtedly imposes it
as an absolute duty on the legislature to make pro-
vision for compensation, whenever they authorize an
interference with private right."*

In the same State, Mr. Chancellor Walworth has
said :f

" The principle upon which forced sales of private property were
compelled by the civil law for the public good, were certainly as ex-
tended as any government can ever claim consistently with the private

=" Bogers vs. Bradshaw, 20 J. B. 735. Language a good deal to the same
effect wasused inthel'eopleBs. Piatt, it J.B. 195; but that case turned more
properly on the application of the prohibitory clause in the Constitution of the
United States, restraining the States from passing any law impairing the
obligation of contracts. The opinion of Mr. Justice Bronsqn in a familiar
case in the State of New York, relafing to private roads, Taylor us. Porter,
4 Hill, iiO, is sometimes referred to as sanctioning the idea of there being
other restraints to be found in our constitutions besides those which their
letter contains ; but it is no authority for any such inference. That accu-
rate lawyer, as will be seen when we come to analyze the case more
closely, puts his decision entirely on the express terms of the constitution ; he
first shows that the act authorizes the taking of private property for private
use, and argues that this does not fall within the phrase " legislative power."
He then proceeds to say, " But the question does not necessarily turn on
the section granting legislative power ;" and the main burthen of his argu-
ment is to show that the act in question violated those provisions of the law
which guarantee to the citizen, in all questions affecting his rights, the
protection of the "law of the land," and "due process of law." The
case has often been relied on as claiming for the judiciary a general control
over the moraUty or justice of acts of legislation. It does no such thing. It
is only a clear, accurate, and sound exposition of express constitutional
provisions. The case is cited with approbation in Powers vs. Bergen, %
Seld. p. 858.

t Varick vs. Smith, 5 Paige, 1S7.

1S6 LEGISLATIVE POWER.

rights of its citizens,. And it is not pretended that under the arbitrary
government of the Roman emperors, it was lawful or justifiable for the
sovereign to take the property of one citizep and give it to anothej:,
where the public interest was not concerned in such transfer. Perhaps
in England, where the Parliament is said to be om nipotent, so far as
the exercise of mere humali power is concerned, there may be no
remedy for such an abuse of power where it is by a concurrent act of
three estates of the realm. But in a State which, is governed by a
-written constitution like ours, if the legislature should so far forget its
duty and the natural rights of an individual, as to take his private
property and transfer it to another, where there was no foundation for
a pretense that the public was to be benefited thereby, I should not
hesitate to declare such an abuse of the right of eminent domain was
an infringement of the spirit of the constitution, and therefore, not
within the general powers delegated by the people to the legislature."

In a recent case in New York, Mr. Justice Barculo
reviewed the whole subject, and came to the conclusion,
independent of any constitutional restriction, that the
power of the legislature was not supreme, and that
upon principle as well as upon authority, a legislative
act, whether it be a positive enactment or a repealing
statute, which takes away the vested rights of property
of *an individual for any purpose (except where prop-
erty is taken for public use and upon a just compensa-
tion), is to be adjudged invalid, as being above the
power and beyond the scope of legislative authority.'^
And the same learned judge, in a subsequent case, de-
clared that in. such cases, the rights of parties " rested
not merely upon the constitution, but upon the great
principles of eternal justice, which lie at the founda-
tion of all free governments."f

In another case in New York, where land was devised

* People vs. Supervisors ofWestchester, 4 Barb. 64, 74,
t Benson vs. Mayor of New York, 10 Barb. 223.

LEGISLATIVE POWER, 157

to trustees for the iise of the testator's daughter for life
with remainder in fee to her issue living at her decease,'
and for want of such issue to all the grand-children of
the testator then living, and during the life of the
daughter a statute was passed authorizing the trustees
to seU the lands to pay certain charges, and to invest
the surplus, &c.,— it was held, no necessity being
recited in the statute nor appearing by proof aiiunde,
that the act was void as being an unauthorized interfer-,
ence with private property. And Mr. Justice Jewett,
delivering the judgment of the Court of Appeals,
said,* " Here the sovereign and a bsolute power re-
sides in the people, and the legislature can only exer-
cise such powers as have been delegated to it. The
right of eminent domain or inherent sovereign power,
gives the legislature the control of private property
for public uses, and only for such uses ; it follows that
if the legislature should pass an act to take private
property for a purpose not of public nature, — as, if it
should provide through certain forms to be observed,
to take the property of one and give it (or sell it
which is the same thing in principle) to another, or if
it should vacate a grant of property under the pretext
of some public use, — such cases would be gross abuses
of the discretion of the legislature, and fraudulent
attacks on private rights, and the law would clearly
be unconstitutional and void."f

* Powers el al. vs. Bergen, 2 SeliJ. 358.

t The reasoning of this decision is not very clear. It may be said,
however, that it indirectly but evidently arrogat es to the court a power of
control over the acts of the legislature,: independently of constitutional-re-
straint. The reservation of powers to the people is a very doubtful doctrine,
for there are no powers specifically delegated to the legislature by the con-
stitution of the State of New York. The cage substantially asserts that an

158 LEGISLATIVE POWEB.

So, says Mr. Justice Strong, in the same State,
"I am unwilling to admit that there is any des-
potic power in any of our political institutions. It is,
I conceive^ beyond the power of the legislature to tax
one man, or the inhabitants of one locality, exclusively
for the benefit of another."*

In the State of Connecticut the same doctrine has
been declared. Hosmer, J., dissented from the opinion
of those who assert the omnipotence of the legislature
in. all cases where the constitution has not imposed an
explicit restraint. He held, if there should exist a
case of direct infraction of vested rights too palpable
to be questioned, and too unjust to admit of vindica-
tion, he could not avoid considering it a violation of
the social compact, and within the control of the
judiciaj'y. He asked the question, "If a law were
made without any cause, to deprive a person of his
property, or to subject him to imprisonment, who
would not question its legality, or who would carry it
into effect ?"f

So in Vermont, it has been said "that the exemption
of a particular person from a general liability by law
attaching to all other persons similarly situated, would
be void, probably as an act of special legislation,
upon general principles of reason and justice, like a
particular act allowing one citizen perpetual exemp-

abuse of discretion or a fraudulent attack on private rights, may render an act
unconstitutional, independently of constitutional provisions. And the idea
that the facts on which the legislature decides and determines to act, must
be set out in the act or otherwise appear, evidently substitutes the judicial
sense of discretion and correct dealing in the place of the law-making power
and constitutional enactment.

* People vs. Edmonds, 16 Barb. 629.

t Goshen vs. Stodnington, 4 Conn. 209.

LEGISLATIVE POWEE. 169

tion from punisliment for all offenses, or from all
liability for torts."* And in the same State it has been
said thatj " altogether aside from any express provision
of the constitution, a statute taking property without
nece^ity of a public character, or without compensation
in some form, would doubtless be regarded as entirely
without the just limits of legislative power."f And
so it has been decided in North Carolina. J

" I cannot subscribe to the omnipo>tenice of a State
legislature," says Chase, J., in the Supreme Court of
the U. S.,§ " or that it is absolute and without control,
although its authority should not be expressly re-
strained by the constitution or fundamental law of the
States. * * There are certain vital principles in our
free republican governments, which will determine
and overrule an apparent and flagrant abuse of legis-
lative power, as to authorize manifest injustice by
positive law, or to take away that security for personal
liberty or private property, for the protection whereof
the government was established. An act of the legis-
lature (for I cannot call it a kw) contrary to the great
first principles of the social compact, cannot be con-
sidered a rightful exercise of legislative authority."

In the Supreme Court, Mr. Justice Story has held
this language : " The fundamental maxims of a free
government seem to require that the rights of personal
liberty and private property, should be held sacred.
At least, no qourt of justice in this country^ would
be warranted in assuming that the power to violate
and disregard them, a power so repugnant to the com-

* Hatch vs. Vennont Central R. R. Co., 25 Vermont, p. 49, 61.
t Hatch vs. Vermont Central R. R. Co., 25 Vermont, 49.
t Railroad Co. vs. Davis, 2 Dev. &BaL 451.
§ Calder vs. Bull, 3 DaU. 386.

160 LEGISLATIVE AND JUDICIAL POWER.

mon principles of justice and civil liberty, lurked
under -any general grant of legislative authority, or
ought to be inferred from any general expressions of
the will of the people. The people ought not tp be
presumed to part with rights so vital to their security
without very strong and direct expressions of such an
intention."*

It win be observed that aU these cases more or less
directly affirm the doctrine that there are certain re-
strictions on legislative action, not to be found in the
State constitutions nor in that of the United States ; that
these restrictions grow out of certain great principles
of right and justice ; and that when these principles are
infringed, it is the duty of the judiciary to arrest the
acts of the law-making power. The question is one
full of the gravest interest.

Before attempting, however, to test the reasoning of
these cases, or to bring our minds to a correct conclu-
sion in regard to the serious point which they present,
it is necessary first to consider the precise manner
in which the demarkation between the legislative and
judicial functions in this country is made. This is not
with us, as in England, the result of long usage, judicial
decisions, or parliamentary practice. Here it is a mat-
ter of positive and written law. The division of power
was a leading idea in the American mind at the time of
the Ee volution, and all our State constitutions bear its
impress. Without, I believe, a single exception, they
divide the attributes of government into three great
brancTies, the executive,, the legislative, and the judicial.
But, though the State constitutions generally attempt
to declare, with more or less accuracy, the powers of

* WillfinBon vs. Leland, 2 Peters, 627.

DIVISION OF POWER. * 161

the executive branch of the govermnent, they appear
to make little effort to (describe with precision the char-
acter and functions of either the legislative or judicial
department ; and they confine themselves, in almost
every instance,* to the mere declaration that the law-
naaking and judicial powers shall be kept separate and
distinct; without endeavoring to define what is the true
nature, object, or scope of a law, or what the correct char-
'acteristics of a judicial proceeding. In a recentlcase
in New York,f it has been said, "Written constitu-
tions not only declare, of what the government shall
consist, into what departments it shall be separated,
* * but they also prescribe the exact confines within
which these functions shall be executed, to what sub-
jects they may or may not extend, and the degree
of power, absolute or limited, which each separate
department may exert." But this claims for our
constitutions much more exactness than they possess.
We find their language of a very vague and general
character, going, in fact, little beyond the mere crea-
tion of the three great departments by name. So the
Constitution of the United States declares, Art. III. § 1,
"The judicial power of the United States shall be
vested," &c. So the constitution of the State of New
York (1821) declares, Art. I. "The legislative power
shall be vested in a Senate and an Assembly ;" Art. III.
"The executive power shall be vested in a Governor."
The constitution of Maine provides, J "The powers of

* In New Hampshire, Constitution, Part IT., an effort has been made to
define the legislative power, but I think with no very marlied success,
t Rodman vs. Munson, 13 Barb. 63.
I Art. III.

162 DIVISION OF POWER.

this government shall be divided into three distinct
departments, the legislative, executive, and judicial.
No person or persons belonging to one of these
departments shall exercise any of the powers prop-
erly belonging to either of the others, except in the
cases herein expressly directed and permitted." So
in Massachusetts,* "In the government of this com-
monwealth, the legislative department shall never
exeMse the executive and judicial powers, or either
of them ; the executive shall never exercise the legis-
lative and judicial powers, or either of them; the
judicial shall never exercise the legislative and execu-
tive powers, or either of them ; to the end that it may
be a government of laws, and not of men." So in
Maryland,-]- "The legislative, executive, and judicial
powers of government ought to be forever separate and
distinct from each other, and no person exercising the
functions, of one of said departments shall assume or
discharge the duties of any othpr." So in Virginia, if
" The legislative, executive, and judicial powers should
be separate and distinct." In Alabama, the constitu-
tion declares,! " The power of the government of the
State shall be divided into three distinct departments,
and each of them confided to a separate body of magis-
tracy, to wit: those which are legislative to one, those
which are executive to another, and those which are
judicial to another. No person or collection of persons
being one of those departments, shall exercise any'^
power properly belonging to either of the others, ex-

* Constitution, Part I. § 30. t Declaration of Rights, Art.6.

I Bill of Rights, Art. 5. § Article II,

WHAT IS A LAW! 163

* *

«ept in tie instances hereinafter expressly directed or
permitted."*

A very little reflection is siifficient to satisfy us that
the mere use of the terms executive, legislative, and
judicial, is no satisfactory definition of the respective
powers ; and experience has alrcsady shown the difficul-
ties attendant on this very general language.

What is the legislative power? What is a law?
Is it a rule of universal application; is it a rule of
prospective appliqation 1 Can it be jnade in opposition
to the principles of natural justice? Can a law
be made to determine private rights ? Can a law be
enacted to decide private controversies? We shall
find these questions, both on abstract inquiry and also
in reference to the necessities of our complex political
organization, not easy to answer ; and yet, unless an-
swered, how are we to say with accuracy in what the
the legislative functions consist, or where they stop?
The French Code; by a fornial and express provi-
sion, prohibits all retrospective legislation, and the
principle is generally admitted to be sound ; but no
such universal restriction would answer with us, as our
legislatures are constantly passing laws of a retrospec-
tive character. Such are the laws declaring certain
acts of persons irregularly elected, valid ; correcting
assessment rolls irregularly made ; and many others of
like character. These laws have never been ques-
tioned ; and the denial of the power would, in a new

* Of this constitution, the Supreme Court pf the United States has said
" that, though somewhat peculiar, it is not snhstantially different from that
of Virginia. The particular inhibition of its' constitution only contains, in
terms, that which arises from the construction of the more general consti-
tutions of the other States." Watkins vs. Holman, 16 Peters, pp. 25 and 60.

164 LEGISLATIVE POWER.

country where forms are often overlooked, le&d to very
serious consequences * To this we shall again have
occasion to refer, when we come to speak of retrospec-
tive statutes. So again, as to legislative acts affecting^
private property; By constitutional provisions gener-
ally adopted, private property can be taken for public
uses, on certain terms. But can it be taken for private
uses ? Is an act depriving one man of his property for
the benefit of another, a latv f Does it come within
the scope of the legislative, or of the judicial functions ?

Nor are these merely speculative or abstralct ques-
tions. "We shall find them presenting themselves in a
large class of cases which I am about to examine. The
difficulty, generally, appears to have arisen from a want
of clear perception as to the true nature of a law; or,
in other wotds, a want, of accurate notions as to the
boundary line which, under our systgra, divides the
legislative and judicial powers. I now turn to a more
detailed consideration of the cases in this country
where these questions have been considered, and which,
so far as they go, tend to give a practical definition ta
the term law, and to define the boundaries which sep-
arate the legislative from the judicial power.

And first, of cases where the legislature has sought
to divest itself of its real powers. Efforts have been
made. In several cases, by the State legislatures to re-
lieve themselves of the responsibility of their functions,
by submitting statutes to the will of the people, in
their primary capacity. But these proceedings have
been held, and very rightly, to be entirely unconstitu- '

* Syracuse City Bank vs. Davis, 16 Barb. S. C. R. 188; 1 Kent's Com.
p. 456.

LEGISLATIVE POWER. 165

tional and invalid. The duties of legislation are not to
be exercised by the people at large. The majority
governs, but only in the prescribed form; the intro-
duction of practices of this kind would remove all
checks on hasty and improvident legislation, and great-
ly diminisb the benefits of representative government.
So where an act to establish free schools was, by its
terms, directed to be submitted to the electors of the
State, to become a law only in case a majority of
the votes were given in its favor, it was held, in New
York, that the whole proceeding was entirely void.
" The legislature," said the Court of Appeals, " have
no power to make such submission, nor had the people
-the power to bind each other by acting upon it. They
voluntarily surrendered that power when they adopted
the constitution. The government of this State is
democratic ; but it is a representative democracy, and
in passing general laws, the people act only through,
their representatives in the legislature."* And in
Pennsylvania, in the case of an excise statute,f the same
stern and salutary doctrine has been applied. In some
•of the more recent State constitutions this rule has
been made a part of the fundamental law. So in
Indiana, the principle is now framed into a constitu-
tional provision which vests the legislative authority
in a Senate and House of Kepresentatives, and declares
that " no law shall be passed, the taking effect of which
shall be made to depend upon any authority except as
provided in the constitution." And under these pro-
visions it has been held, that so much of an act as

* Thome vs. Cramer, 15 Barb. 112; Barto vs. Himrod, 4 Seld. 483.
t Parker vs. Commonwealth,. 6 Barr. 507.

166 LEGISLATIVE tOWER.

relates to its submission to tlie popular vote, was null
and void*

For the same reason, that a legislature cannot return,
or throw back upon the people the duty of making
laws, for the same reason its powers cannot be dele-
gated by it to any inferior authority. " It will not be
contended," says Marshall, C. J., in the Supreme Court
of the United States, "that Congress can delegate to
the courts, or to any other tribunals, powers which are
strictly legislative."f

Another sort of departure from the true functions of
the law-making power, -has been manifested in other
cases. While, in the instances we have just noticed,
the State legislatures have sought to relieve themselves
from the responsibility justly devolving upon them ; in
other cases they have been induced to trench on the
functions of the legal tribunals, and, in the shape and
under the name of laws, to assume the right to pass
enactments really of a judicial nature. This practice has
encountered similar opposition, and has been unfailingly
and severely discountenanced. The legislature is to con-

* Maize vs. The State, 4 Indiana, 342. See an able and independent
opinion by Stuart, J. But I doubt whether, logically, the whole act should
not fail. 2^on constat that the legislature would have passed the law without
the clause in question. The New York and Pennsylvania decisions appear
to me, in this respect, to rest on a sounder basis.

t Wayman vs. Southatd, 10 Wheaton, pp. 1, 46. Still, it was intimated,
in this case, that; the federal legislature could delegate to the courts power
to make rules for their process ; and it was said, " The difference between
the departments undoubtedly is, that the legislature makes, the executive-
executes, and the judiciary construes the law; but the maker of the law
may commit something to the discretion of the other departments ; and the
precise boundary of this power is a subject of delicate and difficult inquiry,
into which a court will not enter unnecessarily.'' See also. United States
Bank vs. Halstead, 10 Wheaton, 61, where the delegation of power, as far-
as the process of the courts was concerned, was expressly held valid.

LEGISLATIVE POWER. 167

fine itself to making laws, and cannot make decrees or
determine private controversies. It has been said, that
which distinguishes a judicial from a legislative act
is, that the one is a determination of what the existing
law is in relation to some particular thing already doi^e
or happened, while the other is a predetermination of
what the law shall be for the regulation and govern-
ment of all future cases falling under its provisions*
This, like other definitions on this subject, may be defec-
tive ; but the general idea is correct, and the efforts of
the courts to repress the State legislatures within their
proper limits, are very curious and instructive. It is
difficult precisely to classify these objectionable laws,
but they will be found, generally, to range under three
heads :f First^ Where the legislature, by a special act,
has sought to dispense with a general law in favor of an
individual; Second^ Where the act is one of legislation
for a particular case ; Third^ Where theact is, in its
nature judicial, *. e. seeks to influence, directly or
indirectly, the: determination of private controversies.
In these cases the judiciary have, with an intelligence
and firmness that do them great honor, frequently inter-
posed to arrest the operations of the State legislatures ;
and the legislatures, with equal intelligence and
virtue, have, in a great majority of cases, recog-
nized the wisdom and propriety of the judicial
interference, and have, without contest or reluctance,
made their action conform to the decisions of the
courts. So in Vermont, an act of the Assembly
releasing a debtor imprisoned on execution at the

* Bates vs. Kimball, 2 Chip. 77.
\ Davison us. Johonnpt, 7 Met. 889.

168 LEGISLATIVE POWER.

suit of a party, from his imprisonment, and freeing
Ms body from arrest for a limited time, has not the
characteristics of a law, and is Void. And the court
say, " A prescribed rule of civil conduct, is the correct
and universally approved definition of municipal law."*
So in the same State, a special act of the legislature,
granting to a party the privilege of an appeal from a
decision of th.6 commissioner on claims of an insolvent
estate, after the time allowed by law for taking appeals
in such oases, is void, " as being in the nature of a sen-
tence or decree rather than a law, wholly retrospective
in its operation, and taking away a vested right."f So
in the same State, the legislature has been held to have
no power to pass an act authorizing a probate court to
renew a commission appointing commissioners upon the
estate of a deceased person, after the commission has
been closed, and after the expiration of the time lim-
ited by the general law for its renewal. { So in Mas-
sachusetts, where the Declaration of Eights declares
(Art. 20), that the power of suspending the laws or
the execution of the laws, ought never to be exercised
but by the legislature or by authority derived from it,
to be exercised in such particular cases only (which,
means upon such particular laws) as the legislature
shall expressly provide for, — ^it has been held, that a
resolve of the legislature, empowering a judge of
probate to take an administration bond in a mode
differing from that prescribed by the general laws of

* Ward vs. Barnard, 1 Aik. 121 ; Keith vs. Ware, 2 Verm. 175, decides
the same point; see also, Lyman vs. Mower, 2 Verm. 617; and Kendall vs.
Dodge, 3 Verm. 361.

t Staniford vs. Barry, 1 Aik. 316. So a general act of the same kind is
void, Hill vs. Town of Sunderland, 3 Verm. 607.

I Bradford vs. Brooks, 2 Aik. 284.

LEGISLATIVE POWER. 169

the commonwealth, is not imperative ; and that if it
were, it would be unconstitutional*

So in Tennessee, an act authorizing a party to
prosecute a suit in the name of a deceased plaintiff,
without taking out letters of administration, has been
held void. The act, it was said, takes away from some
tteir vested rights and gives them to ethers, changes
the nature of obligations,- and dispenses with the liabili-"
ties which all others in similar situations would lie
under.f So in Vermont, an act granting an appeal
beyond the time allowed by law, is a decree rather
than a law, and void.J

So an act of divorce giving alimony to the wife, has
been declared to be an exercise of judicial powers, and
void,§ Legislative divorces, like acts of attainder, are
of English origin; and both equally result from a
disregard of the true limits of legislation. As we shall
see hereafter, in this country attainders are absolutely
prohibited, and statutory divorces are coming to be
viewed with almost equal disfavor.

So an act by a State legislature declaring that a
widow is entitled to dower, is a judicial determination,
and void-l So an act of a State legislature authorizing
a party to sell so much of the lands of a deceased per-
son as would be sufficient to raise a given sum, and
directing the proceeds to be applied to the extinguish-
ment of certain claims against the estate of the
deceased, is a judicial act, and as such unconstitutional
and void.^

* Picquet, App't., 6 Pick. 65. See also Davison vs. Johonnot, 7 Met. 389.

t Officer vs. Young, 5 Yerg. 320.

t Bates vs. Kimball, 2 Chip, 7T.

§ Crane vs. Meginnis, 1 Gill & J. 463.

i Edwards vs. Pope, 3 Scam. 465.

H Lane vs. Dorman, 3 Scam. 238.

170 LEGISLATIVE POWER.

la a case where a statute of limitations had run
agaimst a demand, an act was passed allowing the
plaintiff to commence and prosecute his • suit in the
same way and manner as he might or could have done
if the same had heen, commenced within the time pre-
scribed by law ; but the court gave judgment notwith-
standing the law, on the ground that the power of dis*
pensing with the general law in particular cases, was
not vested in the legislature* In Maine, it has been
decided that the granting by the legislature of a new
trial after the time for appeal was elapsed, is a judicial
act and void.f So in Indiana, it was held that the
alloT^ance of a new trial was a judicial act, and that an
act of the legislaturegranting one, was unconstitutional
and void.J And the Supreme Court of New York
has well said, " The legislature has no right to deter-
mine facts touching the rights of individuals.§

We have next to consider a class of cases where legis-
lative bodies attempt to deal with private rights of prop-
erty by authorizing sales, by changing or divesting
titles. It is conceded that the legislature, in cases of
necessity arising from the infancy, insanity, or other
incompetency of those in whose behalf its acts are
sought, has power to authorize by general laws the
sale of private property for other than public uses, and
that without the consent of the owner; and on this

* Holden vs. James Admor, 11 Mass. 396.

t Lewis vs. Webb, 3 Greenleaf, 326 ; Durham vs. Lewiston, 4 Green-
leaf, 14(J. But where an act of the legislature of Connecticut granted a new
trial after the term of appealing had elapsed, It was held to be constitutional
on the ground that the usage of that State supported it, and that the usage
was to be taken as evidence of its judicial law. — Calder et uxor vs. Bull, 3
Dan. 886; 1 Peters Cond. R. 172.

} Young vs. The State Bank, 4 Indiana, 801. _

§ Parmelee vs. Thompson, 7 Hill, 77.

LEGISLATIVE POWER. 171

principle there are, in almost all the States of the
Union, general statutes authorizing guardians or ad-
ministrators, on proper application to sell the property
of-infants or decedents, when the welfare of the infant
or the true interest of the estate appears to require it.
And the passage even of a private act authorizing an
administratrix to sell real estate for the payment of
debts, it being proved that the estate was insolvent,
has been held by the Supreme Court ol the United
States, to be within the competency of the legislature,
and not to be a judicial proceeding ; and that although
there was a general law on the same subject. It was in
that case said, " The general law was passed from the
knowledge which the legislature had of its expediency
and necessity. The special law was passed from a
knowledge of its propriety in the particular case, * *
The legislature regulates descents and the conveyance
of real estate. To define the rights of debtor and
creditor is their common duty. The whole range of
remedies lie within their province."* On this subject,
however, there is considerable conflict between the
views of the judiciary in the respective States. In
Massachusetts, a resolve of the legislature authoriz-
ing the guardian of a lunatic to sell his real estate
and apply the proceeds to the payment of debts,
has been held valid.f And so, in the same State, a
resolve of the legislature authorizing a guardian to
sell the real estate of his ward, notwithstanding a
general power of the same kind resided in the courts,
was held to be a valid law. J But in New Hampshire,

* Watkins vs. Holman, 16 Peters, 25 and 61.
t Davison vs. Johonnot, 7 Met. 388.
J Rice vs. Parkman, 16 Mass. 326.

172 LEGISLATIVE POWEE.

the court has given as its opinion, that the legislature
can not authorize a guardian of minors, by a special
act or resolve, to make a valid conveyance of the real
estate of his wards, on the ground that it is a judicial
act* And in Tennessee, an act authorizing a guardian
to sell land of his ward, the proceeds to be assets for
the payment of debts, was held to be void on the
same ground. "It is difficult," says the court, "to
perceive how an act which determines that the prop-
erty of a party is liable for a given debt, and that it
shall be sold for the payment of that debt, is not a
judicial act; and yet in substance, that is the case
before us. It is true the sale is authorized for the
payment of debts generally ; but that can make no
difference. It is the same thing in principle, whether
there be ten creditors or only one."f

Notwithstanding the weight to which the judicial
opinions of Massachusetts and of the highest federal
tribunal, are justly entitled, I can entertain no doubt
that the decisions which deny the propriety of legis-
lative interference in these special cases, are founded
on the true principle. There is no difficulty in mak-
ing general laws for the administration of property in
all cases ; and to these general laws, and to their appli-
cation by judicial tribunals, individual cases should
be left. A legislative body is, from its character,
organization, and habits of business, entirely incom-
petent to pass discreetly upon questions involving
private rights ; and unless stringent rules prevent their
interposition, it is impossible to say how miich fraud,
injustice, and oppression may be perpetrated under
the guise of law.

* Opinion, 4 New Eamp. 572.
t Jones vs. Perry, 10 Yerg. 59.

LEGISLATIVE POWER. 173

There is still anotber class of cases, of this or an
analogous kind, where — ^wten by reason of unforeseen
contingencies, estates created by will or deed have be-
come insufficient beneficially to manage the property to
which they relate, and it is evident that no injury or
injustice can be done^ — the legislature is considered com-
petent to enlarge the powers of the person in the actual
enjoyment of the property. So in case of a devise in
trust for life to a woman, remainder to her issue, with,
power of appointment to her by will, and the age of
bearing children having passed, it is supposed compe-
tent for the legislature to enlarge the power to lease,
on the ground that the estate being but for life, the
property cannot be advantageously used, and that no
one can possibly be injured by the permission. So in
Pennsylvania, a private act of Assembly authorizing
the guardians of infant children the title to whose
real estate is vested in the guardians, to convey
the estate to a person with whom the parent of
the children, before his death, contracted to sell it, is
valid. " A power," says the court, " to supply the want
of trustees, to enable some person to complete defective
titles, instead of and for the use of infants and
others, must exist somewhere in every government."*
But the power of the legislature has been held to be
limited to cases which, on their face, show a necessity of
this nature, and that if neither the statute show any such
fact, nor proof is offered of such a state of things, an
act interfering in any way with a private right of pri-
vate property without the owner's consent, will be void.
So in New York, in a case already noticed, lands
were devised to trustees for the use of the testator's

* Estep vs. Hutchman, 14 Serg. & R. 435.

174: LEGISLATIVE POWER.

daughter for life, witt remainder in fee to certain par-
ties named in the will; and during the life of the
daughter a statute was passed authorizing the trustees
to sell the lands, out of the proceeds to pay their com-
missions, &c. &c., and to invest the surplus upon the
trusts declared in the will, — the general power of the
legislature was not denied ; hut the act was held void
upon the ground of no necessity appearing on the face
of the statute, or in any way, that the interests of the
remainder-men should be thus disposed of* Indeed,
except in very special cases, the power of the legisla-
ture to interfere with private rights of property,
has been generally resisted, and it has been de-
clared that the right to make Imos does not embrace
the authority to affect or interfere with private prop-
erty except where the right of eminent domain is ex-
ercised as provided for in the State constitutions. So
in a case involving the validity of the statutory pro-
visions of the State of New York, authorizing a pri-
vate road to be laid out over the lands of a person
without his consent ; Mr. Justice Bronson, after admit-
ting the right to take private property for public use,
making just compensation therefor, held as follows :

" There is no provision in the constitution that just compensation
shall be made to the owner when his property is taken for private pur-
poses ; and if the power exists- to take the property of one man and
transfer it to another, it may be exercised without any reference to
compensation. The power of making bargains for individuals, has not
been delegated to any branch of the government ; and if the title of A
can be, without his fault, transferred to B, it may as well be done with-

* Powers vs. Bergen, 2 Seld. 868 ; I have already commented on this
case, ante, p. 157. See another act of this kind in New York, entitled An
Act relative to land devised by Jas. Morris, deceased ; Laws of 1853, c. 14.

LEGISLATIVE POWER. , 175

out as with a consideration. This view of the question is suflScient to
put us upon the inquiry where can the power be found to pass such a law
as that here under consideration. It is not to be presumed that such
a power exists, and those who set it up should tell us where it may be
found. Under our form of'government, the legislature is not supreme ;
it is only one of the organs of that absolute sovereignty which resides
in the whole body of the people ; like other departments of govern-
ment, it can only exercise such powers as have been delegated to it,
and when it steps beyond that boundary, its acts, like those of the most
humble magistrate in the State who transcends his jurisdiction, are
utterly void. Where, then, shall we find a delegation of power to take
the property of A and give it to B, either with or without compensa-
tion ? Only one clause in the constitution can be cited in support of
the power, and that is the first section of the first article, where the
people have declared that ' The legislative power of the State shall be
vested in a senate and assembly.^ It is readily admitted* that the two
houses, subject only to the qualified negative of the governor, possess all
the legislative power of this State ; but the question immediately presents
itself — What is that legislative power, and how far does it extend ? Does
it reach the life, liberty, or property of the citizen who is not charged
with a transgression of the laws, and when the sacrifice is not demanded
by a just regard for the public welfare ? * * * The security of
life, liberty, and property, lies at the foundation of the social compact ;
and to say that this grant of ' legislative power ' includes the right to
attack private property, is equivalent to saying that the people have
delegated to their servants the power of defeating .one of the great
ends for which governments were established. If there was not one
word of qualification in the whole instrument, I should feel great
diflSculty in bringing my mind to the conclusion that the clause under
consideration had clothed the legislature with despotic power ; and such
is the extent of their authority if they can take the property of A either
with or without compensation, and give it to B. The ' legi slative
power of this State ' does not reach to such an unwarrantable extent.
Neither life, liberty, nor property, except when forfeited by crime, or
when the latter is taken for public use, falls within the scope of the
power."*

* Taybr vs. Porter, 4 Hill, 140. See the case cited with approbation
in Powers vs. Bergen, 2 Sel. 358. But as we have already seen, ante p.
155, Mr. Justice Bronson does not rest his decision merely on this

1T6 ■ LEGISLATIVE POWER.

"We thus find that practice and experience are grad-
ually supplying the definitions which the State consti-
tutions omit. It is, in truth, extremely difficult to
define with any precision, the exact nature of a law.
Omnia deflnitid in jure civili periculosa est / parv/m
est, enim, ut non subverti posset* says the Digest ; and
this is eminently true of the subject before us. . Laws
are usually intended for future cases ; but we shall see
hereafter, that they are often rightly and necessarily
retrospective. They are in one sense general and uni-
form ; but in others they are strictly local and partial.
They usually afifect public interests ; but they often re-
late only to private objects. So that any attempt to
define, by precise terms, the boundaries of the legisla-
tive duties, would probably occasion difficulties greater
than those resulting from the present imperfect nomen-
clature. The Supreme Court of the United States has
well said, "It is difficult to draw a line that shall show
with precision the limitation of powers under our form
of government. The executive, in acting upon claims for
services Tendered, may be said to exercise, if not in
form, in substance, a judicial power. And so, a court
in the use of a discretion essential to its existence, by
the adoption of rules or otherwise, may be said to
legislate. A legislature too, in providing for the pay-
ment of a claim, exercises a power in its nature
judicial."f

We may, however, perhaps, deduce as correct con-

construction of the phrase " legislative power." He rather makes his judg-
ment depend on the true appUcation of the clauses " law of the land "
and " due process of law."

* L 202, ff. de Reg. Jur.

t Watkins vs. Holman, 16 Peters, 25.

WHAT IS A LAW. 177

elusions from the decided cases which we have thus far
examined :

First. That a law must receive its final sanction and
enactment from the legislature, and that, the trust of
the popular representatives can neither be returned to
the people, nor delegated to any other power.

Second. That a statute which dispenses in favor of
some particular individual, with the general rules gov-
erning similar cases, does not come within the rightful
attributes of legislative power, and is not to be regard-
ed as a law.

Third. That a statute which seeks to affect or influ-
ence the determination of any private contested right,
is for the same reasons equally vicious and void.

Fourth. That a statute which, without some controll-
ing public necessity and for public objects, seeks to
affect or interfere with vested rights of private prop-
erty, is equally beyond the true limits of the legislative
power.

To all these rules, the ingenious mind will readily
suggest exceptions ; but while they do hot claim
the accuracy of definitions, they will serve, perhaps,
as an approximation to correct ideas upon the sub-
ject. The correctness, of the last rule tutns, indeed,
on the meaning attached to the words " vested rights
It is very certain that the legislature cannot deprive
a man of real property in which he has either a vested
or a contingent right; but there is, unfortunately, a
Targe class of cases wh^re, by statutes changing reme-
dies, repealing laws, and retroactive enacinients, posi-
tive and absolute rights are taken away. Thus, in the
case of a law abolishing arrest and imprisonment for
debt, the remedy is in the power of the legislature ;
and the law may, if the legislature sees fit, be made
13

178 BILLS OF RIGHTS.

retroactive, and in that case tlie right of the plaintiff
against the bail, unless he is absolutely fixed, is com-
pletely defeated. Cases of this and an analogous kind,
frequently present great suffering and great loss, result-
ing ftom reckless legislation; still, the right of the
legislature to interfere has been repeatedly affirmed,,
and is generally recognized. Until some clearer notion
shall be hfid of the precise extent to which legislative
bodies may act upon rights of property, the whole
subject must be considered as in a state of very unsatis-
factory uncertainty. All that we can do is, as I have
said, to approach correct results.

In considering the subject of the supremacy of the
legislature in this country, and the power of the
judiciary, we have thtis far discussed the question as
turning on the organization of the three great branches
of government; but other considerations present
themselves, growing out of the different terms of the
State constitutions in Other particulars; for though
generally alike, they differ in their details. Some
confine themselves to the mere organization of the
government and the distribution of powers, imposing
such limitations as is seen fit, on the legislalture ; but
generally they contain in the shape of a declaration of
rights, or bill of rights, the enumeration of certain
great political truths essential to the existence of free
government. As, for instance, in Maine :* " All men
are born equally free and independent, and have certain
natural, inherent, and individual rights, among which
are those of enjoying and defending life and liberty,
acquiring property, and protecting property, and pur-
suing and obtaining safety and happiness. All power

* Cons. Decl. of Rights, §§ 1 and 2.

BILLS OF RIGHTS. 179

is inherent in the people; all free governments are
founded on their authority and instituted for their
benefit ; and they have, therefore, an inherent and inde-
feasible right to institute government, and to alter,
reform, or totally change the same when their safety
and happiness require it." So in Illinois, the same
principles are announced in the Declaration of Eights,
and it is added that "a frequent recurrence to the
fundamental principles of civil government, is abso-
lutely necessary to preserve the blessings of liberty,"*
So in the Pennsylvania Constitution, the 9th Article,
in order that the general good and essential principles
of liberty and free government may be recognized and
unalterably established, declares the rights of the people
substantially in the language of the Maine constitution,
and goes on to say, § 26, " that in order to guard against
transgressions of the high powers which we have dele-
gated, we declare that every thing in this article is
excepted out of the general powers of government, and
shall forever remain inviolate."f

These great truths will thus be found set out in
a large majority of the State constitutions. They
are of no little value as safeguards against errors
and injustice; but I think they must be regarded
rather as guides for the political conscience of the
legislature, than as texts of judicial duty. Important
as they are, still they are expressed in such general
terms as necessarily to admit of great and prominent
exceptions. All men are born "free and independ-
ent ;" but we keep Africans in slavery, Indians in sub-
jection, > minors in absolute tutelage till tventy-one^

* See in Illinois, the 13th Articleof the Constitution; Blackwell on Tax

Titles, p. 15.

t Sharpless vs. The Mayor of Philad., 21,Penn. 147.

180 JUDICIAL POWER, ■ ' ''^

and married women in a state of quasi-dependence
all their lives. As to the enjoyment of life and
liberty, property, and the pursuit of happiness, all
these rights are daily interfered with by the legis-
lature, without scruple, for the common welfare.
I suppose it must be admitted that, in a judicial
sense, these clauses could not easily be made available.
The landmarks of the legislative and judicial authority
are rather to be found in the division of power, con-
tained in the constitution, among the three great
branches of government, and the specific limitations
imposed by the instrument on the law-making branch,
than in these general declarations of political truths.

Having thus attempted to consider the true meaning
of the term law, and the general language of our State-
constitutions, we recur to the question: "Shall the
judiciary on any ground of general morality and jus-
tice, exercise any power over legislative acts, independ-
ently of the express restrictions in our constitutions, or
necessarily resulting from them ?

It will be observed that the principal arguments in
favor of the doctrine, that the judiciary may arrest acts
of legislation on the ground that ,they are unjust or
immoral, rest on two points : first, that there should be
no absolute, despotic, uncontrollable power in a free
State ; and secondly, that there are certain principles
of natural justice which not even the legislature can
be permitted to disregard.

I cannot but think both these arguments fallacious.
If, by the assertion that absolute power is inadnais-
sible, it is meant to insist that there should be no
single supreme authority in' which all the functions of
government center, and to which all the agents of the
government are subordinate, like that of the Roman

JUDICIAL POWER. 181

empire in its latter stages, tlie proposition is a mere
truism. The bare enumeration of the division of
powers under our system, sufficiently answers the com-
plaint. But if it is meant to assert that there shoujd be
no absolute power in each department of the govern-
ment, then it is so far from being true, that, on the
contrary, without such power no government could
regularly exist an hour ; all would be conflict and
confusion. It cannot be denied that, practically^
despotic power must somewhere exist in every system
that assumes to order and regularity. Appeals must
terminate, controversies must cease, discussions must
end, and the business of life proceed. To effect this^
it is indispensable that there be somewhere lodged,,
in regard to the operations of every department of
government, a supreme, inexorable power whose de-
cision is conclusive ; and whether the system be that
of a monarchy, an oligarchy, a democracy, or that
mixed form under which we live, such power will
always be found. In the very case before us, what is
the result of the reasoning but to claim for the judi-
ciary the very absolutism which is denied to the legis-
lature ? If the statute is conclusive^ then the legisla-
ture is absolute ;-^granted. But if the judgment of
the court is final, — and to be efficacious, it must be so, —
then you encounter the same difficulty, at only one
remove.

The other argument appears equally erroneous. It
is very plausible to say that the legislature ought not
to be permitted to do any thing flagrantly unjust, as, to
take the property of A and give it to B, to make a
man judge in his own case, or to, commit any other en-
ormity. But in every case there are disputed ques-
tions of fact as well as of principle ; and the real point

182 JUDICIAL POWER.

is whether the legislature shall decide on the nature of
the public exigency and the rights of its subjects, or
whether the judiciary shall assume that power. It is
conceded that the power of the legislature must be
confined to " making laws." But the very words of our
^tate constitutions which declare them the law-mak-
ing power, exclude the judiciary from any share in it ;
and such share they will undoubtedly have if they are
at liberty to refuse to execute a statute, on the ground
that it conflicts with their notions of morality or justice.
The very vagueness of the power is, moreover, fatal to
it. Constitutional provisions may be ambiguous ; the
doctrine of interpretation is vague ; but these branches
of the judicial authority are subject to some tests, and
can be circumscribed within some limits. But who will
undertake to decide what are the principles of eternal
justice ? And who can pretend to fix any limits to the
judicial power, if they have the right to annul the
operations of the legislature on the ground that they
are repugnant to natural right ?

There may be, there always will be, questions not
only as to the expediency but the justice of laws.
But questions of public policy and State necessity are
not meant to be assigned to the domain of the courts ;
and I cannot but think it unfortunate for the real
influence of the judiciary, that this authority has ever
been claimed for them. The right of construction, the
right of applying constitutional restrictions, are vast
powers, which it will always require great sagacity and
intelligence to exercise. Let the judiciary rest con-
tented with its acknowledged prerogatives, and not
attempt to arrogate an authority so vague and so dan-
gerous as the power to define and declare the doctrines
of natural law and of abstract right.

JUDICIAL POWER. 183

It will be seen on examining the authorities which I
-now proceed to cite, that the views here urged are
those of many of our soundest judges and legal writers:
■" Strong expressions may he found in the books," says
Mr. Justice Cowen, in the Supreme Court of New York,
■" against legislative interference with- vested rights ;
but it is not conceivable that, after allowing the few
restrictions to be found in the federal and State con-
■stitutions, any further bounds can be set to legislative
power by written prescription."* Kent says,f " Where
it is^said that a statute is contrary to natural equity or
reason, or repugnant or impossible to be performled,
the cases are understood to mean that the court is to
give them a reasonable construction. They will not
readily presume out of respect and duty to the law-
giver, that every unjust Or absurd consequence was
within the contemplation of the law ; but if it should
happen to be too palpable to meet with but one con-
•struction, there is no doubt in the English law, of the
binding efficacy of the statute." J

In a case where it was contended that an act of the
legislature of New Jersey was void as against natural
justice, Mr. Justice Baldwin, of the Supreme Court of
the United States^ used this language :—" We cannot
declare a legislative act void because it conflicts with
our opinions of "policy, expediency, or justice. We are
not the guardians of the rights of the,people of the State,
unless they are secured by some constitutional provi-
sion which comes within our judicial cognizance. The
remedy for unwise or oppressive legislation, within con-
stitutional bounds, is by an appeal to the justice and

* Butler vs. Palmer, 1 Hill, 324.

t 1 Com. p. 408.

I See also, 1 Com. p. 488.

184 JUDICIAL POWER.

patriotism of the representatives of the people. If this
fail, the people in their sovereign capacity, can correct
the evil ; but courts cannot assume their rights." * *
" There is no paramount and supreme law which defines
the law of nature, or settles those great principles of
legislation which are said to control State legislatures
in the exercise of the powers conferred on them by
the people in the constitution."*

The same conclusion is arrived at in a very able
opinion of Mf. Senator Verplanck, in the Court of
Errors of New York. He says, —

" It is difficult, upon any general principles, to limit tte omnipotence
of the sovereign legislative power by judicial interposition, except so far
as the express words of a written constitution give that authority. There
are, indeed, many dicta, and some great authorities, holding that acts
contrary to the first principles of right, are void. The principle is un-
questionably sound as the governing rule of a legislature, in relation to
its own acts, or even, those of a preceding legislature. It also affords a
safe rule of construction for courts, in the interpretation of laws admitting-
of any doubtful construction, to presume that the legislature could not
have intended an unequal and unjust operation of its statutes. Such a
construction ought never to be given to legislative language, if it be sus-
ceptible of any other more conformable to justice ; but if the words b&
positive and without ambiguity, I can find no authority for a court to
vacate or repeal a statute on that ground alone. But it is only in express-
constitutional provisions, limiting legislative power and controlling the
temporary will of a majority by a permanent and paramount law,
settled by the deliberate wisdom of -the nation, that I can find a safe
and solid ground for the authority of courts of justice to declare void
any legislative en.actment. Any assumption of authority beyond this
would be to place in the hands of a judiciary, powers too great and too

undefined either for its own security or the protection of private rights."'
,' * * '* * * * *

" Believing that we are to rely upon these and similar provisions, as
the best safeguards of our rights, as well as the safest author^ities for

* Bennett vs. Boggs, 1 Bald. 74 and 75.

JUDICIAL POWER. 185

judicial direction, I cannot bring myself to approve of the power of
courts to annul any law solemnly passed, either on an assumed ground
of its being contrary to natural equity, or from a broad, loose, and
vague interpretation of a constitutional provision beyond its natural
and obvious sense. There is no provision of the old State constitution
that, in my_ understanding of it, so limits the power of the legislature
over the property of its citizens as to enable a court to set aside> these
statutes, or titles acquired under them, on the ground of unconstitu-
tional enactment."*

In Pennsylvania, on the same principle, it has been
held that the courts have no control over the legisla-
tive power of taxation, however unequally or oppres-
sively it may be exercised ;f and Gibson, C. J.; in deliv-
ering the judgment of the court, said, —
•

" In every American State, the people, in the aggregate, constitute
the sovereign, with no limitation of its power but its own will, and no
trustee of it but its own appointee. But this sovereign, from the nature
of its structure, is unable to wield its power with its own hands ; whence
delegation of it to agents, who constitute the immediate' government.
But it is a postulate of a State constitution, which distinguishes it from
the federal, that all the power of the people is delegated by it, except
such parts of it as are specifically reserved ;. and the whole of it is, with-
out exception, vested in the constitutional dispensers of the people's
money. As regards taxation, there is.no limitation of it. Equality of
contribution is not enjoined in the bill of rights, and probably because
it was known to be impracticable." * * "If equality were practi-
cable, in what branch of the government would power to enforce it
reside 1 Not in the judiciary, unless it were competent to set aside a
law free from collision with the constitution, because it seemed unjust.
It could interpose only by overstepping the limits of its sphere ; by arro-
gating to itself a power beyond its province ; by producing intestine
discord ; and by setting an example which other orgtos of the govern-
ment might not be slow to follow. It is its peculiar duty to keep the
first lines of the constitution clear, and not to stretch its power in order

* Cochran vs. Van Surley, 20 Wend. 381."
t Kirby vs. Shaw, 7 Harris, Penn. R. 258.

186 . JUDICIAL POWER.

*
to correct legislative or executive abuses. Every branch of the govern-
ment, the judiciary included, does injustice for which there is no rem-
edy, because every thing human is imperfect. The siim of the matter
is, that the taxing power must be left to that part of the government
which is to exercise it."*

In South Carolina a similar doctrine has been Held,
in regard to taMng private property, though with some
division of opinion.f And, when we come to consider
the subject of constitutional restrictions on legislative
power, in detail, we shall find that the idea of any
judicial power over the equity or equality of taxation
has been .generally denied. J So in a late case in Penn-
sylvania, the whole subject was reviewed, in an able
and elaborate opinion, by Mr. Chief Justice Black, of
the Supreme Court ; and he said ; —

"'We are urged to hold that a law, though not prohibited, is void
if it violate the spirit of our institutions, or impairs any of those rights
which it is the object of a free government to protect ; and to declare
it unconstitutional if it be wrong and unjust. But we cannot do this.
It would be assuming a right to change the constitution ; to supply
what we might conceive to be its defects ; to fill up every casus omissus;
and to interpolate into it whatever, in our opinion, ought to have been
put there by its framers.. The constitution has given us a list of the
things which the legislature may not do. If we extend that list, we alter
the instrument ; we become ourselves the aggressors, and violate both
the letter and the spirit of the organic law as grossly as the legislature
possibly could. If we can add to the reserved rights of the people, we
can take them away ; if we can mend, we can mar ; if we can remove
the landmarks which we find established, we can obliterate them ; if we
can change the constitution in any particular, there is nothing but our
own will to prevent us from demolishing it entirely. The great powers

* Kirby vs. Shaw, 7 Harris (Penn.) R. 258.
t State vs. Dawson, 8 Hill R. 100.

I People vs. Mayor of Brooklyn, 4 Corns. 423 ; Town of Guilford vs.
Cornell, 18 Barb. 615.

JUDICIAL POWER. 18Y

given to the legislature are liable td be abused. But this is inseparable
from the nature of human institutions. The wisdom of man has never
conceived Of a government with power sufScient to answer its legiti-
mate ends, and at the same time incapable of mischief. No political
system can be made so perfect that its rulers will always hold it ta the
true course. In the very best, a great deal must be trusted to the dis -
cretion of those who administer it. In ours, the people have given larger
powers-to the legislature, and relied, for the faithful execution of them,
on the wisdom and honesty of that department, and on' .the direct ac-
countability of the inembers to their constituents. There is no shadow
of reason for supposing that the mere abuse of power was meant to be
corrected by the judiciary."*

In this Conflict of opinion we cannotsafely pronounce
the question settled on authority ; but I think, as a
matter of reason, that we may safely hold. Firsts That
the legislature is to confine itself to its function of
" making laws ;" and we have considered the general
features and characteristics of a law. The imperfection
of language does not permit us to define with absolute
precision the meaning of the term " Zaw," but each case
must depend on its peculiar features.

Second, That it is the right and duty of the judiciary
to repress and confine the legislative body within the
true limits of the law-making power; but that they
have no right whatever to set aside, to arrest, or nullify
a law passed in relation to a subject within the scope
of the legislative authority, on the ground that it con-
flicts with their notions of natural right, abstract jus-
tice, or sound morality.

' * Sharplessm The Mayor, &c., 21 Penn. 147, 162. See this subject
also discussed in Braddee m. Brownfield, 2 Watts & Serg. 271; Harvey vs.
Thomas, 10 Watts, 63 ; Calder m. Bull, 3 Dallas, 386; Fletcher vs. Peck,
6 Cranch, 87 ; Bloodgood vs. Mohawk and Hudson R. R. Co., 18 Wend. 9 ;
Terrett w. Taylor, 9 Cranch, 43 ; Bowman vs. Middleton, 1 Bay, 252 ; Bona-
parte vs. Camden and Amboy Railroad Company, 1 Baldw. 0. 0. R. 205.

188 RETROSPECTIVE STATUTES.

In the strict order of the argument that we are pur-
suing, I should now turn to the judicial power of con-
struction ; but, closely connected with the subject which
we have just considered, is one which I can in no other
place so fitly discuss, that of retroactive or retrospec-
tive statutes, the power to pass which has been fre-
quently denied on the ground that they conflict with
true notions of justice and right. I shall here examine
the question, and then finally 3,rrive at the subject of
interpretation.

Retro^ectwe or Hetroactwe Statutes. — A statute
which takes away or impairs any vested righ^ acquired
under existing laws, or creates a new obligation, or im-
poses a new duty, or attaches a new disability in
respect to transactions or considerations already past,
is to be deemed retrospective or retroactive.* The
power of a legislature to pass laws having such an
effect, has often been denied by philosophical writers.
Puffendorf says, " A law can be repealed by the law-
giver; but the rights which have been acquired under
it while it was in force, do not thereby cease. It
would be an act of absolute injustice, to abolish with a
law all the effects which it had produced."f The
CivU Law says, " Zeges et constiiniUones ful/wris cer-
tmn est da/re formam negotiis, non ad facta prwterita
revocari, nisi nomi/naUm et de prceterito tempore et ad-
hue pendentihtts negotiis cautum sit.^^X From the civil
law, Bracton adopted the same maxim. '■'■Nova consti-
tutio futuris formam debet imponere^ non prcderitis.^''
Lord Bacon says, in his quaint and poetical style,
but in a more guarded manner : " Leges guoe ret/rospi-

* Society for Prop, of Gospel rs. Wheeler, 2 Gallison, 105.
t Droit de la Nat., L. i. c. 6. § 6.
X Cod., L. i. Tit. xiv. § 7.

RETROSPECTIVE STATUTES. 189

emnt to/to^ magna cum cautions, adhihendoe ; neque
enim placet Janns in legibios. Ga/oevicl/um tamen est ne
convellanlmr res judicatoe. Leges decla/ratorias ne or-
dinato, nisi in casiius uhi leges cum justitia retrospi-
cere possinf^* And one of tte standard writers of our
law says, it is in general true that no statute is to have a
retrospect beyond the time of its commehcement.f .

From text-writers, the maxim has been incorporated
into codes of law. The French code contains a
positive provision that laws are made only for future
cases, and can have no retrospective effect. "The
law directs for the future cases only ; it has no retro-
spective effect."J So, the constitution of New Hamp-
shire § declares, " Eetrospective laws are highly
injurious, oppressive, and unjust. No such laws
should, therefore, be made, either for the decision of
civU cases or the punishment of offenses."

The principle has, indeed, been generally adhered to
with great steadiness, both in England and in this
country. So in a case under the statute of frauds,
which,, as originally passed (29 Car. II. c. 3), enacted
that no action should be brought on any parol promise,
on and after the 24th June, 1677, an effort was
made to extend its operation to a promise made in
1676 ; but it was held that the statute was not to re-
ceive a retroactive effect ; the court saying that it would
be a great mischief to explain it otherwise, to annul all
promises by parol before that time, upon which men
had trusted and depended, reckoning them good and

* De Aug. Scient., Lib. viii. c. 3 ; Aphor. 4V, 51.

t Bacon, Ahr. Statute.

X La Loi ne dispose que pour I'avenir, elle n'a point d'eflfet retroactif.—

.Code Civil, § 2.
§ Part i. § 23.

190 RETROSPECTIVE STATUTES.

valid ia law ; and judgment was given for the plaintiff.*
So again, in an action for a penalty in not paying a
stamp duty. After verdict, tlie defendant moved to
stay judgment, urging that he was entitled to relief on
the ground that he had paid the duty under a clause
of the act which discharged parties who had incurred
penalties if they paid their duties before a certain
time; and the question being whether the act related
to actions commenced before its passage, the King's
Bench denied the motion,- Lord Mansfield saying, " It
can never be the true construction of this act, to take
away these vested rights and punish the innocent pur-
suer with costs."f " All "laws," says Blackstone, " should
be made to commence in fuPuro, and be notified be-
fore their commencement."J

The effort of the English courts appears, indeed,
always to be to give the statutes of that kingdom a
prospective effect only, unless the language is so clear
and imperative as not to admit of doubt. " The prin-
ciple," says the English Court of Exchequer, " is one
of such obvious convenience and justice, that it must
always be adhered to in the construction of statutes,
unless in cases where there is something on the face of
the enactment putting it beyond doubt that the legis-
lature meant it to operate retrospectively."! This
principle inay have been lost sight of in some cases,}
but has, on the whole, been steadily adhered to. So,
where a statute (8 and 9 Vic, c. 109, 8 Aug. 1845) en-

* Helmore vs. Shuter, 2 Show. 17.
t Couch q. tarn vs. Jefiries, 4 Burr, 2460.
X Com. i. p. 46.

§ Moon vs. Durden, 2 Exchequer B. 22.

S Towler vs. Ohatterton, 6 Bing. 268 ; Freeman vi. Moyes, 1 Ad. & EIL
3S8 ; Pickup vs. Wharton, 2 C. & M. 401 ; Grant vs. Kemp, id. 636.

RETROSPECTIVE STATUTES. 191

acted that all contracts and agreements by way of
gaming or ■wagering, shall le null and void, and that
no suit shall he brought or maintained in any court
upon any wager, it was held that the statute was not
to receive a retroactive construction so as to defeat a
suit on a wager commenced before the statute passed*

But it also appears to be clearly settled in England,
that the rule to give statutes a prospective operation,
is one of construction merely ; that it will yield to the
intention of the legislature, if clear beyond doubt ; and
that the only question is, whether the retroactive in-
tention is suflGlciently expressed ;f and this is in entire
harmony with the English doctrine which we have
already considered, that Parliament is supreme, and
that there is no constitutional check on the supremacy
of the law-making power.

In this country, the same opposition to giving stat-
utes a retroactive effect, hasb)een manifested ; and such
is the general tenor of our decisions. There are, indeed,
here, two classes of retroactive laws absolutely forbid-
den by the federal Constitution. That great charter
of our rights and liberties declares (Art, i.. Sec. 10)
that no State shall pass any ex post facta law, or law
impairing the obligation of contracts. We shall have
occasion hereafter to consider this clause more particu-
larly ; but we may here notice that the term ex post
facto applies only to criminal laws.J Many of the
State constitutions also contain clauses prohibiting ex
post facto laws; but this phrase has, I believe,

* Moon vs. Burden, 2 Exch. 22 ; and also, Edmonds vs. Lawley, 6 M. &
W. 285 ; and Ashburnham, 2 Atk. 36.

t Moon vs. Burden, 2 Exch. 22, per Parke, B.

t Colder and wife vs. Bull and wife, 3 Ball. 386 ; Dash vs. Van Kleeok,
7 Johnson, p. 477.

192 RETROSPECTIVE STATpTES.

been uniformly held to apply only to criminal
legislation. And we have already noticed that the
obligation of contracts does not include the remedy.
With these niodifications, however, the power of the
federal tribunals has been steadily exercised, and State
laws of a criminal nature having a retroactive effect, or
laws in any way impairing the obligation of contracts,
are held .to be void, and their operation arrested by
the government of the United States. It is, however,
equally well settled, that a law is not unconstitutional
under the Constitution merely because it is retrospec-
tive in its terms. A conflict arose in the State of Penn-
sylvania, as to lands held under what were called
Connecticut titles ; and in 1825, on a case growing out
of this question, the Supreme Court of Pennsylvania
held that the relations between landlord and tenant
could not exist between persons holding under siich a
title. Immediately after this decision, the legislature
of Pennsylvania passed an act by which it was enacted
that the relation of landlord and tenant should exist,
and be held as fully between Connecticut settlers and
Pennsylvania claimants, as between other citizens of
the commonwealth ; and this act, the Supreme Court,
in a subsequent case, held to be retrospective in its
effect. A writ of error was taken to the Supreme
Court of the United States ; but the judgment was
affirmed, — ^the court saying that the act did not impair
the obligation of the contract. " It is said to be retro-
spedtive. Be it so ; but retrospective laws which do
not impair the obligation of contracts or partake the
character of ex post facto laws, are not condemned or
forbidden by any part of the Constitution."*

* Satterlee vs. Matthewson, 2 Peters, 880.

RETROSPECTIVE STATUTES. 193

We have already* considered tlie retrospective effect
of repealing statutes, and the efforts that have been
made to limit that operation. It has often, indeed,
been said that statutes can never be made to work
retrospectively so as to defeat or destroy a vested
right ; but we have already had occasion to question
the correctness of this proposition as a general rule in
regard to the operation of statutes. What is a vested
right of property ? Some vested rights are protected
by the Federal Constitution, others by the general
limitation of the law-making power to which I have
just referred. Other rights again, although created by
positive law, are considered entirely under the control
of legislation, and, indeed, treated as not being vested
at all. The same difficulty of drawing the precise line,
and of laying down any definition, exists here that we
have already noticed in regard to the term law. The
inherent difficulty of the subject can only be mastered
by a frequent reference to principles, and a familiar
acquaintance with adjudged cases. But we may affirm
as a general rule, that — ^with the exception of those cases
outside of the true limits of the law-making power, of
those cases growing out of the restrictions of the Fed-
eral Constitution ; and excepting also where, as in New
Hampshire, the States themselves have adopted a posi-
tive prohibition — it is in this country considered com-
petent for the State legislatures to pass laws having a
retrospective effect; the only judicial check on the
power being that the courts refuse^ to give statutes a re-
troactive construction unless the intention is so clear and
positive as by no possibility to admit of any other con-
struction. But, on the other hand, it is equally true that
they are greatly discountenanced, and that the desire

* Ante, p. 134.
13

194: RETROSPECTIVE STATUTES.

and effort of the courts is always to give a statute a pro-
spective Operation only. The subject was considered
at an early day in the State of New York. The Su-
preme Court of that State, in a case arising on the
construction of an act giving prisoners charged in exe-
cution certain gaol liberties, held that a return or
recaption before suit would be no excuse to the sheriff
in an action against him for an escape.* Upon this
the legislature passed an act (5th April, 1810, 33 Sess.,
c. 187) declaring that a return or recaption before
suit brought should be a good defence. An action
was brought against a sheriff for an escape, in which
after issue joined the act in question having been
passed, it was insisted that the sheriff was entitled to
the benefit of the statute, on the ground that it should
be held to operate retrospectively ; and it was alsa
strenuously insisted that the act was an explanatory
act, and |ihat if it was in any way competent for the
legislature to alter the law retrospectively, they had
in this case done it. The court was divided; but
the majority held that the plaintiff bad a Vested right of
recovery ; that the act was not expressly retrospective ;
that the statute would, if , retrospectively construed,
operate unjustly, as it would defeat a suit already
commenced upon a right already vested, and thus
punish an innocent party, with costs, as well as divest
him of a right previously acquired under the existing
law. Thompson, J., said, " It may in general be truly
observed of retrospective laws of every description,
that they neither accord with sound legislation nor the
fundamental principles of the social compact. How
unjust then, the imputation against the legislature, that
they intend a law to be of that description, unless the

* Tillman vs. Lansing, 4 J. R. 45.

EETEOSPECTIVE STATUTES. 195

most clear and unequivocal expressions are adopted !"
Kent, J., said* " I think it can be shown that the act
cannot be adjjadged to operate either as a new rule for
the government of a past case, or as interpreting a
former statute for the direction of the courts ; and I
should be unwilling to consider any act so intended,
unless that intention was made i^anifest by express
words ; because it would be a violation of fundamental
principles, which is never to be presumed."*

So again, in the same State, more recently, it has
been held to be a general rule that a statute affecting
rights and liaibilities should not be so construed as to
act upon those already existing. To give it that effect,
the statute should in terms declare an intention so to
act.f So again, in another case, the court say, " Not-
withstanding the peculiar phraseology of the section
relied on by the plaintiffs' counsel, we think it ought not
to be so considered as to give it a retroactive effect."J
So again, in the same State, a statute authorizing a
writ of error in behalf of the people, to review a
judgment rendered in favor of a defendant, has been
held not to authorize such writ to review a judgment
rendered prior to the passing of the statute,§ and j

* Dash vs. Van Kleeck, 7 J. R. 477. Spencer and Yates, were in favor
of the retrospective effect. Kent, Thompson, and Van Ness united in the
judgment. See this case cited in Wood vs. Oakley, 11 Paige, 400.

t Johnson vs. Burrell, 2 Hin, 238. In this case it was held that the
provision of the revised statutes which declares that all actions upon judg-
ments rendered in ' any court not heing a court of record, shall be com-
menced within six years next after the cause of action .occurred, does not
apply to justices' judgments rendered before 1830.

X Bailey vs. the Mayor, &c., 7 Hill, 146 ; and it was held that the third
section of the act passed May 7th, 1844, authorizing interest to be taxed
upon verdicts, &c. (Sess. Laws of 1844, p. 508), does not apply to verdicts
rendered before the act was passed, but is to be construed prospectively.

§ The People vs. Carnal, 2 Selden, 463.

I Lawrence vs. Miller, 2 Corns. 245, 251.

196 , RETROSPECTIVE STATUTES.

Mr. Justice Shankland, in another recent case, well
calls the maxim which I have above cited from Brac-
ton, " the primary rule xfor the interpretation of
statutes,"

So too, in Mississippi, it has been said that " as a
general rule for the interpretation of statutes, it may
be laid down that they never should be allowed a
retrospective opera-tion where this is not i-equired by
express command, or by necessary and unavoidable im-
plication. Without such command or implication, they
«peak and operate upon the future only ; especially
•should this rule of interpretation prevail when the
•effect and operation of a law are designed apart from
"the intrinsic merits of the rights of parties to restrict
the operation of those rights." And the court decided
that the act of that State, passed in 1846, limiting the
effect of foreign judgments against citizens of Mississippi,
■to three years from the rendition thereof, could have
no effect on judgments obtained before the passage of
the act ; or in other words, that it was not to be con-
strued retroactively, and that a judgment recovered in
Louisiana in 1844, was not to be affected by it.*

So in Pennsylvania, a statute allowing a writ of error
in cases where none lay before the passage of the act, has
been held not to apply to a judgment obtained before
the act was passed. " My respect for the legislature," said
Eogers, J., in delivering the opinion of the court, " is
too great to allow me for a single instant to suppose
that they designed so great a wrong as by a retrospec-
tive act, to make that right which was clearly wrong.
But granting that intention to be clearly expressed, I
have no hesitation in saying that the act is unconstitu-

* Boyd vs. Barrenger, 23 Miss. R. 270 ; Garrett vs. Beaumont, 24 Miss.
R 377 ; Murray vs. Gibson, 15 Howard, U. S. R. 421.

RETROSPECTIVE STATUTES. 197

tipnal and void. The legislature has no power, as has
been repeatedly held, to interfere with vested rights.
To give the property of A to B, is clearly beyond legis-
lative authority."*

In Maine, by the constitution of which State rfihe
right is secured to ^very citizen, of possessing, acquir-
ing, and enjoying property, it has been decided that a
statute of limitation fixing the time within which
actions are to be brought for the recovery of lands, can-
have no retroactive effect on titles existing when it was
passed ; and the same principle was apphed to a dis-
seizin act relating to the mode of adverse possession.f

So in Vermont, it has been held that statutes of
limitation are not to have a retrospective operation. J

In 1850, the legislature of Connecticut passed an act
declaring that " all real estate conveyed to a married
woman during coverture, in consideration of money or
other property acquired by her personal services during
such coverture, should be held by her to her sole and
separate use ;" and it has been held that the statute was
not to have a retrospective effect. " Thd presumption
is," said the court, " that all statutes are to operate pro-
spectively, and were not made to impair vested rights.
In some cases, statutes may have a retrospective effect ;
yet, such a construction is never to be given to thent
unless required in the most explicit terms."§

We have already noticed the clause in the constitu-
tion of New Hampshire, prohibiting retrospective iegis-

* McCabe vs. Emerson, 6 Har. Penn. R. 111.

t Proprietors of Kennebec Purchase vs. Laboree et als., 2 Greenleaf Eep.
275 ; Oriental Bank vs. Freese, 18 Maine Rep. 109 ; Austin vs. Stevens, 24
Maine R. 520 ; Preston vs. Drew, 5 Law Repotter,jN. S. 189 ; Webster vs.
Cooper, 14 Howard, U. S. R. 488.

J Wires & Peck vs. Farr, 25 Vermont, p. 41.

§ Plumb vs. Sawyer, 21 Conn. 351.

198 RETROSPECTIVE STATUTES.

lation ; and it seems to have been faitlifiilly carried out.
So an act of the legislature repealing a statute of limi-
tations, is void with respect to all actions pending at
the time of the repeal, and which are barred by the
statute * So, in the same State, where a statute gives
a penalty incurred under it to an individual (as certain
militia fines to an officer of a company), the right to a
perialty incurred under the statute in a civil cause, is
within the meaning of the clause in the bill of rights
which prohibits the passing of retrospective laws for
the decision of civil causes ; and the right of such indi-
vidual can not be taken away by a repeal of the statute
under which the penalty was incurred.f

We have thus far considered cases where laws have
been denied a retroactive effect. We have now to ex-
amine the converse class of decisions. There is, indeed,
a large number of cases in which appeals are made for
legislative relief or assistance, in which it would be very
injurious to assert the doctrine that the legislature is
incompetent to pass laws having a retroactive effect.
Such are laws declaring valid acts of official persons
irregularly elected ; amending charters of incorpor-
ated companies ; correcting assessment roUs irregularly
made ; extending the time for collection of taxes or for
reports required by law ; altering and amending judi-
cial procedure. In these, and many other cases, it is
difficult to avoid giving the acts of the legislature a
retroactive effect ; and every such effect must or may
influence injuriously some individual case. But the
interests of the community are paramount. These
cases are not treated as touching vested rights, and the
power of the legislature is admitted. We proceed now

* Woart vs. Winnick, 8 New Hampshire, 473.
t Dow vs. Norris, i N. H. 16.

RETROSPECTIVE STATUTES. 199

to examine cases of this kind where statutes have been
construed retrospectively.

It has been said in Massachusetts, that the legisla-
■ture may constitutionally enact laws to alter the limits
-of prison yards ; to render valid and legal the ^ioings^of
public officers ; to confirm the acts of towns and other
■corporMions, invalid for some informality, although by
such enactments individuals may be deprived of rights
previously vested* So in the Supreme Court of the
TJnited States, it has been said, that " every law that
takes away or impairs rights vested agreeably to exist-
ing laws, is retrospective, and is generally unjust, and
may be oppressive ; and it is a good general rule, that
a law should have no retrospect. But there are cases
in which laws may justly, and for the benefit of the
community, and also of individuals, relate to a time
antecedent their commencement."f

In New York, it has been held, that when the rule
of compensation for attorneys and counselors is changed
by the legislature, during the progress of a suit, the
icosts of such suit are to be taxed according to the stat-
ute in force at its termination. " It is competent," said
Mr. Justice Jewett, "for the legislature, at any time
<luring the progress of a suit, to create an allowance for
services , not before provided for, and to iacrease or
diminish, or wholly abolish, such allowances as existed
at the time the suit was commenced ;" and on the groxmd
that the right to costs is created by and depends wholly
on statute, and that it does not become fixed till the

* Davison vs. Johonnot et at, Y Met. 389, citing Walter vs. Bacon, 8 Mass.
468 ; Patterson vs. Philbrook, 9 Mass. 151, and Locke vs. Dane, 9 Mass.
260. These last are all cases on statutes changing the prison limits; and
the court decided that they were not ex post facto laws, nor laws impairing
4he obligation of contracts.

t Per Chase, J., Calder vs. Bull, 3 Dall. 386, 391.

200 RETROSPECTIVE STATUTES.

termination of the suit, the statute in force at the end
of the litigation was held to be conclusive.* So in the
same State, the a^t of 22d October, 1119, transferring
the seignory and escheat from the crown of Great
Britain to the people of the State ; and the statute of
tenures (1181) abolishing military tenures, and con-
verting all manorial and other tenures into free and
common soccage, took effect retrospectively, and oper-
ated on all lands and tenures held under colonial grants,
fi-om July, l'7'76.f So when a statute of the same State,
altering the common law, declared that a failure or want
of consideration might be set up by way of defence to
a sealed instrument, it was held that as far as the stat-
ute went only to the remedy, it naight be applied to
sealed instruments executed before the law passed ; but
that as regarded the obligation of the contract, it should
not be permitted to have a retroactive effect.J So in
the same State, it has been held that retrospective stat-
utes are valid, which give remedies where none existed
before for defects that would have been fatal had the
legislature not interfered, and given a perfect remedy
by curing intervening irregularities. Thus in an action
by a bant, incorporated under the general banMng law
of New York, it appeared that the certificate of incor-
poration was defectively proved and acknowledged ;
that the defect was not remedied until several years
afterwards (1852), by an act declaring that the bank
should be deemed to be a valid corporation, and to
have been duly organized, notwithstanding the original
error in the certificate ; and that the note ia suit was

* Supervisors of Onondaga vs. Briggs, 8 Denio, 173 ; see also, People t».
Herkimer C. P. 4 Wend. 210.

t De Peyster vs. Michael, 2 Seld. 467, 503.

t Mann vs. Eckford's Ex'ors, 15 Wend. 519 ; Wilson vs. Baptist Educa-
tion Society of New York, 10 Barb. S. C. R. 308.

RETROSPECTIVE STATUTES.) 201

made before the passage of the act. It was held, how-
ever, that these facts constituted no defence to the suit ;
that the defendant had no vested right to be absolved
from paying the money which he owed ; that a remedy
was -only wanting, and that the statute of 1852 belonged
to that class of retrospective acts which the legislature
had a perfect right to pass*

So in Pennsylvania,f a judgment entered on ihe first
instead of the third day of January, and void for that
reason, was held to be cured by an act of February, 1822.
So again,J it was there decided that an omission ia the
certificate of acknowledgment of a married woman to a
deed conveying her estate in lands, was remedied by an
act passed for that purpose after the death of the wife,
and after the lands had descended, and after the court
had decided that theacknowledgment was raoperative to
pass the lands. In the face of aU these facts, the Supreme
Court of Pennsylvania held, that the act in question,
being remedial in its nature, cured the defective ac-
knowledgment, so that the lands passed and the gran-
tees took the title under it ; although without the act no
title would hav& passed by the deed to the grantee.§
The Supreme Court of that State laid down the doctrine,
that it is competent for the legislature to pass acts retro-
spective in their character, notwithstanding their opera-
tion may be to affect pending suits, and to give to a party
rights he did not before possess ; or to modify an existing
remedy ; or to remove an existing impediment in the
way of a recovery by legal proceedings, provided they
do not violate any constitutional prohibitions. In Ohio,
retrospective laws which violated no principle of natu-

* Syracuse City Bank va. Davis, 16 Barb. S. C. R. 188.
t Underwood vs. Lilly, 10 Serg. & Rawie, 97, 101.
X Tate M. Stooltzfoos, 16 Serg. & Rawle, 35.
§ Hepburn vs. Curts, 7 Watts, 800.

202 RETROSPECTIVE STATUTES.

ral justice, were not forbidden by the constitution of
that State of 1802 *

The result of this branch of our inquiry is, then, that
the legislature is competent to give a statute a retro-
active or retrospective effect, unless, first, the act violate
the provision of the Federal Constitution in regard to ex
postfactola,ws andthe obhgation of contracts — or, second,
unless it so interfere with vested rights of property as
not to come within the proper limits of the law-making
power — or, third^ unless it comes within the purview of
some express prohibition contained in a State constitu-
tion ; that, independently of these exceptions, retrospect-
ive statutes are within the scope of the legislative author-
ity ; and that the courts are bound to enforce them ; but
that such laws, as a general rule, are objectionable in
principle and unjust in practice ; and that the judiciary
wiU give all laws a prospective operation only, unless
their language is so clear as not to be susceptible of any
other construction. In closing this branch of our sub-
ject, we caimot fail to remark that, in practice, the true
principle of legislation is frequently lost sight of in re-
gard to the enactment of statutes having a retroactive
effect. Laws are constantly passed, either in the shape
of repealing or innovating acts, which disturb plans or
destroy rights entered into upon the faith of, or created
by, previous legislation. Nothing short of some great,
paramount emergency of public policy, can justify laws
of this kind ; and it will be well for all engaged in the
business of government, to understand and remember
that the steady and uniform rule should be to make
statutes operate prospectively only. No exception
should be tolerated, but on the ground of a controlling
public necessity.

* Trustees of 0. F. R. E. A. vs. M'Caughy et al, 22 Ohio, 152; 2 Ohio
State Rep., 162.

JUDICIAL CONSTRUCTION. 203

Having tlius attempted to define the nature of the
law-making power, to declare the true characteristics of
a law, to show when it must he a rule of universal ap-
plication, and how far prospective only, — we now pro-
ceed to consider the nature of the judicial power, and
to examine those chects upon the legislative authority,
which, as has been said, are placed in the hands of the
judiciary. Of these, the first is the right of construc-
tion assumed in regard to all statutes of which the lan-
guage is ambiguous.

The right and duty of the judiciary to expound and
to interpret doubtful provisions of legislative enact-
ments, is now one of the axioms of our law. But we
are not to suppose that this has always been familiar
doctrine. On the contrary, like all the other guaran-
tees of liberty, it is the result of long ages of struggle
and conflict, of disorder and, confusion. The maxim of
the Roman law, ^jus est interpreter legem cujws est
condere, gave to the imperial despot the same conti^ol
over the construction that he had over the enactment
of laws ; and the arbitrary manner in which that power
was exercised, is well known. " The rescripts of the
emperor, his grants and decrees, his edicts and prag-
matic sanctions, were subscribed ia purple ink, and
transmitted to the provinces as general or special laws,
which the magistrates were bound to execute, and the
people to obey."* Of these, the rescripts were replies
to consultations of the judges, and operated in fact like
decrees on appeal in litigated cases.

When the lights of English jurisprudence first
dawned, we have g^en that the imperial power of con-
struing and applying its own laws, was claimed by Par-
liament ; and that Etigated cases u|)on which the judges

* Gibbon, ch. xliv.

204 JUDICIAL CONSTEUCTION.

doubted, were referred to it for decision * But the exer-
cise of judicial functions by a popular representative
body in modern times, is practically out of tlie question,
nor could it long be submitted to by men so intelligent,
and so attached to the rights and privileges of their
order, as the judges of England have in all ages shown
themselves. Parliament abandoned its control over
litigated cases, and the power of ieonstruction fell to the
judiciary. We have no means of tracing the manner
in which the transfer of authority was effected ; but at
a very early day we find it asserted in even more than
its present plenitude. " If you ask me, then," says old
Hobart, " by what rule the judges guided themselves
in this diverse exposition of the self-same word and
sentence, I answer, it was by that liberty and author-
ity that judges have over laws, especially over statute
laws, according to reason and best convenience to
mould them to the truest and best U8e."f And Bacon,
in his Abridgment, adopting this language, says, " The
power of construing a statute, is in the judges, who
have authority oyer all laws, and more especially over
statutes, to mold them according to reason and conve-
nience to the best and truest use."

Nor did the judiciary use their new powers spar-
ingly. Taking advantage of the paucity and ambig-
uity of the statutes, of the inattention of the legislature
to the business of jurisprudence and juridical science,
and making as their excuse, the existence of daily and
admitted abuses, they soon came to exercise powers
little short of those of the Parliament itself. " In a
great variety of cases," says Mr. DVarris,^ " the inva-

* See ante, page 23.

+ Sheffeild vs. Ratcliffe, Hobart, 346.

i Dwarris on Stat. p. 708, 792.

JUDICIAL CONSTRUCTION. 205

sion, by the judges, of the province of the legislature
has been quite unjustifiable. When rules of law have
been found io work injustice, they have been evaded
instead of being repealed. Obsolete or unsuitable
laws, instead of being removed from th-e statute book,
have been made to bend to modern usages and feelings.
Instead of the legislature framing new provisions as
occasion has required, it, has been left to able judges
to invade its province and to arrogate to themselves
the lofty privilege of correcting abuses and introdu-
cing improvements. * * Upon a careful investiga-
tion of the course actually pursued, it will be found
that in general, inconvenient laws were set aside, and
required changes were, effected, by the use of technical
fictions and contrivances to evade inconsistent rules ;
and if there has been a lamentable want of politic
institutions, there has been thought to have been also
at times, some defect of judicial principles." And he
adds, "It certainly is a remarkable fact that the juris-
diction or method of proceeding in all our superior
courts, will be discovered on inquiry to be founded on
usurpation, and sustained by fiction." This is a very
severe judgment upon the order and philosophy of the
English system, and there can be no doubt that there
is great foundation for it.*

It would be easy to cite from the reports, instances
of interpretation which amount to nothing short of
legislation, where, in cases entirely free from doubt,
the judges have made rules as the emergency seemed
to them to require. Nor was their power exercised
without strenuous resistance. The judiciary a century
and a half ago, under the English system, was a very

* See First Report of English Real Property Commissioners, for an ener-
getic condemnation of legal fictions.

206 JUDICIAL CONSTRUCTION.

different institution from that whicli we have since
learned to regard it. Now with the magistracy, we
inseparably connect the ideas of integrity, learning,
and philosophy. The great iiames of Eldon, Mans-
field, Marshall, Kent, and Story, arise at once before
us when we speak of tribunals of justice. But far dif-
ferent was it at the era of the English Revolution. In
the minds of the thinking men of that period, the
judges were the arbitrary and servile tools of the
crown. "With them the judiciary was represented by
the corruption of Bacon, the servility of Herbert, and
the cruelty of Jeffries ; the atrocities of the bloody
assizes, the lawless despotism of the ship-money judg-
ment, and the scandalous illegality of the dispensing
power. It is not to be wondered at that the judicial
doctrine of construction was distrusted by the oppo-
nents of the abuses of monarchical authority.*

* Clarendon, no lukewarm friend of the crown, says, speaking of the
ship-money case, " And here the damage and mischief cannot be expressed
that the crown and state sustained by the deserved reproach and infamy
that attended the judges by being made use of in this and like acts of
power ; there being no possibility to preserve the dignity, reverence, and
estimation of the laws themselves but by the integrity and innocency of the
judges ;" and he proceeds to charge the violence of the ensuing Parliament
"to the irreverence and scorn the judges were justly in." — Miit. of Rebel-
Hon, Oxford ed. 1704, vol. i. p. 55.

"Away, then," says a staunch whig writer, about the year 1700, "with
that apparently sophistioal argument which in late times made so great a
noise and bustle in the world, namely, that the King, the Lords' House, and
the Commons' House concurring, had not an unlimited power to make laws, it
being in the breast of the judges of the realm to determine which acts of Par-
liament were binding and which void, and to expound the meaning of every
act of Parliament. And that, by referring this unto the judges of the realm,
the people were better secured from an arbitrary power than by attributing
it to the Parliament. A notion which hath been artificially spread abroad, and
industriously improved ; a notion which is equally pernicious and injurious
to all kings and parliaments, whose inherent right it ever was, by joint consent
to alter, amend, explain, and interpret their own statutes as they saw cause,
and according to public convenience. But how could, any thing of all that

JUDICIAL CONSTRUCTION. 207

So far as the character of the judiciary was con-
cerned, the evils attributed to the doctrine of judicial '
constructions were corrected by the act whch made

be done, if the judges had ever been invested with such a power insepar-
ably united and annexed to their persons, qvMtewtLs judges, to invalidate,
disannul, and declare but one act of Parliament to be void ; since, by the
same authority, they might have declared' another to be so too, and by like
logic, all,, without ever adjourning any case ad proxvmum Pa/rlw/mentwn
propter diffieultatem. And thus we see uno dbswrdo dalo, infinita aequun-
twr." — "JW Parliamentarium, or the Ancient Power, Jurisdiction, Bights,
and Liberties of the Most High Court of Parliament, Revised and Asserted
by William Pety t." This work was published after the author's death, in
1739. Petyt was a barrister of the Inner Temple, and Keeper of the
Records in the Tower. He appears to have died shortly after the accession
of William III. The whole of Chapter v._ of this work, from which the
above is taken, is an elaborate argument against judicial construction.
The heading runs thus, "Where former statutes have seemed dark and
dubious, and by the subtle and nice wits of learned lawyers, were made
liable to several different constructions, the Parliament, as being the high-
est court and seat of justice, and who best knew their own sense and mean-
ing, wisely provided additional explanatory acts to direct and guide the
judges of Westminster Hall, how they ought to expound such statutes, and
did not leave them to follow their own arbitrary discretions of interpreting
those laws contrary to the true design and intent of the makers thereof."
His seventh chapter, entitled, " Of the Original of Non Oistcmtes, and how
they came into the Courts of Justice," is an elaborate examination and
vehement denial of the dispensing power.

The subjAt of Ndn Olstcmtes, as they were at the time of the English
Revolution familiarly called, or that of the right then claimed for the king,
by virtue of hjs royal prerogative, to dispense with the provisions of a stat-
ute in favor of some particular person, is so interesting that I compress into
this note a brief abstract of the case of Godden vs. Hales, from Howell's
■.State Trials, ed. of 1811, vol. xi., p. 1165. The stat. 25 Charles IL, "for
preventing dangers which may happen from Popish Recusants, and quieting
the minds of his Majesty's good subjects," passed during the religious ex-
citement which prevailed in that monarch's reign, declared that every per-
son appointed to office, civil or military, under the king, should, within three
months after acceptance, receive the sacrament according to the usages of
the Church of England, and publicly take the oaths of supremacy and alle-
giance, under a penalty of £500, for executing the duties of the office after
the three months expired without the oaths and sacrament being taken.
In the year 1686 (2d Jas. II.) Godden, or Godwin, an informer, sued
Sir Edward Hales in the King's Bench, in an action of debt of £500, alleg-
ing that the defendaot, in 1673, was admitted to the office of colonel of a

208 JUDICIAL CONSTRUCTION.

the tenure of their office dependent on their good con-
duct alone, and emancipated thena from all subordina-

foot regiment, and held it for three monthsVithout taking the sacrament or
oaths in question, and that he had been indicted for and convicted of the
offense. The defendant pleaded that within the three months in the declar-
ation mentioned, the king, by letters patent, did dispense with, pardon, re-
mit, and discharge the defendant from' taking the said oaths, &c., and from
all crimes, &c., any clause in the said act, or in any other act notwithstand-
ing, and non obstante that the defendant was or should be a recusant con-
vict ;— demurrer and joinder. On this case the twelve judges were consulted :
eleven declared in favor of the demurrer; and judgment was given, quod
guerens nil capiat per Ullam. The eleven judges have been ever since
severely condemned, and the twelfth has not fared much better (see Macau-
lay's Bist. of England, vol. ii., chap, vi.) The dispensing power has been
a sort of standing symbol or equivalent for every thing arbitrary and tyran-
nical ; and by the Bill of Rights, 1 TV. & M. ses. ii. c. ii. § 12, it was declared
that from the then session of Parliament, no dispensation with any statute
should be valid unless such statute declared it, &c., and except in such
cases as should be specially provided for.

But, perhaps an accurate examination of the subject will lead to a some-
what more charitable judgment, as far at least as the judges are con-
cerned. Mr. Macaulay's account is not very full. As reported in the State
Trials, the arguments of the case by the counsel, and the judgment of the
court, are feeble enough • but the treatises published on both sides of the ques-
tion at the time, by Sir Robert Atkins, and the Chief Justice, Sir Edward
Herbert, enable us to form a pretty accurate opinion of the subject. These
pamphlets are republished in Howell's State Trials, at the enc^of the case.
That the king had a certain dispensing power in regard to the penal legis-
lation of Parliament, was generally admitted. This prerogative is> defined
and defended by Coke, in the case of the Monopolies : Dispensatio mali
prehibiti est dejure, Domino Begi eommissa, propter impossiiilitatem provi-
dendi de omnilms particularibris, et dispensatio est mali prohibiti provida
relaxatio, utilitate seu necessitate. It was considered as a sort of anticipatory
and more extensive pardoning power. Hobart, Plowden, Vaughan, had all
treated the existence of the prerogative to some extent as unquestionable,
and it had been repeatedly recognized by the courts. On the other side,
the right of dispensation in general was, it is true, denied ; but the main
question raised in the reign of James II., was, admitting its existence,
whether the right covered the particular case. It was agreed by tha
crown lawyers that the dispensation must be confined to the case of an
individual, and could not be general ; but that presented no difficulty in
this instance, the patent being to Hales alone. It was admitted also, that
the dispensation could only be of mala prohibita, and not Of mala per^ se ;

JUDICIAL CONSTRUCTION. 209

tion to the crown. Tlie influence of this alteration was
almost immediately perceptible ; the same magistrates
who, holding their offices de bene placito would have
been sycophants and time servers, became so soon as
they occupied their seats qyamdiu se hene gesserint,
bold and honest public servants*

and it was strenuously discussed whether the prohibited act in this case
belonged to the one or the other class. It was admitted that the dispens-
ing power could not apply to those laws which concern property, but it was
insisted that it did cover those relating to the policy of government.

It is curious to observe, that so far as the act of 25 Charles IT. imposed a
religious test, it would now be almost universally regarded even in England,
as unwise and unjust ; and that thus a great principle of liberty was estab-
lished by maintaining and defending in its full violence, a fanatical and arbi-
trary statute. But the law was the will of the nation, the non obstante patent
was the act of the king. And there is the true interest and the real merit
of the question.

A century before, no lawyer would probably have disputed the dispens-
ing power in its fullest extent. The Parliament that passed the act of
31 Henry VIII., giving the king power to make laws by mere proclamation,
would have hardly ventured to quarrel with a,non oisiante ; but,\in the next
century the power of the sovereign had dwindled, the dimensions of the
nation had expanded, and that flej^ible thing called the English Constitution,
adapted itself to the new state of things. Looking at the question, however,
as it presented itself in the reign of James II., either to the strict technical
lawyer of that age, or to men with any tendency to the principle of toler-
ation, the judgment affirming the prerogative does not seem so great an '
enormity as it is now generally regarded.

* By the 12 and 13 William IIL (1700), c. 3, § 3, it was provided that
after the said limitation (i. c, of the crown to the House of Hanover) "shall
take effect as aforesaid, judges' commissions be mads quamdiy, se tene gesse-
rint, and their salaries ascertained and established, but upon the address
of both Houses of Parliament, it may be lawful to renibve them." And by
Geo. III. c. 23, the judges were continued in office during'good behavior,
notwithstanding the demise of the crown.

Still, the traces of the old distrust of the judiciary are apparent in
England, down to a very recent period. Notwithstanding the alteration of
their tenure, the judges were still the organs of a system of vicious privilege
and of a sanguinary penal code ; and it is little more than half a century
since Parr called them "the furred homicides" of Westminster Hall. It is
not, I think, much more than a generation since this hostility has entirely
14

210 JUDICIAL CONSTRUCTION.

The character of the bench being changed, the mis-
chievous abuses of the judicial power gradually tended

disappeared, and since the reputation of the English judiciary for moder-
ation and humanity, has been as generally admitted as it has alvrays been
for learning and' ability.

It is curious to observe that the same abuse of judicial authority took
place in France also; and there the judges carried their power of con-
struction to such lengths that it became necessary to arrest it by positive
V^w. The power of the judiciary to construe the statute law and the
authority of judicial decisions or acts generally, has been the subject of
great controversy in France ; Dupin says, no point more so. {Juriipru-
denoe des Arrets, p. 19.) Under the old monarchy, the judges united
certain legislative with their judicial functions; they pronounced their
decisions in litigated cases, or Arrets, as they were called, because they
arrested (arretaient) all further controversies, and terminated the cause
(Dupin's Jur. des Arrets, p. 1) ; and they also made arrets d'enregistre-
ment, and arrets de reglement. The former applied to royal edicts, declara-
tions, letters patent, &c., and furnished a practical check on the despotic
power of the sovereign, more or less eflBcacious, as the case might be. Tel
idit enregisl/ri d Pairis ne Vaura point itd ou d Toulouse ou a Eouen, et rCy
fera point loi pa/r consequent ; ou Men il Waura ite enregistre giCanec des
modificatiomt qui restreignent ses dispositions. — Camus, Etudes d^un Amaat,
Ame Lett/re, p. 82. The latter, a/rrets de reglement, decided questions of
customary law (d/roit coutumier), police, professional discipline, practice ;
and had the force of law until the sovereign interfered by an edict or royal
ordinance. (Dupin's Jur. des Arrets, p. 48.)

In regard to the arrets or decisions in litigated cases, the judges grad-
ually fell into the mischievous practice of giving their judgments without
stating any reasons whatever. (Jur. des Arrets, p. 62.) This, of itself,
would naturally tend greatly to diminish, if not entirely destroy, the weight
and value of their decisions, and it finally came to be insisted by jurists
of high authority, that they should not be cited at all. Camus goes so far
as to say, " Onne dexrait jamais citer que des a/rrtts de regUment; en alle-
guer Wauires simplement eomme des exemples et des prejugis, c'est un abus
que les gens senses devraient hannir, parcequ'un exemple ne saurait etre
eoneluant qu^autant que leseir Constances sont entiremetit semblables ; or en
tnipposant la possihilite de cette similitude pa/rfaite, il reste A I'etailir, ee
qui est ordinairement une chose impossible. Mais ee mauvais usage dHmo-
quer les arrets subsistera long temps." — Camus' Studes d'un Avocat, p. 101.

The disfavor with which the proceedings of the judges were regarded,
was greatly increased by their abuse of the power of making arrets de regie- ■
ment. Exercising what was truly a legislative function, when a law of the
kind we have above enumerated came before them and they found either %

JUDICIAL CONSTRUCTION. 211

to correct themselves. As the statutes became more
plain and explicit, as the legislature ceased to be the

doubt, or a emus omissus, or what they considered an error in the law, they
removed the difficulty or supplied the omission by an a/rrtt de reghment,
which applied to all future cases, and operated like a statutory enactment.
This practice, as can easily be imagined, led to great abuses ; and an attempt
was made to check it by declaring that the business of the judges was sim-
ply to obey the law, and a general prohibition was made of judicial inter-
pretation. This prohibition made, originally, so far back as 1667, was
renewed by the Constituent Assembly in 1790. (Portalis' Discours Prelim-
inaire, Code Civil, Art. 4.) The judges, to take their revenge for this inter-
ference, adopted a new line of practice ; and whenever the law appeared
doubtful or obscure, they refused to decide the cause, and referred the whole
matter to the legislature. {lb.) This, however, was speedily condemned as
an abuse, by the Court of Cassation ; and the Code Civil contains a pro-
vision which at first sight looks very odd to the English jurist, declaring
that the judge cannot, without rendering himself liable as guilty de deni de
justice, refuse to decide the cause on the ground of the silence, the obscu-
rity, or the defectiveness of the law ; whUe at the same time it is declared
that the judge may construe the statute in the particular case, but cannot
make any general regulations. The provisions are very curious. Ze juge
quirefusera dejuger souspretexte du silence, de Vobstmrite, ou de Vinsuffisance
de la loi, powna etre pomrsuim eomme coupdble de deni de jimtice. (§ 4 )
II est defendu aux juges de prononcer pa/r voie de disposition generale et
reglementavre sw les causes qui leur sont sowmises. (§ 5.)

The abuse first above referred to was corrected by a law passed by the
Constitutional Assembly in 1790, requiring the judges in deciding causes, in
all cases to state the questions of fact and law involved, andthe reasons of
the judgment they pronounced. {Jur des Arrets, p. 68.) Since this period,
the value of the French decisions has generally increased ; but the whole
subject of the judicial power in France is, or has been till a comparatively
recent period, in great uncertainty. Portalis, in his admirable biscours
Preliminaire to the Code Napoleon (1803) devotes several pages to prove
the propriety of judicial construction of legislative acts as opposed to a ref-
erence of each litigated case turning on a doubtful point of statute law to
the legislature ; and in 1822, M. Dupin published his Ju/risprudence det
Arrets, for the purpose of defining the precise 'amount of authority rightfully
due to judicial decisions. In the course of it, the leafned author repeats
the arguments of Portalis as to the propriety and necessity of judicial con-
struction {Jur. des Arrets, pp. 10 and 12), and gives minute and copious
rules for the choice and mode of citing the arrets of the French courts. It
is a curious and interesting, but to the English or American jurist, appears
a very rudimentary treatise. The eleventh chapter of the treatise of Mr.

212 JUDICIAL CONSTRUCTION.

mere arena of political controversy, and devoted itself
to framing general rules for the conduct of aflfairs, the
judges themselves set limits to the powers' they had
arrogated ; and abandoning all pretensions of a right
to exercise any control over legislation, to correct its
errors or supply its deficiencies, they confined their
power of construction to admitted cases of doubt.
Such is now the settled doctrine both in England
and in this country. " The language of the statute is
plain and unambiguous, and when such is the case, the
will of the legislature must be obeyed."* " It is the
office of the courts to administer the law as the legis-
lature has declared it, not to alter the law by means
of construction in order to remedy an evil or incon-
veniences resulting from a fair interpretation of the
law."f " It is scarcely necessary, we trust," says Mr.
Chief Justice Redfield, in the Supreme Court of Ver-
mont, "at this late day, to say, that the judicial tri-
bunals of the State have no concern with the policy
of legislation. That is a matter resting altogether
within the discretion of another co-ordinate branch of
the government. The judicial power cannot legiti-
mately question the policy, or refuse to sanction the
provisions, of any law not inconsistent with the funda-
mental law of the State. And they would never

Dwarris, is devoted to the subject of the boundaries of legislation and of
judicialinterpretation; in it he makes copious extracts from the Diacours
PreliminaiTe of Portalis, and among other things, remarks, "that even
among our enlightened neighbors, and at a very recent period, the bound-
aries of legislation and of judicial interpretation veere so vaguely defined
and so imperfecl.ly understood, that the judges were constantly either mis-
taking the principles or erring in their application of them." — ^Dwarris,
p. 697, 783.

* Ellis vs. Paige et al., 1 Pick. 43.

t Per Paige, J., in the Court of Appeals ; James vt. Patten, 2 Selden,
p. 9.

CONSTITUTIONAL LIMITATIONS. 213

attempt to do this even, except upon obvious or satis-
factory grounds."*

Thus have the lines of demarkation^ as they now
exist, been established between these two great
branches of government. The legislature gradually
ceases to interfere with private rights, and tends more
to confine itself to the establishment of uniform, gene-
ral, and prospective rules. The judges resign and dis-
claim the power of correcting the errors or supplying
the deficiencies of the legislature, and confine them-
selves strictly to the duty of construction and interpre-
tation in doubtful cases. This power is now fully con-
ceded to them both here and in England. The rules'
controlling the exercise of this power, we shall shortly
examine; but before doiiig so, we have to. consider our
second head, i. e., the limits of the judicial power a»
used to apply and enforce constitutional provisions.

This branch of judicial authority deserves particular
attention. It is entii'ely the growth of American juris-
prudence ; it confers vast powers on the judicial body ;
and it is one of the surest preservatives of our liberties.
In England there exist certain principles of what is
there termed constitutional government, to be found
in, or deduced from Magna Carta of King John, the
statute called Confvrmatio Ohartarum^ and various^

* In re Powers, 25 Vermont, p. 265. " If the provision that the legisla-
tive and judicial powers shall be preserved separate and distinct, be not
found in our own constitution in terms, it exists there in substance, in the'
organization and distribution of the powers of the departments, and in the
declaration that the ' supreme legislative poWer ' shall be vested in the Sen-
ate and Assembly. No maxim has been more universally received and
cherished as a vital principle of freedom. And without having recour.se to
the authority of elementary writers, or to the popular conventions of Europe,
we have a most commanding authority in the sense of the Ainerican people,
that the right to interpret laws does, and ought to belong exclusively to the
courts of justice."— Dash is. Van Kleeck, per Kent, J., 7 J. R. p. 477, 60B-9.

214 CONSTITUTIONAL LIMITATIONS.

other corroborating statutes passed between the reign
of Edward I. and Henry IV. ; the petition of right in
the time of Charles I., the bill of rights framed at the
revolution of 1688, and the act of settlement adopted
to fix the succession in the house of Brunswick, From
these are derived not only the principal guaranties of
public liberty in England, but they are also said to
declare and ^protect those rights of personal security,
liberty, and private property, which, taken together,
form what is called the English Constitution.*

* See Blackstone's first chapter, on the rights of individuals.
Mr. Creasy, in his valuable work on the English Constitution, says : —
"The great primeval and enduring principles of our constitution are as
follows :

" The government of the country by an hereditary sovereign, ruling with
limited powers, and bound to summon and consult a parliament of the
whole realm, comprising hereditary peers and elective representatives of the
commons. •

" That without ihe sanction of parliament no tax of any kind can be
imposed, and no law can be made, repealed, or altered.

" That no man be arbitrarily fined or imprisoned, that no man's property
or liberties be impaired, and that no man be in any way punished, except
after a lawful trial.
"Trial by jury.

" That justice shall not be sold or delaryed.

"These great constitutional principles can all be proved, either by
express terms or by fair implication, from Magna Carta, and its above-
mentioned supplement.

"Their vigorous development was aided and attested in many subsequent
statutes, especially in the Petition of Right and the Bill of Rights; in each
of which the English nation, at a solemn crisis, solemnly declared its rights,
and solemnly acknowledged its obligations : — two enactments which deserve
to be cited, not as ordinary laws, but as constitutional compacts, and to be
classed as such with the Great Charter, of which they are the confirmers
and exponents.

" Lord Chatham called these three ' The Bible of the English Constitu-
tion,' to which appeal is to be made on every grave political qaestion. The
great statesman's advice is still sound. It deserves to be considered by sub-
jects as well as by princes, — by popular leaders without the walls of parlia-
ment, as well as by ministers within them." — SUe and Progress of the
English Constitution, by E, S. Creasy (1856, p. 3).

CONSTITUTIONAL LIMITATIONS. ^215

But these rights all rest either on regal concession
or legislative enactment ; and, in England, it has
never been alleged that there exist any precise writ-
ten provisions which in any way limit the absolute
and supreme power of parliament. It is not difficult
to understand why this should be so. The great
efforts of the lovers of law and liberty in England, have
been to set bounds to the royal prerogative, and to
put limits to the authority of the crown. The power
opposed to the crown has been the parliament. It
has consequently been the interest and duty of all op-
posed to the arbitrary* powers of the sovereign, to seek
to amplify the authority of the legislature. If ever
parliament shall become the only powerful body in
the state, there will be felt the want and there will
arise the necessity in England, as with us, of express
written constitutional restrictions.

The necessity of checks upon powet- -was perfectly
understood by the sagacious men who formed the gov-
ernment of this country ; and foreseeing that — in the
absence of a church establishment, hereditary classes
and standing armies — popular majorities and the pop-
ular bodifes representing those majorities, would, in
this country, unless checked, obtain an absolute and
despotic control over the, whole business of govern-
ment, they from the outset imposed upon our legis-
lative bodies, in the shape of constitutions, certain
restraints which were devised and intended to protect
individuals and minorities from the arbitrary exercise
of the power of majorities. Hence it is that in this
country the subject of constitutional law has assumed
such importance. The Federal Constitution and those
of the different States, all declare certain principles
and establish certain restrictions for the very purpose

216 CONSTITUTIONAL LIMITATIONS.

of limiting legislative power. No State slmllpass cmy
law impairing the obligation of contracts. Private
property shall nx)t he taken for public use without just
' compensation. These are specimens of the peremptory
language by which the people have sought to keep
their agents in constant control.

The power of applying these checks, is in the hands
of the judiciary ; and there is nothing more curious in
our history, than the fact that without any provision
either of constitution or of law giving this power to
the courts of justice, they have since the earliest days
of our republic, steadily and vigorously applied it.*
They decide in any and every case, what the true con-
struction of a doubtful constitutional provision is, and
whether any legislative act brought before them does
or does not violate it ; and theij- decision that a given
law is " unconstitutional," at once destroys its vitality
and puts an end to all proceedings under it. The im-
portance of this feature of our system, and its bearing
on the character of the judiciary, is at once apparent.
It limits the power of the legislature, it erects the judi-
ciary in some sense, into a co-ordinate political author-
ity, it practically associates them with the law-making
branch, and has had a very marked effect on the char-
acter of the legal mind and education of the country.
It has compelled our lawyers constantly to examine,
and our judges to keep in view the great principles of
government, and has given breadth and depth to our
discussion of all legal questions.

We proceed now, in our subsequent chapter's, to
consider the rules that have been laid down in regard

* The doctrine may be considered as having been finally settled in Mar-
bury vs. Madisoo, 1 Oranch, 137. See also, Kent, Com., toI. i. p. 4*8, for a
review of the cases on the subject.

LEGISLATIVE ANB JUDICIAL POWERS. 217

to the construction of statutes ; and shall afterwards
examine tlie manner in which the judicial duty of
protecting the Constitution, is exercised. Throughout
the investigation on which we are thus about to enter,
it will be necessary to keep in view the line of demark-
ation that we have endeavored to trace, between the
legislature and the judiciary. All history teaches that
it is too readily lost sight of. There is an inherent and
eternal difficulty in confining power of any kind within
its proper limits. This general rule holds eminently
true in regard to legislative and judicial bodies. The
legislature tends to disregard private rights, and to
overstep the limits of the Constitution ; the judiciary to
annul or evade laws which appear to it needlessly or
improperly made, and which, when applied to the affairs
of life, seem calculated to work injustice. Either prac-
tice is an evil strictly to be guarded against. If the
legislature should be kept strictly within the bounds
of its constitutional provisions, so on the other hand
the judiciary should not be permitted to overstep the
limits within which the fundamental principles of our
system have confined it.

We have seen, in the course of the preceding discus-
sion, how in the earlier ages of English history the j udges
have abused their power. This has been owing partly,
no doubt, to political causes which have prevented the
legislature from giving that attention totthe details of
the law which the general interests of jurisprudence
demanded ; partly to the narrowness and severity of
many of the maxims of the common law ; partly to the
brevity with which the early statutes were framed
and the apparent necessity of applying to them very
liberal doctrines of interpretation ; partly to the rapid
and perpetual changes to which society was subjected

218 JUDICIAL POWER.

by war, revolutions, and religious controversies j partly
to the dependence of the judiciary on the sovereign ;
but much has been due to the want of keeping before
the judicial mind, the true boundary between legisla-
tion and interpretation.*

It is to be borne in mind that these excuses no
longer exist : the legislator has now time to frame his
statute in simple and intelligible language; the de-
mands of commerce have made peace the normal state
of the world, and religious toleration is recognized as
the true interest of every nation whatever may be. its
creed ; the great interests of society and the duties of
government, are better understood ; the fundamental
doctrine of equality before the law, is recognized in all
civilized countries ; and it is time that the true line of
demarkation between the legislature and the judiciary,
should be strongly marked and strictly maintained.
Unless this be done, jurisprudence will always fall
short of the scientific character to which it aspires.f

The undisputed powers of the judiciary are very great ;
they not only expound statutes and mold and modify
their own judgments, but they declare what is meant by
the comity of nations, and apply the laws of foreign
countries. The daily habits of business are under their
control ; new customs every day arising, stand or fall by

* Dwarris, p. 708.

t St. Augustine says (DeVeraJReligione, p. 31), Non licet judicibut de
legibus judiea/re, sed secundum ipsas.

Argentre, an eminent French legist, in his work on the customary law
of Britanny, says, ^''Stulta videtur sapientia qum lege vult Bwpientior videri.
Our de legejudicas, qui sedes ut secundum legem judices f Plus sibi sapere
viai, insuUant legiius etsibi conscientias architectantur contra publicas leges.
Aut igitu/r sedere desinant, aut secundum leges judicent. — Argentraeus in
Antiq. OoMuet. Bret. § 323, glos. 1, n. 5 ; Mb. Conauet. art. 627, cited in
Dupin's Jurisprudence des Arrets, p. 125. ,

JUDICIAL POWER. 219

their decisions ; and under cover of the right to enforce
public policy and to protect good morals, they exercise
a large and undefined authority over private conduct.
To all this is added in America, the undisputed right
to declare constitutional law, and thus, in certain cases,
to over-ride the express will of the legislature itself.
These functions are ample enough to qualify the most
eager love of power, to. demand the exercise of the
noblest intellect and the application of the most vigor-
ous industry. Let the magistrate be contented with
this large authority ; and let him not, by endeavoring
to extend it, endanger the power that he now securely
possesses. . The judicial department should be the
most vigilant by its example to resist " that spirit of
encrpachment which tends to consolidate the powers
of all the departments in one, and thus create, what-
ever the form of government, a real despotism;"*

Before leaving this branch of my subject, I may take
notice of a subject indirectly connected with it. It has
sometimes been the practice for judges to decry certain
statutes as being contrary to good morals, such as the
usury laws and the statute of limitations ; and, going
even further than this, they have in many cases mani-
fested their disapprobation of these laws by the mode
in which they have exercised their discretionary powers
in regard to them. So, they have refused to let these
statutes be set up by way of defence when it was neces-
sary for that purpose to apply to the favor of the court.f
So again, it has been customary for judges strongly to
condemn the permission which our law gives to insol-
vent debtors to make assignments with preference. So

* Washington's Farewell Address.

t Fulton Bank vs. Beach, 1 Paige, 429 ; Utioa Insurance Co. vs. Scott,
6 Cosren, 606 ; Jackson vs. Varick, 2 Wend. 294.

220 JUDICIAL POWER.

in a late case, speaking of the recent change in our
legislation as to the rights of married women,* one of
the justices of the Supreme Court of New York
declares it to be " an extraordinary law, a law which is
well calculated in its influences, to embitter the chief
springs of social enjoyments; to degrade the sacred
relation of man and wife, leaving in full vigor only
the secular and sordid companionship of baron and
feme." But it may well be considered doubtful if it is
competent for the judiciary to make any such distinc-
tions. It is the duty of the bench to expound and
construe the law of the country, such as that law is
made by the legislature. They are not at liberty
to nullify it when once clearly declared. As little
can they be considered at liberty to discriminate
between one class of statutes and another, and to cen-
sure a defendant for acting according to that standard
of morality which the law-making power has made the
rule of conduct for both judges and litigants.

These ideas have already been expressed by some of
our most sagacious magistrates. In New York, Mr. Jus-
tice Harris has recently said, " Courts in the exercise of
their discretion in allowing amendments, have thought
it proper to discriminate between what have been
regarded as hard and unconscionable defences, and
such as have been considered with more favor.f The
soundness of this discrimination may well be doubted.
The legislature of this State have thought it wise to
declare usury to be a legal defence to an action
tipon the usurious contract. In doing so they have
but followed every other civilized State. With the

* American Home Missionary Society vs. "Wadhams, 10 Barb. 568.
t Fulton Bank vs. Beach, 1 Paige, 429 ; Utica Insurance Co. ■os. Scott, 6
Cow. 606 ; Jackson vs. Varick, 2 Wend. 294.

JUDICIAL POWER. §21

policy of sueh laws, courts have nothing to do. When
a plaintiff willfully violates the law by taking a greater
amount of interest than it allows, I do not see upon
what principle a court should take it upon itself to
pronounce the defence with which the law has pro-
vided' the defendant, hard or unconscionable. But
such has been the practice, and perhaps that practice
has now become so inveterate that it cannot be dis-
regarded."*

So again, in the Court of Appeals, when an appli-
cation was made at the trial under the New York
Code of Procedure, to amend a defective allegation of
usury in an answer, the Superior Court denied it ; but
the Court of Appeals held this denial wrong, and said,
"We are not, I conceive, warranted in applying a
different rule to the defence of usury, from that
which we should hold applicable in other cases. It ia
a defence allowed and provided by law. The defend-
ant did not claim an indulgence from the court, but
simply asked for the application of those rules which
the legislature has provided for all cases indiscrimin-
ately, whether the party invoking their exercise was
seeking to vi^it his adversary with a forfeiture or not.
The law has not made any difference between such
defences and those where no forfeiture is involved ; and
the court can make none. If the sense of the legisla-
ture is plainly expressed, we have no judgment to pass
upon the policy of their provisions."f

* Bates vs. Voorhies, 7 How. Pr. Eep. 234:.
t Catlin vs. Gunter, 1 Kern. 368.

222 AUSTIN. ON JtJEISPRUDENCE.

We have in this chapter discussed the subject of legislative power in an
entirely practical point of view, considering the actual application of laws
to the daily affairs of life ; but the subject is often treated in a different
aspect, and I give in this note a very brief summary of one of the ablest works
on abstract jurisprudence, which this century (not fertile in such treatises)
has produced ; it will serve to give an idea of this sort of investigation.
The work to which I refer is. The Province of Jurisprudence Determined,
by John Austin, Esq., Barrister at Law, London, 1832. Mr. Austin's ob-
ject (Pref. p. 5 and 8), in accordance with his title, is to distinguish positive
law, the appropriate matter of jurisprudence, from various objects with
which it is connected by resemblance, and from various other objects to
which it is allied by analogy, all being- connected and often confounded by
the common name of " laws." Mr. Austin's leading propositions are these :
Laws are a species of commands (p. 21), but the term is often improperly
applied to various objects having really -nothing of an imperative charac-
ter; and the writer classes laws as follows :

1st. Divine Lom», or the law of God, revealed, and unrevealed or tacit.
This branch does not include the natural laws, which come under the fourth
or last head.

2d. Positive Laws, constituting what is commonly known as Jurispru-
dence : laws set by political superiors to political inferiors (p. 199) ; set by
a monarch or sovereign number, to a person or persons in a state of subjec-
tion to the author.

3d. Laws of Positive Morality, embracing positive moral rules proper
(distinguished, however, from the laws of God), and also, the moral rules
set by opinion, as code of honor, laws of fashion ; these last are laws by
analogy only ; they are really opinions, and are improperly called laws
(chap, v., p. 130, note).

4th. Laws Metaphorical or Mgwative. — ^Laws of physics or of matter.
These, the author says, are not really laws at all. They are only called
laws by a figure or metaphor of speech (p. 183).

The law of God consists of the revealed or express commands, and the
unrevealed or tacit. As the index to the tacit commands of the Deity, the
author adopts the theory of utility, and prefers it to either that of a moral
sense, or to one compounded of the two. This is discussed at great and
perhaps disproportionate length.

Laws are a species of commands (p. 12). Commands are of two species,
" Laws or Rules," and " occasional or particular commands."

A command is a wish expressed by one rational being to another, that
the latter do or forbear something, under the penalty of evil proceeding
from the former, and to be incurred by the latter in case of non-compliance
(p. 11.) Command also implies the idea of superiority on the part of the
person uttering it (p. 20). It is a wish, with the power and purpose of
enforci&g it (p. 6).

AUSTIN ON JURISPRUDENCE. 223

Whenever there is the smallest chance of incurring the smallest evil, the
expression of a wish amounts to a command, and imposes a duty (p. 9).

Command and duty are correlative terms (p. 7).

Command and duty, or obligation and sanction, are inseparably con-
nected terms (p. 11).

Thus far, Mr. Austin's laws are undoubtedly a species of commands,
and this division of laws is accurate, though the nomenclature is perhaps
inapt. But is the definition of command entirely correct? Command implies
a duty, it is said. "What of illegal, criminal, or merely hostile commands ?
Take the decree of a revolutionary or usurping power ; the " stand and
deliver" of a highwayman; the "surrender" of an enemy ; do these
impose duty or obligation ? If so, in what sense of the word ?

In one place in Mr..Austin's work (p. 6), command implies power and
purpose to enforce itself, and in another (p. 9), the least chance of the
enforcement makes it a command. Is not this a contradiction ?

I proceed with the analysis of Mr. Austin's work.

Third Class (p. 143). — The positive moral rules which are laws properly
so called, are :

First. Those imperative rules set by men living in a state of nature.

Second. Those set by sovereigns, but not as political superiors.

Third. Those set by subjects as private persons, and not in pursuance of
legal rights.

1st. As an instance of this, any imperative rule imposed by man in a
state of nature; though, because he is in a state of nature, it is not
imposed in pursuance of any legal right.

2d. Laws imposed by one sovereign or supreme government, on another
sovereign or supreme government.

3d. Laws or rules set by parents to children, masters to servants ; by len-
ders to borrowers ; by patrons to parasites ; rules of clubs. 'Shese all pro-
ceed from determinate sources, but they are set by persons, as private per-
sons, and not in pursuance of legal rights. I may remark, that to class
rules set by patrons to parasites, under positive moral rules (p. 146),
seems not a very happy nomenclature.

The positive moral rules which are laws improperly so called, are such
as laws of honor, laws of fashion^ law of nations set by opinions current
among ilations. Here there is no determinate author and no strict sanc-
tion ; and their chief analogy to a law is that the party violating will suffer
some evil consequence, and hence uniformity is produced.

Sect. 6th, p. 196. — In order to complete the explanation of the marks
distinguishing positive laws, the author in this chapter defines various terms
— such as sovereignty, subjection, independent political society, unconstitu-
tional ; and in this he incidentally discusses the division of powers into
legislative and executive, or administrative. I cannot but think that this
chapter would have been fuller, the analogies more ample, and objections,
which naturally suggest themselves, more completely answered, if the'writer

224 AUSTIN ON JURISPRUDENCR

had been more familiar with our complex political organization For instance,
Mr. Austin says, — "In the State of New York, the ordinary legislation of the
State is controlled by an extraordinary legislature. The body of citizens ap-
pointing the ordinary legislature forms an extraordinary and ulterior legisla-
ture, by which the constitution of the State was directly established, and every
law of the ordinary legislature which conflicted "with a constitutional law
directly proceeding from the extraordinary, would be treated by the courts
of justice as a legally invalid act. That such an extraordinary and ulterior
legislature, is a good or useful institution, I pretend not to af&rm. I merely
affirm that the institution is possible, and that in one political society, the
institution actually obtains." Not a very audacious affirmation, considering
that this "institution " is the fundamental legal idea in thirty-two " politi-
cal societies " called States of the Union, as well as of the Union itself

Mr. Austin is a disciple of Bentham. His work is, as I have said, one of
the few works which this century has produced in our language, of abstract
disquisition on the subject to which it relates. I think his power of reason-
ing more remarkable than the fitness of his nomenclature. But the work
is very valuable, and will well repay a careful perusaL It has never been
republished in this country.

CHAPTER VI.

GENERAL RULES FOR THE CONSTRUCTION OP STATUTES.

General rules for the construction and interpretation of statutes — Ifecessity for
cpnstruction and interpretation growing out of the ambigi^ty of language,
and other causes — Various rules given by standard writers — ^Vattel's
rules — Domat's rules — Rutherforth's rules — Maekeldey's — Lieber's'^Rules
of our law — Intention of the legislature, to govern — Mode of arriving at
the legislative intention — Lord Coke's rules — Blaokstone's rules — Statutes
in pari materia — Contemporaneous exposition — Legislative exposition —
Judicial construction — Usage — Language used in statutes — Technical terms
— Liberal and strict construction.

It is hardly necessary to assert the proposition, that
in the use of language uncertainty and ambiguity
are sure to occur. Contracts, treaties, statutes, and
the books of our religion itself, furnish instances
that will at once present themselves in numbers to
the mind. The imperfection of language is a
serious evil "when it occurs in those legislative com-
mands on which the repose, discipline, and well-being
of society depend. In regard to laws, as in other
cases, difficulties will arise, in t^ie first place from the
disputed meaning of individual words, or, as is usu-
ally said, of the language employed ; and in the
second place, assuming the sense of each separate vord
to be clear, doubt will result from the whole context.
It is to meet cases of these two kinds that principles of
interpretation, or construction, become necessary ; and
leaving out of^ view, for the present, the rules by

2:26 EXILES OF INTERPRETATIOlir.

wWcli the sense of single words, phrases, and technical
terms is arrived at, we shall first consider the general
principles of interpretation.

Many efforts-have been made to lay down precise
and positive rules for the construction of statutes ; and
in order to facilitate this, a nomenclature has been
sought to classify different modes or species of inter-
pretation. So, Vattel uses the terms extensive and re-
strictive interpretation ; Kutherforth, liberal, natural,
and mixed ; and Mackeldey, andkentica^ usimlis^ and doc-
trinaUs. Professor Lieber has endeavored to carrylihis
refinement to still greater length. He distinguishes
between interpretation* and construction, and divides

* The following is Prof. Lieber's derivation of the word Interpret : "To
interpret, as is well known, is derived from the Latin interpres, interpretari,
a compound of inter and preta/ri. The latter belongs, as nearly all truly-
Latin words, according to its root, to that language which was spoken by
the original inhabitants or settlers of Europe, and of which the Gothic,
ancient High^ German, Swedish, Icelandic, Latin, &c., are but descended,
and which was likewise eiljier the first foundation of the Greek, or so
strongly influenced it, that the root of innumerable words is easily traced
through all these languages." * * " Pretari is of the same root with
many words in Teutonic languages : Praia, in Swedish, is speaking. We
have prating and prattling. The German reden (pronounced raden),
speaking, is the same ; for d and t easily change, while a consonant before
another (p in this case) is frequently dropped ; or it may be that reden is
the original. Praten signifies to this day, in some parts of Germany,
speaking loud and monotonously. Praidicare, and the Greek ^faC,ci.v, belong
to the same family of words. It is very possible that pretari aAl prating
are of the same root with SroatS— German, hreit — speak broadly, plainly.
The present German word for interpreting is auslegen, laying out, laying
open, unfolding." — Lister's Legal and Political Sermeneutics (1839), p. 20,
in notBi The etymologists, however, do not agree. Richardson's Dictionary
(1839) says, " Interpret, interpretari, of uncertain etymology,'' and gives,
with a query, "Pretari, from IIpai-TEiv." I have annexed to this chapter
.copious extracts from the works of Vattel, Domat, and Professor Lieber,
which will serve to Illustrate their mode of reasoning on the subject, and to
compensate for any error that I may make in underrating the value of
the careful classifications and nicely drawn rules of the writers of this class.

RULES OF INTERPRETATION. 227

tlie former into close, extensive, extravagant, limited
or free, predestinated and authentic ; and the latter
into close, comprehensivB, transcendent, and extrav-
agant.

Under these classifications it has laeen attempted to
frame formal rules for the v«,rious modes of interpreta-
tion, as — It is not allowable to interpret what ha6 no
need of %nterpretation.-^ When we see what is the sense
that agrees with the intention of the instrum&nt^ it is not
allowahle to wrest the words to a coni/rary meaning.
■ — No text imposing obligations is tmderstood to demand
impossible things.

And to elucidate the use of these definitions, and
the application of these rules, cases actual or possible
are resorted to,, exhibiting many varieties of doubt and
difliculty. So, if by the terms of a treaty a town is
not to be surrounded by walls, the question is asked,
whether, upon' a proper construction, it may be in-
closed with fosses and ramparts. So, the law con-
demns to death him who strikes his father. Shall we
punish him who strikes and shakes his father to re-
cover him from a fit? So, where' it was enacted that
whosoever drew blood in the public highway should
be severely punished, a barber opened a vein of a
' person taken in the street with apoplexy. "Was he
guilty or not ?

These, and similar disqussions, have amused the
fancy and exhausted the arguments of text writers. I
cannot, however, consider them of much value for ithe
student of jurisprudence. Ours is eminently a practical
science. It is only by an intimate acquaintance with
its application to the affairs of life, as they actually
occur, that we can acquire that sagacity requisite to
decide new and doubtful cases. Arbitrary formulae,

228 RULES OF INTERPRETATIOlir.

metaphysical subtleties, fanciful hypotheses, aid us but
little in our work.

Nor do I believe it easy to prescribe any system of
rules of interpretation for cases of ambiguity in written
language, that will really avail to guide the mind in the
decision of doubt. It is with the utmost difficulty, if at
all, that we can define or direct any one intellectual pro-
cess. How is it to be expected that we can, with success,
lay down rules which are' generally to govern the oper-
ations of the mind? The attempt is ingenious, meta-
physically curious, but of little practical utility in the
study or the application of the science of the law. What
is required in this department of our science is not formal
rules, or nice terminology, or ingenious classification,
but that thorough intellectual training, that complete
education of the mind, which lead it to a correct result,
wholly independently of rules, and, indeed, almost un-
conscious of the process by which the end is attained.
It would seem as vain to attempt to frame positive and
fixed rules of interpretation as to endeavor, in the
same way, to define the mode by which the mind
shall. draw conclusions from testimony.

Still, although we may reject the curious nomen-
clature, and the arbitrary rules to which I have
referred, it is not to be supposed that a subject so
important as the construction and interpretation of
laws is to be left to the mere arbitrary discretion of
the judiciary. This would be to put in their hands
po^er really superior to that of the legislature itself.
There must be some general principles that control the
matter ; and I believe it will be found, that the prin-
ciples which control the interpretation of statutes may,
for all practical purposes, be not unaptly arranged
under the same heads, and reduced analyticaUy to the

RULES OF INTEEPRETA^ON. 229

same elements, as all other branches of legal inquiry.
In all cases of judicial examination we have two great
heads of investigation :

1st. The object to be attained. This is, in all cases,
a qitestion of fact. We do^ indeed, distinguish in our
ordinary legal language between questions of fact and
questions of law ; but this is only with reference to the
tribunal, *'. a, the judge or the jury, which is to decide.
The question is always one of fact. The only differ-
ence is the nature of the fact. It is not always a
physical fact, but it must be a fact. So we say the
construction of a doubtful provision in a will is a ques-
tion of law, but the point to be decided is really one of
fact ; it is, generally, what was the intention of the testa-
tor ? So in regard to the construction of statutes, the
questions that arise are, in one sense, questions of law,
that is to say, they are to be decided by the court ;
but in reality, as we shall see, the court have, as a
general rule, only to discuss and determine a question
of fact.

2d. The means to be employed. In regard to trials
of fact, this is controlled by the rules of evidence ; in
regard to general questions of law, by positive rules
to be found in statutes or in adjudged cases. Such,
too, will, I believe, be found the true analysis of our
rules in regard to the construction of statutes.

First. The object to be attained. This is, as a general
rule, the intention of the legislature.

Second. The means to he employed; i. e. what facts
within and without the statute are to be inquired into
to ascertain the intent of the doubtful phraseology.
To be more precise :

The object to be attained. We have said that the object
of judicial investigation is, as a general rule, to determ-

230 EULES OF INTERPRETATION.

ine some fact. So is it in regard to the construction of
statutes, with the exception of constitutional questions,
and also of those cases arising under the doctrine of
liberal and strict construction, where, as we shall see
hereafter, the judicial function is blended witb" and
lost in the legislative attributes. Where a statute
appears to be of a doubtful naeaning, the courts have
the power to construe it. In discharging this duty, the
first thing is to have a clear idea of the object in view.
What is doubtful? The answer evidently is, the
mtent of the legislature who passed the act. What
did the legislature in fact intend ? The doubt does
not refer to 'th« policy of the act ; for with that, as
we have seen, the judges have nothing to do. -^ They
are judges, and not law-makers. Nor does the doubt
regard the motive of the legislator, for over that
the judges have no right of control. As little does
the doubt refer to the motive of the parties, or their
knowledge of the law ; for of these, as we have
seen, with the exception of those cases . where the
essence of crime depends on motive, the judges take no
notice. It then follows, necessarily and unavoidably,
that if the judges are to execute the will of the legislar
ture, and if they are to disregard the motives and knowl-
edge of the parties, the only doubt that can arise in
applying a statute must be as to the meaning of the
legislature ; subject, however, as has been already
said, to the exception of those cases, which will be no-
ticed in the next chapter, where there is no guide* to
the legislative meaning, and where, consequently, the
judicial function is really merged in the legislative.

We may, therefore, affirm, as a general %ruth,
that, independently of constitutional questions, and
independently of those doctrines of liberal and strict

THE INTENT OF THE LEGISLATURE. 231

construction which, really, as I have said, vest a sort of
legislative power in the judge, the object and the only
object of judicial investigation, in regard to the con-
struction of doubtful provisions of statute law, is to
asom'tain the intention of the legisldtwre which fra/med
the statute. This rule, though often asserted, has been
in practice frequently lost sight of; but there is abund-
ant authority to sustain it. " The only rule," says
Lord Ch. J. Tindal,"for the construction of acts of
Parliament is, that they should be construed accord-
ing , to the intent of the Parliament which passed the
act."* The rule is, as we shall constantly see, cardinal
and universal, that if the statute is plain and, unam-
biguous there is no room for construction or interpret-
ation. The legislature has spoken ; their intention
is free from doubt, ^nd their will must be obeyed. " It
may be proper," it has been said in Kentucky, " in giving
a construction to a statute, to look to the effects and
consequences when its provisions are ambiguous, orthe
legislative intention is doubtful. But when the law is
clear and explicit, and its provisions are susceptible of
but one interpretation, its consequences, if evil, can only
be avoided by a change of the law itself, to be effected
by legislative, and not judicial action."f So, too, it
is said, by the Supreme Court U. S. : " Where a law
is plain aiid unambiguous, whether .it be expressed
in general or limited terms, the legislature should be
intended to mean what they have plainly expressed,
and consequently no room is left for construction." J
Thus it is only when the language is ambiguous that

* Dukedom of Sussex, 8 London Jur., V95 ; Furman vs. City of New
York, 5 Sandf., 16.
t Bosley vs. Mattingly, 14 B. Monroe, Kentucky, 89.
t Fisher vs. Blight, 2 Oranch, 368, 399 ; Casew. Wildridge, 4 Indiana, 51.

"232

THE INTENTION TO GOVERN.

tHe courts are called on to construe or interpret ; and
then, as I have said, the object is to ascertain the intent
of the legislature. So^ where a statute declared, that
if a corporation did not organize and commence its
business within a year from the time of the passage of
the charter it should become void, a company, formed
under the statute, did not organize or commence its
business within the year. ; but within that time, and
eighteen days before its expiration, an act was passed
amending the charter, continuing the directors in
office for a year, and authorizing the stock subscrip-
tion books to be again opened. It was held, that the
fair construction of. the amendatory act was to give
the company one year from the time of its passage for
its organization and the commencement of its business,
on the ground that it was wholly improbable that the
legislature expected or intended that the company
should complete its organization and commence its
business within " the short space of eighteen days." *

" It is a sound principle," say the Court of Appeals
in New York, " that such a construction ought to be
put upon a statute as may best answer the intention
which the makers had in view; and that is some-
times to be collected from the cause or necessity of
making it, at other times from other circumstances.
Whenever the intention can be discovered it ought to
be followed, with reason and discretion, in its construe-
tion, although such construction may seem contrary to
its letter." In this case the following point was decided
in regard to wills : The signatwre of the testator was
always required ; but both in England and here it had

* Johnson M. Bush, 8 Barb. Ch. E., 207 & 238; see also Young fs.
Dake, 1 Selden, 463.

THE INTENTION TO GOYERN. 233

been held that the -writing of the name of the testator
in the body of the will, if 'written by himself with the
intent of giving validity to the will, was a sufficient
signing within the statute. To meet this the Eevised
Statutes of New York provided, that wills should be
subscribed by the testator at the md of the wiU. In
a case where a will was made with a map, so annexed
as to make part of the instrument, and the testator's
signature was affixed at the end of the testamentary
part of the document, but not of the whole instru-
ment, it was held, on the ground that the intent of the
statute was satisfied, that the will was valid*

In New York a qyu) warranto being brought against
the Utica Insurance Company, for exercising banking
powers, the right claimed by the defendant was held
to be so manifestly repugnant to the general scope and
object of the act of incorporation as to be evidently
contrary to the intention of the legislature; and on
this ground judgment of ouster was rendered. Thom'p-
son, J., said :

" That in construing a statute' the intention of the legislature is
a fit and proper subject of inquiry, is too well settled to admit of dis-
pute. That intention is to be collected from the act itself, and other
acts in fari materia. It may not, however, be amiss to state and keep
in view some of the established and well-settled rules on the subject.
Such construction ought to be put upon a statute as may best answer
the intention which the makers had in view. And this intention is
sometimes to be collected from the cause or necessity of making the
statute, and sometimes from other circumstances ; ^nd whenever sucb
intention can be discovered it ought to be followed, with reason and
discretion, in the construction of the statute, although such construc-
tion seem contrary to the letter of the statute. Where any words are
obscure" or doubtful, the intention of the legislature is to be resorted to,

* Tonnele tis. Hall, 4 Comstock, 140.

234 THE INTENTIOMT TO GOVEEK.

in order to find the meaning of -the words. A thing which is wjthin
the intention of the makers of a statute is as much within the statute
as if it were within the letter ; and a thing which is within the letter
of the statute is not within the statute, unless it be within the intention
of the makers ; and such construction ought to be put upon it as does
not suflFer it to be eluded."*

So in tlie same State, where, by a statute concern-
ing judgments and executions, it was declared not to
be lawful for any sheriff or other officer, to whom
any writ of execution should be directed, or any of
their deputies, to purchase any property at the execu- '
tion sale, it was held that it never could have been
the intention of the legislature to have prevented a
deputy-sheriff, when plaintiff in an execution, from
bidding, in order to secure his own money. The ob-
ject, it was said, was to prevent abuse, — that the sheriff
or his deputies should not be allowed to make pur-
chases at their own sales, and thereby be induced to
conduct themselves,corruptly in relation to them. But
it never could have been intended to place these persons
in a worse situation than others as to the collection of
their own demands.f

So again, in the same State, as to the revivor of an
act by implication, but not in terms.J

On the same principle, too, it has been held, in many
cases, that the mere change in the phraseology of a
statute will not be deemed to alter the law, unless it
evidently appears that such was the intention of the
legislature. This rule has been frequently laid down
in j-egard to the modified re-enactment of British

* People vs. Utica Ins. Co., 15 J. R., 358, 380.

t Jackson ex dem. Scofleld m. Collins, 3 Cowen, p. 89.

J Crocker m. Crane, 21 Wendell, 211. *

THE MEANS. TO BE EMPLOYED. 235

statutes, and tlie revision of our own, in the different
States*

The notion that the intention of the legislature is to
.govern has, indeed, as we shall see, often been carried,
in one sense, much too far, and the judiciary have some-
times endeavored to discover and declare a legislative
intent in direct defiance of the language employed, and
in utter disregard of the proper means to be used. But
the general principle is only perhaps made the more
evident by this strained application of it.

Considering it, then, to be clear that the object to
be attained in all cases of doubtful construction is the
intention of the legislature, we next have to consider
the mecms to he employed to a/rrwe at that result '
and we cannot, perhaps, better introduce the subject
i^an by the rules laid down in regard to construction
by the judges in the reign of Elizabeth. "And it was
resolved by the Barons of the Exchequer," says Lord
Coke, " that for the sure and true interpretation of
all statutes in general (be they penal or beneficial,
restrictive or enlarging of the common law), four
things are to be discussed and considered :

" 1. What was the common law before the making
of the act ?

" 2. What was the mischief and defect for which
the common law did not provide ?

" 3. What remedy the Parliament hath resolved

* So in New York, in regard to the Statute of Administrators (Taylor
'OS. Delancy, 2 0. C. B., 148), the Haheas Corpus Act (Case of Yates, 4
J. R., 318, 359). So in regard to the act relative to absconding, concealed,
and non-resident debtors (Matter of Brown, 21 Wend. 816) ; and so in
regard to the statute regulating the landlord's claim for rent due, under
executions (In the matter of Theriat »«. Hart, 2 Hill, 380). See also as to
point that intention is to govern, Cannon w. Vaughan, 12 Texas, 399.

236 LORD COKE'S RULES.

and appointed to cure the disease of the common-
wealth,

" 4. The true reason of the remedy.

" And then the office of all the judges is always to
make such construction as shall suppress the mischief
and advance the remedy, and to suppress subtle inven-
tions and evasions for continuance of the mischief and
pro privato com/modo, and to add force and life to the
cure and remedy, according to the true intent of the
makers of the Q.ct^ pro hono pvhUco." *

* Heydon's Case, 3 Rep., 7.

I may here notice the fact that there is in England a class of exceptions
to the usual rules of construction, growing out of what are called, as we
have seen, the Ancient Statutes. " Prudent antiquity," says Coke, " in-
cluded much matter iif few words." (2 Inst., 306, .401.) The early English
Statutes, written in French or Latin, are expressed with a brevity which
renders them now almost unintelligible, and in applying them in modem
times the courts have thought themselves free to take great liberties with
the contents. It is, therefore, with some excuse that of these staftutes, as
we have seen, it has been said (Sheffield vs. Redclifle, Hob., 346) " that
judges have power over them to mold them to the truest and best use,
according to reason and best convenience."

Blackstone's rules of interpretation are as follows : —

" The fairest and most rational method to interpret the will of the legis-
lator is by exploring his intentions at the time the law was made, by signs
the most natural and probable. And these signs are either the words, the
context, the subject-matter, the effects and consequences, or the spirit and
reason of the law. Let us take a short view of them all.

1. Words are generally to be understood in their usual and most
known signification ; not so much regarding the propriety of grammar, as
their general and popular use. Again, terms of art, or technical terms,
must be taken according to the acceptation of the learned in each art, trade,
and science. (Vol. I., p. 59.)

2, If words happen to be still dubious, we may establish their meaning
from thecontext, with which it may be of singular use to compare a word,
or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus
the proem or preamble is often called in to help the consti-uction of an Act
of Parliament. Of the same nature and use is the comparison of a law with
other laws that are made by the same legislator, that have some affinity
with the subject, or that expressly relate to the same point

8. As to the subject-matter, words are always to be understood as

THE MEANS TO BE EMPLOYED. 237

These resolutions indicate an approach to the true
principles on the subject ; but, as we shall presently
see, the ideas are loosely expressed. In the first
place, it seems to be assumed that all statutes are
intended to remedy some mischief for which the Com-
mon Law did not provide. But this is very far from
being true. Again, the notion that the object of in-
terpretation is to arrive at the legislative intent, is very
clearly stated ; but there is great vagueness in regard
to the means to be employed in attaining the end in
view. The nature of the means to be made use of is,
however, a matter of great importance and nicety. To
this we now turn. The means to be employed in arriving
at the legislative intent arrange themselves under two
heads, — first, those within the statute under considera-
tion ; and, secondly, those outside the statute.

Of the means to he found wiihm the statwte itself.
In the first place, it is an ancient and well-settjed rule,
that where any cause of doubt arises, although appa-
rently the doubt attaches only to a particular clause,
the whole statute is to be taken together, and to be

having a regard thereto ; for that is always supposed to be in the eye of the
legislator, and all his expressions directed to that end.

4. As to the effects and consequences, the rule is, where words bear
either none, or a very absurd signiflcation, if literally understood, we must
a little deviate from the received sense of them. (Vol. 1., p. 60.)

5. But, lastly, the most universal and effectual way of discovering the
true meaning of a law, when the words are dubious, is by considering the
reason and spirit of it, or the cause which moved the legislator to enact it.
(Vol. I., p. 61.)

There are three points to be considered in the construction of all reme-
dial statutes ; the old law, the mischief, and the remedy — that is, how the
common law stood at the making of the act, what the mischief was for
which the common law did not provide, and what remedy the Parliament
hath provided to cure this mischief. And it is the business of the judges so
to construe the act, as to suppress the mischief and advance the remedy."
tVoL I., p. 8T.)

238 ENTIRE ACT TO BE EXAMINED.

examined, to arrive at the legislative intent. " The
best expositor of all letters patent," says Lord Coke,
" and acts of Parliament, are the letters patent and
the acts of Parliament themselves, by construction, and
comparing all the parts of them together. Optima
slatuti mterpretaUo est (ormiihus particuUs ejusdem
inspectis) ipmmi statutum • wjustwn est nisi tota lege
inspecta^ v/na aUqtia ejus- pa/rticula proposita judicare
vel responderey

The, rule has been repeatedly affirmed. So in Penn-
sylvania it has been said that in construing any part of a
law the whole must be considered ; the different parts
reflect light on each other ; and, if possible, such a
construction is to be made as will avoid any contra-
diction or inconsistency.* So in Massachusetts it has
been said that in putting a construction upon any
statute, every part shall be regarded ; and it shall be
so expounded, if practicable, as to give some effect to
every part of it.f So again in Michigan it has been
decided a cardinal rule that, in ijae construction of a
statute, effect is to be given, if possible, to every clause
and section of it ; and it is the duty of courts, as far
as practicable, so to reconcile the different provisions
as to make the whole act consistent and harmonious.
If this becomes impossible, then we are to give effect
to what was manifestly the intention of the legislature,
though by so doing we may restrict the meaning or
application of general words. J

We have already had occasion to notice the rule
which allows reference to the preamble, and even the

* Commonwealth vs. Duane, 1 Binn., 601.
t Commonwealth vs. Alger, 7 Gush., 68, 89.

t Attorney-General ex rel. McKay vs. Detroit and Erin Plank Road
Co, 2 Michigan, 188.

MEAI^S OUTSIDE OF THE STATUTE. 239

.title, of the act * " If," says Lord C. J. Tinda,!, " any
doubt arise from, the language employed by the legisla-
ture, it hag always been held as a safe means of collect-
ing the intention, to call in aid the ground and cause of
making the statute, and. to have recourse to the pre-
amble, which, according to Chief Justice Dyer, is a
key to open the minds of the makers of the act, and
' the mischiefs which they intended to redress." f And
so, where the preamble of an act passed on the
petition of the corporation of the city of New York,
recited the petition of the corporation on which it was
. passed, it was held that the preamble containing the
petition might be referred to, to ascertain the intention
of the legislature. %

"We come next to the means to be employed outside of
the statute. It is clear that the judges are to inform
themselves of the previous state of the law, and of the
mischiefs which the statute to be construed was passed"
to obviate. And the principle has been frequently acted
on. The following case presents a strong instance of
the application of Lord Coke's rule, that in construing
a statute the antecedent legislation is. to be kept in
view. A junior creditor applied to redeem lands
sold under execution, the statute declaring that when
this is done the creditor applying to redeem shall pre-
sent to the sheriff a copy of the docket of the judg-
ment under which he claims. This formality was
omitted ; and it was insisted that the statute was
merely directory, and ought to be dispensed with.
But it was decided otherwise ; and in so doing reliance
was placed oti the previous legislation, and this lan-

* Ante pp. 50, 51, 54, et aeq.
t Dukedom of Sussex, 8 Lond. Jur., 795.
f X Furman m. The City of New York, 5 Sand., 16.

240 MEANS OUTSIDE OF THE STATUTE.

guage was held : — " The act of 1826 did not prescribe
the evidence to be produced by a creditor claiming the
fight to redeem. The consequence was, that this matter
was left, in a great degree, to the discretion of the sheriff
and his deputies. Different officers were at liberty to
adopt different rules of proceedings and the same,,
officer might sometimes receive, and at other times
reject, the same kind of evidence. Besides leaving the '
parties in doubt and uncertainty about their legal
rights, a wide door was left open for favoritism and
injustice. To remedy these evils, the legislature, in
1830, specially prescribed the evidence which should
be presented by the creditor ; and thus made the
rights of the parties depend, not on the discretion" of
the officer, but on the law of the land. That this was
a salutory provision can hardly be doubted ; bnt if it
were otherwise, the remedy belongs to another branch
of the government." * And the bill filed to redeem
was dismissed.

But when it is said that the judges are to take into
consideration the previous state of the law, and the
mischiefs which the enactment was intended to pre-
vent, a doubt at once suggests itself as to the mode to
be pursued aifd the evidence to be required. The judges
may be supposed to have, and may perhaps be reason-
ably charged with, a knowledge of the existing state of
the law at any given time ; but how are they to know the
exact mischiefs which the legislator had in view ? They
cannot be presumed to have an^ official knowledge of
the general state of the community, or of every local
disturbance or local want. What means are they,
then, to employ? — what evidence to consult? All

* Waller vs. Harris, 20 Wend., 665.

LEGISLATIVE INTENT HOW ASCERTAINED. 241

this is left very much in the dark by Lord Coke and
his successors. ^Ve are not to suppose that the courts
will receive evidence of extrinsic facts as to the inten-
tion of the legislature ; that is, of facts which have
taken place at the time of, or prior to, the passage of
the bill. So in Pennsylvatiia, in regard to th6 con-
struction of a bank charter, where it was contended
that the bank was exempt from taxation, it was held
that the evidence of public embarrassment, the proc-
lamation and message of the governor, the journals
of the House of Kepresentatives, and the reports of
committees, should be wholly disregarded.* "The
journals are not evidence," say the same court, in a
still more recent case, "of the meaning of a stat-
tute ; because this must be ascertaiined from the lan-
guage of the act itself, and the facts connected with
the subject on which it is to operate."f

On the other hand, there is no doubt that very emi-
nent judges have, in the construction of statutes, been
wont to permit their minds to be influenced, and in
fact to take a sort of judicial cognizance of many ex-
trinsic facts, in regard to which evidence certainly
would not have been permitted, and which, indeed,
could not perhaps be proved.

The English statute, 26 Geo. IL, c. 23, declared all
marriages of children under age void, unless the con-
sent of the parents or guardians was first obtained.
The question was brought before the Kings Bench,
whether the act was to be interpreted to include

* Bank of Pennsylvania vs. Commonwealth, 7 Penn. State K., 144.

t The Southwaik Bank vs. The Commonwealth, 26 Penn. State R., 446.
But it is also ruled in this last case, that the journals are the highest evi-
dence of the fact of the enactment of a law, or of any other fact connected
with its passage.

242 LEGISLATIVE INTENT, HOW ASCERTAINED.

illegitimate children ; and Lord Mansfield, in holding
that it did so, put his decision on the ground of the

.^ischiefs which the act was intended to obviate:
"This act was passed in order to prevent the illegal
practice of clandestine marriages, which were become
so very enormous,, that places were set apart in the
Fleet and other prisons for the purpose of celebrating'
clandestine marriages. The Court of Chancery, on the
ground of its illegality, made it a contempt of the court
to marry one of its wards in this manner. They commit-
ted the offenders to prison ; but that mode of punish-
ment was found ridiculous and ineffectual. Then this
act was introduced to remedy the mischief."*

It may very well be that, in the condition of English
jurisprudence in former times, when laws were few
and rarely passed, when the business of legislation was

.confined to a small and select class, to which practi-
cally the judiciary belonged, when the legislative and
the judicial bodies sat in the same place, and, indeed, ia
the same building, — ^in such a state of things, it may
well be that the judiciary might suppose themselves
to possess, that they might indeed really possess, a con-
siderable personal knowledge of the legislative intent,
and that they might come almost to consider them-
selves as a co-ordinate body with the legislaturci

But in modern societies, where the division of politi-
cal attributes is so much more nice and rigorous, where
the business of legislation has become multifarious and
enormous, and especially iu this country where th^
judiciary is so completely separated from the legisla-,
tare, it must be untrue in fact that they can have any
personal knowledge sufficient really to instruct them as

* The King vs. Inhabitants of Hodnett, 1 T. R. 96.

LEGiSLATIVE INTENT, HOW ASCERTAINED, 243

to the legislative intention ; and if untrue in fact, any
general theory or loose idea of this kind must be dan-
gerous in practice. I believe that, subject to the rules
hereafter declared, and subject to the exceptions of
equitable construction to be discussed in the next
chapter, the tendency of all our modern decisions is to
the effect tTiat the intention of the legislettwre is to he

found in the statute itself and ( that there only the
judges are to look for the mischiefs meant to be obvi-
ated, and the remedy meant to be provided.

In a case on the embargo laws, the Supreme Court
of the United States said, " In construing these laws
it has been truly stated to be the duty of thfe court to
effect the intention of the legislature ; but this intention
is to be searched for in the words which the legislature
has Employed to convey it." And, after saying thatthe
object was to lay an embargo, and to prevent evasions
of the law, and that certain acts had been prohibited,
the court proceeded : " But should this court conjecture
that some other act, not expressly forbidden, and which
is in itself the mere exercise of power over property
which all men possess, might also be a preliminary
step to a violation of the law, and ought therefore to
be punished for the purpose of effecting the legislative
intention, it would certainly transcend its own duties
and powers, and would create a rule instead of apply-
ing one already made. It is the province of the legis-
lature to declare, in explicit terms, how far the citizen

** shall be restrained in the exercise of that power over
property which ownership gives ; and it is the prov-
ince of the court to apply the rule to the case thus ex-
plicitly described,^not to some other case which
judges may conjecture to be equally dangerous."*

* Schooner Paulina's Cargo vs. The United -States, 7 Cranch, 62, 60,

244 LEGISLATIVE INTENT, HOW ASOEETAINED;

In a case on the Bnglisll Bankrupt Act, Lord Ten-
terden said, " The intention of this act certainly was
to prevent voluntary preferences; the words may,
probably, go beyond the intention ; but if they do, it
rests with the legislature to make an alteration ; the
duty of the Court; is only to construe and give effect
to the provision."*

In another case where an effort was made to include
a writ of pcme or distvmgas under the term execution,
which is confined to executions on judgments, the ap-
plication was denied ; and Lord Tenterden said, " Speak-
ing for myself alone, I cannot forbear observing, that I
think there is always danger in giving effect to what
is called the equity of a statute, and that it is much
safer and better to rely on and abide by the plain
words, although the legislature might possibly have
provided for other cases had their attention been
directed to •them."f

"Where an English statute provided, that no indent-
ure of apprenticeship should be "valid and effectual"
unless " approved of by two justices of the peace, un-
der their hcmds cmd seah^'' an indenture executed by
the justices und^r their hands only was held void ; and
the King's Bench, per Bagley, J., said, "I do not know
how to get rid of the words of this section of the act
of Parliament, and where the legislature, in a very
modern act of Parliament, have used words of a plain
and definite import, it is very dangerous to put upon
them a construction, the effect of which will be to hold*
that the legislature did not mean that which they have
expressed.''^

*Notley m. Buck, 8 Barn. & Ores. 160, 164.

t Brandling us. Barrington, 6 Barn. & Ores., 467, 476.

X The King w. Inhabs. of Stoke Damerel, 7 Barn. A Ores., 568, 568, 569.

LEGISLATIVE INTENT,. HOW ASCERTAINED. 245

In a case upon the English poor laws, which pro-
vided that, in order to gain a settlement, the rent of a
tenement " should be pai4 for one whole year at least,"
it was insisted, with reference to the great inequality
of rents, that this was very absurd and unjust; but the
act was strictly construed, and the King's Bench said,
"It is very desirable in all cases to adhere to the
words of an act of Parliament, giving to them that
sense which is their natural import in the order in
which they are placed."*

" "We are bound,"' said Lord Denman, " to give to the
words of the legislature aU possible meaning which is
consistent with the clear language used. But, if we find
language used which is inqapable of a meaning, we
cannot supply one. It is extremely probable that the
alteration suggested would express what the legisla-
ture meant, but we, looking at the word as judges,
are no more justified to introduce that meaning than
we should be if we added any other provisiou."t

"The court," said Coleridge, J., "should decline
to mold the language of an act for the sake of an
alleged convenience, or an alleged equity, upon doubt-
ful evidence of intention."^ And again, the same
learned and experienced judge said — "If I thought
the construction we are adopting put any force on
the meaning of the act, I should be the last to con-
cur in it ; for the longer I sit here the more I feel the
importance of seeking only the meaning of a statute
According tp a fair interpretation ?of its words, and

* King V8. Inhabs. of Ramsgate, 6 Barn. & Ores., 712, 715. See also
King vs. Inhabs. of Barham, 8 Bam. & Ores., 99.
t Green vs. Wood, 7 Q. B., 178, 185.
X The King vs. Poor Law Commissioners, 6 A. & E. 1, 7.

246 LEGISLATIVE INTENT; HOW ASCERTAINED.

resting upon that."* Says Patteson, J., — " I see the
necessity of not importing into statutes words which
are not to be found there. Such a mode of interpreta-
tion only gives occasion to endless difficulty ."f " We
are required," says LordDenman, " to add some arbi-
trary words to the section. We cannot introduce any
such qualification; and I cannot help thinking that the
introduction of qualifying words in the interpretation
of statutes, is frequently a great reproach to the law." J
Tindal, C. J., says, — "It is the duty of all courts to
confine themselves to the words of the legislature —
nothing adding thereto, nothing dimini8hing."§

The Court of Appeals in New York says, "Whether
we are considering an agreenjefit between parties, a
statute, or a constitution, with a view to its interpre-
tation, the thing we are to seek is, the thought which
it caresses. To ascertain this, the first resort in aU
cases is to the natural signification of the words em-
ployed, in the order and grammatical arrangement in
which the framers of the instrument have placed them.
If thus regarded the words embody a definite meaning,
which involves no absurdity, and no contradiction be-
tween different parts of the same writing, then that
meaning apparent on the face of the instrument is the
one which alone we are at liberty to say was intended
to be conveyed. In such a case there is no room for
co6struction. That which the words declare, is the
meaning of the instrument ; and neither courts nor
legislatures have the right to add to or take away
from that meaning." |

* 6 A. & E. p. 7. f King m. Burrell, 12 A. & E., 468.

X Lamond vs. Eiffe, 8 Q. B., 910.
§ Everett vs. Wells, 2 Scott N. 0. 53l.

I Newell vs. The People. 8 Seld. 97. See the subject also discussed la
M'Cluskey iia. Cromwell, 1 Kernan, 598.

STATUTES IN PARI MATERU. 247

In Michigan it has been said, " It is only where a
statute is ambiguous in its terms, that courts exercise
the power of so controlling its language as to give
effect to what they may suppose to have been the
intention of the lawmaker. In the statute before us,
the language admits of but one construction. No
doubt can arise as to its meaning. It must, therefore,
be its own interpreter."*

The result of this investigation then, is, that for
the purpose of ascertaining the intention of the legis-
lature, no extrinsic fact, prior to the passage of the bill,
which is not itself a rule of law or an act of legislation,
can be inquired into or in any way taken into view.
We now proceed with the inquiry, what a/re the means
outside of the statute which we may legitimately em-
ploy to arrive at the desired result, viz. the legislative
intent.

Statutes mpa/ri materia, to he tahen together. — ^It is
well settled, that in construing a doubtful stattite^
and for the purpose of arriving at the legislative
intent, all acts on the same subject-matter are to be
taken together and examined, in order to arrive at
the true result. "All acts in pa/ri materia,^'' said Lord
Mansfield,f " are to be .taken together, as if they were
one law." "Where," he said, on another occasion,
" there are different statutes in pari materia,, though
made at different times, or even expired, and not re-
ferring to each other, they shall be taken and con-
strued together as one system, and as explanatory
of each other." And in various cases before him, Lord

* Bidwell e« al. vs. Whitaker et al., 1 Mich. 469, 479.
t The Earl of Ailesbury vs. Pattison, Doug., 30.

248 STATUTES IN PARI MATERIA.

Mansfield applied this doctrine to the laws concerning
church leases, bankrupts, and the poor*

This sound mle has been frequently recognized in
this country. On this principle, " in many instances,"
say the Court of Errors of the State of New York, " a
remedy provided by one statute will be extended to
cases arising on the same matter under a subsequent
statute."f And so it was held, that a provision for
compensation embraced in an original act of 1817, ex-
tended to cases arising under an act passed in 1820,
conferring additional powers on canal commissioners.

The subject has been considered and explained in
Connecticut ; and it was there said, " Statutes are in
pat/ri mafe^-ia, which relate to the same person or thing,
or to the same class of persons or things. The word
par must not be confounded with the word svrmHAs.
It is used in opposition to it, as in the expression,
magis pares svM qua/m similes ; intimating not like-
ness merely, but identity. ' It is a phrase applieable
to public statutes or general laws, made at different
times and in reference to the same subject. Thus, the
ImgUslb laws concerning paupers, and their bankrupt
'acts, are construed together, as if they were one
? statute, and as forming a united, system ; otherwise the
system might, and probably would, be inharmonious
and inconsistent. Such laws are in ^ar* waferw. But
private acts of the legislature, conferring distinct
rights on different individuals, which never can be
considered as being one statute, or the parts of a
general system, are not to be interpreted by a mutual

+ Rex m. Loxdale, 1 Burr., 445 ; Duck vs. Addington, 4 Term R., 447.
t Rogers vs. Bradshaw, 20 J. R., 786, 744.

STATUTES m PARI MATERIA.

reference to each, other. As well might a contract
between two persons be construed by the terms of
anotker contract between different persons." And so,
the charters of various different banks were held not
to be iiijc>airi materia*

So, in New York it has heejx recently decided,
where an act passed in 181 iT for the construction of
the Erie Canal vested the fee of the lands taken for
the purpose in the, people of the State, and lands were
taken for the construction of the canal, under an act
passed in 1819 omitting any provision as to the title,
that the people took the same interest under the act
of 1817 as they did under that of ISlO.f

So in Kentucky it has been said, that where two
statutes of the same date relate io the same thing, but
one is more comprehensive than the other, there wiU
be an effort to give to one some operation not em-
braced in the other, so that each may, if possible, have
some effect,— that the legislation may not appear to
have been vain and useless. And in that State, where
by statute all lands held by a seminary are declared free
from all taxation whatever, and by another statute of
the same date it is declared that ,the land on which any *
seminary is erected, to the extent oifrve a^yres held sev-
eralhf or mdmiduall/y^ is exempt from taxation, it was
held to give effect to both statutes, that lands on which
a seminary is erected, owned by the seminary, though
exceeding five acres, should be exempt, but if no't
owned by the seminary only five acres should be
exempt. J

♦ Hosmer, J., United Soc. m. Eagle Bank, 7 Conn., 457, 469, 470.
t Eeiford m. Knight, 15 Barb., 627.

X Naz. Lit. & Ben. Inst. ot. Commonwealth, 14 B. Monroe, 266 ; Acts in
pari materia to be taken together, Cannon m. Vaughan, 12 Texas, 899, 402.

250 STATUTES IN PABI MATERIA.

So, it has been said that all the acts of Congress
relating to the reservation, grant, and sale of the six-
teenth section in the several Congressional townships,
in the different States of the Union, for the use of
schools, being in relation to the same subject-matter^
are to be taken in pa/ri materia and considered as one
act, in ascertaining the purpose of the grant of the
sixteenth section of the several townships in any one
State.* So, in Indiana, where at the same session an
act was passed fixing the salaries of an auditor of a
particular county, and also another fixing the salaries
of auditors generally, the Supreme Court said that the
rule of construction was well settled, viz. to regard
these enactments in pa/ri materia, to consider them as
one statute, and give them such an exposition as will
sustain what appears to have been the main intent
of the law-makers.f

The rule that statutes in <pari materia are to be con-
sulted for the construction of each other, holds good
though some of the statutes may have expired, or
even been repealed, and whether they are referred to
or not. "All acts which relate to the same subject,"
said Lord Mansfield, J " notwithstanding some of them
may be expired, or are not referred to, must be taken
to be one syptem, and construed con8istently."§ " The
objection arising from the repeal of the former stat-
utes,!' says Lord Denman, "is not insisted on,l and

* The State of Indiana m. Springfield Township, 6 Indiana, 83.

t Board of Corns, us. Cutler, 6 Indiana, 354. See, also, M'Cartee w.
Orphan Asylum Society, 9 Cowen, 437. Dodge vs. Gridley, 10 Ohio, 173.
M'Mahon w. Cincinnati & Chicago Short Line Raih-oad Co., 5 Ind., 418.

\ Rex vs. Loxdale et al., 1 Burr. 447.

§ See, also, Reg. vs. Merionethshire, 6 Q. B. R., 843.

I Reg. vs. Stock, 8 Ad. & Ell. 405, 410.

CONTEMPORANEOUS EXPOSITION. 251

does not seem tenable." "This act of Parliament,"
says Parke, J.,* " repeals that of 32 George HI. and
41 George HI., the provisions of which are only so
far material as they may aid in the construction of the
enactments of the existing statute."

Contemporaneous Mcposition. — In seeking aid to
construe an obscure or doubtful statute, considerable
weight is attached to the opinions in regard to it en-
tertained, by persons learned in the law, at the time of
its passage. " Great regard," says Lord Coke, " ought
in construing a statute, to be paid' to the construction
which the sages of the law who lived about the time or
soon after it was made, put upon it, because they were
best able to judge of the intention of the makers at the
time when the law was made." And this, in the terse
and admirable language of the civil law, is expressed
by the maxim Oontemporanea ea^ositio est fortissima
in tege.f As we shall see hereafter, this same princi-
plehas been applied in this country to a certain ex-
tent in the construction of constitutions.

So in regard to the judges of the Supreme Court of
the United States sitting as circuit judges without
distinct commissions for the purpose, it was held by
the Supreme Court, that a practice and acquiescence
under the system for a period of several years, com-
mencing with the organization of the judicial system,
afforded an irresistible answer to aU objections, and
had, indeed, fixed the construction. It was said to be
a contemporary interpretation of the highest nature. J

So, as to the laws of the Colony of Massachusetts

* Bussey vs. Story, 4 B. & A., 98, 108.

t Dwarris, p. 562.

X Stuart vs. Laird 1, Crancb, 299.

262 LEGISLATIVE EXPOSmON.

in regard to common lands, the Supreme Court of that
State has said, —

Of these statutes a practical construction early and generally
obtained, that in the power to dispose of lands was included a power
to sell and convey the common lands. Large and valuable estates
are held in various parts of the commonwealth, the titles to which
depend on this construction. Were the court now to decide that thi»
construction is not to be supported, very great mischief would follow.
And although if it were now res Integra, it might be very diflSouIt to
maintain such a construction, yet at this day the argumentum ah
inconvenienti applies with great weight. We cannot shake a prin-
ciple which in practice has so long and so extensively prevailed. It
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 pro-
vision is now supported is, that long and continued usage furnishes a
contemporaneous construct!!^ which must prevail over the mere tech-
nical import of words.*

So in regard to the construction of the statute of
of frauds, the same court has said,— ^

A contemporaneous is generally the best construction of a stat-
ute. It gives the sense of a community, of the terms made use of
by a legislature. If there is ambiguity in the language, the under-
standing and application of it when the statute first comes into opera-
tion, sanctioned by long acquiescence on the part of the legislature
and judicial tribunals, is the strongest evidence that it has been rightly
explained in practice. A construction under such circumstances be-
comes established law; and after it has been acted upon for a century,
nothing but legislative power can constitutionally effect a change.f

Legislative, Mcposit/ion. — ^The exposition of statutes
by subsequent legislative bodies, has weight — though
not a controlling authority, in regard to the construc-
tion of statutes.^ And in Vermont, it has been said

* Rogers vs. Goodwin, 2 Mass. 477, 478.

+ Packard us. Eichardson, 17 Mass.'l21, 143.

X Ooutant w. The People, 11 Wend. 611. Bex vs. Loxdale, 1 Burr. 447.

JUDICIAL CONSTRUCTION. 253

that the history of the legislation in the State in refer-
ence to the subject-matter of a statute, may be referred
to as tending to aid in the construction to be given to
it.* A declaratory act, or an act declaring the true
intent of a previous act, does not control the judiciary
in deciding on the true construction of the first act, ex-
cept in cases arising subsequent to the declaratory act,
or except in cases where a retrospective act can prop-
erly be passed. In a case of this kind it has been said,
" The preamble of the act declares its object to be,
the removal of doubts upon a point of law. So far as
the future was concerned this was strictly within the
constitutional attributes of the legislature, — ^it being the
prerogative and peculiar duty of that branch of the
"government, to make the law; and consequently, its dic-
tates, when duly promulgated, fix the law from the
moment of such promulgation, so far as they do not in-
terfere with vested rights, or impair the obligation of
contracts previously made. But the power of expound-
ing the law, which includes the great and responsible
duty of deciding whether the legislative assemblies.
State and municipal, have transcended in their past
action, the limits of their powers as defined by the con-
stitution and the laws, — this belongs to the judiciary
alone."f

. Judidal Construction. — Stave decisis is the motto
of courts of justice, sometimes, it is true, departed
from,— :-for it 5s claimed for our law as one of its merits,
that it silently changes with the changes in the habits

* Henry vs. Tilson, 17, Verm., 479.

t Municipality No. 1 vs. Wheeler, 10 LquiBiana Annual Rep. p. 747.
It is the dissenting opinion of Buchanan, J., but, I suppose, with the mod-
ification in the text expresses the true idea. The law in this case was
retrospectiTe, and sustained as such by the court.

254 JUDICIAL CONSTRUCTION.

and affairs of men;* but as a general rule, and particu-
larly in regard to the construction of statutes, courts
adhere strictly to the decisions of their predecessors.
"Thirty-four years have nearly passed," said Lord
Kenyon, in construing a penal statute for the observ-
ance of the Lord's Day, " since the decision of the
case of Rex vs. Cox, which informed the public that
all bakers have a right to do what is imputed to this
defendant as an offense. This circumstance alone
ought to have some weight in the determination of
this case;" and, the word being doubtful, the original
decision was adhered to.f Says Lord Mansfield—
" When solemn determinations, acquiesced under, have
settled precise cases and a rule of property, they ought
for the sake of certainty to be observed, as if they had
originally formed a part of the text of the statute ;"$
and this doctrine has been repeatedly recognized.§
^' Whatever might be our impressions were the mat-
ter res Integra^'' says the Supreme Court of Louis-
iana, "we deem it important in the construction of
statutes, to adhere to what has been already adjudged.
The judicial interpretation becomes, as it were, a part
of the statute, and should not <be changed but for the
most cogent reasons." |

* "Quicquid agunt 'homjines,\s the business of courts," said Lord Mansfield,
- in Barwell «s. Brooks, 3 Doug. 871, 373 ; " and as the usages of society alter,
the law must adapt itself to the various situations of mankind." See also
the language of the same great judge, to the same effect, in Corbett m Poel-
nitz, 1 Term R. 5, 9. — Lord Kenyon, however, was of the opposite way of
thinking; EUahM. Leigh, 6 TermR. 682 ; Clayton w. Adams, 6 TermR. 605 ;
and see Ram on Legal Judgment, p. 32, Philadelphia Law Library, vol. 9.

t Rex es. Cox, 2 Burr. 787. King vs. John Younger, 6 Term. R. 449, 450.

X Wyndham m. Chetwynd, 1 Burrow, 419.

§ Nelson vs. Allen and Harris, 1 Yerg. 876. King vs. Inhabitants of Oor-
sham, 2 East, 802. Hammond vs. Anderson, 4 Bos. and P., 69. King v».
Inhabitants of North Nibley, 6 Term R. 21.

1 State vs. Thompson, 10 La. Ann. R. 122, 123.

USAGE. 255

Usage. — Of a similar value in regard to the
construction of statutes is usage, or the construction
which custom or practice has put on them, " Optimus
l^um interpres consuePudo* The wisdom of this
principle is asserted in the civil law : Imperaitor Severus
rescripsit, in aTribiguitatibus quoe ex legibua prbfieis-
cuni/wr^ ccmsuetudtnem, aut rerum p&rpetuo srniiliter
jvMcatarwm auctoritatem^ vim legis ohtinere dd)ere.\
"It is the common opinion," says Lord Coke, "and
comTmmis opinio is of good authoritie in law. A.
communi observantid non est recedendmn,.^''%

These maxims undoubtedly owe their origin to the
period when the Common Law, that creature of cus-
tom, was formed, — when, in the absence of printing,
public opinion being feeble and insufficient, and gov-
ernment divided and distracted, the strong practical
minds of the times saw that the best, perhaps the
only mode of creating order and system was, to give
all possible force and effect to usage, to legalize and .
establish general habits and practices, and thus to turn
custom into law.

In a case of the House of Lords on the statute 27
Henry VIII. Lord Hardwicke said, " The opinion of
conveyancers in all times, and their constant course,
is of great weight. They are to advise ; and, if their
opinion is not to prevail, must every case come to
law? No; the received opinion ought to govern."
And Lord Mansfield said, "Consider also the usages
and transactions. of mankind upon the statute. The
object of all laws with regard to real property is

* 2 Rep. 81.
t L. 38 ff. deLegibas.

X Coke on Litt. 186, a. note ; see Hargrave's note 69, where it is said
that this is the origin of the maxim, Communis error facit jus.

256 USAGE.

quiet and repose. As to practice there has almost
been only one opinion. The greatest conveyancers,
the whole profession of the law, Sir Orlando Bridge-
man, Lord Nottingham, there was not a doubt at the
bar in Harvey vs. Ashley — Mr. Fazakerley always
took it for granted."*

So in the Supreme Court of the United States, the
practical construction given to an act of Congress
was held to be of great weight in assisting the court
to arrive at its true construction.f

In New York where at tax sales the comptroller
was directed to execute conveyances in the name of
the people of the State, and, disregarding the statutes,
deeds were given by the comptroller in his name of
office, it was held that these deeds were good to pass
a legal title, on the ground of a long and uniform
custom to give deeds of this kind in this way. J The
Chancellor said, "Lord Coke's expression, that com-
mon opinion is good authority in law, does not apply
to a mere speculative opinion in the community, as to
what the law on a particular subject is; but when

* Earl of Buckinghamshire vs. Drury, 2 Eden Ch. E. 61, 64, and 74.
See as to usage in the matter of the appointment of overseers of the poor,
Hex us. Lozdale, 1 Burrows, 445 ; where Lord Mansfield directed inquiry to
be made into the usage of certain parishes in this respect.

The understanding of the bar generally, and especially the usual practice
of the conTeyancers, have always had great weight in England, and cases —
some even on the construction of statutes — ^have frequently been decided on
the mere weight of their authority. See Smith vs. the Earl of Jersey, 2 Brod.
& B. 598, where Lords Eldon and Eedesdale bear strong testimony on this
point; and see, also, on this subject generally, — TheSdenceof LegdlJudg-
ment; a treatise designed to sJww the materials whereof amd the process ty whitih
the Gomis of Westminster Hall construct their judgments, by James Bam,
of the Inner Temple; an able and instructive work. It was re-published in
1885, in the 9th vol. of the Philadelphia Law Library.

t TJ. S. Bank w. Halstead, 10 Wheat, p. 51, 63.

X Bank of Utica vs. Mersereau, 3 Barb. 0. 580, 577.

USAGE. 257

such, opinion has "been frequently acted upon, and for
a great length of time, by those whose duty it is to
administer the law, and important individual rights
hare been acquired, or are dependent upon such prac-
tical construction of the law, this expression of the
learned Commentator upon Littleton is entitled to
great weight."

But though usage may be employed to construe
statutfes, it cannot be permitted to defeat the gene-
ral intent of an act. So said Lord Mansfield : " The
use of this practice will avail nothing if meant as an
evasion of the statute ; for usage certainly will not
protect usury."* So again, a particular usage cannot
be admitted .to interpret a general act, as one relating
to the English poor rates.f So, too, in England, the
acts of Parliament fixing one standard of weights
and measures -have been steadily upheld against all
local customs and usages. J So, in this country, a
contract for the sale of lands by the acre, means the
statute acre; and parol evidence of a general under-
standing to the contrary is inadmissible.§ In Penn-
sylvania, where a statute directs that twenty hundred
pounds shall make one ton, a contract was made to
deliver forty tons of pig metal ; and an effort was made
to show that the usual custom of dealers in the article
was to buy and sell by a gross ton of two thousand
two hundred and sixty-eight pounds ; but the court
held that the statute entered into the contract, and
for^med an essential part of it : " It is a statute which

•

* FloyerDs. Edwards, Cowper, 112.
t The King vs. John Hogg, 1 T'. R. 721.

i Noble vs. Durell, 3 T. R. 271 j Master, &o. of St. Cross vt. Lord
Howard De Walden, 6 T. R.' 838.
I Paul! vs. Lewis, 4 Watts, 402.
17

258 GENEKAl PRINCIPLES.

ought to be enforced ; and the local customs up tlie Al-
leghany river are certainly insufl&cient to repeal it."*
So in Maine, it has been decided that no prescrip-
tive right can be claimed against an existing statute.f
We have thus enumerated the modes by which
the true interpretation of doubtful legislative pro-
visions is to be arrived at. In the first place, if the
act be strictly a remedial one, a clear idea is to be
had of the law as it existed before the statute^ and
of the mischief which it was meant to )prevent, for
the purpose of ascertaining the remedy which the
* legislature intended to give. In order to arrive
at this result the whole statute is to be taken to-
gether, and all its parts are to be consulted ; acts on
the same subject-matter are to be examined ; contem-
poraneous and subsequent legislative exposition may
throw some light upon the point ; judicial construc-
tion may be appealed to ; and, finally, established
custom will perhaps determine the question. If the
law relates to entirely new matter, as for instance a
railroad act, the mind must be steadily turned in the
same direction, and its efforts employed to ascertain
the true intent of the legislature. But in no other
case than those above specified can mere extrinsic
facts either be proved or in any way taken into view :
the intention of the legislature is to be learned from
the language they have used.J

* Evans m. Myers, 25 Penn. R. 114, 116.

f Ham vs. Sawyer, 38 Maine, 37.

t " We think it much the safer course," said Lord Tenterden, in a case
on the PoorLaTrs, " to adhere to the words of the statute construed in then"
ordinary import, than to enter into any inquiry as to the supposed intention
ofthe persons who framed it." The King es. The Inhabitants of Great Bently,
10 Barn. & Ores. 620, 526, 527.

STRICT AND E;QtnTABLE CONSTEtJCTION. 259

If, after all these legitimate aids are called in, the
intention of the legislator, as happens in many cases
of hopeless ambiguity or of irreconcilable contradic-
tion, is still involved in doubt, it necessarily results
that the task of arriving at the meaning of the act,
i. e., the meaning- of the legislator, is an idle effort ;
the duty of the judge then becomes different, and
he must resolve the doubt by the exercise of his
authority, upon what are called the principles of
strict or liberal construction, and which we have
to consider ia the next chaipter. The office of the
judge then necessarily changes its character, and he
assumes to a certain extent the duties of a legislator.
He ceases to occupy himself with an endeavor to
ascertain the legislative intention, and proceeds to
decide the question before him, arising under the
statute, as in his judgment it should as a matter of
right and reason be determined. Though the term con-
struction may be still applied to this exercise of his
authority, it is evident that the mental operation is a
very different one from the endeavor to ascertain the
intention of the law-maker. The judge practically-says,
this statute is on its face doubtful. I cannot tell what
the legislature intended; but in my judgment they
ought to have intended this — the statute ought to read
thus — and so I decide. This is really legislation — a
subordinate exercise of the power, but still legislation.
Of the mode of exercising this power, of the extent
to which . it can rightly be carried, and of its fre-
quent abuse, we shall speak more fully in the next-
chapter.

In the mean time, ho^^ever, we have to examine the
rules which; govern the interpretation of particular
words, or as it is called,—

260 LANGUAGE OF STATUTES.

The language of a statute. — The rules which we have
been thus far considering, relate to ambiguity and con-
tradiction in regard to the general scope and purport
of a statute ; but serious questions may arise in regard
to single words, and with reference to the precise
meaning of the language used. The rule in regard to
this is expressed in the maxim, d verbis legis non est
vecedendum — ^the meaning of which is, that statutes
are to be read according to the natural and obvious
import of their language* In an early case, the
judges said, "They ought not to make any construc-
tion against the express letter of the statute, for noth-
ing can so express the meaning of the makers of an
act, as their own direct words ; for index a/nimi servnoT^
The rule is well expressed by Parke, B. in the English
Exchequer. "The rule which the courts have con-
stantly acted on of late years, in construing acts of
Parliament, or other instruments, is to take the words
in their ordinary grammatical sense, unless such a con-
struction would be obviously repugnant to the inten-
tion of the framers of the instrument, or would lead
to some other inconvenience or absurdity ."J "The
current of authority at the present day," says the Su-
preme Court of New York, " is in favor of reading
statutes according to the natural and most obvious
import of the language, without resorting to subtle and
forced constructions for the purpose of either limiting
or extending their operation. Courts cannot correct
what they may deem either excesses or omissions in

* Forrest w. Forrest, 10 Barb. S. 0. R. p. 46.
t Edrich's Case, 5 Co. p. 118.

I Jones i«. Harrison, 6 Exch. 328, 333. S. C. 2 Lowndes, M. & P.
257—866 also, Macdougall ««. Paterson, 11 C. B. 755.

TECHNICAL WOEBS. 261

legislation, nor relieve agdinst the occasionally harsh
operation of statutory provisions, without the danger
of doing vastly more mischief than good."*

The fundamental reason of the rules, in regard to
the language of statutes, which we have thus stated, is
to he found in the consideration that unless the courts,
as a general thing, construe language in the same sense
in which it was used by the legislature, that is, accord-
ing to its ordinary and natural import, it would be in
vain to attempt to preserve any harmony between these
two great co-ordinate branches of government; and
the contrary doctrine would open the door to intoler-
able looseness of construction. If the courts could
give to phrases new, unusual, forced, or strained inter-
pretations ,' if they coiild insert a word here or strike
out a word there, — aU idea of conforming to the legis-
lative intent would be lost, and cases turning on the
construction of doubtful statutes would soon come to
be decided either on judicial notions of policy or on
the peculiar equities of the particular matter in hand.

Technical Words. — 'When technical words occur in
a statute, they are to be taken in a technical sense,
unless it appears that they were intended to be ap-
plied differently from theii' ordinary or legal accepta-
tion.f

So, when legislating upon subjects relating to courts
and legal process, we are to consider the legislature as
speaking technically, unless from the statute itself it
appears that they made use of the terms in a more

* "Waller ss. Harris, per Bronson, J., 20 Wend. 565, 656, 557. " Words
are to be taken in the natural and obviouS sense, and not in a sense un-
necessarily restricted or enlarged," per Story, J., Martin vs. Hunter's Lessee,
1 Wheat. 826. Clark vs. City of Utica, 18 Barb. 451.

1 1 Kent Com. 463 ; Clark m. City of TJtica, 18 Barb. 451.

262 TECHNICAIi WOEDS.

popular sense. Thus, where a statute directed that
the coroner should serve process where the sheriff
was " a party" it was held that he must be technically
a party, and that being interested in the suit was not
sufficient* So, where a Massachusetts statute in re-
gard to flowing lands declared that a judgment should
be '■'•final," it was held that this phrase was to be
taken in its technical sense.f Where a Massachu-
setts act declared that no license to an adminis-
trator to sell the real estate of his intestate for
the payment of debts, should be in force for a
longer time than one year, it was said " that though
the popular sense may be the true one where the act
of the legislature does not relate to a technical subject,
yet it being the object to limit the time of sales and
prevent estates from being kept open longer than is
necessary, the legal sense seems the proper one ;" " and
it was held that, there being in a legal sense no sale
till the deed was delivered, the deed must be delivered
within the year."J

In regard to the word " robbery," used in an act
of the United States, Mr, Justice Washington has said,
"If a statute of the United States uses a technical
term which is known, and its meaning fully ascertained
by the common or civil law, from one or the other of
which it is obviously borrowed, no doubt can exist
that it is necessary to refer to the source whence it
is taken for its precise meaning."§ Where the word
^'■■supersede" was used in. a militia act, the Supreme

* Merchants Bank vs. Cook, 4 Pick. 408.

t Snell m. Bridgewater Cotton Gin Manufacturing Co. 24 Pick.
See this case also as to repeals by implication.
X Macy vs. Raymond, 9 Pick. 286.
§ The United States vs. Jones, 3 Wash. C. C. R. 209.

TECHNICAL WORDS. 263

Court of Massaclrasetts said, " The only way t*o ascer-
tain the sense of the legislature in using the word, is
to learn the military sense in which the. word is com-
monly used ; for in the enactment of laws, when terms
of art or peculiar phrases are made use of it must be
supposed that the legislature have in view the subr
ject-matter about which such terms or phrases are
commonly employed,"*

It has been said that courts of justice are presumed
to understand the meaning of technical terms in a
statute, and that experts, need not be called to inter-
pret them.f But in practice I should suppose this
assumption would be found to be very erroneous, and
that it would be frequently necessary for courts to
inform themselves by testimony as to the meaning of
terms of art or science4

A question has been raised whether the same words
in any one statute can receive different meanings,
according to a doctrine applied to wills ;§ but the
Chief Justice of the Kings Bench has said, "We dis-
claim altogether the assumption of any right to assign

* Ex parte Hall, 1 Pick. 261, 262.

+ Fashion m. Wards, 6 M'Lean, 52. '

J We have but little -idea now of the nicety of the early English law, in
regard to words ; and the difficulty was then increased by the use of a for-
eign and a dead language. So in assize of nuisance, " The plaintiff counts
that exaltavit dpmum, the jury find that erexit, — and exception taken to it ;
but the court was informed iy the grammwrians, that th«^ words were of
one sense." Giles vs. Ferrers, Cro. Eliz. 59. So see Gerrard vs. Dickinson,
Cro. Eliz. 196, for the distinction between talis and ectdem. Again in
Hopkins vs. Stapers, Cro. Eliz. 229, that ad and in are of the same effect ;
and in The Warden of All Souls m. Tanworth, Cro. Eliz. 232, it is deci-
ded i\ia,i EletmsyTiom, ought to be Eleemosynam, with a double e: " The com-
mon course is so, therefore it is good."

§ Forth vs. Chapman, 1 P. Wm. 667. Crooke vs. De Vandes, 9 Vesey,
197. Elton us. Eason, 19 Tesey, 77.

264 ' INTERPEETATION OF WILLS.

different meanings to the same words in an act of Par-
liament, on the ground of a supposed general inten-
tion in the act. We think it necessary to give a fair
and reasonable construction to the language used by
the legislature ; but we are not to assume the unwar-
rantable liberty of varying the construction, for the
purpose of making the act consistent with any views
of our own."* On this subject Vattel says, " It does
not follow, either logically or grammatically, that be-
cause a word occurs in a sentence^ with a definite case,
that therefore the same sense is to be adopted in
every sentence in which it occurs."f

We have thus considered the object to be attained
in the process of judicial interpretation, and of the
means to be employed. We shall in our next chapter
consider a large class of cases, already referred to,
where, either from the impossibility of resolving the
doubts presented by a statute on the principle of dis-
covering its intent, or from the hardship or peculiar-
ity of the particular matter presented, the judges have
been led rather to assume the duties and powers of
legislators. We shall inquire how far this exercise of
power -is legitimate or proper ; and under this head we
shall examine the subjects of liberal or equitable, and
of strict construction.

It is proper here to remark that in considering
the Subject of this chapter, the mind of the student
will frequently be called to the analogies between the
construction of statutes and the interpretation of wills.
Those analogies are numerous and striking ; J but on

* Reg. vs. Comra. of Poor Laws Holbom Union, 6 A. & EL, 68, 69.
t Vattel, Book 2, ch. 17, p. 285.

X I believe that many of the greatest judicial minds have been misled,
if I may say so pace tantorum virorum, by these analogies. In Gore vi.

INTERPEETATION OF WILIS. 365

tlie other hand, there are many and equally striMng
discrepancies. Among these latter, the rules govern-
ing the evidence to be admitted to explain ambiguities
in wills, the arbitrary principles that have been
adopted for their construction, and the vague discre-
tion exercised by the courts under the name of the
doctrine of cy pres* are very prominent. I have
thought it inexpedient to enlarge this work to the ex-
tent which would have been necessary in order fully
to exhibit the relations between these two great classes
of subjects*.

Brazier, 3 Mass. 528 & 641, Parsons, C.J. says, "Certainly the statute
ougTit to hare a construction as beneficial to creditors, as a derise to execu-
tors of an authority to sell lands for the payment of debts." This seems
to assume the power of construing statutes hmefleially, or in other words,
on grounds of equity or policy, a subject which we shall consider in our
next chapter.

* For the doctrine of Oy PrU, see Story, Eq. Jur. § 1169 et seq.

266 VAITEL'S EULES OF CONSTRtrC!TION.

The following extracts, vide supra, p. 226, notes, are from that part of
Vattel's work which relates to the Interpretation of Treaties, Liv. II., ch.
17, §§ 262 to 310 :

It is necessary to establish rules founded on reason, authorized by the
law of nature, capable of diffusing light over what is obscure, of determin-
ing what is uncertain, and of frustrating the views of him who acts with
duplicity in forming the compact. Let us begin with those that tend par-
ticularly to this last end — with those maxims of justice asd equity which
are calculated to repress fraud, and to prevent the effects of its artifices.

The first general maxim of interpretation is, that it is not allowable to
interpret what has no need of interpretation. When a deed is worded in
clear and precise terms, when its meaning is evident and leads to no absurd
voonclusiori, there can be no reason for refusing to admit the meaning which
such deed naturally presents. To go elsewhere in search of conjunctures,
in order to restrict or extend it, is but an attempt to elude it.

Those cavillers who dispute the sense of a clear and determinate article,
are accustomed to seek their frivolous subterfuges in the pretended inten-
tions and views which they attribute to its author. It would be very often
dangerous to enter with them into the discussion of those supposed views,
that are not pointed out in the piece itself. The following rule is better
calculated to foil such cavillers, and will at once cut short all chicanery. If
he who could and ought to have explained himself clearly and fully has not
done it, it is the worse for him; he cannot be allowed to introduce subse-
quent restrictions which he has not expressed. This is a maxim of the Ro-
man law : ^actionem oiscuram iis nocere in quorum fuit potestaie legem,
apertius conscrihere. The equity of this rule is glaringly obvious, and its
necessity is not less evident.

The third general maxim or principle on the subject of interpretation, is
TTiat neither the one nor the other of the parties interested in the contract
has a right to interpret the deed or treaty according to his own fancy. For
if you are at liberty to afiBx whatever meaning you please to my promise,
you will have the power of obliging me to do whatever you choose, con-
trary to my intentions, and beyond my real engagements; and, on the
other hand, if I am allowed to explain my promises as I please, I may ren-
der them vain and illusory, by giving them a meaning quite different from
that which they presented to you, and in which you must have understood
them at th^ time of your accepting them.

On every occasion when a person could and ought to have made hnown hi»
intention, we assume for true against him what he has sufficiently declared.

VATTEL'S RULES OF CONSTEUCTIOIir. 267

This is an inoontestible principle, applied to treaties ; for if they are not a
vain play of words, the contracting parties ought to express themselves in
them with truth, and according to their real intentions.

In the interpretation of a treaty, or of any other deed whatsoever, the,
question is, to discover what the contracting parties have agreed upon — to
determine precisely, on any particular occasion, what has been promised
and accepted — that is to say, not only what one of the parties intended to
promise, but also what the other must reasonably and candidly have sup-
posed to be promised to him, what has been sufSciently declared to him,
and what must have influenced him in his acceptance. Every deed, there-
fore, audi every treaty, must te interpreted hy certain fixed rules calculated
to determine its meaning, as naturally understood ly the parties concerned
at the time when the deed was drawn up and accepted. This is a fifth prin-
dple. •

Let us now enter into the particular rules on which the interpretation
ought to be formed, in order to be just and fair. /Since the sole object of
the lawful interpretation . of the deed ought to be the discovery of the
thoughts of the author or authors of that deed, mhenever we meet with any
obscurity in it, we are to consider Whdt proiaily-were the ideas of those who
drew up the deed, and to interprel it accordingly. , This is the general rule for
all interpretations. It particularly serves to ascertain the meaning of par-
ticular expressions whose signification is not sufficiently determinate..

Let us suppose that a husband has bequeathed to his wife all his money.
It is required to know whether this expression means only his ready money,
or whether it extends also to that which is lent out, and is due on notes and
other securities. If the wife is poor, if she was beloved by her husband,
if the amount of the ready money be inconsiderable, and the value of the
Other property greatly superior to that Of the money both in specie and in
paper, — there is every reason to presume that the husband meant to be-
queath her as well the money due to him, as that actually contained in his '
coffers. On the other hand, if the woman be rich, if the amount of the
ready specie be very considerable, and the money due greatly exceeds in
value all the other property,^the probability is that the husband meant to
bequeath to his wife the ready money only.

The contracting parties are obliged to express themselves in such man-
ner that they mutually understand each other. This is evident from the
very nature of the transaction. Those who form the contract concur in the
same intentions; they agree in desiring the same thing ; and how shall they
agree in this instance if they do not perfectly understand each other ? With-
out this, their contract-will be no more than a mockery or a snare. If, then,
they ought to speak in such a manner as to be understood, it is necessary
that they should, employ, the words in their proper signification — ^the sig-
nification which common usage has affixed to them — and that they annex
an established meaning to every term, every expression, they make use of.

From all these incontestable truths, results this rule : In the interpreta-

268 VATTEL'S RULES OF CONSTRUCnON.

tion of treaties, eompaets, and promises, we ought not to deviate from tTie com-
mon use of the language, unless we have very si/rong reasons for it.

In all human affairs, where absolute certainty is not at hand to point
out the way, we must take probability for our guide. In most cases, it is
extremely probable that the parties have expressed themselves conform-
ably to the established usage ; and such probability ever affords a stronger
presumption, which cannot be overruled but by a still stronger presump-
tion to the contrary.

Mahomed, Emperor of the Turks, at the taking of Negropont, having
promised a man to spare his head, caused him to be cut in two through the
middle of the body. Tamerlane, after having engaged the city gf Sebastia,
under promise of shedding no blood, caused all the soldiers of the garrison
to be buried alive : gross subterfuges which, as Cicero remarks, only serve
to aggravate the guilt of the perfidious wretch who has rectmrse to them.
To spare the head of any one, and to shed no blood, are expressions ac-
cording to common custom, and, especially on such an occasion, manifestly
imply to spare the lives of the parties. All these pitiful subtilties are over-
thrown by this unerring rule : When we evidently see what is the sense that
agrees with the intention of the contracting parties, it is not allowable to
wrest their words to a contrary meaning. The intention, &u£Bciently known,
furnishes the true matter of the convention, what is promised and accepted,
demanded and granted.

Is it necessary, in an inlightened age, to say that mental reservation
cannot be admitted in treaties? This is manifest, since, by the very nature
of the treaty, the parties are bound to express themselves in such manner
that they may mutually understand each other. There is scarcely an in-
dividual now to be found who would not be ashamed of building upon a
mental reservation. What can be the use of such an artifice, unless to lull
the opposite party into a false security, under the vain appearance of a con-
tract ? It is, then, a real piece of knavery !

Technical terms, or terms peculiar to the arts and sciences, ought com-
monly to be interpreted according to the definition given of them by mas-
ters of the art, or persons versed in the knowledge of the art or science to
which they belong. I say commonly, for this rule is not so absolute but
that we may and even ought to deviate from it when we have good reasons
for such deviation ; as, for instance, if it were proved that he who speaks
in a treaty, or in any other deed, did not understand the art or science from
which he borrowed the term, that he was unacquainted with its import as
a technical word, that he employed it in a vulgar acceptation, &c.

If, however, the technical or other terms relate to things that admit of
different degrees, we ought not scrupulously to adhere to definitions, but
rather to take the terms in a sense agreeable to the context ; for a regular
definition describes a thing in its most perfect state, — and yet it is certain
that we do not always mean it in that state of its utmost perfection when-
ever we speak of it.

VATTEL'S RULES OF CONSTRUCTION. 269

Now, the interpretation should only tend to the discovery of the will
of the contracting parties to each term. Would he who had stipulated
for the assistance of ten thousand good troops, have any reason to
insist upon soldiers of whom the very worst should be comparable
to the veterans of Julius Csesar? And if a prince had promised his
ally a good general, must he send him none but a Marlborough or a
Turenne ?

There are figurative expressions that are become so familiar in the com-
mon use of language, that in numberless instances they supply the place of
proper terms, so that we ought to take them in a figurative sense, without
paying any attention to their original, proper, and direct signification : the
subject of the discourse suflBiciently indicates the meaning that should be
affixed to them. To hatch a plot, to carry fire and sword into a coun-
try, are exjjresgions of this sort; and there can scarcely occur an instance
where it would not be absurd to take them in their direct and literal sense.

There is not perhaps any language that does not also contain words
which signify two or more different things, and phrases which are sus-
ceptible of more than one sense. Thence arises ambiguity in discourse.
The contracting parties ought carefully to avoid it. Designedly to use
it with a view to elude their engagements in the sequel, is downright per-
fidy, since the faith of treaties obliges the contracting parties to express
their intentions clearly. But, if an ambiguous expression has found its
way into a deed, it is the part of the interpreter to clear up any doubt
thereby occasioned.

The following is the rule that ought to direct the interpretation in this
as well as in the preceding case : We ought always to affix such meaning
to the expressions as is most suitable tp the subject or matter in question,
For by a true interpretation we endeavor to discover the thoughts of the
persons speaking, or of the contracting parties in a treaty. Now, it ought
to be presumed that he who has employed a word which is susceptible of
many different significations, has taken it in that which agrees with his
subject.

Let us illustrate' this rule by examples. The word day is understood of
the natural day, or the time during which the sun affords us his light, and
of the civil day, or the space of twenty-four hours. Where it is used, in a
convention, to point out a space of time, the subject itself manifestly shows
that the parties mean the civil day or the term of twenty-four hours. It
was therefore a pitiful subterfuge, or rather notorious perfidy, in Cleomenea,
wheB, having concluded a truce of some days with the people of Argos, and
finding them asleep on the third night in reliance on the faith of the treaty,
he killed a part of their number and made the rest prisoners, alleging that
the nights were not comprehended in the truce. The word steel may be
understood of the metal itself, or of certain instruments made of it ; in a
convention which stipulates that the enemy shall lay down their steel, it

270 VATTEL'S RULES OF CONSTRUCTION.

evidently means their weapons ; wherefore, Pericles, in the example related
above, gave a fraudulent interpretation to those words, since it was con-
trary to the nature of the subject manifestly pointed out.

If any of those expressions which are susceptible of different significa-
tion occur more than once in the same piece, we cannot make it a rule to
take it everywhere in the same signification. For we must, conformably to
the preceding rule, take such expression in each article according as the
subject requires — pro substrata materia, as the masters of the art say. The
word day, for instance, has two significations, as we have just observed.
If, therefore, it be said in a convention that there shall be a truce of fifty
days, on condition that commissioners from both parties shall, during eight
successive days, jointly endeavor to adjust the dispute, — the fifty days of
the truce are civil days of twenty-four hours ; but it would be absurd to
understand them in the same sense in the second article, and to pretend
that the commissioners should labor eight days and ilights without inter-
mission.

Every interpretation that leads to an absurdity ought to be rejected ; or,
in other words, we should not give to any piece a meaning from which any
absurd consequences would follow, but must interpret it in such a manner
as to avoid absurdity.'

Those fanatic Jews who scrupled to defend themselves when the enemy
attacked them on the Sabbath day, gave an absurd interpretation to the
fourth commandment. Why did they not also abstain from dressing, walk-
ing, and eating? These also are "works," if the term be strained to its
utmost rigor.

It is said that a man in England married three wives, in order that he
might not be subject to the penalty of the law which forbids marrying two.

It is not to ie presumed that sensible persons in treating together, or
transacting any other serious business, meant that the result of tlieir proceed-
ings should prove a mere nullity. The interpretation, therefore, which would
rendei' a treaty null <tnd inefficient cannot be admitted. We may consider
this rule as a branch of the preceding; for it is a kind of absurdity to
suppose that the very terms of a deed should reduce it to mean nothing.
It ought to be interpreted in such a manner as that it may have its effect,
and not prove vain and nugatory. And in this interpretation we proceed.

Thflcydides relates that the Athenians, after having promised to retire
from the territories of the Boeotians, claimed a right to remain in the coun-
try under pretense that the lan'ls actually occupied by their army did not
belong to the Boeotians ; a ridiculous quibble, since, by giving that sense
to the treaty, they reduced it to nothing, or rather to a puerile play upon
words.

If he who has expressed himself in an obscure or equivocal manner, hat
%pohen elsewhere more clearly on the same sulked, he is the best interpreter
of his own words. We ought to interpret his obscure or equivocal expres-

VATTEL'S KULE3 OF CONSTRUCTION. 271

sion in such a manner that may agree with those clear and unequivocal terijia
which he has elsewhere used, either in the same deed or on some dther sim-
ilar occasion.

Let us suppose, for instance, that two allies haye reciprocally promised
each other, in case of necessity, the assistance of ten thousand foot soldiers,
who are to he.supported at the expense of the party that sends them ; and
that by a posterior treaty they agree that the number of auxiliary troops
shall be fifteen thousand, without mentiohing their support : the obscurity
which remains in this article of the new treaty, is dissipated by the clear
and express stipulation contained in the former one.

As the allies do not give any indication that they have changed their
minds with respect to the support of the auxiliary troops, we are not to
presume any such change ; and those fifteen tliousand men are to be sup-
ported as the ten thousand promised in the first treaty.

It frequently happens that, with a view to conciseness, people express
imperfectly, and with some degree of obscurity, things which they suppose
to be sufficiently elucidated by the preceding matter, or which they intend
to explain in the sequel; and, moreover, words and expressions have a
different force, sometimes even a quite different signification, according to
the occasion, their connection, and their relation to the words. The con-
nection and train of the discourse is therefore another source of interpre-
tation. We must consider the whole discourse together, not so much the sig-
rdflcation which it may individualli/ admit of, as that which it ought' to have
from the context and spirit of the discourse. Such is the maxim of the
Koman law, Incivile est, nisi tota lege perspecta, una aliqui particmla ejus
pr'opositd judicare, vel respondere.

The very connection and relation of things in question kelps also to
discover and establish the true sense of a treaty, or of any other piece.
The interpretation ought to be made in such a manner, that all the parts
may appear consonant to each other — that what follows may agree with
what {)receded, unless it evidently appear that, by the subsequent clauses,
the parties intended to make some alteration in the preceding ones. For it
is to be presumed that the authors of a deed had an uniform and steady
train of thinking — that they did not aim at inconsistencies and contradic-
tions, but rather that they intended to explain one thing by another — and,
in a word, that one and the same spirit reigns throughout the same produc-
tion or the same treaty. Let us render this more plain by an example.

A treaty of alliance declares, that in case one of the allies be attacked,
each of the others shall assist him with a body of ten thousand foot, and
supported ; and in another article it is said that the ally who is attacked
shall be atliberty to demand the promised assistance in cavalry rather than
in infantry. Here we see that, fti the first article, the allies have determ-
ined the quantum of the succor, and its value, that of ten thousand foot ;
and in the latter article, without appearing to intend any variation in the
value or number, they leave the nature of the succors to the choice of the

272 VATTEL'S RULES OF CONSTEUCTION.

party who may stand in need of them. If, therefore, the ally who is
attacked calls upon the others for cavalry, they will give him, according to
the established proportion, an equivalent to ten thousand foot. But it
appears that the intention of the latter ai$icle was, that the promised succors
should in certain cases be augmented— if, for instance, it be said, that in
case one of the allies happens to be attacked by an enemy of considerably
superior strength, and more powerful in cavalry, succors should be fur-
nished in cavahy aAd not in infantry. It appears that, in this case, the
promised assistance ought to be ten thousand horse.

The reason of the law or of the treaty— {hat is to sa/y, of the motwe which
led to the making of it, and the object in contemplation at the time — U the
most certain clue to lead us to the discovery of its true meaning ; and great
attention should be paid to the ciroumstance,'whenever there is question
either of explaining an obsctire, ambiguous, indeterminate passage in a law
or treaty, or of applying it to a particular case. When once we certainly
know the reason which alone has determined the will of the person speak-
ing, we ought to interpret and apply his words in a manner suitable to that
reason alone.

But we ought to be very certain that we know the true and only reason
of the law, the promise, or the treaty. In matters of this nature, it is not
allowable to indulge in vague and uncertain conjectures, and to suppose
reasons and views where there are none certainly known. If the piece in
question is in itself obscure — if, in orSer to discover its meaning, we have
no other resource than the investigation of the author's views or the motives
of the deed — we may then have recourse to conjecture ; and in default of
absolute certainty, adopt, as the true meaning, that which has the greatest
degree of probability on its side. But it is a dangerous abuse to go, with-
out necessity, in search of motives and uncertain views, in order to wrest,
restrict, or extend the meaning of a deed which is of itself sufficiently clear,
and carries no absurdity on the face of it. Such a procedure is a violation
of that incontestable maxim — that it is not allowable to interpret what has
no need of interpretation. Much less are we allowed — when the author of a
piece has in the piece itself declared his reasons and motives — to attribute
to him some secret reason which may authorize us in giving an interpre-
tation repugnant to the natural meaning of the expressions. Even though
he should have entertained the views which we attribute to him, yet if he
has concealed them and announced different ones, it is upon the latter alone
that we must build our interpretation, and not upon those which the author
has not expressed : we assume as true against him what he has sufficiently
declared.

We ought to be the more circumspect in this kind of interpretation, as it
frequently happens that several motives concur to determine the will of the
party who speaks in a law or in a promise. Perhaps the combined influ-
ence of those motives was necessary, in order to determine his will — ^per-
haps each one of them, taken individually, would have been sufficient to

VATTEL'S RULES OF CONSTRUCTION. 273

produce that effect. In the former case, if we are perfectly certain that it
was only in consideration of several concurrent reasons and motives that the
legislature, or the contracting parties, consented to the law or the contract,
the interpretation and application ought to be made in a manner agreeable
to all those concurrent reasons, and none of them must be overlooked. But
in the latter case, when it is evident that each of the reasons which have
concurred in determining the will was sufBcient to produce that effect, so
that the author of the piece in question would, by each of the reasons sep-
arately considered, have been induced to form the same determination
which he has formed upon all the reasons taken in the aggregate, his words
must be so interpreted and applied as to make them acCord with each iof
those reasons taken individually. Suppose a prince has promised certain
advantages to all foreign Protestants and artisans who will come and settle
in his estates; if that prince is in no want of subjects, but of artisans only,
— and if, on the other hand, it appears that he does not choose to have any
other subjects than Protestants, his promise must be so interpreted as to
relate only to such foreigners as unite those two characters, of Protestants
and artisans. But if it is evident that this prince wants to people his coun-
try, and that, although he would prefer Protestant subjects to others, he
has in particular so great a want of artisans, that he would gladly receive
them of whatever religion they be, his wprds should be taken in a disjunct-
ive sense, so that it will be sufficient to be either a Protestant or an artisan
in order to enjoy the promised advantages.

The consideration of the reason of a law or promise not only serves to
explain the obscure or ambiguous expressions which occur in the piece,
but also to extend or restrict its several provisions independently of the
expressions, and in conformity to the intention and views of the legislature,
or the contracting parties, rather than to their words. .For, according to
the remark of Cicero, the language invented to explain the will ought not
to hinder its effect. When the sufficient and only reason of a provision,
either in a law or a promise, is perfectly certain and well understood, we
extend that provision to cases to which the same reason is applicable,
P although they be not comprised within the signification of the terms. This
is what is called interpretation. It is commonly said that we ought to
adhere rather to the spirit than to the letter. Thus the Mohamedans justly
extend the prohibition of wine in the Koran to all intoxicating liquors:
that dangerous quality being the only reason that could induce their legis-
lator to prohibit the use of wine.

But we should here observe the caution above recommended, and even
still greater, since the question relates to an application in no wise author-
ized by the terms of the deed. We ov^Tit to le fhoroughly convinced that
we know the true and only reason of the law or the promise, and that the
author has tah$n it in the same latitude which must le given to it in order
to make it reach the ease to which we mean to extend the law or promise in
question.

274: VATTEL'S EULES.

The rule juat laid down serves also to defeat the pretexts and pitiful
evasions of those who endeavor to elude laws or treaties. Good faith
adheres to the intention ; fraud insists on the terms, when it thinks that
they can furnish a cloak for its prevarications. The isle of Pharos, near
Alexandria, was, with other lands, tributary to the Rhodians. The latter
having sent collectors to levy the tribute, the queen of Egypt amused them
for some time at her court, using in the meanwhile every possible exertion
to j oin Pharos to the mainland, by means of moles ; after which she laughed
at the Rhodians, and sent them a message, intimating that it was very
unreajonable in them to pretend to levy on the main land, a tribute which
they had no title to demand except from the islands. There existed a law
which forbade the Corinthians to give vessels to the Athenians. They sold
them a number at five drachms? each. The following was an expedient
worthy of Tiberius : custom not permitting him to cause a virgin to be
strangled, he ordered the executioner iirst to deflower the young daughter
of Sejanus, and then to strangle her.

Bestrictive interpretation, which is the reverse of extensive interpreta-
tion, is founded on the same principle. As we extend a clause to those
cases which, though not comprised within the meaning of the terms, are
nevertheless comprised in the intention of that clauge, and included in the
reasons that produced it, in like manner we restrict a law or promise, con-
trary to the literal signification of the terms — our judgment being directed
by the reason of that law or that promise ; that is to say, if a case occurs
to which the well-known reason of a law or promise is utterly inapplicable,
that the case ought to be excepted, although, if we were barely tO:^:onsider
the meaning of the terms, it should seem to fall within the purview of the
law or promise.

It is impossible to think of every thing, to foresee every thing, and to
express every thing ; it is suflicient to enounce certain things in such a man-
ner as to make known our thoughts concerning things of which we do not
speak ; and, as Seneca, the rhetorician, says, there are exceptions so clear,
that it is unnecessary to express them. The law condemns to suffer death
whoever strikes his father: shall we punish him who has shaken and
struck his father, to recover him from a lethargic stupor? Shall we pun-
ish a young child, or a man in a delirium, who has lifted his hand against
the author of his life ? In the former case, the reason of the law does not
hold good ; and to the two latter, it is not applicable.

We have recourse to restrictive interpretation in order to avoid falling
into absurdities. A man bequeaths his house to one, and to another his
garden, the only entrance into which is through the house. It would be
absurd to suppose that he had bequeathed to the latter a garden into which
he could not enter ; we must therefore restrict the pure and simple dona-
tion of the house, and understand that it was given only upon the condition
of giving a passage to the garden.

When a case arises in which it would be too severe and too prejudicial

VATTEL'S RULES. 275.

to any one to interpret a law or a promise according to the rigor of the
terms, a restrictive interpretation is then also used, and we except the case
in question agreeably to the interpretation of the legislature, or of him who
made the promise ; for the legislature intends only what is just and equit-
able ; and, in contracts, no one can enter into such engagements in favor
of another as shall essentially supersede the duty he owes to himself.

Thus, towards the end of the last century, Victor Aipadeus, Duke of
Savoy, found himself under the necessity of separating from his allies, and
of receiving law from Prance, to avoid losing his states. The Iting, his son,
would have had good reasons to justify a separate peace in the year 1745,
but, upheld by his courage, and animated by just views of his true interest,
he embraced the generous resolution to struggle against an extremity which
might have dispensed with his persisting in his engagements.

We have said above that we should take the expressions in the sense that
agrees with the subject or the matter. Restrictive interpretation is also
directed by this rule. If the subject or the matter treated of will not allow
that the terms of a clause should be taken in their full extent, we should
limit the sense according as the subject requires. Let us 'suppose that the
custom of a particular country confines the entail of fiefs to the male line,
properly so called : if an act of enfeoffment in that country declares that
the fief is given to a person for himself and his mal&descendants, the sense
of these last words must be restricted to the males descending from males,
for the subject will not admit of our understanding them also of males who
are the issue of females, though they are reckoned among the male descen-
dants of the first possessor.

The following question has been proposed and debated : — Whether pro-
mises include a tacit condition of the state of affairs continuing the same ;
or, whether a change happening in the state of affairs can create an excep-
tion to the promise, and even render it void ? The principle- derived from
the reason of the promise must solve the question. If it be certain and
manifest that the reason of the consideration of the present state of things
was one of the reasons which occasioned the promise — that the promise was
made in consideration or consequence of that state of things — it depends
on the preservation of things in the same state. This is evident, since the
promise was made only upon that supposition. When, therefore, that state
of things which was essential to the promise, and without which it certainly
would not have been made, happens to be changed, the promise falls to the
ground when its foundation fails. And in particular cases where things
cease for a time to be in the state that has produced or concurred to pro-
duce the promise, an exception is to be made to it. An elective prince,
being without issue, has promised to an ally that he will procure his appoint-
ment to the succession. He has a son born. Who can doubt that the
promise is void by this event ?

But we ought to be very cautious and moderate in the application of the
present rule. It would be a shameful perversion, of it to take advantage of

276 VATTEL'S EULES.

every change that happens in the state of affairs, in order to disengage our-
selves from our promises. "Were such conduct adopted, there could be no
dependence placed on any promise whatever. That state of things alone
in consideration of which the promise was made, is essential to the promise^
and it is only by a change in that state that the effect of the promise can be
lawfully prevented or suspended. Such is the sense in which we are to un-
derstand that maxim of the civilians, Gonventio omnis intelligitur rebva tio
stantibus. ■

What we Say of promises must also be understood as extending to laws,
A law which relates to a certain situation of affairs can only take place in
that situation. We ought to reason in the same manner with respect to the
emperor, turned back on being informed of the death of Galba.

In unforeseen cases, that is to say, when the state of things happens to
be such as the ?iuthor of a deed has not foreseen, and could not have
thought of, we should rather be guided by his intention than than by his
words, and interpret the instrument as he himself would interpret it if he
were on the spot, or conformably to what he would have done if he had
foreseen the circumstances which are at present known. This rule is of
great use to judges, and to all those in society who are appointed to carry
into effect the testamentary regulations of the citizens. A father appoints
by will a guardian forjhis children who are under age. After his death the ,
magistrate finds that the guardian he has nominated is an extravagant
profligate, without property or conduct ; he therefore dismisses him and
appoints another, according to the Roman laws, adhering to the intention .
of the testator and not to his words ; for it is but reasonable to suppose
— and we are to presume it as a fact — that the father never intended to give
his children a guardian who should ruin them, and that he would have
nominated another had he known the vices of the person he appointed.

When the things which constitute the reason of a law or convention are
considered not as actually existing, but simply as possible, — or in other
words, when the fear of an event is the reason of a law or a promise, — no
other cases can be excepted from it than those in which it can be proved to
demonstration that the event is really impossible. The bare possibility of
the event is sufBcientto preclude all exceptions. If, for instance, a treaty
declares that no army or fleet shall be conducted to a certain place, it will
not be allowable to conduct thither an army or fleet, under pretence that
no harm js intended by such a step ; for the object of a clause of this nature
is not only to prevent a real evil, but also to keep all danger at a distance,
and to avoid even the slightest subject of uneasiness.

We have already observed, that men's ideas and language are not
always perfectly determinate. There is, doubtless, no language in which
there do not occur expressions, words, or entire phrases, susceptible of a
more or lesiS extensive signification. Many a word is equally applicable
to the genus or the species. The word fault implies intentional guilt or
simple error. Several species of animals have but one name common to

VATTEL'S RULES. 277

both sexes, as partridge, lark, sparrow, &o. When we speak of horses
merely with a view to the services they render to mankind, mares also are
comprehended under that name. In technical language, a word has some-
times a more or sometimes a less extensive sense than in vulgar use. The
word " death," among civilians, signifies not only natural death, but also
civil death. Yerbun, in the Latin grammar, signifies only that part of
speech called the verb ; but in common use, it signifies any word in
general.

But it is to this head that the famous distinction between things of a
favorable, and those of an odious nature particularly belongs.

"When the provisions of a law or a convention are plain, clear, determin-
ate,, and attended with no doubt or difficulty in the application, there is no
room for any interpretation or comment. The precise point of the will of
the legislature, or the contracting parties, is what we must adhere to. But
if their expressions are indeterminate, vague, or susceptible of a more or
less extensive sense — if that precise point of their intention cannot, in the
particular case in question, be discovered and fixed by the other rules of
interpretation — we must presume it, according to the laws of reason and
equity ; and, for this purpose, it is necessary to pay attention to the nature
of things to which the question relates. There are certain things of which
equity admits the extension rather than the restriction: that is to say,
that, with respect to those things, the precise poitit of the will not being
discovered in the expressions of the law or the contract, it is safer, and
more consistent with equity, to suppose and fix that point in the more
extensive than in the more limited sense of the terms, — to give a latitude to
the meaning of the expressions, than to restrict it. These are the things
called favorable. Odious things, on the other hand, are those of which the
restriction tends more certainly to equity than the extension. Let us figure
to ourselves the intention or the will of the legislature, or the contracting
parties, as a fixed point. At that poii^t precisely should we Stop, if it be
clearly known; if uncertain, we should, at least, endeavor to. approach it.
In things favorable; it is better to pass beyond that point than not to reach
f, it; in things odious, it is better not to reach it than to pass beyond it.

It will not now be difficult to show, in general, what things are favora-
ble and what are odious. In the first place, every thing that tends to the
common advantage in conventions, or that has a tendency to place the
contracting parties on a footing of equality, is favorable. The voice of
equity, and the general rule of contracts, require that the conditions between
the parties should be equal.

For the same reason, every thing that is not for the common advantage
— every thing that tends to destroy the equality of a contract — every thing
that burthens only one of the parties, or that burthens one more than the
other, is odious. In a treaty of strict friendship, unioii, and alliance, every
thing which, without being blirthensome to any of the parties, tends to the
common advantage of the confederacy, and to draw the bonds of union
closer, is favorable.

278 VATTEL's Rules.

In unequal treaties, and especially in unequal alliances, all the clauses
of inequality, and principally those that burthen the inferior ally, are
odious. Upon this principle, — that we ought, in case of doubt, to extend
what leads to equality, and restrict what destroys it, — ^is founded that well
known rule, Ineommoia vitcmtis melior quam comfrwda petentis est causa :
The party who endeavors to avoid a loss, has a better cause to support
than he who aims at obtaining an advantage.

All those things which, without proving too burthensome to any one in
particular, are useful and salutary to hum^n society, are to be ranked in
the class of favorable things; for a nation is already under a natural obli-
gation with respect to things of this nature.

On the other hand, let us consider as odious every thing that is, in its
own nature, rather injurious than useful to mankind. Those things which
have a tendency to promote peace are favorable ; those that lead to war
are odious.

Every thing that contains a penalty is odious. With respect to the
laws, it is universally agreed that, in case of doubt, the judge ought to
incline to the merciful side, and that it is indisputably better to suffer a
guilty person to escape. Penal clauses in treaties lay a burthen upon one
of the parties : they are, therefore, odious.

Whatever tends to render a deed void and ineffectual, either in the
whole or in part, and consequently whatever introduces any change in
things already agreed upon, is odious ; for men treat together with a view
to their common benefit ; and if I enjoy any particular advantage, acquired
by a lawful contract, I must not be deprived of it except by my own renun-
ciation.

Whatever tends to change the present state of things, is also to be ranked
in the class of odious things ; for the proprietor cannot be deprived of his
right except so far, precisely, as he relinquishes it on his part ; and in case
of doubt, the presumption is in favor of the possessor.

Finally, there are things which are at once of a favorable or odious
nature, according to the point of view in which they are considered. ^
Whatever derogates from treaties, or changes the state of things, is odious ; ^
but if it is conducive to peace, it is, in that particular, favorable. A degree
of odium always attaches to penalties ; they may, however be viewed in a
favorable light, on those occasions when they are particularly necessary for
the safety of society.

When there is question of interpreting things of this nature, we ought to
consider whether what is favorable in them greatly exceeds what appears
odious — whether the advantage that arises from their being extended to the
utmost latitude of which the terms are susceptible, will materially outweigh
the severe and odious circumstances attending them ; and if that is the case
they are to be ranked in the class of favorable things. Thus, an incon-
siderable change in the state of things, or in conventions, is reckoned as
nothing when it procures the inestimable blessings of peace. In the same
manner, penal laws may be interpreted in their most extensive meanings on

VATTEL'S EtTLES. 279

critical occasions, when such an instance of severity becomes necessary to
the safety of the state.

*!. When the question relates to things favorable, we ought to give the
terms the utmost latitude of which they are susceptible according to the
common usage of the language ; and if a term has more than one significa-
tion, the most extensive meaning is to be preferred; for equity ought to
be the rule of conduct with all mankind, wherever a perfect right is not
exactly determined and known in its precise extent. When the legislature
or the contracting parties have not expressed their will in terms that are
precise and perfectly determinate, it is to be presumed that they intended
what is most equitable.

Thus, Oicero, in pleading the cause of Csecina, justly maintains that the
interlocutory decree ordaining " that the person'lexpelled from his inheritance
be reinstated in the possession," should be understood as extending to the
man who has been forcibly prevented from entering upon it; and the Digest
decides in the same manner.

In questions relating to fa^rable things, all terms of art are to be inter-
preted in the fullest latitude of which they are susceptible not only in com-
mon usage, but also as technical terms, if the person speaking understands
the art to which those terms belong, or conducts himself by the advice of
men who understand that art.

But we ought not, from the single reason that a thing is favorable, to
take the terms in an improper signification : this is not allowable, excfept
when necessary in order to avoid absurdity, injustice, or the nullity of the
instrument, as is practiced on every subject ; for we ought to take the terms
of a deed in their proper sense, conformably to their custom, unless we have
very strong reasons for deviating from it (§ 271).

Though a thing appears favorable when viewed in one particular light,
yet where the proper meaning of the terms would if taken in its utmost
latitude lead to absurdity or injustice, their signification must be restricted
according to the rules given above ( § 293, 294). For here, in this particular
case, the thing becomes of a mixed nature, and evfen such as ought to be
ranked in the class of odious things.

For the same reason, although neither absurdity nor injustice results from
the , proper meaning of the terms, if nevertheless manifest equity or a
grfeat common advantage requires their restriction, we ought to adhere to
the most limited sense which the proper signification will admit, even in an
affair that appears favorable in its own nature — because here also the thing
is of a mixed kind, and ought, in this particular case to be esteemed odious.

Since odious things ^^^ those whose restriction tends more certainly to
iequity than their extension, and since we dught tp pursiie that line which
is most conformable to equity, when the will of th6 legislature or of the con-
tracting parties is not exactly determined and precisely known, — we should,
when there is question of odious things, interpret the terms in the most
limited sense ; we may even to a certain degree adopt a figurative meaning,

280 VAOTEL'S RULES.

in order to avert the oppressive consequences of the proper and literal sense,
or any thing of an odious nature which it would involve ; for we are to favor
equity, and do away every thing odious, "Bo far as that can be accomplished
without going in direct opposition to the tenor of the instrument or visibly
wresting the text.

Now, neither the limited nor even the figurative sense offers any violence
to the text. It is said in a treaty that one of the allies shall assist the other
with a certain number of troops, at his own expense, and that the latter
shall furnish the same number of auxiliary troops at the expense of the
party to Whom they are sent : there is something odious in the engagement
of the former ally, since he is subject to a greater burden than the other ;
but the terms being clear and express, there is no room for any restrictive
interpretation. But if it were stipulated in this treaty, that one of the allies
shall furnish a body of ten thousand men, and the other only of five thou-
sand, without mentioning the expense, it ought to be understood that the
auxiliary troops shall be supported at the expense of the ally to whose
assistance they are sent ; this interpretation being necessary, in order that
the inequality between the contracting powers may not be carried too far.

Let us conclude this subject of interpretation with vrhat relates to the
collision or opposition of laws or treaties. We do not here speak of the
collision of a treaty with the law of nature : the latter is unquestionably
paramount. There is a collision or opposition between two laws, two pro-
mises, or two treaties, when a case occurs where it is impossible to fulM
both at the same time, though otherwise the laws or treaties in question are
not contradictory, and may be both fulfilled under different circumstances.

They are considered as contradictory in this particular case, and it is
required to show which deiserves the preference, or to which an exception
ought to be made on the occasion. In order to guard against all mistakes
in the business, and to make the exception conformably to reason and justice,
we should observe the following mles : — '

1. In all cases where what is barely permitted is found incompatible with
what is positively prescribed, the latter claims a preference ; for the mere
permission imposes no obligation to do or not to do. What is permitted is
left to our own option : we are at liberty either to do or to forbear to do it
But we have not the same liberty with respect to what is prescribed : we
are obliged to do that. Nor can the bare permission in the former case
interfere with the discharge of our obligation in the matter ; but, on the
contrary, that which was before permitted in general ceases to be so in this
particular instance, where we cannot take advantage of the permission
without violating a positive duty.

2. In the same manner, the law or treaty which permits ought to give
way to the law or treaty which forbids ; for the prohibition must be obeyed,
and what was, in its own nature or in general, permitted, must not be at-
tempted when it cannot be done without contravening a prohibition j the
permission, in that case, ceases to be available.

VATTEL'S RULES. 281

3. All oiroumstances being otherwise equal, the law or the treaty which
ordains gives way to the law or the treaty which forbids. I say " all cir-
cumstances being otherwise equal," for many other reasons may occur
which will authorize the exception being made to the prohibitory law or
treaty. The rules are general : each relates to an abstract idea, and shows
what follows from the idea without derogation to the other rules; Upon
this footing it is evident that, in general, if we cannot obey an injunctive
law without violating a prohibitory one, we should abstain from fulfilling
the former, for the prohibition is absolute in itself, whereas every precept,
every injunction, is in its own nature conditional, and supposes the power,
or a favorable opportunity, of doing what is prescribed. Now, when that
cannot be accomplished without contravening a prohibition, the opportunity
is wanting, and this collision of laws produces a moral impossibility of
acting ; for what is prescribed in general, is no longer so in the case where
it cannot be done without committing an action that is forbidden.

Our meaning will be better explained by an example. It is expressly
forbidden, for reasons to me known, to pass through a certain place under
any pretense whatsoever. I am ordered to carry a message. I And every
other avtinue shut ; I therefore turn back, rather than take any message
over that ground, which is so strictly forbidden. But if the prohibition to
pass be only a general one, with a view to prevent any injury being done
to the productions of the soil, it is easy for me to judge, that the orders
with which I am charged ought to form an exception.

4., The dates of laws or treaties furnish new reason for establishing the
exception in cases of collision. If the coUisioji happen between two affirm-
ative laws or two affirmative treaties, concluded between the same persons
or the same states, that which is of a more recent date claims preference
over the older one ; for it is evident that, since both laws or both treaties
have emanated from the same power, the subsequent act was 6apable of
derogating from the former. But still, this is upon the supposition of
circumstances being in other respects eqtial. If there be a collision between
two treaties made with two different powers, the more ancient claims the
preference ; for no engagement of acontrary tenor could be contracted in
the subsequent treaty. And if this latter be found, in any latter case,
incompatible with that of more ancient datCj its execution is considered as
impossible, because the person promising had not the power of acting con-
trary to his antecedent engagements.

5. Of two laws or two conventions, we ought (all other circumstances
being equal) to prefer the one which is less general, and which approaches
nearer to the point in question ; because special matter admits of fewer
exceptions than that which is general. It is enjoined with greater precision,
and appears to have been more pointedly intended. Let us make use of
the following example from Pufiendorf. One law forbids us to appear in
public with arms on on holidays ; another law commands us to turn out
under arms, and repair to our posts as soon as we hear the sound of the

282 VATTEL'S EUIES.

alarm bell. The bell is rung on a holiday. In such case we mustobey
the latter of the two laws, which create an exception to the former.

6. What will not admit of delay is to be preferred to what may be done
at any other time ; for this is the mode to reconcile every thing and fulfill
both obligations. Whereas, if we gave the preference to the one which
taight be fulfilled at another time, we would unnecessarily reduce ourselves
to the alternative of failing in our observance of the other.

V. When two duties stand in competition, that one which is the more
considerable, the more praiseworthy, and productive of the greater utility,
is entitled to the preference. This rule has no need of proof. But as it
relates to duties that are equally in Our power, and, as it were, at our
option, we should carefully guard against the erroneous application of it to
two duties which do not really stand in competition, but of which the one
absolutely precludes the other. For instance, it is a more praiseworthy
deed to defend one nation against an unjust aggressor, than to assist another
in an offensive war. But if the latter be the more ancient ally, we are not
at liberty to refuse her our assistance and give it to the former^ for we
stand pre-engaged. There is not, strictly speaking, any competition
between these two duties — ^they do not lie at our option ; the prior engage-
ment renders the second duty, for the present, impracticable. However,
if there were question of preserving a new ally from certain ruin, and that
the more ancient ally were not reduced to the same extremity, this would
be the case to which the foregoing rule should be applied.

As to what relates to laws in particular, the preference is undoubtedly
to be given to the more important and necessary ones. This is the grand
rule to be observed whenever they are found to clash with each other. It
is the rule which claims the greatest attention, and is therefore placed by
Cicero at the head of all the rules he lays down on the subject. It is coun-
teracting the general aim of the legislature, and the great end of the laws,
to neglect one of great importance, under pretense of observing another
which is less necessary and of inferior consequence. In fact, such conduct
is criminal ; for a lesser good, if it exclude a greater, assumes the nature
of an evil.

8. If we cannot acquit ourselves, at the same time, of two things
promised to the same person, it rests with him to choose which of the two
we are to perform ; for he may dispense with the other on this particu-
lar occasion, in which case there will no longer be any collision of duties.
But if we cannot obtain a knowledge of his will, we are to presume that
the more important one is his choice, and we should, of course, give that
preference. And, in case of doubt, we should perform the one to which
we are the more strongly bound ; it being presumable that he chose to
bind us more strongly to that in which he is more deeply interested.

9. Since the stronger obligation claims a preference over the weaker, if
a treaty that has been confirmed by an oath happens to clash with another
treaty that has not been sworn to — all curcumstances being in other

DOMATS EULES. 283

respects equal — ^ttoe preference is to be given to the former ; because the
oath adds a new force to the obligation. But as it makes no change in the
nature of treaties, it cannot, for instance, entitle a new ally to a preference
over a more ancient ally whose treaty has not been confirmed by oath.

For the same reason, and all circumstances being in other respects
equal, what is enjoined under a penalty, claims a preference over that
which is not enforced by one, and what is enjoined under a greater penalty,
over that which is.enforced by a lesser ; for the penal sanction and conven-
tion gave additional force to the obligation. They prove that the object in
question was more earnestly desired, and the more so in proportion as the
penalty is more or less severe.

domat's rules.

The following extracts are taken, and very freely translated, from Domat's
Lqix CivUes, Liv. Prel. des Regies du Droit en General, tit. I. sec II. In
order to understand them, it is necessary to bear in mind the author's
distinction between natural and arbitrary laws. He says, Liv. Prel. lit. I.
Sect. I. Sec. 2, — "Laws or rules are of two sorts; the one, laws of natural
right or equity, and the other positive; human, or arbitrary laws: thus the
rule that a gift may be revoked on the ground of the ingratitude of the donee,
is a rule of natural law ; the rule that gifts inter mvos must be recorded,
is a rule of positive or arbitrary law." Without undertaking to vindicate or
to criticize this classification, we proceed to Domat's rules for the application
and interpretation of laws. The illustrations are in some cases omitted,
both because they are not always clearly intelligible to modern juriscon-
sults, and because the mind will very readily suggest others drawn from
our own law.

Sec. 1. All laws, whether natural or arbitrary, are intended to produce
results conformable to that general idea of justice in which they origmate.
Consequently, their application must be governed by the demands of this
general spirif^of justice ; or in regard to natural laws by equity, and in regard
to' positive or arbitrary laws by the intention of the legislator. In this dis-
tinction and discrimination, the science of law mainly consists.

Sec. 2. If a rule of natural justice is applied to a case that it apparently
embraces, and the result is contrary to equity, we are bound to conclude that
the rule is improperly applied, and that the case should fall under some other
law.

Sec. 3. If an arbitrary or positive rule is applied to a case which it
apparently embraces, and the result is contrary to the intent of the legislator,
the rule should not be applied to the case.

Sec. 4. But we must not consider as unjust and repugnant to equity, or
to the legislator's intention, those decisions which appear rigorous and severe,
where it is evident that rigor or severity is the essential characteristic of the
law in question, and that it could not be mitigated without impairing its
effect ; so in regard to the formaUties prescribed relating to the execution

284 DOMArS RTILES.

of wills, the seyerity and arbitrary character of the rule which annuls all
wills where these formalities are neglected, is in those cases an indispensa-
ble part of the law.

Sec. 5. If, however, the severity of the law is not a necessary and indis-
pensable part of it, but it can be carried ihto effect by a milder interpretation
and one more conformable to equity and natural justice, then this is to be
preferred to the strict and harsh construction.

Sec. 6. It follows from the preceding rules, that we iCan not declare as
a fixed and invariable rule; either that the strictness of law is to be followed
against a more equitable interpretation, or the reverse. Rigor becomes
injustice when the law will bear an equitable intei'pretaition ; rigor should be
practiced when an equitable interpretation would defeat the law. Thiis
rigor or strictness is either an unjust and odious severity, contrary to the
spirit of the law, or it furnishes a just but inflexible rule. These two ideas
are never to be confounded ; and the strict or the equitable construction
ought to be adhered to according to the rules here given.

Sec. 7. It is never a matter of indifference whether we apply a strict or
a liberal construction. In each case we are to inquire whether the rule in
question calls for a strict interpretation or will bear a liberal one, and decide
accordingly.

Sec. 8. Although the strictness of law appears at first sight opposed to
equity, it is nevertheless true that where it ought to be applied it is only on
account of its inherent justice. What is equitable cannot be contrary to
justice ; and so what is just cannot be contrary to equity.

Sec. 9. The obscurities, ambiguities; and other defects of expression,
which may render the meaning of a law doubtful, and all other diiflculties
in its construction and application, should be resolved by the natural sense
of the language, according to the nature of the subject, -so as if possible at
once to conform to the intent of the legislator and to equity. This is to be
arrived at by the different consideration of the nature of the law, its object,
its connection with other laws, the exceptions to which it may be subject,
and other similar c6nsiderations.

Sec. 10. To arrive at the meaning of a law, we are to weigh its terms
and examine itp preamble, if there be one, in order to judge of its provisions
by its object and the whole context, and not to limit its interpretation to
what would appear different from its intention, either in a single portion of
the law, or in a single defective expression. We must prefer the evident
meaning of the whole law, to the inconsistent meaning of a defective expres-
sion.

Ssc^ll. If in any law, we find the omission of something essential to
it, or which is a necessary result of its provisions and requisite to give the
law its full effect, we may supply what is wanting but not expressed, and
extend the law to what it was manifestly intended to embrace but in its
terms does not include.

Sec. 12. If the language of a law clearly expresses its meaning and in-
tention, that intention must be carried out; but if the true sense of the law

DOMATS RULES. 285

cannot be arriYed at by the interpretation which may be made according to
the rules here given, or the meaning be clear and inconvenience appear to
result, then we must have resource to the sovereign to interpret, to declare,
or modify the law.

Sec. 13. If the provisions of a law are clear, but its object not understood,
and in its application inconveniences appear to result, we are bound to pre-
sume that the law is useful and just ; and its meaning and its authority are
to be preferred to mere abstract reasoning. Otherwise many useful and well-
contrived rules would be overturned on grounds of alleged equity or inge-
nious argument.

Skc. 14. Laws which favor what public utility, humanity, religion, free-
dom of intercourse (liberU des conventions), and other similar interests regard
favorably, as well as those intended to favor particular individuals, ought to be
interpreted with all the liberality to which these interests are justly entitled,
in an equitable point of view, and ought not to be interpreted severely, nor
he applied in a manner calculated to prejudice the persons intended to be
favored.

Sec. 15. Laws which restrain natural liberty, as those which pro-
hibit what is not of itself illicit, or which derogate otherwise from com-
mon right, laws fixing the punishment of crimes and offenses, or penalties
in matters of a civil nature which prescribe formalities that seem severe,
those which permit parents to disinherit children, and others of a simil'ar
char?icter, — ought to be so interpreted as not to extend their provisions to
cases which they do not embrace ; and, on the contrary, they should re-
ceive all practical mitigation of equity and humanity.

Sec. 16. If any law or custom is established for particular reasons, con-
trary to other rules or to common right, it ought not to be applied except to
those cases for which it is expressly intended.

Sec. 17. The grants and gifts of sovereigns are to be favorably regarded,
and to have that extension to which they are entitled from the natural pre-
sumption of princely liberality, provided, Ijowever, that they are not to be
so liberally construed as to injure other individuals.

Sec 18. If laws of doubtful meaning be connected with or related to
other laws which throw any light on their purport, the interpretation thus
derived is the one that should be adopted.

Sec. 19. If the doubts or difficulties in regard to the interpretation of
a law or a custom are solved by an old usage which has fixed the meanings,
and which is supported by a uniform series of adjudications, we should
adhere to the usage, which is the best interpreter of laws.

Sec. 20. In case any provinces or districts are without certain rules to
decide difiBculties in regard to matters which are there governed by usage,
if these difficulties are not determined by natural justice, pr by written
law, but depend o.n custom and usage, we ought to adopt the principles
which result from the customs or usages of the province or district.

Sec. 21. AH laws necessarily bear with them all the powers or insidents

286 LIEBEE'S ETTLES.

necessary to fully carry out their intent,ion. Thus, as the law permits boys
to contract marriage at the age of 14, and girls at the age of 12, it neces-
sarily results from this law that those who marry can, although infants and
not of full age, bind themselves in regard to the settlement, community of
goods, and the like.

Sec. 22. In laws which confer power, the greater authority implies the
less. Thus, those who have the right to give their property, have with
still greater reason, the right to sell it.

Sec. 23. In laws which prohibit acts, the lesser prohibition implies the
greater. Thus, spendthrifts who are forbidden to manage or control their
property, a fortiori cannot alienate or transfer it.

Sec. 24. The implications spoken in of the two last sections,, are to be
restricted to subjects of the same nature as those to which the law appljes,
or to which it ought to apply, according to the preceding rules. Thus, the
liberty that a minor adult enjoys to make a donatio causa mortis should not
be extended so as to sustain a gift inter iiivos.

Sec. 25. If a law grants an amnesty, or pardon for past offenses, it is
to be understood as prohibiting, similar acts for the future. Cumlexin
preteritum quid indulget, in futurum vetat.—^L. 22, If. de Legibus.

Sec. 26. If a right be vested in a person by reason of a law, it is of no
consequence whether the person so vested be cognizant or ignorant of the
law, or whether he know or be ignorant of the fact on which the vesting
of the right depends. Thus, the son is heir to his father, though he be
both ignorant of the law of succession and of his father's death.

Sec 27. Person scompetent in law to act, may waive any benefit or pri-
vilege created by law in their favor. Thus, one of full years may renounce
an inheritance devolved on him by law. But this liberty of renunciation
or waiver does not extend to the rights of third persons, nor to those cases
in which the waiver would be contrary to equity, or to good morals, or to
any other law.

Sec. 28. The rules of law cannot be modified by any private contract
or agr cement. Jvs publicum privatorum pactis mutari non potest.

Professor Libbek, in his work on Legal and Political Hermeneutics
gives the following rules for interpretation and construction. I have,
supra, p. 226, referred to the distinctions. drawn by him between these two-
operations-of the mind, and the classifications which he adopts.

1. A sentence, or form of words, can have but one true meaning.

2. There can be no sound interpretation without good faith and com-
mon sense.

3. Words are, therefore, to be taken as the utterer probably meant
them to be taken. In doubtful cases, therefore, we take the customary
signification, rather than the grammatical or classical ; the technical, rather
than the etymological — verla artis ex arte — tropes as tropes. In general

LIEBEE'S EULEa 287

the words are taken in that meaning which agrees most with the character
of both the text and the utterer.

4. The particular and inferior cannot defeat the general and superior.

5. The exception is founded upon the superior.

6. That which is probable, fair, and customary, is preferable to the
improbable, unfair, and unusual.

7. We follow special riiles, given by proper authority.

8. We endeavor to derive assistance from that which is more near,
before proceeding to that which is less so.

9. Interpretation is not the object, but a means; hence superior con-
siderations may exist. — Lieber's Sermeneutics, p. 120.

XVII. Recapitulating the general principles of construction, we find the
following to be most esSential points : —

1. All principles of interpretation, if at all applicable to construction,
are valid for the latter.

2. The main guide for construction is analogy, or rather, reasoning by
parallelism..

3. The aim and object of an instrument, law, &c., are essential, if dis-
tinctly known, in construing them.

4. So also may be the causes of a law.

5. No text imposing obligations is understood to demand impossible
things. *

' 6. Privileges, ^r favors, are to be construed so as to be least injurious to
the non-privileged, or unfavored.

7. The more the text partakes of the nature of a compact, or solemn
agreement, the closer ought to be its construction.

8. A text imposing a performance expresses a minimum, if the perform-
ance is a sacrifice to the performer, —the maximum, if it involves a sacrifice
or sufferance on the side of the other party.

9. The construction ought to harmonize with the substance and general
spirit of the text.

10. The, effects which would result from one or the other construction,
may guide us in deciding which construction we ought to adopt.

11. The older a law, or any text containing regulations of our actions,
though given long- ago, the more extensive the construction must be in
certain cases.

12. Yet nothing contributes more to the' substantial protection of indi-
vidual liberty, than a habitually close interpretation and construction.

13. It is important to ascertain whether words were used in a definite,
absolute, and circumscribed meaning, or in a generic, relative, or expansive
character.

14. Let the weak have the benefit of a doubt, without defeating the
general object of a law. Let mercy prevail, if there be real doubt.

288 LIBBER'S ETJIES.

15. A consideration of the entire text, or disoourSfe* is necessary, in
order to construe fairly and faithfully.

16. Above all, be faithful in construction. Construction is the building
up with given elements, not the forcing of extraneous matter into a text."—
Lieber's Eermeneutics, p. 144.

** * * *'* * *

The author subsequently gives, pp. 167-172, the following as the most
general rules and principles applicable to all interpretation : —

1. The true meaning of words can be but one.

2. Honest, faithful, iom-fide interpretation is all important ; common
sense must guide us.

3. Words are to be taken according to their customary, not in their
original or classical signification.

4. The signification of a word, or the meaning of a sentence, when
dubious, is to be gathered from the, context, or discovered by analogy, or
fair induction. Yet the same word does not always mean the same in the
same discourse or text. This would, in fact, militate with the important
rulo, that we are to take words in their natural sense, according to custom
and their connection.

5. Words are always understood as having regard to the subject-
matter.

6. The causes which led to the enactment of a law are guides to us.
If one interpretation would lead to absurdity, the other not, we must
adopt the latter. So, that interpretation which leads to the more complete
effect which the legislature had in view, is preferable to another.

For the above rules, see Blackstone and Pnfiendorf As to rule 6, sec
Dig. L. 50, Tit. 17. 67.

7. Two 'chief objects of all government, are peace and security, the
state can never be understood to will any thing immoral, so long as there is
any doubt. Laws cannot, therefore, be construed as meaning any thing •
against the one or the other. Security and morality are the supreme law
of every land, whether this be expressly acknowledged or not

8. The general and superior prevails over the specific and inferior-; no
law, therefore, can be construed contrary to the fundamental law. If it
admits of another construction, this must be adopted.

9. A law contrary to the fundamental or primary law, may at any time
be declared so, though it has already been acted upon; for that which was
wrong in the beginning, cannot become valid in the course of time. Dig.
L. 50, Tit. 17, 24.

10. If, therefore, the law admits of two interpretations, that is to be
adopted which is agreeable to the fundamental or primary law, though the
other may have been adopted previously.

LIBBER'S RULES. 289

11. Custom of'the country, where the law was made, supplies the
deficiency of words.

12. In dubious cases, the fairer interpretation is to be adopted. " Every-
where, especially in law, equity is to be considered." — Dig. L. 50, Tit. 17
90, 192, 200.

13. That which is probable, or customary, is preferable to that which
is less so, wherever obscurity exists.

14. If two laws conflict with each other, that must yield the 'effect of
which is less important ; or, that is to be adopted by the adoption of which
we approach nearest to the probable or general intention of the legislator.
Specific rules, adopted for the protection oT private individuals, must be
followed.

15. The more general the character oif the law is, the more we ought to
try strictly to adhere to the precise expression. Without it, it would be a
wavering instead of a stable rule, and we must presume that the words
have been the better weighed. Many considerations, however, may exist,
which would oblige us to follow a different course ; e. g., the cruelty of a
law, its antiquity, and consequent unfitness.

16. If any doubt exists in penal laws or rules, they ought to be con-
strued in favor of the accused ; of course, without injury to any one else.

17. In cases of doubt between the authority and an individual, the
benefit of the t doubt, all other reasons being equal, ought to be given to
the individual, not to the authority,— for the State makes the laws, and the
authority has the power; yet it is subversive of all good government,
peace, and civil morality, if subtlety is allowed to defeat the wise object of
the law, or if a morbid partiality for an evil-doer guides the interpreter.

18. The weak (hence the individual arraigned by the State) ought to
have the benefit of doubt ; doubt ought to be construed in mercy, not in
severity. A law may be rendered milder, but not more severe. — lAeber's
Hermeneutics, p. 172.

Copious extracts from the writers on the civil law in regard to tlie sub-
ject of this note, will be found in the 12th chapter of Mr. Smith's work on
Statutes. ^ ,

Mr. Robert Philmmore, in his very able and useful work upon Inter-
national Law, devotes a chapter (part v., Chapter viii.) to the suhject
of the Interpretation of Treaties. He arranges the principles and rules
appertaining to this subject, under three heads. , »

Authentic Interpretation ; or, the exposition supplied by the lawgiver
himself.

Usual ; or, that founded on usage and precedent.

Doctrinal; or, that founded on a scientific exposition of the terms of
the instrument — ^this being subdivided into, 1. Grammatical, and 2. Logi-
cal ExposiMon.

SAVIGinr OK INTEEPRETATIOir.

The learned and sagacious SAviaNT, in his recent work on Contracts
remarks that, with respect to agreements, the principles of interpretation to
be found in the Civil Law — which are substantially those of Vattel and
Domat — are of a very general and superficial character, and scarcely afibrd
any aid, beyond that which an intelligent and dispassionate consideration of
each particular case would furnish. His words are as follows : — '

" Fur die Auslegung nun in Anwendung, auf die meisten Falle dieser
letzten lassen sich durch greifende Grundsatze der Auslegung nicht wohl
aufstellen. Auch sind die meisten Aesserungen der Romischen Juristen
heruber von einem sehr allgemeinen Character, und ziemlich auf der
Oberflache liegend, so dasz sie in zweifelhaften Fallen nicht leicht weiter
fuhren werden, als wohin die besonnene Erwagung des einzelnen Falles
ohnehin fuhren musste. Folgende Ausspruche werden diese Behauptung
anschaulich machen, und zur Ueberzeugung bringen." — Bas Obligationm
Secht, ii. 189.

I refer to this with satisfaction, as it goes to confirm what has been said
in the text as to the practical utility of these minute and precise Codes of
Interpretation.

See also Mr. Justice Stobt's criticisms on Vattel's Rules of Interpreta-
tion. — Story on the Cons., vol. i., p. 291.

CHAPTER VII.

OF STRICT CONSTRUCTIONj AND OF LIBERAL OR EQUITABLE
CONSTRUCTION.

The line separating judicial- construction from judicial legislatiop-rStrict con-
struction, arid liberal or equitable construction — Statutes ■when strictly
construed — Statutes conflicting ■with a constitution or fundamental law —
Statutes prescribing forme of procedure, modes of proof and of practice —
Statutes of frauds — Stat'utea of w:ills — Statutes of limitations — Statutes in
derogation of the Common La^w — Penal statutes — Revenue laws — Usury
la^ws — Statutes granting franchises and corporate powers — Statutes grant-
ing exemptions from general burthens — Statutes* authprizing summary
judicial proceedings — Statutes authorizing summary administrative pro-
ceedings— Statutes of explanation — The stamp acts — Statutes giving costs —
Statutes when to be liberally or equitably construed — Remedial statutes —
Equity of a statute — When statutes treated as direotory merely— General
Rules. *

I HAVE in the preceding chapter, endeavored to state
the general rules of construction with regard to the
means to be employed, for the purpose of solving
doubts in regard to the true intent of a given legisla-
tive act. We have now to consider a very different
class of cases. There are, as have been already observed,
many cases of ambiguity or irreconcileable contradic-
tion, where all aids fail and the task of arriving at the
intent of the legislator may be said to be hopeless.
Still, the doubt is to be resolved, the case to.be decid-
ed, the statute to be interpreted and applied ; and the
functions of the judge in these cases necessarily ap-
proach those of the legislator. There are again other
cases of great apparent hardship, where the statute is
on its face sufficiently intelligible, but where Its provi-

292 STRICT AND LIBERAL CONSTRUCTION.

sions are sweeping and arbitrary, and where its literal
operation and application involve really innocent par-
ties in great suffering and, it may be, remediless disas-
ter. Oat of these cases has grown the idea already
stated, that the judiciary have the right to make a dis-
tinction between different statutes, or classes of stat-
utes ; and that while some are to be strictly construed
and rigidly enforced according to their letter, others
are to be liberally expounded and to be molded and
interpreted according to judicial notions of policy or
equity.

This branch of our subject is one of the most import-
ant in the whole range of jurisprudence ; for while on
the one hand it is proper*, and indeed indispensable to
the intelligent administration of justice, that the judi-
ciary should, to a certain extent, .possess and exercise
this power, still, on the other, it is one extremely liable
to abuse ; and, indeed, it has been so much abused as at
times almost to obliterate the important line between
the judicial and legislative functions. " Equitable con-
structions," say the Supreme Court of Massachusetts,
"though they toay be tolerated in remedial and perhaps
some other Statutes, should always be resorted to with
great caution, and never extended to penal statutes or
mere arbitrary regulations of matters of public policy.
The power of extending the meaning of a statute
beyond its words, and deciding by the equity and not
the language, approaches so near the power of legis-
lation that a wise judiciary will exercise it with
reluctance, and only in extraordinary cases."*

* In this case, the statute declared that if a citizen had an estate, which
should be appraised at a certain sum, and be assessed thereon, he should
obtain a Settlement ; and it was held that mere residence and possession of the

STRICT AND LIBERAL CONSTRUCTION. 293

I shall endeavor briefly to state wliat I suppose to be
the true principles of our law in connection with this sub-
ject, and then, by an examination of the adjudged cases,
-illustrate how far the correct rule has been observed,
and how far departed from.

The duty of the. legislature is to, make the law, or a
general rule for all cases ; that of the judge, to declare
and apply the law to particular instances. When a

estate would not give a settlement, where the appraisement and assessment
had not been made. Monson m. Chester, 22 Pick. 385.

Bentham's hostility to the usurpations of the judiciary,, is expressed at
once with his usual force of thought and peculiarity of language j he says,
" A statement of the instances in which the authority of Parliament has been,
and continues to be, trampled upon by its sworn servants, might fill volumes
upon volumes." — Bentham's Evidence, vol. ii. chap, xxy-p. 395.

"An equal degree of contempt for the authority of the legislator is mani-
fested by every application of the principle of nullification. On a former
occasion, the principle of nullification was considered in its character of an
engine of fraud ; in respect of its particular and more immediate effects on
each particular occasion, to the prejudice of the party having right on its
side. On the present occasion, the character in which it ^presents itself to
view, is that of an engine of usurpation." — Midence, vol. iv. p. 402.

" On the part of the judge, the mass of substantive law in question bfe-
ing the work of the legislator, every application made of the principle of
''nullification is a contempt, an act of insurrection against thg authority of his
constitutional superior. Condition, extension, limitation, modification, ex-
ception, expressions interconvertable (expressions in effect the same), by
the legislator ; none at all annexed, none at afiy rate to the effect in question.
To this declaration of the will of the legislator — the genuine and lawful legis-
lator— the judge, by help of the principle of nullification, attaches excep-
tions of his own at pleasure. To the extent of these exceptions, the will of the
legislator is in effect frustrated, the law repealed." — Evidence, vol. iv. chap.
XXV. p. 403.

"For thus it 'is that on pretense of being declared, laws upon laws,
laws fighting with laws, are made throughout the manufactory of common,
that is of judge-made law. That B may receive warning (warning which it
is neither designed or expected should ever reach him), A must first have
been consigned to distress or ruin. Gulpbs by the side of gulphs cover in
its whole expanse ; the field of j urisprudential law ; nor can any of them take
its chance of being closed, till the property or liberty of some involuntary
Ourtius has been thrown into it. — Midence, vol. ii. chap. ii. p. 28.

294 GENERAL RULES.

case of doubt arises in regard to a statute, the first duty
of the judge is to ascertain the meajiing of the legis-
lator who framed it, that is, to construe or to interpret
the statute as the legislator himself would have done ;
and so long as by any legitimate means the intent
of the le^slator can be ascertained, the judge is not
permitted to seek any other mode of solving the diffi-
culty. But if the language employed is such, or for
any other reason the case is such, that the judge cannot
pretend to say what the meaning- of the lawgiver
was, his duty becomes different.

The question is still to be decided, but he must resolve
the doubt on some other principle. The judge then
ceases to explore and discover the purpose of another
mind; he acts on the case before him by his own
intellect, he determines the question as he thinks
it ought to be determined. In doing this he acts,
truly, not as a judge, but as a legislator. An attempt
has been made to frame a rule : from the ambiguity of
language or other causes, the attempt has failed ; and
^what the lawgiver has not succeeded in doing, the judge
proceeds to do. But, as I have said, this proceeding is
only legitimate in cases where the effort to ascertain
the intent of the legislator must be abandoned as
hopeless.

Now, in exercising this truly legislative power, it is
evident that two leading co&iderations will have weight.
First the general policy of a given construction will be
contended for; and secondly, the hardships of the
particular case will be urged. Pressed by these argu-
ments, and really embarrassed by the very greatness
of their power, the courts have frequently attempted
to define and limit it, by declaring in what cases stat-
utes are to be strictly construed, and in what to be liber-

GENERAL RULES. 295

ally interpreted. Indeed, in no other sense than in this
wMch. I have here stated, can the terms strict and
liberal construction be used ; for to admit as a general
thing, that statutes are to be loosely or rigidly construed
as the judges think fit, without reference to the intention
of the legislature, in cases where that intention can be
arrived at in a legitimate way, is reaUy to place all
legislation in the power of the judiciary, or in other
"vs^ordSj to efface the line between these two branches
of the government.

But notwithstanding all the efforts which have been
made to set bounds to this authority, we shall find, as
might naturally be supposed, that a power so liable to
abuse has often been warped and perverted ; *and this
we shall better understand when we examine the ad-
judged cases. "We shall see that the exercise of the
power has not been confined to its legitimate sphere, —
those cases where the task of discovering the legislative
intent was hopeless ; but that the judges, pressed by con-
siderations of policy on the one hand and of hardship on
the other, have often entirely disregarded all the legiti-
mate modes of discovering the meaning of the lawmaker,
and have even decided against that intention expressed
as plainly as words can express it.

I suppose the true rules to be, f/rst, that the intention
of the legislator is to be learned from the words he has
used^ and the other legitimate aids enumerated in the
last chapter ; second, that if that intention is expressed
in a manner devoid of contradiction and ambiguity,
there is no room for interpretation or construction, and
the judiciary are not at liberty, on consideration of
policy or hardship, to depart from the words of the
statute ; that they have no right to make exceptions or

296 THE EQUITY OF THE CIVIL LAW.

ijisert qualifications, however abstract justice or the jus-
tice of the particular case may seem to require it. Let
us aow see hpw the matter stands upon authority.

The idea of an authority vested in the judges to dis-
regard the letter of a statute in order in a given case to
attain the ends of justice, is familiar to the authors of the
civil law; and by them this vague and undefined power
is called ^quitas. Puffpndorff says, Circa rectpmi ap-
pliGationem sentenlim legis ad casus particula/res in qua
officium judicis vertitv/r^ diligenter observa/ndd quae cbm-
muniter dicitur oequitas. JIobc in eo consistit, ut pru-
denter declaretv/r^ casum cdiqiiem peculiarihus vestitum
circu7nstantiis a legislator e suh generdli lege nonfuisse
contprehgnsum. Scepenumero enim contingii, ut ex
litera legis in adplicatione ad casus speciales sequatur
ahsurdum aliquod, eo quod legislatores eos oh varietatem
ac multitudinem p&rspicere et peculiariter exdpere nan
potuervnt. Cum, emtem, Tiemo proBsumatur abswrda lege
constituisse, intelligitur utique legislator tales cases nol-
uisse compreTiendere ; ideoque non adversaiwr legislor
tori judex, sed potius prudenter vohintatem e^its ex
analogia et sensu cetera/rum legum colligit, qui unvo&r-
saUtatem literceper cequitatem restrvngit*.

This idea of a natural equity to be observed in the
construction of a statute, runs through all the great au-
thors of the civil law ; and we have also had occasion to
observe it in connection with the distinction between
things odious and things favorable, insisted on in the
copious extracts from Vattel, in the last chapter.

From the civil the maxim was imported into the
common law. Lord Coke, partly speaking for himself

Puffendorf, Elem. Jw. Univ. lib. i. def. xiii. § 22.

THE EQUITY OF THE COMMOIT LAW. 297

and partly citing Bracton, says, " Equitie is a construc-
tion made by the judgej that cases out of the letter
of a statute, yet being withjij the same mischief, or
cause of the making of the same, shall be within the
same remedie that the statute provideth ; and the rea-
son hereof is for that the lawgivers could not possibly
set down all cases in express terms.' ^quitas est cotv-
venientia rerum quce cuncta cocBquiparat^^et quce in
paribus rationibus pa/ria jura et jvdicia desiderat.
And again e, u3Squitas est perfecta qumdam ratio quce
jus SGripimmi interpretaPur et emendat, nulla scriptwrA
compreTwnsa, sed solum, in vera raUone consistens.
j^quitas est quasi cequalitds. Borms judex secvMdmn
cequum et honum judicat, et cequitatem strfcti juri
prcefert. M jus respioit cequitatem^''* And the propo-
sition, that in construing a statute the judges have a
right to decide in some cases even in direct controven-
tion of its language, has been repeatedly asserted and
practiced upon by the highest authority.

" Acts of Parliament," says Lord Coke, are to be so
construed as no man that is innocent and free from in-
jury or wrong, be by a literal construction punished

*Coke, Inst. 24 b.

The rules of interpretation given by Lord Chancellor BUesmere in the
Post/nati Case are often referred to, as exhibiting the latitudinary ideas of
construction that at one time infested the judicial minds of England. He
says, "Words are taken and construed; 1, sometimes by extension ; 3, some-
times by restriction ; 3, sometimes by implication ; 4, sometimes a disjunctive
for a copulative ; 5, a copulative for a disjunctive ; 6, the present tense for the
future ; 7, the future for the present ; 8, sometimes by equity out of the reach
of the words; Oj sometimes words taken in a contrary sense ; 10, sometimes
figuratively as eontinens pro contento ; and many other like." And of all
these he saysj "Examples be infinite, as well in the civil law as common law."
Petytf Jus Pari. oh. v. p. 66.

298 STATUTES CONSTRUED AGAINST THEIR LETTER.

or endangered."* So in Maryland, it has been said that
the intent and meaning of the makers should be
followed, although it may seem to be contrary to
the letter of the statute.f " The words of an act,"
says the Supreme Court of the same State, "may
be disregarded when that is necessary to arrive at
the intention of the lawmakers, but not where the
act admits of only one interpretation."^ So, too,
in New York, it has been said, that such a con-
struction ought to be put upon a statute as may best
answer the intention the makers had in view ; and
the intention is sometimes to be collected from the
cause or necessity of such statute, and sometimes from
other circlimstanoes ; and whenever such intention can
be discovered, it ought to be followed with reason and
discretion in the construction of the statute, although
such construction seems contrary to the letter of the
statute ; and a thing which is within the letter of the
statute is not within the statute unless it be within
the intention of the makers.§

The precise meaning of the rule will be best under-
stood by a more minute reference to the adjudged cases,
where a construction has been put on laws in opposition
to their plain and positive language ; for it is perhaps
more in this branch than any other that it may be
said, that legal accuracy cannot be attained by any ab-
stract rules, but only by impregnating, or as it were

* Margate Pier Co. m. Hannam, 3 B. & Aid., 266.

t Canal Co. vs. E. R. Co., 4 Gill & Johns. R., 152. In this case many
other points as to statutes and their construction are raised and decided.

t Brown vs. Somerrille, 8 Maryland, 444, 466.

§ Bacon's Abr. Statute I. Jackson vs. Collins, 3 Cowen, 89, 96 ; People
VI. Utica Ins. Co. 15 J. R. 358, 380, 881,

STATUTES CONSTRUED AGAINST THEIR LETTER. 299

saturating, the mind witli judicial decisions, and with,
that learning tempered by sagacity which so eminently
distinguishes the English and American tribunals.

By the act of 51 George III. c. 36, it was declared
that no person named as a justice of the Cinque Ports,
should be authorized to act, unless he had taken and
subscribed certain oaths, and delivered at some general
sessions a certain certificate. A person appointed jus-
tice had taken the oath, but had filed no certificate ; it
was held nevertheless that the effect of the statute was
only to make it unlawful for the justice to act, and not to
render his acts invalid.* It was there sa.id, " many per-
sons acting as justices of the peace in virtue of offices
in corporations, have been ousted from their office from
some defect in their election or appointment ; and
although all acts properly corporate, and officially done
by said persons are void, yet acts done by them as jus-
tices, or in a judicial character, have in no instance been
thought invalid."

Again, it has been said, that the words of a statute
are not to be construed so as to extend beyond the
mischief contemplated by the act, where such construc-
tion would be injurious to third persons. So, where an
English statute directed in regard to ecclesiastical leases,
that all leases therein specified should be utterly void cmd
of none effect, to all intents^ constructions, and purposes ;
yet, upon the ground that the object of the statute was to
prevent the impoverishing of the successor, it was held
that a lease by a dean and chapter, though within the
act, was good during the life of the dean.f

* Margate Pier Co. vs. Hannam, S B. & Aid., 266. This case, as is evident,
was decided mainly on the argumentwm ab ineonvenienti, or general policy,
t Edwards vs. Dick, 4 B. & Aid., 212.

300 STATUTES CONSTRUED AGAINST^ THEIR LETTER,

, So, where an Englist statute, 26 Geo. III. c. 60, § 17,
declared that a bill or other instrument of sale of a
vessel, wMch did not recite the certificate of registry,
should be utterly null and void to all intents and
purposes, it was held that where a bill of sale trans-
ferred a ship by way of mortgage without reciting
the certificate of registry^ the instrument should be
treated as void so far forth as it was meant to convey the
property in the ship ; but that the mortgagor might
be sued upon his personal covenant in the instrument
for the repayment of the money lent.* '

So, an English statute, 9, Anne, c. 14, § 1, declared
that all notes, &c. given for money won at gaming,
sJiall be utterly void, f rust/rate^ arid of none effect, to all
intents cmd purposes wTiatsoever. Notwithstanding this
strong language, it was held that a draft accepted for
a gaming debt by the loser, and passed by the winnei*
as endorser for a valuable consideration to a third party
was good as against the winner and endorser, on
the ground that otherwise a gross fraud would be
committed.f

An English statute (2 Geo. III. c. 19, § 1, and 39 Geo.
III. c. 34), enacts that no person shall npon any pre-
tense whatsoever take, kill, or have in his possession any
partridge, between the first day of February, and the first
day of September. The defendant had partridges in his
possession several days after the first of February; but
the King's Bench refused to construe the statute accord-
ing to; its plain letter, because, as they said, it might
lead to the absurd consequence, that a party who should

s: Dwarris, p. 638, & 639.

+ Edwards m. Dick, 4 B. & Aid. 212. This seems to be defeided on
the equity of the particular case.

STATUTES CONSTRUED AGAINST THEIR LETTER. 301

on the last moment of the first of Fehruary , kill a
partridge, would be guilty of an offense l?y having the
same partridge in his possession at the earliest moment
of the second of February.*

The statute ,46 Geo. III. § 4, enacts that every
person who shall appraise any estate, real or personal,
in expectation of any hire or reward, shall be deemed
an appraiser within the act. In construing it, Lord
Ellenborough admitted " that if those words are to be
construed literally, the consequence will be that every
person who in one single instance only, shall happen to
make a valuation, must without regard to circum-
stances be subject to the appraisers' duty ;" and on the
ground of the inconvenience andhardships'of such con-
struction, held that it was to be limited to the persons
wMo pwrsued the caUing or oompaiAon, of an CM^ais&r.^

A statute, 6 & 6 Wm. IV. c. 60, § 98,, conferred a
power of .certifying for the costs of a special jury, on
the court before which an indictment should be '■'■pre-
ferredr This was held to mean " i^ied^ on the ground
that if the words were taken as they stood, it would be
determined'that the legislature had been guilty of a
very great omission ; for in a great majority of cases it
was known that the indictment is preferred before a
different court from that by which it is tried. J

By an English statute (8 & 9 Wm. III. c. TO), it was
declared that no servant should gain a settlement in
any parish, unless he should continue and abide in the

* Simpson vs. Unwin, 3 B. & Adol. 134..*

t Atkinson vs. Fell, 5 Maule & S.i240, 241.

X Rex vs. Upper Papworth, 2 East, 413. Reg. vs. Pembfidge, 12 Law
J. (1848), part 2, Q. B. 47 ; contra fieg. vs. Preston, 7 Dowl. P. C. 593.
It is to bejioticed that the corresponding clause in a former act, 13 (Jeo.
in., c. 78, § 65, used the word "tried," Instead of "preferred." Dwarris, 692.

302 STATUTES CONSTRUED AGAINST THEIR LETTER.

same service for one whole year. But a constructive
service, pursuant to a hiring for a year, has been held to
confer a settlement ; though this interpretation has been
repeatedly regrette4.*

So, on a statute declaring that a judge's certificate
• that an action was really brought to try a right, must
be given immediately after the- verdict is delivered, it
has been held, that the word " immediately ',' does not
mean as soon as ever the verdict is delivered, but that
the judge must necessarily have some little time for
reflection.f

So, " null and void" have been construed to mean
" voidahle.^'' " It is extraordinary," said Lord Denman,
" that there should be cases in which it has been held
that the words, ' null and void,' should not have their
u^ual meaning ; but the word void has certainly been
construed as voidable, when the proviso was intro-
duced in favor of the party who did not wish to avoid
the instrument."!

In this country, many cases exhibiting the same lax-
ity of construction are to be found. A Massachusetts
statute declared all usurious mortgages utterly void ;
but the court held that this meant void only as against
the mortgagor and those holding under him, and that
a usurious mortgage could not be avoided by a mere

* Dwarris, p. 608.

+ Thompson w. Gibson, 8 Mees. & "Wei. 288. Page w. Pearce, 8 Mees. &
Wei. 677. But see Grace vs. Clinch, 4 Q. B. 606, and Shuttleworth vs.
Cocker, 1 M & G. 829.

X Pease vs. Morrice, 2 A & E. 94. See also Reg. vs. Inhabitants of Ford-
ham, 11 A. & E. 83. See also 'Reg. vs. Justices of Leicester, 7 B. & 0. 6.
Reg. vs. Inhabitants of Birmingham, 8 B. & 0. 29. The Kinges. Inhabitants
of St. Gregory, 2 Ad. & Ell. 99. Rex vs. Inhabitants of Hipswell, 8 B. & C.
466. Gye vs. Felton, 4 Taunt. 876. Barber ds. Dennis, 1 Salk. 68. Orosley
vs. Arkwright, 2 T. R. 605. Dwarris, pp. 606, 639, & 640.

STATUTES CONSTRUED AGAINST THEIR LETTER. 303

stranger or trespasser.* So, in tlie same State, tlie sta-
tute of wills provided that all "persons^ of full age and of
sound mind, might dispose of their real estate, as well
by last will and testament in writing, as otherwise by
any act executed in his or her lifetime. But this lan-
guage was held not to include ma/rriecL women, on the
ground that it was not the design of the legislature to
alter the relation between husband and wife, or the
legal effect of that relation.f

So, where a statute gave treble damages against any
person who should commit waste on land pending a
suit for its recovery, the court held that the act did not
apply to a party wholly ignorant that any suit was
pending, saying, " We can hardly suppose the legisla-
ture intended to punish so severely, a trespasser wholly
ignorant of the pending of the suit. The statute is
highly penal, and should therefore be limited in its ap-
plication*to the object the legislature had in view."{

* Green vs. Eemp, 13 Mass. §18 ; affd. in Commonwealth vs. Weiher,
3 Met 445. In Smith v8. Sazton, 6 Pick. 483, where a statute prohibited
Eheriffs from filling up process, and declared that " all such acts done by
them Bhotdd be yoid," an attempt was made to hare the word read void-
able; but it was defeated.

t Osgodd vs. Breed, 12 Mass. 530 ; Wilbur vs. Crane, 13 Pick. 284.

In Vermont, where it was provided by one section of an act, that if
an attorney should JcnowiTtgly receive a greater sum for fees than provided
for by law, he should pay a tenfold pen^ty, and the next section declared
that if any cffioer or other person should receive any greater fees than pro-
vided for by law, he should pay a penalty, — it was held that the word fejoM-
inglff was to be construed as incorporated in the latter section ; and in regard
tofnother section of the sam eact it was said, " The necessity of the case
cmn^els us to inelnde these additional words, at the expense oi forcing the
construction of the words of the act, ia' order to avoid so gross an absurdity
as the literal interpretation would lea^ us into." Henry vs. Tilson, 17 Verm.
479, 486, 487. See also The Schoon# Harriet, 1 Story, 251, 255, where a
word in one section was inserted in another by donstruction.

t Keed vs. Davis et al. 8 Pick. 516, 517.

304 STATUTES CONSTEtJED AGAINST THEIR LETTlJR. .

So, in New York, a statute prohibited any sheriff or
any deputy sheriff, or any one for them, from purchas-
ing any property at any execution sale, and declared
all purchases so made, void. In an action of ejectmefitj
certain premises had been sold by one depnty sheriff,
on an execution issued under a judgment owned by
another deputy of the same sheriff, and were bid off,
as was alleged, by the deputy who owned the judg-
ment. It was contended, that under the statute, the
purchase was void. It was conceded that if the facts
were as alleged, the case came within the letter of the
act; but it was held by the Supreme Court of New
York that the statute should not apply, on the ground
that the manifest object of the law was to prevent abuse,
and to prohibit sheriffs and their deputies in ihdr offi-
cial capacity, from being purchasers at their own sales,
and thus being induced to act corruptly in illation to
them ; but that it could never have been intended to
place those persons in a worse situation than others as
to the collection of their own demands.*

The'words, " beyond seas," in a State statute of limi-
tations, incautiously, borrowed from an English act,
has been construed by the Supreme Court of the United
States, to mean out of the State.j; So again, in Mary-
land, an act authorizing attachments on judgments, to
be laid in the hands of any " person or persons what-
ever, corporate or sole," has been held not to include
mrnnicipal corporations,' they being considered to be
excepted on grounds of public policy and convenience,
municipal corporations .being parts of the State goveln-

* Jackson m. Collins^ 3 Cowen, 85, 96.

t Murray «s. Baker, 3 Wheat. 641. See also Shelby vs. Guy, 11 Wheat.
881. .#_

STATUTES CONSTRUED AGAINST THEIR LETTER. 305

ment, exercising delegated political powers for public
purposes*

In the same State, the charter of a cemetery com-
pany, provided that a certain number of acres of land
should be forever appropriated and set apart as a cem-
etery, which so long as used as such should not be liable
to any tax or public imposition whatever. Notwithstand-
ing this general and sweeping language, it has been
held by the Court of Appeals, that a paving-tax for
pavjng the street in front of the property in question,
was not embraced in the exemption, — on the ground
that the intention of the legislature was to exempt the
property from all taxes or charges imposed for the pur-
pose of revenue, but not to relieve it from impositions
inseparably incident to the location in regard to other
property.f

A review of the decisions which we have thus grouped
together, can hardly fail to bring to the lips of the
student the motto of this volume: "Great is the mys-
tery of judicial interpretation." Here we find cases in
numbers, and the numbers might be easily increased,
where laws have been construed, not merely without

* Mayor of Bait. m. Root, 8 Maryland, 93. See on this point of policy,
Divine m. Harvie, 7 Monroe, 444 ; Chealey et al. vs. Brewer, 7 Mass. 259 ;
and Bulkley vs. Eckert, 3 Barr (Penn.) Rep. 388. The general doctrine is
that money in the hands of a public officer, cannot be arrested at the suit of
a private creditor, on account of the derangement which would be thus
produced iit the service of the government.

* Mayor of Baltimore vs. Greenmount Cemetery, 7 Md. 517. This case
was decided on the authority,, or weight, of the cases determined in the State
of New York, where it has been held, that an exemption from taxes did not
include assessments for opening streStss Matter of the Mayor, &c. of New-
York, 11 Johnson, 81. Bleecker.M. Ballou, 3 Wendell, 263. The People
v». Mayor <Sbc. of Brooklyn, 4 Comstock, 429. But the analogy does not
seem complete ; an assessment for street opening is founded on the idea of
benefit conferred, and in that poihtipf view certainly differs from a Aipletax.

306 TRUE DUTY OF THE JUDGE.

regar^d to tlie language used by tlie legislator, but in
defiance of his expressed will. Qualifications are insert-
ed, exceptions are made, and omitted cases provided
for, and the statute is in truth remolded, by the mere
exercise of the judicial authority. It is vain to seek
for any principle by which these decisions can be sup-
ported, unless it be, one which would place all legisla-
tion in the power of the judiciary. They are indeed
all condemned by the terse and expressive maxim^
divmatio est, non interpretation gwB omnino recedit a
litera*

The mode in which these decisions are arrived at i»
obvious. Take, for ipstance, the case where the stat-
ute declares all gaming paper absolutely void.f The
court simply inserts the words, " except in the hands
of a bona-fide endorsee for value." Take again the case
where the statute declares all usurious mortgages
void. J The court merely incorporates the exception,
" except as against a stranger or trespasser." It is, too,
to be observed that these are not cases of contradiction or
ambiguity. The words of the statute are perfectly plain
and intelligible. There is no propriety in calling the
process, construction or interpretation. It consists in
inserting a clause, to provide for a class of cases which
the court thinks ought, as a matter of justice, to be ex-
cepted out of the statute. Nor is there any ground
for asserting, that if the subject had been called to the
attention of the legislator he would have made the ex-

* It is very difficult, in examiniiig these cases, to accede to the remark of.
Chief Justice Marshall, that " on the abstract priaciples which govern courts
in construing legislative acts, no difference of opinion can exist. It is only
in the application of those principles that the difference discovers itself."
United States w. Fisher et al, 2 Cranch., 858.

t Ante, p. 800. J AnU, p. 802, 308.

TRUE DUTY OF THE JUDGE. 307

ception. On the contrary, it is utterly impossible to
say that the legislature did not intend to do precisely
what it has done, viz. to establish a sweeping and uni-
versal rule, which it is true may act hardly in some
cases, but which on the other hand certainly diminishes
the chances for fraud or perjury to evade the statute.
The process, therefore, in these cases, is not obedience
to legislative commands ; it is not an effort to arrive at
the legislative intention ; it is not construction of a
doubtful provision ; it is a violation of the words of
the statute, in or^der to make a rule according to the'
judicial notion of right. It is purely and strictly j udicial
legislation. And, fortunately, we are not without abun-
dant authorities in our law which steadily, it may be
sternly applied, will establish in its proper place the
line that separates the judicial from the legislative
functions. In analyang the above cases, it will be
found, as I have said, that they almost all consist in
simply excepting out of the statute some particular
class of cases, either, on the ground of policy or hard-
ship, or on the notion that the case before them is a
casus omissus, or omission on the part of the legisla-
ture. All these practices have been condemned by the
tribunals of both England and America, in language
which leaves little to b^ done but to collect and col-
late the authorities. ""We are bound," says Mr. J.
Buller, in an early case in the King's Bench, "to
take the act of Parliament as they have made it ; a
casus omissus can in no case be supplied by a court of
law, for that would be to make laws ; nor can I conceive
that it is our province to consider, whether such a law
that has been passed, be tyrannical or not."*

* Jones vs. Smart, 1 T. B. 44, 62 ; a case on the game laws, and the:
qualiflcations required under them.

308 TRUE DUTY OF THE JUDGE.

In a case in Massachusetts where it was attempted
to evade the absolute prohibition in a statute prohibit-
ing the sale of liquor, by showing that it was sold to
be used as medicine, the learned and able Mr. Chief
Justice Shaw used this impressive language: "The
decisive answer is, that the legislature has made no
such exception. If the law is more restricted in
its present form than the legislature intended, it
must be regulated by legislative action."* " It would
be going too far," said the Supreme Court of the United
States, in a case which we shall presently examine
under another head, " to make exceptions which the
legislature has not made."f

As to cases being decided on the grounds of policy
or hardship, the idea has been repeatedly and vigor-
ously condemned. " Policy," says Mr. Justice Taunton,
" is a very questionable and unsatisfactory ground ;
because men's minds differ much on the nature and
extent of public policy." " The ground of public policy
is a very unsafe one, it is best to adhere to the words
used in the act of Parliament." J

"Arguments drawn from impolicy or inconve-
nience," says Mr. Justice Story, " ought to have little
weight. The only sound principle is to declare ita
lex soripta est, to follow and to obey ; nor if a principle
so just could be overlooked, could there be well found
a more unsafe guide or practice than mere policy and
convenience. Men on such subjects complexionally
differ from each other, the same men differ from them-
selves at different times. The policy of one age, may

* Commonwealth v». Kimball, 24 Pick. 870.

t M'lver vs. Ragan, 2 Wheat. 2S.

I The Inhabitants of St Gregory, Dwarris, p. 69T.

TRUE DUTY OF THE JUDGE. 309

ill suit the wishes of another ; the law is not subject to
such fluctuations.*"

So, the idea that any regard is to be paid to the
consequences that may flow from a given construction,
has been rejected in very decided language. " I can-
not tell what consequences," says Patteson, J. " may
result from the construction which we must put upon
the statute ; but if mischievous, they must be remedied
by the legislature."f " A court of law," says Lord
Abinger, " ought not to be influenced or governed by
any notions of hardship ; cases may require legislative
interference, but judges cannot modify the rules of
law."t

When, in a case on the rates in England, the question
was whether the inhabitants of Sergeant's Inn should
be rated, and the hardship of the case was dwelt on,
Lord Campbell, C. J., said, "Hardship can only be
urged before us, when we are construing doubtful
language, to assist us in getting at the real intention of
the legislature. Here we think that the language im-
posing the liability is not doubtful." And the rate was
held good.§

In Massachusetts, a statute provided that where
a person charged in execution desired to take the
poor debtor's oath, in order to obtain his liberation
from imprisonment, the keeper of the prison should
apply to a justice, and a notice "should be served on

* Conflict of Laws, 17. " It is not for courts of justice, ^ropHo marte to
provide for all the defects or mischiefs of imperfect legislation ;" per Story,
J., Smith vs. Kues, 3 Sumn. 354. 355.

t The Queen m Justices of Lancashire, 11 A. & E. 157.

X Rhodes vs. Smethurst, 4 Mees. & W. 68. See to same point, Hall vs.
Franklin, 3 M'ees. & Wels. 269.

§ Moss w. Commissioners of SeweriS, 4 Ellis & Black. (Q. B.) 670, 679.

310 TRUE DUTY OF THE JUDGE.

the creditor or creditors, if he, she, or they were
within the commonwealth," and it was held that notice
must be served on all the creditors. " It is said," said
Shaw, C. J., "that this construction will be attended
with great inconvenience, especially where the credit-
ors are numerous, and could not have been intended
by the legislature. The argument from inconvenience
may have considerable weight upon a question of con-
struction, where the language is doubtful ; it is not to
be presumed, upon doubtful language, that the legis-
lature intended to establish a rule of action which
would be attended with inconvenience. But where
the language is clear, and where of course the intent
is manifest, the court is not at liberty to be governed
by considerations of inconvenience."* " Inconvenience
can have weight in the construction of a statute but
in doubtful cases."f

" By the rules, which are laid down in England," says
the Supreme Court of the United States, " for the con-
struction of statutes, and the latitude which has been
indulged in their application, the British judges have
assumed a legislative power ; and on the pretense of
judicial exposition, have, in fact, made a great portion
of the statute law of the kingdom. Of those rules of
construction, none can be more dangerous, than that,
which distinguishing between the intent and the words
of the legislature, declares, that a case not within the
meaning of a statute according to the opinion of the
judges, shall not be embraced within the operation of
statute although it is clearly within the words ; or, vice
verm, that a case within the meaning, though not

* Putnam vs. Longley, 11 Pick. 487, 490. '

t Per Parsons, 0. J., Gore m. Brazier, 8 Mass. 523—589. S. P., Lang-
don vs. Potter, 8 Mass. 215, 221.

TEUE DUTY OF THE JUDGE. 311

•wittin the words, shall be embraced. We should
invariably deem it our duty to defer to the expression
of the legislature, to the letter of the statute, when
free from ambiguity and doubt, without indulging in
speculations^ either upon the impropriety or hardsTiip
of laws."* ♦

Indeed, the idea that the judges in administering
the written law, can mold it and warp it according
to tkeir notions, nbt of what the legislator said, not
■even of what he meant, but of what in their judgment
he ought to have meant, — ^in other words, according to
their own ideas of policy, wisdom, or expediency, — is so
-obviously untenable that it is quite apparent that it
never could have taken rise, except at a tim^ when the
division lines between the great powers of government
were but feebly drawn, and their importance very
imperfectly understood. In the present condition of
our political systems, this practice cannot be acted on
with either propriety or safety. It must inevitably be
-attended by two great evils. It gives the judiciary a
power almost arbitrary and which cannot fail to be
.abused, and it leads to unbounded carelessness in
the matter of legislation. There can be little in-
ducement to caution or precision in drawing legisla-
tive enactments, if it is understood that all errors can
be supplied, and, indeed, all provisions be overridden,
by the mere exercise of the powers of judicial con-
struction.

These considerations apply, as I have said, where the
language of statutes is clear. If, however,- by reason
of ambiguity or contradiction, the intent cannot be
ascertained, then as I have said the case alters, and the -

* Priestman «s. The United States, 4 Dallas, 30, n. (1.) per Chase, J.

312 STRICT CONSTRUCTION.

duty of the judge is very different. The judge, must
decide ; but the law has not spoken. It is evident that
his functions necessarily become to a certain extent legis-
lative. There is no alternative, he must make the rule in
a new matter ; and these cases present some of the most
embarrassing questions that can occur in the whole
range of juridical science; for to the responsibilities of
a judge they add those of a legislator. To these cases
the rules and nomenclature of strict and equitable.con-
struction properly apply, and to these they should
cayefuUy be restricted. Where the judge has an
admitted and necessary discretion, considerations
of policy and wisdom, hardship and inconvenience,,
become as indispensable, as they are out of place
where the matter has been definitively decided by the
legislature. Such, however, has not been the language
of our law ; and the notion of a restricted or an en-
larged construction has been introduced and practiced
upon rather with reference to the kind or class of
laws to which the statute in question belonged than to
the clearness or ambiguity of the letter of the enact-
ment. The subject will be better understood after a
careful examination of the decisions that have been
made up on various classes of statutes.

"We shall, then, first consider in what cases it has been
held that statutes are to be itrictly construed, next
examine the cases in which it has been said that they
are to be equitably interpreted, and thus finally endea-
vor to discover the true boundaries of the judicial and
legislative attributes.

iStaPtites conflicting with a constitution or with a
fundamental law. — It has been said that it is a safe
and wholesome rule, to adopt the restricted construction

STATUTES STRICTLY CONSTRUED. 313

of a statute when a, more liberal one wiir bring us
in conflict with the fundamental law.* So in England
it has been held that acts of Parliament which
take away the trial by jury or abridge the liberty
of the subject, ought to receive a strict construct ion.f
So, there too, it has been said in regard to the Court
of King's Bench, that it cannot be ousted of its juris-
diction but by express words or by necessary implica-
tion, any more than an heir at law of his inheritance.
Yet where a clause was ,clearly inserted for the benefit
of parties prosecuted, saying, that it " shall and may "
be lawful for justices to hear complaints under the
statute, it was held that the penalty cotild be recovered
only before a justice, because otherwise the defendant
might be saddled with unmerciful cost^ by a merciless
■ prosecutor, J

Statutes in derogation of the common law.- — It has
been repeatedly declared that statutes which alter
common-law remedies or affect common-law rights
must be strictly complied with. Says Lord Coke:
" The wisedome of the judges and sages of the law
have al way es suppressed new and subtile inventions in
derogation of the common law."§ So of a statute
extending the common-law right of distress by prefer-
ring the landlord over an execution creditor provided

* People e«. Board of Education of Brooklyn, 13 Barb. 400, 40&.

t -Looker vs. Halcomb, 4 Bing. 183 ; Dwarris, p, 646; a case on the
act of 1 Geo. IV. c. 56, empowering justices of the peace to award satisfac-
tion for damages done by malicious and willful trespassers.

X Gates OT. Knight, 3 Term. E., 442. , See Crisp m. Banbury, 8 Bing.
894, where it was held that proceedings against the trustee of a benefit
society could be taken by arbitration only, the courts being ousted of their
jurisdiction by the express words of the act.

§ Coke, Inst. 282, b. L. 3. § 485. Orayton w. Munger, 11 Texas, 234.

314 STATUTES STEICTLT CONSTRUED.

notice was given to the officer of rent due before' ihe
sale, it was held that being in derogation of the com-
mon law it must be strictly pursued, and that a notice
aftsr the sale would not answer*

So, where a statute giving a summary proceeding to
recover possession of land, directs a trial by jury, a
jury cannot be waived even by consent. In this case
it was said, " The statutory remedy by way of a sum-
mary proceeding is in derogation of the common-law
remedy by action, and must be strictly pursued. A
peculiar and limited jurisdiction is thereby conferred
on certain magistrates, which can be exercised only in
the way prescribed. They have no jurisdiction to try
the cause except by the mode pointed out."f

So it has been said, that statutes in derogation of
the common-law rules of evidence should be so con-'
strued if possible as to preserve the principles deemed
essential in the reception of testimony.^ Thus it has
been held in Maryland, that an act permitting a party to
prove his own account by oath or affirmation is in
derogation of the common law and, like all such
legislation, to be construed stoctly.§ So again it has
been said, that statutes exempting portions of a debtor's
property from liability for his debts are in derogation of
the common law, and not to be extended by an equit-
able construction ; and it has been held that where a
statute declared a team should be exempt from exe-
cution this did not exempt the necessary food for them,

* Bussing Bs. Bushnell, 6 Hill, 382.

t Benjamin vs. Benjamin^ 1 Seld. 383. It will be observed, however,
that the opinion in this case is obiter.

t The People vs. Hadden, 8 Denio, 220.

I Warner m. Fowler, 8 Maryland, 25. Dyson vs. West's Exec. 1 Har.
and J. 567.

STATUTES STEICTLT CONSTRUED. 315

althougli a previous act of exemption did exempt a
cow and two swine and the necessary food.* So, too,
acts restrictive of common-law rights, as giving exclu-
sive power to portwardens to survey vessels unfit
to go to sea, and to decide on the extent of repairs
wanted, are to be construed strictly .f

Where a statute for the more effectual protection of
property of married women provided, " that any
married female might take by inheritance or by gift,
grant, devise, or bequest from any person other than
her husband, and hold to her sole and separate use,
and convey and devise, real and personal property and
any interest or estate therein, and the i^nts, issues, and
profits thereofj in the same manner and with the like
effect as if she were unnlarried," it was held that the
provision to convey should be limited, like the provi-
sion to take, to persons other than her husband, in
order to prevent a wife from surrendering ter dowei'
right to her husband, and also to " preserve, to some
extent, that invaluable principle of the common law
by which husband and wife are regarded, during cover-
ture, as one person, incapable of contracting with and
conveying lands to each other."J •

To understand the meaning and present value of the
rule that statutes in derogation of the common law are
to be strictly construed, we must keep in mind the feel-
ings of our ancestors in regard to that system of
jurisprudence. They invariably spoke of it with a
reverential awe, blended with a tender attachment.
Says Lord Coke, "This is another strong argument in

* Rue vs. Alter, 5 Dftnio, 119.

t Port Wardens of N. Y. ■»«. Oartwright, 4 Sandf. 236.

X Graham va. Van Wyck, 14 Barbour, 531, 582.

316 THE COMMON LAW.

law, Nihil quod est contra rationem est licitvm,; for
reason is the life of the law ; nay, the common law itselfe
is nothing else but reason, which is to be understood
by an artificial! perfection of reason gotten by long
study, observation, and experience, and not of every
man's natural reason. This legall reason est summa
ratio f* and again, "Z^e common d/roit — of common
right — this is by the common law ; because the com-
mon law is the best and most common birthright that
the subject hath for the safeguard and defense not only
of his goods, lands, and revenues, but of his wife and
children." * * " The common law of England some-
times is called* right, sometimes common right, and
sometimes communis justitia. In the grand charter,
the common law is called right. Rectum, nuUi vende-
mus, nulU negabim/us aut diff&remus justitiam vel rec-
tum,^''^ And again, says an old reporter, "The statute
law is like a tyrant, where he comes he makes all
void; but the common law is like a nursing father,
makes only Void that part where the fault is, and pre-
serves the rest."J

It is difficult, if not impossible, now to understand
this enthusiastic loyalty to a body of law the most

» Coke, Inst. 97 b.

+ Coke, Inst. 142 a.

X 1 Mod. 35 ; Collins m. Blantem, 2 Wils. 351 ; Dwarris, 638. It is
curious to contrast with these tender laudations of the old law, Bentham's
savage denunciation of the same system : " WiU you believe Lord Mans-
field, judges are higher, better, fitter legislators, than king, lords, and
commons. ' Common law ' (says he in so many words) ' is superior to
an act of Parliament.' — Atkyns, 1, 33. Superior ? how so I The reason is
not the less brilliant for being unintelligible. ' It works itself pure fi'om the
fountains of justice :' fountains abundant on the ground floor of the great
hall, unknown (it seems) above stairs. Send a man to common law for
purity 1 Send him to the common sewer to cleanse himself." Bentham's
Bationalt of Judicial Mddenee, vol. iv.

THE COMMON LAW. 317

peculiar features of whicli the activity of the present
geueration has been largely occupied in uprooting
and destroying. But to our ancestors the common law
represented the old customs of the country, the ancient
landmarks of their property ; and, what was more dear
to them still, the common law as opposed to the civil
law represented, imperfectly it is true, that irrepressible
desire for absolute liberty of thought and speech and
action^the chief glory of our race. This is the reason
why the common law is the subject of the fervid eulogy
of our ancestors, and why the courts saw fit to regard
every statutory innovation on its ancient observances
with distrust and disfavor.

But in regard to the common law now, while insisting
strenuously upon the propriety in all cases of adhering
strictly to the expressed intention of the legislature, let
us not attach too much value to maxims which really
belong to another age. The condition of things has
very essentially altered since the time of Lord Coke.
The procedure of the law in which he gloried, is
almost wholly effaced ; as far as it relates to real estate,
its^ maxims are in a great measure abrogated ; in regard
even to private relations, its doctrines are materially
changed, and the liberties of that portion of our race at
least which occupies American soil, rest upon a surer
basis than ancient customs. It would appear, there-
fore, that the doctrine that statutes in derogation of the
common law are to be strictly construed, has now truly
no solid foundation in our jurisprudence ; and, though it
will long, no doubt, be familiar to the forensic ear, that
there is really no reason whatever why the innovating
statutes of our day should be regarded with any pecu-
liar severity, or be subjected to any particularly
stringent rules of interpretation, because they abro-

318 THE COMMON LAW.

gate some ancient rule of that renowned, but some-
what obsolete, system of jurisprudence*

These ideas have indeed been already partially
sanctioned by judicial authority. The Supreme Court
of Massachusetts has held this language : " It is said
that statutes made in derogation of the common law
are to be construed strictly. This is true, but they are
also to be construed sensibly, and with a view to the
object aimed at by the legislature." And so it was held
that a statute exempting one cow and one swine from
exemption, applied to the animal whether alive or
dead.f In another case the same court said, "The
rules of the ^common law are not to be changed by
doubtful implication fX ^^^ to this extent the idea of
the sanctity of the old jurisprudence may safely be
admitted. An ancient and settled system ought not
to be overturned, except by clear, unambiguous, and
peremptory language.

While on this subject, I may refer with advantage to
the decisions made in New York upon the statute giv-
ing landlords summary proceedings to recover posses-
sion of premises where tenants hold over. Before the
passage of that statute (13 April, 1820), the remedy
where the tenant held over was expensive and dila-
tory; but in one case under the law it was held, that
this being a summary proceeding in derogation of the
common law, the statute should be strictly pursued.§
In another case, however, it was said, " The legislature

* The New York Code of Procedure, § 467, says, "The rule of common
law that statutes in derogation of that law are to be strictly construed, has
no application to this act."

t Gibson w. Jenney, 15 Mass. 205, 206.

I Wilbur m Crane, 13 Pick. 284, 290.

§ Farrington vs. Morgan, 20 Wend. 207.

STATUTES STRICTLY CONSTRUED. 319

have prescribed a summary proceeding calculated to
save rights of parties, and insure a speedy decision. This
remedial act mugt be construed liberally, to carry into
eS-ect the intent by suppressing the mischief, and
advancing the remedy."* Finally, in another case, it
was said that the act was to be construed liberally in
looking to the remedy so as to make it effectual, but
strictly and rigidly in scanning the proceedings to
attain that remedy .f Whether this last nice distijic-
tion can be carried out, I am not prepared to say ; but
these cases appear to furnish a good illustration of the
confusion likely to result from the assumption of power
to construe a statute strictly or liberally as circum-
stances seem to require.^

Statutes pres(yrihing forms of procedure, or modes of
proof. In regard to these the maxim holds good,
Nbn. observata forma, infertmr adnullatio actus.^ So,
where a statute declared, " that the form of proceed-
ings set forth in the schedule should .be used," a
material variance from the form was held fatal, j

Of the statutes pf the class now under consideration
the most marked are the statutes of frauds, of wills,
and of limitations. In these cases the proof, or* the
procedure required by the law is rigidly exacted, the
restriction strictly insisted on without regard to the
facts or the hardship of the case ; and this with abund-
ant reason, for it is the evident intention of these stat-
utes to prescribe fixed forms or rules to guard against

* Lynde vs. Noble, 20 J. R. 80, 82.

t Smith vs. Moffat, 1 Barb. S. C. R. 65.

t See also in regard to this statute, Roac]^ vs. Cozine, 9 Wend. 227.

§ 2 Inst. 388 ; Dwarris, 611.

I Davison vs. Gill, 1 East 6i.

320 STATUTE OF FKAUDS.

certain abuses likely to occur from the absence of an
arbitrary and peremptory provision ; and a liberal or
equitable construction of the statute would completely
defeat its object by letting in precisely the kind of
testimony that the act means to exclude. The New
York statute of frauds declax-es, that " whenever goods
are sold at public auction, and the auctioneer shall at
the trnie of sale " make a memorandum, such memoran-
dum shall be considered as a note of the sale for the
purpose of charging both parties. It has been held
that this provision must be strictly construed and
strictly complied with, and that the memorandum
must be completed by the proper entries in the proper
book as soon as the goods are struck down to the pur-
chaser and before the auctioneer enters upon any other
business or transaction whatever.* Such, too, is the
general construction of acts permitting or requiring
instrument to be recorded and giving priority accord-
ing to the date of the registry.

Efforts have, indeed, repeatedly been made, especially
in courts of equity, to get rid of the rigor of these
statutes, — and to a certain extent with success, as we
shall see again when we come to consider the subject
of the equity of a statute, — on the ground, in regard to
the registry acts, that enactments which were intended
to prevent frauds should never be used as a means to
cover them, and in regard to the statute of frauds, that
as it was made with a design to prevent perjury and
contradiction, of testimony, the cases not liable to those
mischiefs should be exempted from its severe opera-

* Hicks OT. Whitmore, 12 Wend. 648. -Goelet w. Cowdrev, 1 Duer,
182. *

STATUTES OF LIMITATION. 321

tion* But these decisions have been greatly regretted
as breaking in upon and diminishing the utility of
these statutes ; and the sound opinion would seem to
be that where, for the very purpose of preventing
frauds, a certain form or mode of proof is prescribed
by th^legislature, the form or mode prescribed shall
be steadily maintained by the judiciary.f

To this same class belong statutes of limitation, or
statutes limiting the time within which certain actions
must be brought. These statutes, intended to guard
against the loss of evidence,and the mischiefs arising from
lapse of time, are to be strictly construed without any
reference to the hardships of the particular case. It
was at one time held in regard to these statutes, that
where by reason of the defendant's fraiud the existence
of a cause of action was concealed, it would furnish an
equitable exception to the express language of the
statute. This was intimated obiter by Lord Mansfield %
and expressly held in Massachusetts ;§ but the contrary
has been decided in New York; || and the idea that
implied and equitable exceptions, which the legislature
has not made, are to be engrafted by the courts on a
statute of limitations is now generally abandoned.^ So,
in a case on a statute of this class the Supreme Court
of the United States has said, "Wherever the situa-

* Cheval m. Nichols, 1 Str., 664. Worseley vs. D'e Mattos, 1 Burr., 467.
Le Neve vs. Le Neve, 3 Atk., 646. Enight m Crockford, 1 Esp., 190.
Laragne w. Stanley, 3 Lev., 1. Dwkrris, pp. 629, 830, and 653.

t Doe ex dem. Robinson vs. Allsop, 6 B. and A., 142. Doe vs. Rout-
ledge, Cavrp., 712. Dwarris, p. 628 et seq.

% Bree vs. Holbeck, Doug. 656.

§ First Massachusetts Turnpike vs. Field et al, 3 Mass. 201. Homer vs.
, Fish et al, 1 Pick. 435.

II Allen vs. Miller, 17 Wend, 20'2.

T Dozierw. Ellis, 28 Mississippi, 730. M'lver vs. Ragan, 2 Wheat. 26.
21

322 STATUTES REGULATING PBACTICE.

tion of a party was such as in the opinion of the legis-
lature to furnish a motive for excepting him from the
operation of the law, the legislature has made the ex-
ception. It would be going far for this court to add
to those exceptions." And even in a case where a
survey which would have taken the case out of the
statute was prevented by positive legislation, the lands
lying in the Indian country, it was held no excuse.*

#So, too, it has been repeatedly held, that courts
have no dispensing power, even in matters of practice,
when the legislature has spoken. Thus, where a
statute declares that a judge at chambers may direct a
new trial if application is made within ten days after
judgment, it has been said that " he can no more
enlarge the time than he can legislate in any other
matter."f When a statute fixes the time within which
an act must be done, the courts have no power to
enlarge it, although it relates to a mere question of
practice. So where an appeal, to be valid, must be
made within ten days, it is void if taken on the
eleventh. J So when an act declared that a special jury,
when struck, shall be the jury for the trial of the issue,
and the defendant had a special jury struck and after-
wards willfully abandoned it, it was still held that the
act was imperative, that a common jury could not' try
the case, and that the plaintiff should have summoned
the special jury.§ Where a statute requires an oath

» M'lver m. Ragan, 2 Wheat. 25.

t Seymour vs. Judd., 2 Oomst., 464. Bleeker vs. Wisebum, 6 Wend.,
186.

J Ux parte Ostrander, 1 Denio, 680, 681. Seymour ot. Judd., 2 Corns.,
464. Jackson ex dem. Bleecker vs. Wisebum, 5 Wend., 136. Barclay «s.
Brown, 7 Paige, 245. Caldwell vs. The Mayor, &c. of Albany, 9 Paige, 5T2.

§ Montague r». Smith, 17 Ad. & ^11. N. S., 688. A special jury
inTolves, in England, a considerable expense.

STATUTES REGULATING PRACTICE ' 323

from the principal, it cannot be satisfied by tte oath
of an agent* So, statutes enabling creditors to re-
deem, as against prior judgments, must be complied
with strictly. Where an act authorizing a creditor to
redeem required an affidavit of the amount due to be
made *by the creditor or his agent, it was held the
affidavit must state in express terms that the deponent
was the agent, and merely naming hira as such in the
affidavit would not answer ; and that the affidavit of
the amount should also show that the agent had the
means of knowledge, and state the amount positively y
not according to his belieff In the municipal cor-
poration act, J where the words are "shall publish not
later than two of the clock," a publication cannot be
made after two o'clock, even for the purpose of cor-
recting an error.§ The English statute of 43 Eliz.
c. 2, s. 1, which has been called the Magna Qirta of
the poor, declared that the churchwardens of every
parish, and four, three, or two householders, should be
nominated by the justices of the peace to be overseers
of the poor. Motion was made to quash an order of
the justices appointing ^e overseers. Usage was in-
voked in support of the order, but the facts did not
sustain the alleged custom of augmenting the number,
and after a careful examination of the statutes in pari
materia^ the number was held imperative, and the
order was quashed, j

* The People vs. Fleming, 2 Comstock, 484, 485.

t Expa/rte Bank of Monroe, 7 Hill, 177.

% Hob., 298 ; Sid., 56 ; Stra. 1125 ; 2 T. Rep., 395.

§ The Queen vs. Mayor, &c. of Leeds, 11 A. & E., 512 ; Dwarris, p. 477.
" It is as a maxim," says Mr. Dwarris, " generally true, that if an afiBrmative
statute, which is introductory, of a new law, direct a thing to.be done in a
certain manner, that thing shall not, even although there are no negative
words, be done in any other manner." It seems to me this decision should be
rather referred to the present branch of our subject.

\ Rex vs. Loxdale, 1 Burr, 447.

324 PENAL STATUTES.

To this rule, that statutes prescribing modes of
procedure are to be strictly construed, however, there
exists a large class of exceptions, of which we shall
speak when we consider the cases in which the positive
language of enactments is treated as directory merely.

Penal Statutes.- — ^In regard to penal statutes, we
shall find the same oscillation of judicial opinion that
we have already had occasion to observe in other cases
and we shall notice the same difficulties and perplexities
that must ever result from any attempt by the judiciary
to insert exceptions in acts of legislation, or in other
words practically to exercise a discretionary control
over legislative provisions.

The ancient rule of our law, often reiterated, was
that penal statutes were to be construed strictly. "The
general words of a penal statute shall be restrained,"
says Mr. Dwarris, "for the benefit of him against whom
the penalty is inflicted."* And this maxim in the early
stages of English jurisprudence was often invoked and
acted upon by the 'judges — ^partly, no doubt, from a
humane desire to mitigate the rigors of the criminal
law as it then stood. Thus, the stat. 1 Ed. VI. c. 12,
having enacted, that those who were convicted of
stealing horses should not have the benefit of clergy,
the judges held that this did not extend to a party
guilty of stealing but one horse ; and a new act was
procured for that purpose.f So it is said, if the law
be that for a certain offense a man shall lose his right
hand, and the offender hath had his right hand before
cut off in the wars, he shall not lose his left hand, but
the crime shall rather pass unpunished than the letter
of the law be extended.^

* Dwarris, p. 634. + Dwarris, p. 364.

X Dwarris, p. 634; Bacon's Maxims, B8, 59.

PENAL STATUTES. 325

"If we liad the power of legislation," says Lord
Kenyon, applying tlie penalties for non-residence,
"perhaps we should think it proper to extend the
penalties created by the statute of Hen. VIII. c. 13,
to all benefices with cure of souls ; but as it is our 'duty
to expound and not to make acts of Parliament, we
must not extend a penal law to other cases than those
intended by the legislature, even though we think they
come within the mischief intended to be remedied."*
"This is a penal act," said he again, when con-
sidering the question, whether tumblers came within
the 10 Geo. II. c. 28, " and we cannot extend it to en-
tertainments that did not exist when the statute was
made, though perhaps it is desirable that the prohibi-
tions should be extended." f " If this rule is violated,"
said Best, 0. J. " the fate of accused persons is decided
by the arbitrary discretion of judges, and not by the
express authority of the laws." J So, if a penalty given
by a statute is to be recovered in a court of record, this
can only be done in: one of the superior courts of
Westminster; for, being a penal law, it must be
construed strictly, and those are the courts in which
the king's attorney is supposed to attend. §

And the general rule has been frequently declared
in this country. So in New York, it has been said that
penal statutes, in declaring what acts shall constitute
an offense, and in prescribing the punishment to be

* Jenkinson vs. Thomas, 4 T. R., 666; Dwarris, p. 636i

t Rex m. Handy, 6 T. R. 288. See, also, Warne ®s. Vatley, 6 T. R. 443
Martin m Fprd, 5 T. R. 101.

X Fletcher vs. Lord Sondes, 3 Bing. 580.

§ Rex vs. Hymon, 7 T. R. 636. Walwin vs. Smith, 1 Salk. 177, 178.
Cro. Eliz. 480. Noy, 62. Dvrar^is, 642.

326 PENAL STATUTES.

inflicted, are certainly to lie construed rigorously*
So, in Massachusetts also, penal statutes must be con-
strued strictly according to the intention of the legis-
lature as discovered by the import of the words, and
when not remedial, are not to be extended by equitable
principles.f

But the rule that statutes of this class are to be con-
strued strictly, is far from being a rigid or unbending
one ; or rather, it has in modern times been so modified
and explained away, as to mean little more than that
penal provisions, like all others, are to be fairly construed
according to the legislative intent as expressed in the
enactment ; the courts refusing on the one hand to
extend the punishment to cases which are not clearly
embraced in them, and on the other, equally refusing
by any mere verbal nicety, forced construction, or
equitable interpretation, to exonerate parties plainly
within their scope. Indeed, this was said in En-
gland at an early day. " It is not true," said Mr. J.
BuUer, "that the court in the exposition of penal
statutes are to narrow the construction. We are to
look to the words in the first instance, and where they
are plain, we are to decide on them. If they be doubt-
ful, we are then to have recourse to the subject-matter ;
but at all events, it is only ^ secondary rule." J

So the Supreme Court of the United States has said,

* The Watervliet and Turnpike Co. vs. M'Kean, 6 Hill, 616.

t Melody vs. Eeab, 4 Mass. 473.

t The King vs. Inhabs. of Hodnett, 1 T. R. 96, 101. The enactment that
made killing a master, treason, was extended so as to include a mistress.
Hard. 208 ; Plowd. 86 ; Dwarris, 635. So, under the EngUsh bribery acts,
to satisfy the term " procuring," it is necessary that the vote should be
actually given ; but as to " corrupting," that is not necessary ; the corrup-
tion has been held to be complete without the vote being given. 3 Burr.
1285 ; Dwarris, p. 635.

PENAL STATUTES. 327

" In expounding a penal statute, the court certainly will
not extend it beyond^the plain meaning of its words ;
for it has been long and well settled that such statutes
must be construed strictly. Yet the evident intention
of the legislature ought not to be defeated by a forced
and overstrict construction* We are to ascertain
the true legislative intent of the words used ; and that
sense being once ascertained, courts of justice are bound
to give effect to that intent, and are not at liberty to frit-
ter it upon metaphysical niceties."f " We are undoubt.
fedly bound," says Mr. Justice Story, " to construe penal
statutes strictly, and not to extend them beyond their
obvious meaning by strained inferences. On the other
hand, we are bound to interpret them according to the
manifest import of the words, and to hold all cases
which are within the words and the mischiefs, to be
within the remedial influence of the statute." J

And the rule has been coupled with this reasonable
modification in a large number of the tribunals of this
country. So in New Hampshire, it has been said, that
by the phrase strict construction, as applied to penal
statutes, it is not meant that the judges will disregard
the intention of the legislature ; it is only intended
that where there is a doubt, the judiciary will not so
construe them as to inflict a punishment which the
legislature may not have intended. ' The strict con-
struction is only to be applied where the law is rea-

* TJ. S. es. Morris, 14 Peters, 464. Indictment under the acts to prohibit
the slave trade. See also on this same point American Fur Company va.
the United States, 2 Peters, 358. Indictment for selling ardent spirits to
Indians.

tThe Schooner Nymph, 1 Sumner, 516, 618 ; where "trade" was held to
include " cod-fishery."

t The Schooner Industry. Information for landing goods without a
permit, under the revenue laws. 1 Gall. 114, 117, 118.

328 PENAL STATUTES.

sonaWy open to question * So in New York it is said
that, "The rule that penal statutes are to be construed
strictly when they act on the offender and inflict a
penalty, admits of some qualification. In the construc-
tion of statutes of this description it has been often
held, that the plain and manifest intention of the legis-
lature ought to be regarded. A statute which is penal
to some persons, provided it is beneficial generally, may
b6 equitably con8trued."t So again, "Although a
penal statute is to be construed strictly, the court are
not to disregard the plain intent of the legislature ;■
and it is well settled that a statute which is made for
the good of the public, ought,'although it be penal, to
receive an equitable construction.''^

In a case in Massachusetts, Parker, C. J., said, —

In this, as in all other statutes, if there be any ambiguity of expres-
sion, the meaning and intent of the legislature must be sought for in
the statute itself, if from a consideration of other parts of it, it is
capable of explanation, — and from other statutes relating to the same
subject, if it be necessary to resort to any thing extrinsic in order to
obtain an explanation. If a statute, creating or increasing the penalty,
be capable of two constructions, undoubtedly that construction which
operates in favor of life or liberty, is to be adopted ; but it is not jus-
tifiable in this, any more than in any other case, to imagine ambiguities
merely that a lenient construction may be adopted. If such were the

* Wilton vs. Wentworth, 5 Foster N. H., 247 ; Fairbanks ««. Antrim,
2 N. H. 105 ; Woodbury vs. Thompson, 3 N. H., 194 ; Pike vs. Jenkins, 12
N. H., 255.

t Sickles m Sharp, 13 J. R., 498,499.

We may remark that every penal statute must be intended to be " gene-
rally beneficial ;" the only ground on which punishments or penalties can
be inflicted on individuals is, that the community is thereby to be generally
benefited.

X The People vs. Bartow, 6 Cowen, 290, 298 ; Indictment for violating the
banking law. And here again we may inquire, whether any penal statute
can be regarded as not made for " the good of the public "?

PENAL STATUTES. 329

privilege of a court, it would be, easy to obstruct the public will in
almost every statute enacted ; for it rarely happens that one is so
precise and exact in its terms, as to preclude the exercise of ingenuity
in raising doubts about its construction.*

So, where a statute provided that if any person not
being authorized by the selectmen of any town in the
commonwealth, should dig up any human body, should
be prosecuted, &c., it was held to be sufficient to aver
and prove that the defendant was not authorized by
the selectmen of the town where the body had been
buried ; and it was said by Parker, C. J., delivering
the opinion of the court : —

The question in this case arises from an unfortunat^obscurity in
the terms of the statute on which the indictment is founded. Taken
strictly, without reference to subject-matter and the manifest intention
and object of the legislature, it would appear that in order to sustain an
indictment on the statute, it must be averred and proved that the board
of health, or selectmen, of no town in the commonwealth had given
license to do the act complained of. xhe consequence would be, as
oral testimdny alone can be admitted, on criminal trials, of facts prov-
able by witnesses, that the ofiScers of every town to the number of
three or four hundred, must be summoned and give their personal
attendance in the court where such prosecution is pending. We
hazard nothing in saying, that the legislature never intended such an
absurdity.

But it is said that penal statutes admit of no latitude of construc-
tion ; that they are to be taken strictly, word for word, let the conse-
quences be what they may. It is true, it .is so laid down as a general
rule ; and the reason is, that the court shall not be allowed to make
that an offense which is not made so by the legislative enactment. But
the rule does not exclude the application of common sense to the terms
made use 6f in the act, in order to avoid an absurdity which the legis-
lature ought not to be presumed to have intended. There are cases which
show this, although precedents would not be required to sustain so

* Commonwealth vs. Marton, 17 Mass. 359, 862, 863.

330 PENAL STATUTES.

reasonable a doctrine. Bac. Abr. statute i., 9 ; Heydon's Case, 3
Coke, 1 ; Rex v. Gage, 8 Mod. 65 ; Plowd. 86 ; and The Soldier's Case,
Cro. Car. 71 — all of which are cited by Bacon — go to show that even
penal statutes, though to be construed strictly as the general rule, yet
are to receive such a construction as will conform to the intention of
the legislature ; some of them are stronger cases than this.'

, *

"Where a statute provided that if any master or
other officer should, without justifiable cause, &c., beat,
&c., any one of the crew, he should be punished by
fine, &&, it was held that the word crew should be
held to include the officers, and was not restricted to
the common seamen ; and Mr. Justice Story said, —

Now, I do not think any thing material in the construction of this
statute can turn upon the rule so ably and strenuously expounded at the
bar, that penal statutes are to be construed strictly. I agree to that rule
in its true and sober sense ; and that is, that penal statutes are not to
be enlarged by implication, or fextended to jcases not obviously within
their words and purport. But where the words are general, and
include various classes of persons, I know of no authority, which
would justify the Court in restricting them to one class, or in giving
them the narrowest interpretation, where the mischief to be redressed
by the statute is equally applicable to all of them. And where a
word is used in a statute which has various known significations, I
know of no rule that requires the Court to adopt one in preference to
another, simply because it is more restrained, if the objects of the
statute equally apply to the largest and broadest sense of the word. In
short, it appears to me that the proper course in all these cases, is to
search out and follow the true intent of the legislature, and to adopt
that sense of the words which harmonizes best with the context, and
promotes in the fullest manner the apparent policy and objects of the
legislature.f

* Commonwealth vs. Loring, 8 Pick. 370, 374.
t U. S. M. Winn, 3 Sumner, 209, 211, 212.

PENAL STATUTES. 331

In anotlier case the same learned judge said, —

Penal statutes are to be construed strictly ; and cases within the like
mischief are not to be drawn within a clause imposing a prohibition or
forfeiture, unless the words clearly comprehend the case. * * But
in construing a statute we are to take into consideration all the pro-
visions thereof, and to look to all the objects and the entire intent of
the statute. If, then, a clause is found m one section which in its
■general language and import is equally as applicable to other sections
and provisions of the same act as it is to the very section in which it is
found, if the true intent and policy of the act will be best promoted
by reading it as applicable to all those sections, and if public mischiefs
equally within the scope of the statute would be thereby prevented,
and upon a diflferent construction those mischiefs would be left without
redress, — there certainly is very strong ground to say tbat the clause
ought to be so interpreted as to suppress the mischiefs, and not promote
or protect them ; that as its language is appropriate, so it shall be con-
strued as intended to include them.*

The subject has been well discussed by Mr. Justice
Livingston, on the first circuit. He used this lan-
guage :

i But while it is said that penal statutes are to receive a strict con-
struction, nothing more is meant than that they shall not, by what may
be thought their spirit oi equity, be extended to oflfenses other than those
that are specially and clearly described and provided for. A court
is not, therefore, as the appellant supposes, precluded from inquiring
into the intention of the legislature. However clearly a law be ex-
pressed, this must ever, more or less, be a matter of inquiry. A court
is not, however, permitted to arrive at this intention by mere conjec-
ture, but it is to collect it from the object which the legislature had in
view, and the expressions used, which should be competent and proper
to apprise the community at large of the rule which it is intended to
prescribe for their government. For although ignorance of the exist-

* The schooner Harriet, 1 Story, p. 251, 255, 256. Case under the'ket
giving bounties to vessels licensed for the cod-fisheries. See ante, p. 303, note
t, Henry vs. Tilson, 17 Vermont, 479, where a word in one section of a
statute was inserted by construction in another.

332 PENAL STATUTES.

ence of a l^w be no excuse for its violation, yet if this ignorance be
the consequence of an ambiguous or obscure phraseology, some indul-
gence i's due to it. It should be a principle of every criminal code,
and certainly belongs to ours, that no person be adjudged guilty of an
offense unless it be created and pi-omulgated in terms which leave no
reasonable doubt of their meaning. If it be the duty of a jury to acquit
where such doubts exist concerning a fact, it is equally incumbent on a
judge not to apply the law to a case where he labors under the same
uncertainty as to the meaning of the legislature. If this be involved
in considerable difficulty, from the use of language not perfectly in-
telligible, unusual circumspection becomes necessary, especially if the
consequences be so penal as scarcely to admit of aggravation. When
the sense of a penal statute is obvious, consequences are to be dis-
regarded ; but if doubtful, they are to have their weight in its in-
terpretation, . It will at once be conceded that no man should be
stripped of a very valuable property — perhaps o^ his all, be disfran-
chised and consigned to public ignominy and reproach, unless it be
very clear that such high penalties have been annexed by law to the
act which he has committed. If these principles be correct, as they
are deemed to be, a court has no optidn where any considerable am-
biguity arises on a penal statute, but is bound to decide in favor of
the party accused. " It is more consonant to the principle of liberty,"
says an eminent English judge, " that a court should acquit when the
legislature intended to punish, than that it should punish when it was
intended to discharge with impunity."*

The rule and the qualification have been very ably
considered by the Supreme Court of the United States.
The 8th section of an act of the United States (30th
April, 1*790, c. 36) provided for the punishment of
certain crimes committed upon the high seas, or in amy
rwer, hcuo&n, hasm, or hay, out of the jurisdiction of
any particular State. The 12th section provided for
the punishment of manslaughter committed upon the
high seas ; manslaughter not being mentioned in thq
8th section. Upon an indictment for manslaughter com-

* Schooner Enterprise, 1 Paine's Eeports, p. 83, 84.

PENAL STATUTES. 333

mitted on board an American vessel, in the river
Tigris, in China, thirty-five miles from its mouth, it
■was held that the United States had no jurisdiction
under the 12th section ; and the court said, —

The rule that p^nal laws are to be construed strictly, is perhaps
not much less old than construction itself. It is founded on the ten-
derness of the law for the rights of individuals ; and on the plain prin-
ciple, that the power of punishment is vested in the legislature, not
in the judicial department. It is the legislature, not the court; which
is to define a crime and ordain its punishment.

It is said tliat, notwithstanding this rule, the intention of the law-
maker must govern in its construction of penal, as well as other
statutes. This is true. But this is not a new, independent rule, vsrhick
subverts the old. It is a modification of the ancient maxim, amd
amounts to this, that though pelial laws are to be construed • strictly,
they are not to be construed so strictly as to defeat the obvious intention
of the l^slature. The maxim is not to be so applied as to narrow
the words of the statute to the exclusion of cases which those words,
in their ordinary acceptation, or in that sense in which the legislature
has obviously used them, would comprehend. The intentiot of the
legislature is to be collected from the words they employ. Where
there is no ambiguity in the words, there is no room for construction.
The case must be a strong one, indeed, which would justify a court in
departing from the plain meaning of words, especially in a penal act,
in search of an intention which the words themselves did not suggest.
To determine that a case is within the intention of a statute, its lan-
guage must authorize us to say so. It would be dangerous, indeed, to
carry the principle that a case which is within the reason or mischief
of a statute, is mthin its provisions so far as to punish a crime not
enumerated in the statute, because it is of equal atrocity, or of kindred
character, with those which are enumerated. If this principle has ever
been recognized in expounding criminal law, it has been in cases of
considerable irritation, which it would be unsafe to consider as prece'
dents forming a general rule for other cases.*

We admit that it is extremely improbable, that Congress could
have intended to make those diiFerences with respect to place, which,
their words import? But probability is not a guide which a court in
construing a penal statute can safely take. We can conceive no rea.

334 REVENUE LAWS.

son why other crimes wjiich are not comprehended in this act, should
not be punished ; but Congress has not made them punishable, and this
court cannot enlarge the statute.

These decisions, as I have said, materially modify the
old rule that penal statutes are to be construed strictly.
The more correct version of .the doctrine appears to
be that the statutes, of this class, »are to be fairly con-
strued and faithfully applied according to the intent of
the legislature, without unwarrantable severity on the
one hand, or equally unjustifiable lenity on the other;
in cases of doubt the courts inclining to mercy.

Revenue LoAns.—rln regard to the laws for the col-
Ie<^ion of the revenue, we find the same contradictions
that we have already noticed in other cases, as to
whether they are to be strictly or liberally construed,
growing out of the different light in which they may
be regarded, — that is, as laws imposing penalties and
forfeitures, of a highly important character on which
the operations of government mainly depend, or as
laws intended to regulate the great subject of com-
'^ mercial intercourse, and chiefly to regulate the opera-
tions of commercial men.

In England, it has been said that statutes made for
the advancement of trade and commerce, and to regu-
late the conduct of merchants, -ought to be- perfectly
clear and intelligible to persons of their description,
and that otherwise they would be mere snares. Where
clauses, therefore, are obscure, the courts will lean
af ainst forfeitures ; and in this view the ship registry
acts, so far as they apply to defeat titles and to create
forfeitures, are to be construed strictly as penal laws.

* U. S. M. "Wiltberger, 5 Wheat. 76, 95, 96, 105.

KEVEmJE LAWS. 333

"The legislature," says Heath, J,, "is ever at hand to
explain its own meaning, and to express more clearly
■what has been obscurely expressed."*

In the same spirit in this country, on the first circuit, in
construing a revenue law, Mr. J. Story said, "Laws
imposing duties are never construed beyond the
natural import of the language ; and duties are never
imposed upon the citizen upon doubtful interpretations ;
for every duty imposes a burthen on the public at
large, and is construed strictly, and must be made out
in a clear and- determinate manner from the language

of the statute."f
The Supreme Court of the United States has said on

this subject, — «

In one sense, every law imposing a penalty or forfeiture may be
deemed a penal law ; in another sense, such laws are often deemed,
and truly deserve to be called, remedial. It must not be understood,
that every law which imposes a penalty is therefore, legally speaking,
a penal law, that is, a law which is to be construed with great strict-
ness in favor of the defendant. Laws enacted' for the prevention of
fraud, for the suppression of a public wrong, or to effect a public good,
are not in the strict sense penal acts, although they may inflict a pen-
alty for violating them. It is in this light we view the revenue laws,
and we would construe them soas most effectually to accomplish the
intention of the legislature in passing them."J

And again, on the first circuit, Mr. Justice Story has
used this language : — ■

Revenue and duty acts are npt in the sense .of the law penal acts,
and are not, therefore, to be construed strictly. Nor are they, on the,

• Hubbard vs. Johnston, 3 Taunt., 177. Dwarris, p. 641.

t Adams vs. Bancroft. 3 Sumner, 386, 387.

X Taylor w. The U. S., 3 Howard, 109. It may be permitted us to
ask with de/erence, whether all laws must not be supposed intended to "ef-
fect a public good ;" and whether the effort " to accomplish the intention of
the legislature" should be any more earnest in this case than in all others.

336 USURY LAWS.

other hand, acts in furtherance of private rights and liberty, or remedial,
and therefore to be construed with extraordinary liberality. They are
to be construed according to the true import and meaning of their
terms; and when the legislative intention is ascertained, that and that
only is to be our guide in interpreting them. We are not to strain to
reach cases not within their terms, even if we might conjecture that
public policy might have reached those cases ; nor, on the other hand,
are we to restrain their terms, so as to exclude cases clearly within
them, simply because public policy might possibly dictate such an ex-
clusion.*

These decisions show the gradual tendency of the
judicial mind to disavow and renounce any right to
construe statutes according to considerations of policy
or flardship, and to recognize the duty of conforming on
all occasions to the will of the lawmaking body.f

JJsiji/ry Laws. — " Before the statute of Henry VTII."
(37 Henry VIII., c. 9), says Lord Mansfield, J "all in-
terest on money lent was prohibited by the canon law, as
it is now in KomanCatholic countries."§ This statute was

^U. S. vs. Breed et al, 1 Sumner, 159, 160.

t Some rules as to forfeitures may be here noticed :

" When a statute gives a forfeiture or a penalty against him who wrong-
fully detains the property of another, or dispossesses him -of his duty or
interest, he that has the wrong shall have the forfeiture or penalty, and
shaH have an action therefor on the statute at common law, and the king
shall not have the forfeiture." — Co. Litt., 159 a.

" If an act of Parliament give a forfeiture for a collateral thing, the king
shall have it ; but where it is given in lieu of property and interest, it shall
go to the person injured. Where, however, it is given for a crime, the
king shall have the forfeiture, though he be not named."— 13 Vin. Abrid.
tit. Forfeiture.

" The words ' shall forfeit' vests only a right or tifle, and not the freehold
or deed, or in law, without an oflBoe to find the certainty of the land."— PI.
Com. 486.

"Where a statute gives a forfeiture 'of all inheritance,' it does not ex-
tend to an estate tail ; but where it is ' of all manner of inheritances,'
estates tail are comprehended."— Jenk. 287, pi. 31. Hob. 834. Dwarrjs, 641.

i Lowe vs. Waller, 2 Douglas, 736, 740.

§ See also Renss Glass Factory w. Reid, 6 Cow., 687 and 604.

USURY LA-WS. 337

repealed in the reiga of Edvrard VI., but re-enacted in
the reiga of Elizabeth,* and, since that period, with
occasional modifications, has retained its place in En-
gland, and obtained a footing, more or less secure, in
this country.

There are few things which better show the power
claimed by the courts over statutes, than the course pur-
sued by them in regard to these laws. The act of 12,
Anne, § 2, c. 16, declared all securities and contracts
affected by usury, void. But when the courts of equity
were appealed to for aid by a borrower on usury, they
did not hesitate to brand the statute as inequitable, if
not dishonest, and, declaring that he who sought equity
must do equity, refused relief except upon the terms
of payment of the principal and legal interest-f The
courts of common law followed in part in the same
track, and when their discretionary powers were ap-
pealed to, refused interference except on the same
tei"ms.J Finally, how^ever, the King's Bench came to
the true rule on the subject, and in compliance with
and obedience to the statute, treated usurious contracts
as void for all purposes.§ I have already had occasion
to refer to the course pursued on this subject in our
tribunals, and have noticed the fact that in the later
decisions the courts appear disposed to give full effect
to the legislative will'.]

In construing a statute of this class in Massachusetts,
the following language has been held. It is valu-
able, as showing the curious niceties into which the

* Dwarris, p. 65.

t Benfield®«. Solomons, 9 Ves., jun., 84; Scriyener, Ex parte, 3 Ves.
and B. 14.

X Hindlew. O'Brien, I Taunt. 41.3.

§ Roberts m. Goff, 4 B. and Aid. 93. Dwarris, p. 855.

I Ante, p. 220.

338 .^ STATUTES CREATING MONOPOLIES.

courts have been drawn, in their efforts to explain and
to methodize their notions of strict and liberal con-
struction : —

General statutes or written laws of the government, are usually ar-
ranged under three great divisions : Declaratory, which are expressive
of the common law ; Remedial, which are required in consequence of
the errors in human judgments, or are rendjgred necessary by the va-
rious changes which are constantly taking place as the community
enlarges and its concerns increase ; Penal, or acts for the prevention
and punishment of offenses ; — and in ascertaining their meaning it soon
grew to be an axiom in the law, that remedial statutes should be con-
strued liberally and penal statutes strictly. But the rule prescribing
the line between remedial and penal statutes was not well defined ; and
the statutes against frauds were often, both held to be remedial and
penal : as where the statute acted on the offender it was taken strictly,
but where it acted upon the offense, by setting aside the fraudulent
transaction, it was to be expounded liberally. [1 Bl. Com., 88.]
Admitting, then, as the fact was, that the original statutes [against
usury] were clearly penal, the present law, while it is penal to
some extent in its consequences, is in fact so modified that it may
be said to be adopted into the family of remedial statutes, and,
though a brother of the half blood, is nevertheless entitled to its share
of the inheritance, or, in other words, has the like privilege of a
liberal construction with those statutes which are wholly remedial.*

Of Statutes creating monopolies, granting franchises^
and cJia/rt&i'S of incorporation. — We haveseenf that the
civil law inclined to consider grants made by the sover-
eign with a favorable eye, and to give them an enlarged
and liberal interpretation. The common law, however, in
obedience to its instinctive sympathy with equal rights
and its jealousy of prerogative, has always adopted a
widely different and much sounder rule. The uniform
language of the English and American law is that all
grants of privilege are to be liberally construed in favor

* Gray vs. Bennett, 8 Met, 622, 52T, 529, per Hubbard, J.
t AnU, p. 285, Domat's Rules, § 17.

STATUTES CREATING MONOPOLIES. 339

of the public, and as against the gratitees of the mon-
opoly, franchise, or charter to be strictly interpreted.
Whatever is not unequivocally granted in such acts, is
taken to have been withheld ; all acts of incorporation,
and acts extending the privileges of incorporated bodies,
are to be taken most strongly against the companies.*
It is interesting to observe the vigilance with which
this principle has been applied. Where a company
was incorporated by statute for the purpose of inland
navigation, and they acquired lands forming a reservoir,
which lands were to vest in the company in fee, " to and
for the use of the said navigation company and to or
for no other use or purpose whatever," it was held by
the Court of Queen's Bench that a railway company
which succeeded to the rights of the navigation com-
pany could not let out boats for hire on the reservoir.-)-

* Lees vs. The Manchester & Ashton Canal Company, 11 East, 652 ;
Scales i«. Pickering, 4 Bingham, 452; Dock Company at Kingston-upon-
HuU vs. Browne, 2 Barn. & Adol. 43 ; The Providence Bank vs. Billings &
Pittman, 4 Peters, 514; Clmrles River Bridge ««. Warren Bridge, 11 Peters,
420 ; Parker ««. Sunbury and Erie R. R. Co. 19 Penn. State R 211.

In regard to public grants of franchises, the rules of construction are
Baid by the Supreme Court to be these : First, that where the grant is
designed by the sovereign power to be a general benefit and accommodation
to the public, if the meaning of the words be doubtful , they shall be taken
most strongly against the grantee, and for the government; and therefore
the grant is not to be extended by implication in favor of the grantee
beyond the natural or obvious meaning of the virords employed. Second,
if the grant admits of two interpretations, one of which is more extended
and the other more restricted, so that a choice is fairly open, and either may
be addpted without any violation of the apparent object of the grant, if in
such a case, one interpretation would render the grant inoperative, and the
other would give it fprce and effect, the latter if within a reasonable con-
struction of the terms employed should be adopted. Charles River Bridge
ts. Warren Bridge, 11 Peters,, 544; Mills vs. St Clair County, 8 Howard,
681.

t Bostock vs. The North Staffordshire Railway, 4 Ellis & Black. 799; a
case certified on a question sent down from the Court of Chancery. Camp-
bell, C. J., Coleridge and Wightman, JJ., unitedin the certificate ; Earle, J.
^ gave a contrary opinion.

340 STATUTES CREATING COBPORATIOKS.

So again it has been said, that statutes interfering
with the general rights of the subject, establishing
monopolies and imposiiig penalties, are to be strictly-
construed. , Thus, where an act of Parliament imposed
a penalty on all but freemen of the Waterman's
Company, for navigating any wherry, lighter, or
ether crafty on the Thames, it was held that a steam-
tug was not within the description and prohibition of
the act* Where a company was authorized to take
lands for a railway, and a jury was to be summoned
to fix the value of the lands, and to award, separately
for injury sustained, and a jury so summoned gave a
verdict for an entire sum, — it was held that the com-
pany could not treat the verdict as a nullity, the pro-
vision being for the benefit of the claimant.f

In this country, the same doctrine has been steadily
adhered to. So, the Supreme Court of the United
States says, " A corporation is strictly limited, to the

♦ Reed ««. Ingham, 3 Ellis & Blackburn Q B. p. 889.

t In Re London and Greenwich Railway Co, 4 Nev. & Mann. 468.
Gildart w. Gladsto&e, 11 East, 685 ; The Leeds & Liverpool Co. m. Hustler,
1 B. & Ores. 424; Kingston-uponHull Dock Co. vs. LaMarche, 8B. & Ores.
61 ; Priestly va. Fould, 2 Scott N. R. 205 ; Portsmouth Floating Bridge Co.is.
Nance, 6 Scott N. R. 823 ; Stourbridge Canal Co. vs. Wheeley, 2 Barn. &
Ad. 792, — are a;ll cases to the effect, thatin grants of franchises or privileges,
any ambiguity must operate against the grantees, and in favor of the pub-
lic. See, to S. P., Barrett v» The Stockton and Darlington R. Co., 2
Scott N. R. 887; Stockton and Darlington R. Co. w. Barrett; S. O.in
Exchequer Chamber, 3 Scott N. R. 803. Yerha chartarum fortiui acdp-
piuntur contra proferentem.

See also Blakemore vs. The Glamorganshire Canal Navigation, 1 Mylne
&K. 154, as to the construction of acts creating companies to construct pub-
lic works.

In regard to the strictness with which, in England, the railway compa-
nies are held to a perfonnanoe of their chartered obligations, see the Rail-
way Cases generally, and Commonwealth vs. Pittsburg and Connelsville B.
R. Co., 24 Penn. S. R. 159, where they are reviewed per Lowrie, J.

STATUTES CEEATING CORPORATIONS. 341

exercise of those powers which are specially conferred
upon it. The exercise of the corporate franchise, being
restrictive of individual rights, cannot be extended be-
yond the letter and spirit of the ac€ of incorporation."*
Sc) again, in the same court, it is said that in regard
to charters of incorporation, it has always been held
that a corporation takes nothing except what is plainly
expressed and unequivocally granted. The charter is
held to be a contract between the State and the corpo-
ration, and no clause of power or privilege can be
inserted by implication. This has been repeatedly
declared in cases where the corporation has contended
for implied inamunities, such as an exemption from
taxation. This privilege can only be granted by ex-
press words.*

The language in Connecticut is the same: "The
rules of construction which apply to general legisla-
tion, in regard to those subjects in which the public at
large is interested, are essentially different from those
which apply to private grants to individuals, of powers
or privileges designed to be exercised with special
reference to their own advantage, although involving
in their exercise incidental benefits to the community
generally. The former are to be expounded la,rgely
and beneficially, for the purposes for which they were
enacted. The latter liberally in favor of the public,
and strictly as against the grantees," J

* Beaty vs. Lessee of Knowler, 4 Peters, 152, 168.

t Charles Riyer Bridge r«. Warren Bridge, 11 Peters, 420. Bank of
Baston vs. Commonwealth, 10 Penn. State E. 422. Bank of Pennsylvania vi.
Commonwealth, 7 Penn. State R. 144. But see, contra, State of Ohio w.
Commercial Bank of Cincinnati, 7 Ohio R., 125 ; Union Bank vs. State of
Tennessee, 9 Yerger, 490.

t Bradley vs. N. Y. & N. Haven R. R. Co , 21 Conn., 294, 306.

342 STATUTES CREATING CORPORATIONS.

So, too, in Pennsylvania it ia said, " Corporate
powers can never be created by implication, nor
extended by construction. No privilege is granted
unless it be expressed in plain and unequivocal words,
testifying the intention of the legislature in a manner
too plain to be misunderstood. * * In the construc-
tion of a charter, to be in doubt is to be resolved,
and every resolution which springs from doubt is
against the corporation.*

So, in the same State, in regard to a statute authorize
ing a railroad company to take land upon a report of
viewers, which, among other things, should state the
quality and value of the land taken, — ^it was held that a
report of the viewers omitting to state the quality and
value of the land is fatally defective ; and the court said,
" It is most manifest equity, that-he who claims a special
privilege must submit to a strict construction of it. He
who claims the right to be tried before a special tribunal
and in a special form, both of which are out of the
general course of the law, must expect that the special
mode of trial shall be strictly pursued as to the forma
prescribed, and not be allowed to innovate upon
the general principles of law further than is indicated
by the law that prescribes it."f

In New York, it has been said a statute conferring
privileges upon individuals should not be so- construed
as to work a public mischief, unless required by explicit
and unequivocal language. So where an act authorized
a proprietor of lands lying on the East Kiver, which is
an arm of the sea, to fill up and construct wharves and
bulkheads in front of his lands, and there was at the

* Pennsylvania R. R. Co. vs. Canal Com'rs, 21 Penn., 9.
t Zack vs. P»nn. Railroad Co., 35 Penn. State R., 894.

STATUTES CREATING COEPOEATIONS. 843

time a public highway through the land to the river,
it was held that the proprietor could not by, filling up,
obstruct |he public passage from the land to the water,
and that the street, by operation of law, extended from
the former terminus over the new-made land to the
water."*

So in Pennsylvania, a grant of a right of way of fifty
feet wide, for a railway, through a small slip of land in
a densely populated city, will only convey so much
ground as is necessary for the line of the road, and will
not carry by implication the right to erect within such
line depots, car-houses, or other structures for the
business of the road ; and such a grant does not confer on
the railroad company the right to permit their cars or
locomotives to remain on the track of the road within
the fifty feet for a longer time than is necessary to,
receive and discharge freight and passengers.f

"Private statutes," says Parsons, C. J. of the Suprem,e
Court of Massachusetts, speaking of an act granting a
fishing right to a town, "made for the accommodation
of particular citizens or corporations, ought not to be
construed to affect rights or privileges of others, unless
such construction results from express words or neces-
sary implication." J

In New York, in regard to the ferry franchise con-
ferred on the municipal government of the city of New
York by its charter, it is held that it is not a mere
authority to administer the ferry franchise as a politi-
cal trust, liable to be resumed by the legislative power ;

* The People w. Lambier, 5 Denio, 1. ■ ♦

t Mayor, &c. of Allegheny vs. Ohio and Penn. R. E. Co., 26 Penn., S55.
I Coolidge vs. Williams, 4 Mass., 140. Case on an alewife-fishing
statute.

34:4 STATUTES CONFERRING EXEMPTIONS.

but that it is a vested right, and a valuable interest,
which cannot be taken away by the legislature ; while
it was at the same time admitted, that charters or
grants conveying to municipal bodies rights of a
private nature, should be strictly construed, and that
in case of ambiguous phraseology, the presumption
should be in favor of construing the same as a public
grant.*

Statutes conferrmg pa/rticular exemptions from gerir
eral hurtJiens, or against common and general righi.^-^ ,
The statutes which fall in this class are, like those
which we have just considered, regarded with a jealous
eye and strictly construed. So in Indiana, it has
been said, the sound principle is that all persons should
bear the burdens of taxation alike. Consequently, any
statute which texempts persons or property from
taxation, is to be construed strictly. So, a statute
exempting the lands whereon any building erected
for religious worship is situate, not exceeding ten
acres, does not include any part of the ten acres which
is actually used for secular purposes for gain.f

So in the same State it has been said, in reference to
the compulsory assignment of counsel, that a statute
requiring the services of the citizen gratuitously is
against common right, and therefore to be strictly con-
strued ; and consequently a statute requiring gratuitous
services in civil cases would not be extended to crim-
inal cases. :|:

* Benson «s. The Mayor, ftc. of New York et al 10 Barb., 224,perBar-
oulo, J. ; and see (page 243) his remarks on the case of the town of East
Hartford vs. Hartford Bridge Co. See also as to ferry franchises, Mills M.
St. Clair County, 8 Howard's (U. S.) Rep. 569.

t Orr «s. Baker, 4 Indiana, 86.

X Webb vs. Baird, 6 Indiana, 13.

STATUTES AGAINST COMMON EIGHT. 345

In Maryland, the "bill of rights gives the legisla^nre
power to compel a party to give evidence against him-
self; and jn regard to this, the Court of Appeals in that
State have said, " Although it is competent to the legis-
lature to alter the rule of evidence so as to compel a
party to give testimony against himself, it is neverthe-
less a power of such transcendent and overwhelming
operation that a just regard for the liberties of the
citizen should at all times induce the most jealous aod
cautious exercise of it by the legislature. And espe-
cially should courts of justice anxiously and narrowly
watch it, and never under any pretense whatever
extend it beyond the limits to- which the strictest inter-
pretation of the legislative act confines it in the parti-
cular case.*

So, iji construing a Massachusetts statute avoiding
"every gift, bargain, sale, or transfer, of any real or
personal estate " by a spendthrift after appointment
of a guardian, it was said, " Every man of full age and
sound mind is at liberty to make contracts ; and if made
upon good consideration and without fraud he must be
bound by them, unless by statute provision he is dis-
abled ; and disabling statutes of that nature should be
construed strictly ; for, though founded in policy and a
just regard to the public welfare, they are in deroga-
tion of private rights ;" and the statute was held not to
avoid a promissory note of the spendthrift, although
it might indirectly affect his real or personal estate.f

In the same State, a statute providing that all real
and personal estate which shall at any time be, exposed
to sale at public auction or vendue fehall be subject to

* Broadbent m. The State, 7 Maryland, 416.
t Smitt M. Spooner, 3 Pick. 229, 230.

346 STATUTES AGAINST COMMON RIGHT.

duty, was held not to apply to a lease of real estate hj
auction ; and it was said that statutes which imposed
restrictions upon trade or common occupations or which
levy an excise or tax upon them, must be construed
strictly,"*

It has been attempted to bring statutes in dero-
gation of the common rights of creditors, within
this rule. So it has been said in England, that a sta-
tute for the discharge of insolvent debtors ought to
be construed strictly, quoad the cessio bonorum, and the
rights of the creditors. " Let a statute be ever so
charitable," said Holt, C. J., "if it gives away the prop-
erty of the subject it oifght to be construed strictly ."f
And in this country it has been said, that statutes in
derogation of the common rights of creditors to secure
their debts out of the property of their debtors, aa
statutes exempting property from execution, ought to
have a strict construction. So in Massachussets, a
statute exempting the tools of a debtor from execution
does not apply to a printing-press, and types.J But I
doubt if any such general rule can be asserted to exist ;
on any construction the word " tools " can be hardly
said to include printing-presses and types; and in a
subsequent case this law has been called a "humane
and beneficial statute,- not to be too narrowly con-
strued."§ "We have here again an illustration of the
dangers of construction resting on motives of policy.
Policy is a shifting and varying element; and it is
evident that judicial notions of the wisdom or expe-

* Sewall vs. Jones, 9 Pick, 414.
t 12 Mod. 513.

J Buckingham w. Billings, 13 Mass. 80 ; Danforth w.Woodward, 10 Pick-
ering, 428.

§ Howard vs. Williams, 2 Pick. 80, 88.

SUMMARY JUDICIAL PROCEEDINGS. 347

diency of an act of tte legislature, can -witli no pro-
priety be permitted to override the authentic^ declarar
^tions of the will of the governing power.

Statutes authorizing smmmary judicial proceed-
ings. — ^It is a well-settled and wholesome rule, that
statutes authorizing summary proceedings, and by
which extraordinary powers are given to courts or offi-
cers of justice, are to be strictly construed; and that
the powers conferred must be strictly pursued, so far
as regards all the steps and proceedings necessary
to give jurisdiction, or the whole proceedings will be
void. So, where a statute authorizing justices to stop
up an old foot-way and substitute a new one, required
" that the forms of proceedings set forth in the sche-
dule annexed shall be used on all occasions, with such
additions or variations only as may be necessary to
adapt them to the particular exigencies of the case,"
a strict obsOTvance of these forms was held essential ;
and Lord Kenyon, C. J., said, "I cannot say that
these words are merely directory. Power is given
to the magistrate to take away on certain conditions a
right which the public before enjoyed ; and this is to
be done in a certain prescribed form, with such addi-
tions and variations only as the locality of the descrip-
tion may require. JNow, here there is a material
variance in the order from the form prescribed, for it
does not set forth the length and breadth of the new
path set out in lieu of the old one." The court there-
fore held the order void, and the public still entitled
to the use of the old path through the plaintiff's
land.*

So, where a statute required that on petition for the

* DaTison t». Gill, 1 East, 64.

348 SUMMARY JUDICIAL PROCEEDINGS.

sale of lands, a guardian should be appoipted for infants,
and it was not done, it was held that the sale was void
as to such infants.* So, when a statute confers a new
power on a justice of the peace, he mjist proceed strictly
in the mode prescribed by statute.f In New York,
where before an attachment can be issued by a justice
of the peace, against a non-resident of the county, a
bond must be given by the applicant, the giving this
bond is a condition precedent to the power which the
statute confers ; and if the justice undertakes to execute
the power by issuing the attachment, without exacting
a prior performance of the condition, his acts are
utterly void, and the process affords hjm no protection
for what is done under it. J

So, a justice authorized to take jurisdiction of certain
offenses on complaint under oath or view, cannot con-
vict on confes8ion,§ So again, where a statute requires
a justice's summons to be served by reading it to the
defendant and delivering him' a copy, a service by de-
livering the summons personally to the defendant is
bad, and gives the magistrate no jurisdiction.! So in
New York, the proceedings to obtain judgment, upon
an award of arbitrators are summary, and must be com-
plied with. And when it was provided that where
there had been a submission to arbitrators under the
statute, judgment might be rendered on the award,
upon such submission being proved by the affidavit of

* Bloom v8. Burdick, 1 Hill, 130. Rea vs. M'Eachron, 18 "Wend., 466.
Babbitt m. Doe, 4 Indiana, 856. Atkins vs. Kinnan, 20 Wend., 241.
t Bigelow t». Stearnn, 19 J. R. 89.^
I Davis vs. Marshall, 14 Barb., 96.
§ Bargis vs. The State, 4 Indiana, 126.
I Campau vs. Fairbanks, 1 Michigan, 161.

SUMMARY JUDICIAL PK0CEEDING3. 349

a sub&yriMng witness thereto, the affidavit of a witness
who subsequently attested it was. held not sufficient.*

In the same State it has been decided, that a sale of
an intestate's real estate to pay debts, by virtue of a
surrogate's order under a statute declaring that in such
cases a guardian shall be appointed for infant heir-s, is
void unless such guardian be appointed. The statute
is imperative, and leaves nothing to the discretion of
the surrogate. Public policy demands that the safe-
guard which the legislature has provided for the
protection of the helpless, against negligence, oppres-
sion, and fraud, should be mainfcained.f On the same
ground, the Supreme Court of the United States has
decided that executors and administrators, in making
sale of property, must comply strictly with the requi-
sites of all statutory provisions on the subject ; and
that unless every essential direction of the law is com-
plied with, those whose interests are affected are not
affected by the sal«, unless, from a long acquiescence,
a foundation is laid for a fair and reasonable presump.
tion that the requisites of the law have been complied
with. So, where an Alabama statute declared that it
should not be lawful for an executor to dispose of the
estate of the decedent at private sale, such a sale was
held absolutely void.J

So, too, in Michigan it has been held^ that when a
court exercises a special jurisdiction under a statute, the
mode of proceeding must be strictly pursued; thus,
where a statute requires that before a writ of attach-

* Hollenback m. Fleming, 6 Hill, 303.

t Per Gardiner, J., in Schneider vs. McFarland, 2 Coins. 459. See also
on this subject M'Pherson rs. Cunliff, 11 Serg. and Bawle, 429, and Grig-
non's Lessee vs. Aster, 2 Howard's (U. S.) E. 319.

X Ventresa et al. vs. Smith, 10 Peters, 161.

850 SUMMARY JUDICIAL PE0CEEDING9.

ment shall issue, an affidavit of indebtedness, shall be
made and annexed to it, it was held that a writ issued
without any affidavit, but to which an affidavit made ten
days afterwards was annexed before actual service, was
irregular and void* So again in New York, in a pro-
ceeding by an insolvent debtor for a discharge, where
the petition set forth that the petitioners had given a
bond pursuant to the tenth section of the act on the
subject, and the tenth section made mention of two
bonds, only one of which gave the officer jurisdiction ;
it was held that jurisdiction was not acquired, and the
proceedings were reversed on certiorari.^

On the other hand, it has been frequently decided
that where a court once obtains jurisdiction, its pro-
ceedings cannot be collaterally impeached, although
they appear to have been irregular and contrary to
law. J The distinction appears to be, and it is one
which distinguishes this class of cases from the admin-
istrative proceedings which we shall consider under
the next branch of our subject, that in regard to sum-
mary judicial proceedings, it is indispensable that all
the statutory directions in regard to the steps required
to give the officer jurisdiction, whether over the person
or over the subject-matter as the case may be, must be
strictly observed, otherwise the whole proceedings
are void, coram non jvdice ; and the objection may be
taken wherever they are set up and relied on ; but if
jurisdiction be once acquired, then any subsequent
errors or irregularities committed by the officer are

* Buckley os. Lowry, 2 Mich., 419.
+ The People ex rel. Oomter vs. Reed, 6 Denio, 554.
X Voorhees vs. Bank of U. S., 10 Peters, 449. Grignon's Lessee m.
Astor, 2 Howard's (U. S.) R. 319,

SUMMAKY ADMINISTRATIVE PROCEEDINGS. 351

treated like other judicial errors, and can only be cor-
rected in the particular matter, on appeal to the proper
tribunal. In regard to administrative proceedings, on
the other hand, no judicial discretion or authority is
recognized : they are treated as ministerial throughout ;
and any departure from the directions of the statute is
fatal, whether the objection be taken directly, or indi-
rectly in any collateral matter. In regard to summary
judicial proceedings, the line which divides the steps
necessary to give jurisdiction .from those subsequent
is often very difficult to define with precision, and
depends on the nature of the proceedings and the
language of the statute.

Statutes^ authorising awmmary ackninistrative pro-
ceedings affecting rights of jprqperty. --Where sum-
mary proceedings are authorized by statute the effect
of which is to divest or affect rights of property, the
rule holds good that they are to be strictly construed.
The power conferred must be executed precisely as it
is given, and any departure will vitiate the whole pro-
ceeding. It is, indeed, a general rule that all statutes
conferring special ministerial authprity by which any
man's estate may be affected, must be strictly pursued.
So, where certain loan commissioners are authorized on
the default of payment of jnpneys loaned by them, to
sell the premises mortgaged to secure the debt, a sale
by one only is void.f So again, where a statute in New
York authorized loan commissioners in default of pay-
ment to advertise and sell on a certain day (the first
Tuesday of February), and if not sold or struck off,
and the bid not paid, then, to enter and to lease till
the third Tuesday of September following, and then

+ Powell M. Tuttle, 3 Comst 396 ; Olmsted i». Elder, 1 Seld. 144.

352 SUMMARY . ADMINISTRATIVE PROCEEDINGS.

to sell again, — it was held that the lands being struck
off on the first day and the bid not paid, it was not
competent for the commissioners to re-sell them on the
same day to another person, but that they were bound
to wait till the second day named in the statute ; and
where the sale was directed to be for cash, it was held
that the commissioners could not sell on credit.*

In this country, there is a large and important class
of cases falling under this branch of our subject,
where ministerial officers, either the direct agents of
the sta,te, or of corporations clothed with certain at-
tributes of local sovereignty, are authorized to sell
the property of private individuals for non-payment of
taxes, or charges imposed on them. The proceedings
contemplated by these enactments are generally direct-
ed to be taken without giving the party alleged to be in
default any opportunity of defence; and their validity
has been denied, on the ground of their being in con-
flict, as it has been urged, with the constitutional provi-
sion which, in most if not all the; States, guarantees to
every citizen the protection of " the law of the land."
This objection has been, however, overruled, and the

* Sherwood vs. Reade, 7 Hill, 431 ; overruling the decision of Mr. Chan-
cellor Walworth in same case, 8 Paige, 633.

We may here notice some general rules as to powers. As a general
thing, in the exercise of an authority Whether ministerial or judicial, a^Z the
persons to whom it is committed must confer and act together. Downing
vs. Rugar, 21 Wend. 178.

So the concurrence of four justices is necessary to execute a valid
warrant appointing overseers of the poor. King vs. Forrest, S D. and E. 38 ;
King va. Inhabs. of Haverstall Redware, ibid. 380.

An authority to do acts merely ministerial, as filling up an advertisement
of sale, may be delegated ; or when one overseer of the poor in the name
and behalf of two, applies for process. Downing m. Rugar, 21 Wend. 178 ;
but not so when any discretion is to be executed ; Powell vs. Tuttle, 8
Comst. 396.

TAX SALES. 353

power has been sustained on grounds of immemorial
usage and state necessity. But wliile asserting the
power, it has, in all cases, been held that it must be
strictly pursued, and that its exercise will be vigilantly
watched.* So, the Supreme Court of the United States
has saidj in regard to the sale of lands for taxes, that
every prerequisite to the exercise of the power should
precede it ; that the party who sets up a title under
such a sale, must furnish the evidence necessary to sup-
port it ; and that the marshal's deed is not even primia
facie evidence that the prerequisites required by law
have been complied with; f A statute authority, by
which a man may be deprived of his estate, must be
strictly pursued. Thus, where by the law of Tennessee
it is made essential to the validity of a sale of land for
taxes, that the sheriff should make a certain return and
certain publications, it was held by the Supreme Court
of the United States that those steps must be strictly
taken, and that they must also appear on the face of
the record. And as they did not, the sale was held
absolutely void.J So, where an Arkansas statute pro-
vides that before a sheriff can assess land for taxes, he
shall file an affidavit by a certain day, and the assess-
ment by a certain' other day, non-compliance with
these requisitions has been held by the Supreme Court
of the United States, to make the assessment, and of
course the sale for taxes, invalid; and the deed Void. §'

* state ««. AJlen, 2 McCord, 55. Harris «s. Wood, 6 Monroe, 643.
Willard m. Wetherbee, 4 N. H. R., 118. See other cases cited in Black-
well on Tax Titles, p., 38 et seq.

f Williams vs. Peyton'sLessBe, 4 Wheat., 77. See also, S. P., M'Clung
vs. Ross, 6 Wheat., 116.

I Thatcher vs. Powell, 6 Wheat., 119. See also Jackson vs. Esty, 7
Wend., 148. •

§ Parker et al. vs. Overman, 18 Howard, 137.
23

354 TAX SAXES.

In cases of this nature, it has been held by the
States generally that the steps prescribed by the
statute must all be strictly foUotved, and that the
burthen of proof is on the party who claims a right
under the summary proceedings. It is the business of
the purchaser to collect and preserve all the facts and
muniments of title on which the validity of his claim
depends. It will be useful to notice the strictness
with which these wholesome rules have been applied.
So, in New York it has been held that a power to sell
lands for taxes imposed thereon, wUl not authorize a
sale for taxes imposed not on the land, but on the
owners and occupants. Nor will a power given to sell
for taxes, authorize a sale for a mere assessment for the
construction of a well and pump. So, if a tax be only
authorized on the petition of a majority of a certain
class of parties interested, the purchaser under the tax
sale must show that those who signed the petition
were a majority. So, where a demand of payment is
made necessary before sale, it must be made ; so,
where the statute directs notice of an assessment to be
given before the sale, proof is required that the requi-
site notice was given, and it must be given for the
precise time required by the statute. So too, of a
notice to redeem.*

In the same State, lands are under various statute
provisions sold for unpaid taxes by the State comptrol-
ler ; and in order to authorize him to do so, the lands
must have been assessed in due form by the town
assessors, taxed by the county supervisors, a certified

* Sharps. Speir,* HiH, 76; Sharp wi. Johnson, 4 HUl, 92; Striker m.
Kelly, 7 Hill, 25 ; and 3 Duer, 823. Doughty t* Hope, 3 Denio, 594 •
and 1 Corns., 79. *

TAX SALES. 356

transcript of the assessment must be transmitted by
the county treasurer t6 the edinptroirer, witli the col-
lector's affidavit that the taxes are unpaid, and the
tax naust be unpaid for two years from the first of
May following the imposition of the assessment^ and
so remain at the time of the sale.* But the assessment
is fatally defective where there is a misdescription of
the property, such as might probably mislead the
owner if his object were to pay the taxes or to redeem
after the sale. So, where a lot was described by a
wrong number.f

Again, where the township in which the land is
situated was incorrectly described, J the sales were held
invalid and void. So, where a statute in regard to
sales on execution provided that the time and place of
sale should be advertised publicly, and previously for
six weeks successively, first by the postitig of &, notice
in three public places, and secondly by publishing the
notice once a week in a country newspaper, — ^the notice
was properly posted ; but the notice in the newspaper,
though published six weeks, was first published only
thirty-nine days previously to the day of sale ; it was
held that the statute was imperative, and the sale
void ;§ and it was also held that the circulation of
the notices of sale in slips headed, " Plattsburg Re-
publican Extra," would not aid the plaintiff: it was
not a publishing in a newspaper, within the statute.

* 1 R.S. 391, §§ 11, 12, IS, 1st ed., p. S96, § 83, p. 899, § 10, p. 402-3,
§26, p. 407, § 52 ; and Jackson ,««. Morse, 18 J. R. 441.
t Dike vs. Lewis, 4 Denio, 237 ; 2 Barb. Ch. 344.
t Tallman vs. White, 2 Corflst. 66.
§ Olcott vi. Robinson, 20 Barb. 148.

356 TAX SALES.

So "where a statute requires personal service, a notice
by mail though it reaches the party is not good*

. Thus, too, in Connecticut, it has been held in regard
to the power of taxation, that statutory requirements
must be strictly complied with. So, where the assessors
omitted to lodge an abstract of the assessment lists in
the town clerk's office by the first of December, as they
were required by law to do, though they lodged it on
the twentieth of the month, it was held that the assess-
ment lists were invalid, and that no tax could be law-
fully laid or collected thereon.f And so in Michigan
also, it has been decided that the auditor general can-
not assume the power to convey lands sold for taxes
on foreclosure unless it is expressly conferred u pon
him by the statute.J

As to the very important matter of evidence con-
nected with this subject we may notice, that a deed
executed by a city corporation, purpoi'ting to be given
on a sale of land for taxes, and reciting a compliance
with the statutory provisions, does not dispense with
proof of the facts: The recitals in the conveyance
are not evidence against the owner of the property
sold.§ But on the other hand it has been held in New
York to be competent for the legislature to enact that
any conveyance of lands sold for taxes executed by
the comptroller, shall be presumptive evidence that
the comptroller had authority to sell and convey the

• Rathbun m. Acker, 18 Barb. 893.

t Thames Manuf. Co. us. Lathrop, 7 Conn. R. 550. Where also held
that to a statute explicitly retrospective to a certain extent and for a certain
purpose, the court will not by construction giye a retro-active operation to
any greater extent or for any other purpose.

X Sibley m. Smith et al, 2 Michigan, 486.

§ Sharp vB. Speir, 4 Hill, 76 ; Striker va. Kelly, 2 Etenio, 323 ; Beek-
man vi, Bigham, 1 Selden, S66 ; Hoyt va. Dillon, 19 i^arb. 644.

EVIDENCE. 357

land described in it for arrears of taxes, and that all
the previous proceedings required by law had taken
place ; but that such presumption may be repelled by
legal evidence* Perhaps the legislative power in
this case cannot be denied; but it is obvious that the
tendency of this decision is to defeat the salutary ten-
dency of the wholesome rules which we have just con-
sidered. In cases of this kind where the question,
whether the individual is divested of his property by
the summary proceedings of the government, depends
on the regularity of the proceedings, to declare that
the execution of a deed or aitiy other similar formality
is prima facie proof of regularity, and by doing this to
throw the burthen of proving a negative on the origi-
nal owner, is in a multitude of cases to strip him of ail
protection whatever. It is comparatively easy for the
state and its agents to prove that certain steps have
been taken. In niany cases it is impossible to prove
that they have not been taken, however certain the
fact may be. " The negative," Chief Justice Marshall
has said in a case of this kind, "will not admit of
prooff •

* Hand vs. Ballon, 2 Kerp. 541.

+ Williams vs. Peyton's Lessee, 4 Wheat. V7.

In regard to this branch of my subject, I take pleasure in referring
to Blackwell on Tax Sales — A Practical Treatise on the power to jell land
for the non-payment of taxes assessed thereon — by Robert S. Blackwell, Esq.,
of the Illinois Bar: Chicago, 1855. Mr. Blackwell has exhausted the im-
portant subject of tax sales. In discussing it he has been led to consider
the true Goundaries of judicial a,nd legislative power; and his two
first chapters, on the fundamental principles which control the tasking power,
and of the nature of the power to sell lamdfor the nonpayment of taxes, and
of the strictness required in such sales, contain a close and searching discus-
sion of the whole subject. He arrives at the result that the only safe and
tolerable rule of interpretation in cases free from ambiguity is, that the judi-
ciary should confine themselves to a strict obedience to the legislative will.

358 ' STATUTES GIVING COSTS.

Statutes of MnplemaUon. — It has been said that
statutes of explanation shall be construed only
according to their wordsj and not by any manner
of intendment ; for it is incongruous, it is said, for an
explanation to be explained. " If any exposition," said
the judges, "should be made against the direct
letter of the exposition made by Parliament, there
will be no end of expositions." But the rule has
been denied ; and, indeed, it seems to be founded
rather on a conceit than a reason.*

Stomvp Acts. — The English acts imposing stamp
duties are, it is said, to be construed strictly ;f so, too,
there it has been said, that /Statutes giving costs are to
be regarded as inflicting a kind of penalty, and to be
construed strictly.J There would be little interest or
instruction in giving any minute or detailed attention
to the very numerous decisions of statutes giving costs ;
but I cannot refrain from calling attention to the illus-
tration which the idea, that statutes awarding cpsts
are to be construed strictly, furnishes of the frequent
unreasonableness of the distinction between liberal
and strict construction. Costs are not in any proper
sense a penalty. They are a partial remuneration to
a prevailing party for the injury he has sustained by
the presentation of an illegal demand, or the resist-
ance to legal claim. If the decisions of the law are in
a majority of cases equitable, co^ts are in most cases
due not only in law, but in justice ; and it seems very

* Dwarris, 628. Butler and Baker's Case, 3 Rep. 31 a. Dean and Chap-
ter of Norwich's Case, 3 Bep. 75.

t Tomkins vs. Ashby, 6. B. & C. 541. Warrington m. Furbor, 8 East,
242. Dwarris, 646.

X Cone lis. Bowles, 1 Salk. R. 205. Rex vs. Inhab. of Glastonby, Cases
Temp. Hardw. 357. Dwarris, p. 644.

REMEDIAL STATUTES. 359

extraordinary to say that a remedy of this kind is to be
strictly construed, which means unfavorably regarded.
But the truth is, that the judges have perpetually
taken refuge in the clouds and mists of strict and lib-
eral construction whenever they have been pr'essed by
the hardship or injustice of a particular case. *

We have thus far considered tht)se classes of stat-
utes which are, as it has been said, to be strictly
construed. In doing'this, we have had occasion to see
how much uncertainty and contradiction there is in the
rule; and that as applied and expounded by our mod-
ern tribunals, it seems to tend to take the form of the
doctrine that in all cases statutes are to be faithfully
construed, so as to carry out the , intelition pf the legis-
lature whenever the intent can be ascertained. Pursu-
ing the same examination of the authorities, we now
turn to a contrary class of cases, in which it has been
held that statutes are to be liberally construed.

^Remedial Statutes. — "There can be no question
says Mr. Dwarris, " that the words of a remedial stat-
ute are to be construed largely and beneficially, so as to
suppress the mischief and advance the remedy."f It is
by no means unusual in construing a remedial statute,
it has been said, to extend the enacting words' beyond
their natural import and effect, in order to include cases

* In regard to costs, the New York Code of Procedure declares what
seems to be the true rule, § 303 : All statutes establishing or regulating
the costs and fees of attorneys, solicitors, and counsel, in civil actions, and aU
existing rules and provisions of law, restricting or controlling the right
of a party to agree with an attorney, &c. for his compensation, are repealed ;
and the measure of such compensation is left to the agreement, express
or implied, of the parties ; but there may be allowed to the prevailing
party upon the judgment certain sums by way of indemnity for his
expenses in the action^ which allowances are called costs; — and there
may be in certain cases additional allowances. '

t Dwarris, p. 632.

360 REMEDIAL STATUTES.

within the same mischiefs."* On this ground in the Mag-
dalen College case, notwithstanding the general rule
that the crown is not affected except .by express words,
it was held that the queen was bound by an act couch-
ed in general terms. " It was neve^ seen " says Lord
Coke, " that an act made for the maintenance of religion,
advancement of learning, and exhibitions of poor schol-
ars, and therefore to be favorably expouuded, should be
so construed that a byway should be left open, by which
the said great and daiigerous mischiefs should remain,
and the necessary and profitable remedy be suppressed,
and the queen made an instrument of- injury and
wrong."f "In remedial cases " says Lord Mansfield " the
construction of statutes is extended to other cases with.-
in the reason and rule of them. " J

So again, it has been held in the case of a remedial
act that every thing is to be done in advancement of
the remedy that can be given, consistently with any
construction that can be put upon it.§ So, under the
statute against frauds (13 Eliz., c. 5), the words
" good consideration " were held to exclude the consi-
deration of nature or blood, and to mean money, or
other valuable consideration, on the ground that other-
wise the statute would serve for little or nothing, and

* St. Peters, York, Dean and Oh. vs. Mideborough, 2 Y. & J. 196.

t 11 Reports, 67, 716.

X Atcheson vs. Everitt, Oowp. 382, 391. "But," adds his Lordship, "where
it is a hard, positive law, and the reason is not very plainly to be seen, it
ov^ght not to be extended by construotiQn." In this case, the question was
whether a Quaker could be received to testify on his afBrmation in an ac-
tion of debt on a statute against bribery ; the affirmations of Quakers were
at that time (1776) received in civil but not in criminal cases. It turned
therefore on the point whether the case was a criminal one ; and Lord Mans-
field holding it to be a penal and not a criminal action, the affirmation
was received. The report is a very interesting one.

§ Johnes vs. Johnes, 8 Dow, 15. Dwarris, 664.

REMEDIAL STATUTES. 361

no creditor would be sure of his debt* So, too, sta-
tutes against frauds are, it is said, always liberally and
beneficially expounded. " Chancery will aid remedial
laws," said Lord -Keeper "Wright, '* though they are
called penal, not by making them more penal, but
by letting them have their course."f

In this country,, too, it has been repeatedly held that
remedial or beneficial statutes are to be liberally con-
strued-J So, an act "to prevent thq insolvency of
moneyed corporations/' has been declared to be a bene-
ficial statute, not to be defeated by a narrow construc-
tion; and held that any act which the directors were
prohibited from doing, would be equally illegal and void
if done by amj other officer or agent of tJte banJc.^ So,
in Maryland an act passed, as its preamble declared,
to do away " a most oppressive and pernicious prac-
tice," was declared a remedial statute, and to be libe-
rally construed. | In New York,; also, in regard to the
act for the incorporation of religious societies, it had
been said by the Supreme Court — " "We must give the
statute a reasonable and liberal construction^ for the
benefit of the churches."^ "

Sometimes the act itself declares that it shall be
liberally construed. So, the act incorporating the
House of Refuge in the city of New York, declares
"that it shall be construed in all courts and places

* Dwarris, 654, 655.

t Oh. Prac, 215 ; Dwarris, 653. , ,

I Admx. of Tracy vs. Admr. of Cl»rd., 2 Ohio State Rep. N. S. 431.
§ Gillet vs. Moody, 8 Corns., 479. The remark was, it is true, obiter,
I State, use of Sprigg, vs. Jones et al, 8 Maryland, p. 88.-
IT The People vs. Runkel, 9 J. K., 147. Where held under a statute
rec^uiring the trustees of a religious corporation to be annually chosen, that
an annual election held each year on Pinxter Monday (Monday after Whit-
gUnday), though a movable holyday, and not a day certain, was good.

362 EQUITY OF A STATUTE.

benignly and favorably, for every humane and laudable
purpose therein contained,"* Indeed, in one case in New
York, a very able and learned judge claimed for stat-
utes generally a liberality and flexibility that would put
an effectual end to all rules of interpretation or con-
struction. "My judgment," says Mr. Chancellor Jones,
"must be borne do'^n by the force and weight of
authority, before I can deny to legis)ative enactments
the liberal, benign, and equitable construction which
will give them the attributes of a nursing mother
equally with the common law."f

A statute may be penal in one part, and remedial in
another part. J And in the same act of Parliament a
st^'ict construction may be put on a penal clause, and a
liberaV construction on a remedial clause. This has
been done in regard to the statutes which make it a
felony to burn a house, or other property, and, at the
same time, give those who suffer from the felony a
remedy against the hundred.§

The equity of a stainde is immediately connected
with this branch of our subject. This doctrine which
has been applied, as we have seen, to the statute of
frauds and the registry laws and the statute of limi-
tations, grew out of the peculiar ideas that were en-
gendered in the mindS of the English lawyers by the
double organization of the tribunals of justice : while
the common-law courts sat to adjninister the strict
jules of law, the courts of equity arrogated to them-
selves the duty of doing justice on a more enlarged

* Act of 29th March, 1824 , c. 126, § 7.
t White «s. Carpenter, 2 Paige, 217, 229. ,
X Hyde m. CogaD, Douglas, 702 ; Dwarris, 655.
§ Dwairis^656,

EQUITY OF A STATUTE. ' 363

and liberal scale, and in tlie . early days of their orga-
nization carried their power^ so far as to override the
express words of statutes where in the particular case
it appeared to them to work hardship or inconvenience.
This povirer in regard to statutes is, however, now
looked on with distrust ; and courts of chancery en-
deavor to adhere to the much more logical rule that
; equity follows the law. It cannot be denied, however,
that a large class of exceptions has been introduced
and established. Indeed^ there is nothing more curi-
ous in the history of jurisprudence than the successful
efforts of courts of equity to defeat the operation of
the statute of frauds requiring agreements for the sale
of lands to be in writing.* So, the statute was , disre-
garded in cases where the contract though not in writ-
ing, was admitted iathe answer, subject, however, to the
question whether the benefit of the statute was in-
sisted on. So agaip, iVhere the bargaih has been in
part performed, subject, howevei* to the question what
is a part performance. In cases of this kind and in
others the courts of equity treated the statute very
much as if it had never been made, not, however,
without the protest of very able judges.f Mr. Justice
Story says, " It is obvious that courts of equity are
bound as much as courts of law by the provisions of
this statute, and therefore they are not at liberty to
disregard them. That they do, however, interfere in
some cases within the reason of the statute is equally
certain." J 5

At law a judgment is a general lien upon all the

* The subject is treated at large by Mr. Justice Story, in his work on
' Equity Jurisprudence, § 753 et seq. — See ante, p. 104.

t See Lord Redesdale, in Lindsay vs Lynch, 2 Sch. and Lef. 5, 7, 8.
X Story, Eq. Jurisprudence, § 754.

364 STATUTES LIBERALLY CONSTRUED.

legal interest of the debtor in his real estate ; tut in
chancery that generail lien is controlled by equity
so as to protect the rights of those who are entitled
to an equitable interest in the la^ds or in the proceeds
thereof*

Some other oases where statutes have been liberally
construed, may here be noticed. The Massachusetts"
statute of trustee process, or for reaching the property
of a debtor in the hands of third persona, declares that
every person having any goods, effects, or credit of the
principal defendant, intrusted or deposited in his hands
or possession, may be summoned as trustee. In an
action under the statute the alleged trustee admitted
that he had a cow of the defendant's in his possession,
but averred that he had no claim to her of any kind
whatever, and insisted on this ground that he could
not be summoned as a trustee. It was said by the
court that, admitting that according to the letter of
the statute ihe defendant was liable, still " that stat-
utes are to be construed according to the intentions
of the makers, if these can be ascertained with reason-
able certainty, although such construction may seem
.contrary to the ordinary meaning of the letter of the
statute;" and it was added, "We think it never could
have been the intention of the legislature that the
possession of property by a party having no claim to
hold it against the owner should render him liable
therefor as trustee, and thereby subject him to trouble
and expense in answering a claim in which he has no
interest. Such a construction of the statute would be
prejudicial in many cases, and cannot be admitted."f

An interesting question on the construction of rail-

* White m Carpenter, 2 Paige, 217 ; Keirsted v$. Avery, 4 Paige, 9 ;
Buchiin ««. Sumner, 2 Barb. Ch, R. 166.

t Staniels and another vs. Raymond, &c., Trustee, 4 Cush. 314.

STATUTES LIBERALLY CONSTRUED. 365

road acta, has acisen in Massachusetts. A charter,
passed in 1845, authorized a railroad corporation to
make a branch from the village of CabotTille to that
of Ohicopee Falls, without de%ing the route. The
road was laid down on a main street or highway in
Cabotville. On a bill filed for an injunction, it was
said that, by a railroad grant in such general terms,
prima facie the power to run on the highway could
not be inferred ; as the use of it by the railroad was
inconsistent with its original destination. Th^t such
power could only be given by express words or neces-
sary implication. That such necessary implication
might arise from the application of the act to the
subject-matter, as for instance if the railroad could
not by reasonable intendment be laid on any other
line ; and it was referred to commissioners to ascertain
the fact.*

In a great fire which took place in the city of New
York, in December, 1835, a building owned by Bufus
L. Lord, and occupied by Daniel N. Lord as his tenant
for a year from 1st May, 1835, was destroyed by the
order of the mayor, to prevent the spreading of the
conflagration. The' statute authorizing the action of
the mayor in similar capes, provided if any building
was so destroyed, that, upon the application of any
person interested in such buildvngy a precept should

* Inhabs. of Springfield va. Conn. River R. R. Co., 4 Cush. 63. I may-
be permitted to. say, that unless the Supi-eme Court of Massachusetts have
some statutory power peculiar to themselves, and to that State, the true
course would seem to have been to decide the case on the words of the act.
To refer the case to commissioners on a question of fact as to the practiea-
lility of rurming the road on the street, if that question had not been con-
sidered before the passage of the act, was to substitute the Judgment of the
commissioners for that of the legislature. ' If the legislature had con-
sidered the question, it was a revision of their decision on a matter of which
tbey should be the sole judges.

366 STATUTES LIBERALLt CONSTRUED.

issue for a jury to inquire of and assess the damages
which the owner of such bmldinff, and all persons Tiav-
ing amy estate or mterest therein, should have sustained
by the destruction, and after inquiry and assessment,
the sum assessed should be paid m full satisfaction
of all demands of such persons respecUveh/ by reason
of the destructdon of the huildvngs; the sum assessed for^
any building so destroyed as aforesaid, to be borne and
defrayed by the city government. The- damages of
the owner of the building were assessed at $'7,168 50,
and of the tenant, for his goods, |156,2'74 80 ; but it
was insisted that, by the words of the statute, no
recovery could be had for any thing but the building,
and that injury to personal property in it was not cov-
ered. The entire assessment was, however, sustained,
on the ground that the statute was remedial, and
should be liberally construed.*.

In regard to the New York act, enabling limited
partnerships to be formed by making certain publi-
cations specified by the statute, and declared necessary
in order to restrict the liability of the special partner,
it has been held, that the terms of the statute must

* Mayor of New York «s. Lord, 17 Wend. 285 ; 18 ibid. 126. See Mr.
Justice Bronson's able dissentmg opinion.

In a subsequent case, Stone and others es. the Mayor &e. of New York,
25 Wend. 177, an effort was made to carry the construction of the statute
so far as to entitle the lessee of a building destroyed by order of the mayor
to recover for merchandise destroyed which did not belong to the lessee,
but was the property of others, in his possession as a factor, or merely on
storage ; but this interpretation was rejected.

In Russell ■»«. The Mayor, &c. of New York, 2 Denio,461, the authority
conferred on the Mayor, by this statute, was said not to be a grant of the
right of eminent domain, and therefore not within the constitutional pro-
Tision as to private property ; but that it was only a regulation of the right
which individuals possess, in cases of inevitable necessity, lo destroy prop-
erty to prevent an impending calamity.

STATUTES LIBERALLY CONSTRUED. 367

"be substantially complied with, but that mere errors
of form, either unintentional, or not calculated to mis-
lead, will be overlooked. So, the mistake in the
printed notice of one month for another,* or the mis-
print of a name,f not likely to lead into error, will be
disregarded ; but a misprint of the sum put in as capi-
tal, as where it is asserted to be five thousand instead
of iwo, is regarded as fatal, and converts :the special
into a general partner.^

A statute relating to principals and factors declared,
that one intrusted with the possession of the goods of
another for the purpose of sale, should be deemed the
true owner, so far as to give validity to a disposition
thereof for money advanced, upon which it has been
held in New York, that this does not protect a party
who had made advances to such a factor, ^ith a
knowledge that he was not the owher of the goods, on
the ground that a contrary construction would autho-
rize the agent or fa,ctor, by connivance to commit ^
fraud on the principal.§

So, where the United States baiikrupt act declares,
(act of 1841, § 4), that the certificate may be pleaded
as a full bar, it has been held that the word pleaded
was not to be strictly construed, and that the certifi-
cate might be proved linder a notice attached to the
plea, under th^ old system of pleading.f

A statute restraining anj person from doifig certain

* Madison Co. Bank vs. Gould, 5 Hill, 809.
t Bowen M. Argall, 24 Wend. 496.
t Smith, vs. Argall, 6 Hill, 479.
§ Stevens vs. Wilson, 3 Denio, 473, 475.

I Campbell vs. Perkins, 4 Selden, 430. Ruckman vs. Cowell, 1
Comstock, 506.

368 STATUTES, "WHEN TEEATED AS WRECTORT.

acts, applies equally to corporations or todies politic,
although not mentioned,*

"We have thus far examined two classes of decisions,
one in which statutes have been strictly construed, and
another in which they have been liberally or equitably
interpreted. Our consideration of the subject will
not, however, be complete, till we shall have discussed
the very curious class of cases in which the legislative
enactment is neither strictly nor liberally construed,
but simply disregarded altogether. This takes- place
where the mandate of a statute is called, and regarded
as, directory.

Statutes when held to he directory. — When statutes
direct certain proceedings to be done in a certain way
or at a certain time, and a strict compliance with
these provisions of time and form does not appear
essential to the. judicial mind, the proceedings are held
valid, though the command of the statute is disre-
garded or disobeyed. In these cases, by a somewhat
singular use of language, the statute is said to be direc-
tory. In other cases the statute is held to be im-
perative or mandatory.!^

* People «s. Utica, Ids. Co. 15 J. R. 358, 381, 882. By the Revised Stat-
utes of New York, in .certain criminal cases, the word person emhraces
the State, foreign governments, and corporations, i. e. when the word person
is used to designate the party whose property may he the suhject of any of-
fense. 2 R. S. part iv. chap. i. title 7. § 36. The Revised Statutes have in
many cases, defined the meaning of the terms made use of by the Revisers.
See Index, tit. Definitions.

t Directions given by a sovereign in regard to a matter over which his
power is conceded, would, according to the ordinary use of language, be
held to involve, as its correlative, oiedience. But, as in the cases now
under consideration, obedience is dispensed with by the judiciary, the
statute might be better called advisory. The phrase is the more calculated
to mislead, as it is frequently used in the strict and prop^ sense of the

STATUTES WHEN TREATED AS DIRECTORY. 369

The great importance of this branch of our subject
18 at once apparent ; "and conceding as we must the
power, it is equally apparent that the questions which
arise under this head are not properly those of con-
struction or interpretation. They are questions rather
of application. The statute is sufficiently clear ; the
only point is, wha,t shall be the consequence of a dis-
obedience of its directions.

Neither the idea that statutory provisions may, to a
certain extent, with impunity be disregarded, nor the
phrase that in these cases they are treated as directory,
. is of any recent origin. In an early case on a muni-
cipal election, the mayor was to be chosen out of
the aldermen who- were " amiuatim eUgend /" but it
appeared that the aldermen present at the mayor's
election had been in office several years, and none of
them had been re-elected within a year. The King's
Bench held the election void ; but upon error in the
Exchequer Chamber and two solemn arguments, the
judgment was reversed, and the words '■'■ cmnuatim
eUgend" were held to be directory only; and the
reversal was affirmed in Parliament.* So, in an early

word. So, when a commercial letter of instructions contained the phrase
^'you may invest the proceeds as follows, &c., &c.," the Court of Ex-
chequer interpreted these words as conveying a peremptory mandate,
saying, " These words are to he construed to he directory." Entwistle m.
Dent, 1 Exch., 811, 823, per Pollock, C. B.

* Foot vs. Prowse, Mayor de Truro, Strange 625, 11 George I. In the
preface of this volume, I may here remark in , passing, Sir John Strange,
who was Master of the Rolls, complains that " the profession of the law is
already overburthened with reports" I

In the case of the Queen iis. Corporation of Durham, lOMofl., 146, 147, ■
the K. B. said that though a town clerk be annuatim eligiiilis, he remains
town clerk after the year, and untij another was chosen ; but if he had
been eligibilit pro una anno tanfum, his office would have expired at the
end of the year.

370 STATUTES WHEN TREATED AS DIBECTOEY.

case Lord Maasfleld said, " There is a known distinc-
tion between circumstances which are of the essence
of a thing required to be done by an act of Parlia-
ment, and clauses merely dArecto'ry. The precise time
in many cases is not of the essence."*

From the English jurisprudence the doctrine was
adopted in our own ; and of late years, owing partly
to the immense multiplicity of statutes, and the haste
and carelessness with which they are drawn, partly to
the want of education and system on the part of
subordinate officers clothed with important trusts, this
practice of treating statutes has been carried to a very
great extent. In order to give an accurate idea of the
state of the law in this respect, our attention will now
be given to some of the prominent decisions made in
both countries.

In some cases it has been intimated that the char-
acter and construction of the statute would be deter-
mined by the use of affirmative or negative words.'
That is to say, that a mere affirmative command would
be held to be directory ; but that if the statute declared
the act should be done in no other way, it would be
held to be imperative or mandatory.

Again, the decision has turned on the mere phrase-
ology of the act. So, where a marriage act declared
that " the consent of the father, etc., is hereby re-
qui/red for the marriage" of a child under age, the
words were held directory only ; Lord Tenterden say-
ing, " The language of this section is merely to require

* Rex m. Loxdale, 1 Burr. 447. See, also, as to the different effect of
afiBrmative or negative words as to making a statute imperative or directory
Savage et al. w.Walshe et al. 26 Alabama, 619. RexD«. Justiees of Leicester,
7 B. & 0, '6 ; S. 0., 9 D. & R., 772.

STATUTES WHEN TREATED AS DIRECTORY. 371

consent ; it does not proceed to make the marriage
void if solemnized without consent."*

Again, it may turn on whether the direction is in-
serted in the shape of a proviso, and upon the mode in
which the proviso is framed. Where a statute declared
that guardians of the poor should have power to bind
as apprentices, '•'• provided that the children should not
be bound for a longer t§rm than "till a certain age, — an
indenture binding a child for a longer term than that
allowed by the act, was held not absolutely void, but
merely voidable, on the ground, that this proviso "was
only as mUd a form of directing, and only directing^
as rould be ;" that the act did not declare the binding
null and void, nor contain any penalty, nor any words
to make it illegal ; nor was public policy in anyway
concerned in setting the bond aside.f By a paving
act, commissioners were empowered to enter into con-
tracts for the work, provided that no contract should
be made for a longer term than three years ; and the
act then went on to declare that ten days' notice of
proposals should be given, that the contracts should
specify the work, the price, and the time of comple-
tion, and should be signed by at least three of the
commissioners, and that copies should be kept. It was
held that the proviso as to the -term of the contract was
imperative, but that all the other clauses were merely
directory (Tindal, C. J., saying, " The act says that
the qontracts shall be signed by the commissioiiers, <fec. ;
it does not say that they shall be void unless so

* Rex vs. Inhabts. of Birmingham, 8 B. & 0. 29; 85.
t The King vs. Inhabts. of St. Gregory, 2 Ad. & Ell., 99. See Rex
VI. Inhabts. of Hipswell, 8 B. & C, 466.

372 STATUTES WHEN TREATED AS DIRECTORY.

signed "), and that a contract was good without them.
Here it is obvious that provisions inserted by the
legislature for the protection of tax-payers, were nulli-
fied by a judicial decision.*

In New York, an efifort has been made to declare^a
rule for cases of this class. Where a statute authorized
the commanding officer of each brigade of infantry, on
or before the first day of June to appoint a brigade
court martial, in an action for fines imposed by a court
martial it appeared that the court was not appointed
till July, and it was objected that the fines were
illegally imposed ; but the statute was held to be direc-
tory merely ; and it was said, " There is nothing ii#the
nature of the power showing that it might not be as
effectually exercised after the first of June as before,
and the act giving it contains no prohibition to exer-
cise it after that period." It waa considered a mere
direction, and not a limitation ; and the Court proceeded
to add, " The general rule is, that where a statute speci-
fies the time within which a public officer is to perform
an official act regarding the rights and duties of others, it
will be considered as directory merely. Unless the nature
of the act to be performed, or the language used by
the legislature, shows that the designation of the time
was intended as a limitation of the power of the
officer."f

* Cole vs. Green, 6 Man. & G,, 872, 890. This seems clear as to the clauses
requiring notice of the proposals, and detailed contracts ; and yet it was diflB-
cult to hold that the contracts should be violated if the clerks kept no
copies. The embarrassment in these cases, as I shall have occasion again to
observe, appears chiefly to arise from the statute either connecting together
provisions of very unequal importance, or from its omitting to prescribe
the consequences of a violation of its directions.

t The People m. Allen, 6 Wendell, 487, 488, per Marcy, J. The act regu-
lating sales of real property on an execution, makes it the duty of sheriffs

STATUTES WHEN TREATED AS DIEECTOEY. 378

In Massacliusetts, where a statute required the as-
sessors to assess a tax within thirty days after the vote
of the tax being certified to them, it was held that
the naming the time for the assessment was to be con-
sidered as directory to the assessors, and not as a limi-
tation of their authority.* So in New York, where
a school-tax was voted at a meeting of which no notice
was given as required by statute, and afterwards levied,
the act was held to be directory merely, and the tax to
be well laid.f A statute requiring a tax to be assessed,
and the tax-list therefor to be made out by the trust-
ees, and a proper warrant attached thereto within
thirty days after the district meeting in which the tax
"shall have been voted, is merely directory as to time.
It being for the benefit of the public, those acts may
be done after the time specified in the statute has
elapsed.J It may perhaps be doubted whether these
cases do not conflict with the wholesoipe strictness re-
quired, as we have seen, in summary administrative pror
ceedings. So again, where a city ordinance required a
superintendent of streets to keep an account of the
expenses done under an assessment, and to report
the sanie in ten daySj the provision was held to be
merely directory, and not a condition precedent to the
making of a valid assessment.§

to file a certificate of sale in the clerk's office in ten days after the sale takes
place ; but this omission does not afiect the validity of the sale. Jackson
ex dem. Hooker vs. Young, 5 Covf&o, 269. See The People vs. Kunkle, 9
J. R. 147 and The People i>s. Peck, 11 Wend. 604, for cases where church
elections have been held good though statutory provisions as to time and
notice of holding, &o. have not been complied with.

* Pond i>8. Negus et al. 3 Mass. 230. Williams vs. School District, 21
Pick. 75.

t Marchant vs. Langworthy, 6 Hill, 646 ; 3 Denio, 526.

I Gale == s. Mead, 2 Denio, 160. Thomas m. Clapp, 20 Barb. 165.

§ City of Lowell m. Hadley, 8 Met. 180.

374 STATUTES/ WHEN TREATED AS DIRECTORT.

The Revised Statutes of New York* provide tliat
every person elected to the office of sheriff shall
withia twenty days after he shall receive notice of his
election, execute a bond, i&c., to the people of the
State. This provision also has been held to be a dir^-
tion, ,and not a limit%tion.f In another recent case in
the same State, it was said that statutory requisitions
are deemed directory only when they relate to some
immaterial matter, where a compliance is a matter of
conveniehce rather than of substance.^

Indeed, the rule has been carried so far as to hold,
where a statute directed the vote of the common
council of the city of New York to be taken by ayes
and nays, that this provision is merely directory.§ And,'
again, it has been decided that the provision of a
statute requiring inspectors of corporate elections to
take an oath, is only directory. | The rule has also
been applied to popular elections ; and an election has
been held valid, though the inspectors were sworn
not on the Bible but on some other book, though
they kept open the polls after the time fixed by law,
and committed other minor irregularities, — on the
ground, that in all these respects the enactments of the
statute were directory ; that provision was made for
the punishment of the officers for willful or corrupt
conduct ; that no actual evidence of fraud was ad-
duced, nor any proof that the irregularity complained
of had produced an improper result.^

* 1 R. S. 378, § 67.

t The People va. HoUey, 12 Wend., 481.

i The People w. Sohermerhorn, 19 Barb., 540.

§ Striker vs. Kelly, 7 Hill, 9.

I In the Matter of the Mohawk and Hudson R. R. Co.,- 19 Wend., 143.

IT People w. Cook, 14 Barbour, 259; S. C, 4 Seld., 88, «9, 93.

STATUTES WHEN TREATED AS DIRECTORY. 376

I ttink it may well be doubted whether in the
desire to sustain proceedings against which no bad
faith has been alleged, a proper regard for form and
regularity has not been lost sight of It is extremely
difficult in these cases to prove actual fraud ; the very
object of forms of proceeding is to secure regularity
and fair dealing, and the recognition of the doctrine
that explicit provisions of statutes can be disregarded
with entire impunity as to the result of the p^ticular
proceeding, is likely to lead to unbounded negligence
• and indifference on the part of public officers, who
have, as a general rule, little to fear from criminal
proceedings directed against themselves personally.

The general principle, that statutory provisions may
in certain cases be treated as purely directory, has been
recognized in all the States, In regard to capital
trials for murder in Michigan, a statute requiring a
circuit judge to assign a day for the trial, has been
held clearly directory, so far as time is concerned*
So in Indiana, an act authorizing the governor of the
State to appoint arbitrators, in regard to a railroad,
" two of whom shall be- men of legal attainments,"
was held from its vagueness to be merely directory,
and that his action in the premises could not be re-
viewed, although no two of the arbitrators appointed
by him had the prescribed qualifications.f So, too, in
Louisiana, it has been held that a provision in an act
providing for the subscription by municipal corpora-
tions, to the stock of companies undertaking works of

* The People «s. John Doe, 1 Michigan, 452, 453.
t The State «s. McGinley, 4 Indiana Reports, p. 7.

376 STATUTES WHEN TREATED AS DIRECTORY.

internal improvement, requiring that the commissioners
of election should be furnished with a properly cer-
tified list of the authorized voters, is directory merely.*
In Connecticut, it has been said that, when a duty i»
required by statute to be performed on a certain day,
and the object contemplated by the legislature cannot
otherwise be carried into effect, the time prescribed
must be considered imperative; but if there is nothing
indicating that -the exact time. is essential, it is to be
considered as directory. So, where a city charter
required that a certain number of jurors should be
chosen on the first Monday of July, and they were not
chosen till the first of August, it was said that the
provision was directory, and the jury was held to be
legal.f In Alabama, a clause in an act for the final
settlement of the affairs of a bank, requiring the^
trustees to sell the remaining property, " within thirty
days from the first Monday in November," has been
held not to be mandatory, but directory merely ; and
that a sale made after the expiration of the time speci-
fied was good, on the ground that the act contained
nierely affirmative, and not negative words.J

» (My of New Orleans vs. St. Eowes, 9 La. Ann.R. 573. Vide the idig-
senting opinion of Buchanan, J.

t Colt w. Eves, 12 Conn. 243.

A statute in Texas providfed that certain lands therefore located,
should be surveyed within twelve months, or the location should be null
and void. The locator applied to the surveyor to survey, and the surveyor
refused. A mandamus was applied for within the twelve months to com-
pel the surveyor to survey, and obtained; but the survey was not com-
pleted within the twelve months. It was held, nevertheless that the
survey was valid, on the ground that it was not intended to compel a
party to do an act wholly out of his power, Edwards vs. James, 13
Texas, 52.
■ X Savage et al. vs. Walsh et al. 26 Ala. 620. For other cases see Ex parte

STATUTES WHEN TREATED AS DIBEOTORy. ,377

I may here notice that this same principle has been
applied to the construction of constitutions. The con-
stitution of Neiw York provides, in regard to all laws,
"that the question upon the final passage shall be
taken immediately upon the last reading, and the yeas
and nays entered in the journal." (Cons., art. iii.
§ 15.) It has been held, in regard to this provision,
with what, I say it in all deference, appears to me an
extreme laxness, that it is merely directory, and that
the disregard of it would have no effect upon the law.*

It, seems to me difficult to deny that the practice of
sanctioning the evasion or disregard of statutes which,
we have had occasion to notice in the cases thus
examined, has been carried beyond the line of sound
discretion. This idea has been repeatedly expressed.
"I am not very well satisfied with the summary mode
of getting rid of a statutory provision, by calling it
directory," says Hubbard, J. in the Supreme Court ot
Vermont. " If one positive requirement and provision
of a statute may be avoided in that way, I see no
reason why another may not."f But it is not to be
denied that the practical inconveniences likely to result
from insisting with literal severity on strict compliance
with all the minute details which modern statutes con-
tain, create a pressure on the judiciary very difficult to
be resisted by sagacious and practical men who desire
to free the law from the reproach. of harshness or ab-
surdity. If it should be thought, on a review of these

He%th and others, 3 Hill, 42 ; People®*. Holley, 12 Wend. 481 ; Jackson ««.
Young, 5 Cowen, 269 ; Holland «« al. vs. Osgood, 8 Verm. 276, and Corliss
lis. Corliss, iiid. 873.

* The People against the Supervisors of Chenango, 4 Seld., 317.

t Briggs lis. Georgia, 15 Verm., 61, 72.

3761 GENERAL RULES.

cases, that the judiciary have, in regard to the con-
struction of statutes as directory, really infringed on the
province o£«the legislature, the only practical remedy
for it appears to be a more careful preparation of the
statutes, and an habitual insertion of the precise con-
sequence which the lawmaker intends to follow from
the disregard of his directions. " Perhaps," says Lord
Denman, in a case of this kind, " this discussion may
incline the legislature to say, on future occasions, in
what respect they mean any particular provisions to
be void which they declare to be so in general terms,
and what consequences they intend should result from
this invalidity. In the absence of this, we have great
difficulty in all such cases."*

We approach the end of a path which the careful
reader must have long since perceived to be beset with
difficulties, contradictions, and perplexities. In the
cases that we have examined in this chapter, we find
that sometimes laws are construed strictly, and some-
times liberally, — sometimes liberally for one purpose,
or in one aspect, and strictly in another, — sometimes
exceptions are inserted to obviate suggestions of hard-
ship or inconvenience, and sometimes the courts refuse
to make such, qualifications, — sometimes statutes are
interpreted with strict and literal severity, and some-
times obedience to their mandates is declared to be a
matter of entire indifference. It is obvious that in
this state of things it is impossible to arrive at any
rules of interpretation other than those which are
derived from a classification such as we have attempted
to make.

It is equally obvious, however, that serious evils are

* Reg. ««. Inhabs. of Fordham, 11 A. &. E., 88.

GENERAL RULES. 379

sure to result from a latituljl of construction so con-
siderable as we find to exist ; and I, therefore, attempt,
with great deference for the able and learned magis-
trates who are practically engaged in the administra-
tion of justice, to frame the following rules as those
which ought to govern in this department of our
science.

The intention of the legislature should control abso-
lutely the action of the judiciary; where that intention
is clearly ascertained, the courts have no other duty to
perform than to execute the legislative will, without
any regard to their own views as to the wisdom or
justice of the particular enactment.*

The means of ascertaining that intention, are to be
found in the statute itself, taken as a whole and with
all its parts, — in statutes on the same subject, antece-
dent jurisprudence and legislation, contemporaneous
and more recent exposition, judicial construction, and
usage ; and to the use of these means, and these alone,
the judiciary is confined. No other extrinsic facts are
'in any way to be taken into considerationi

It is not until these means fail, and until the attempt,
to ascertain the legislative intent is hopeless, that the
judiciary , can with propriety assume any power of con-
struing a statute, .strictly or liberally, with reference
either to the particular character of the stati^e, or to

* " No principle is more firmly established, or rests on more secure foun-
dations, than the rule which declares, when a law is plain and unambiguous,
whether it be expressed in general or limited terms, that the legislature shall
be intended to mean what they have plainly expressed, and consequently
no room is left for- construction;" "resort is not permitted to extrinsic
facts to ascertain the meaning of a statute otherwise clear." — Per Gold-
thwaite, J., in Bartlett vs. Morris, 9 Porter Ala. 26,8, 269. Bee this case, also,
with reference to the point that the title of a statute may explain what is
doubtful, but cannot control what is contained in the body of the act.

380 GENERAL RULES.

their own ideas of ipoWy or equity. Where the
meaning of the statute, as it stands, is clear, they have
no power to insert qualifications, engraft exceptions,
or make modifications, under the idea of providing for
cases in regard to which the legislature has omitted
any specific provisions.

In cases where the intent of the legislature is am-
biguous, and the effort to arrive at it is hopeless, and
in these cases only, does the power of construing a
statute strictly or liberally exist ; and in regard to its
exercise, as of discretionary power generally, no other
rule c§in be laid down than that it must be exerted
under the guidance of learning, fidelity, and practical
sagacity.

In regard to the cases where statutes are held to be
directory, the greatest", difficulty exists; and in these
there appears no mode of obviating it until legislative
enactments shall be framed so as to specify with pre-
cision the consequences intended to follow upon a dis-
regard of their provisions.

To the practiced mind these rules may at first sight
• appear useless or trivial ; but perhaps they will not be
so considered on a careful consideration of the laby-
rinth of cases in which we have been wandering, and
on observing the difficulty of obtaining or of giving a
clue to its dark and tortuous passages. That difficulty
appears to me mainly to arise from the abuse of the
power of strict and liberal construction, to which our
attention cannot be too often called. .

The idea that an act may be strictly or liberally
construed, without reference to the legislative intent,
according as it is viewed either as a penal or a reme-
dial statute, either as in derogation of the common
law or a beneficial innovation, — is, in its very nature.

GENERAL RULES. 381

delusive and fallacious. Every statute may be said to
have two aspects : if it be severe in regard to an indi-
vidual, it is beneficial to the comiriunity ; if it punishes
crime, it also prevents fraud ; if it infringes on some
venerable rule of the ancient law, it also introduces
more simple, rapid, and less expensive modes of pro-
cedure ; — so that every act iscapable, if this doctrine be
admitted, of being construed in two ways diametrically
opposed to each other, according to the temper of the
magistrate to whom the task is confided.

Again, the same act will be differently viewed under
different circumstances. The acts diminishing the
severity of imprisonment for debt, will be at one time
looked upon as loose and profligate enactments, impair-
ing the rights of creditors ; and at another as laws in
favor of freedom and humanity. The usury laws will
be at one period regarded as- salutary restraints on the
rapacity of capitalists, and at another as absurd
restrictions on the commercial dealings of mankind ;
so that, if construed according to the different lights
in which they are viewed, the same laws will be
differently interpreted at different times, and even in
different places at the same time.

The inconsistences and discrepancies, as they now
exist, do, in truth, too often arise from a desire, often
an unconscious one, to substitute the judicial for the
legislative will ; and they can only be corrected by
adhering to the cardinal rule that the judicial functions
are always best discharged by an honest and earnest
desire to ascertain and effect the intention of the law-
making body.*

* See the opinion of Chief Justice Edwards, -in Hardin vs. Owings,
] Bibb, 215 Kentucky, — a case on the form of an appeal bond, — for a clear
and forcible statement of the evils resulting from the loose notions of con-
struction which have heretofore prevailed.

382 INTENTION OF THE LEGISLATURE.

The Intention of the Legislature.— Wq hare had repeated occasion to
make use of this term in the course of the two last chapters, and it may
not be amiss here to analyze the phrase more closely than has been done
in the text. Where, then, in what minds, can the irUent of a given legis-
lative act be found, and hovr can its existence be proved ? The question
is asked as an abstract one, and without reference to any technical rule of
any kind.

In regard to the general purport, or object, or intention of an act, no difS-
culty presents itself. If an act be passed to make a railroad, or to raiie
troops, no doubt can arise that every member of the majority which
votes for the bill, concurs in the intention to accomplish the general object
of the laws, viz. — to make the road, or to raise the levies. But in regard
to the particular meaning of particular phrases or clauses — those out of
which all the difficulties of construction grow — the case is very different.
Take for instance the statute forbidding sheriffs to buy at sales on executions
issued to them (ante, p. 304), which has been construed to mean, "except-
ing in cases where sheriffs are plaintiff's,"— or the statutes authorizing all
persons to make wills {cmte, p. 303), and which has been construed not to
include married women, — or any still nicer cases. Did the legislature in these
cases mean to exclude sheriff-plaintiff's, or to include married women f
What was the legislative intent?

In seeking for an answer, many things are to be considered. In the
first place, the intention is to be found in the acts of the majority, and the
objects or purposes of those voting against the bill are to be left out of view.
Of those who voted for the bills, how many considered the grecise question, —
as that a sherifTmight be a plaintiff'? How many khew any thing of the rule
of the common law, that married women are incompetent to make vrills ?
How is it to be known in the case of the sheriffs' statute, that some one or
more of the majority, even if they considered that a sheriff might be a
plaintiff, did not intend, having this in their minds, to make an arbitrary
and peremptory rule, like the statute of frauds, to prevent collusion or perjury.
Again, if the clause be inserted by amendment, is the majority who voted
for the amendment the same as the majority who voted for the bill?
Amendments are very frequently voted for by members hostile to a biU,
for the purpose of defeating it, and yet the bill passes. Again, a commit-
tee reports a bill with one object, and it is completely or partially altered
by amendments in its passage through the legislative body. These con-
siderations, moreover, all apply to two bodies, thereby doubling the
difficulty of arriving at the real intention of the lawmaking power.

niustrations oi this kind might be extended almost indefinitely. Thsy
appear to me to be quite sufficient to show that even if the utmost latitude
of proof was allowed, if reports and journals were consulted, if even the
members themselves were put on the stand, it would be utterly impossible

INTENTION OF THE LEGISLATURE. 383

in the great majority of cases to prove what the intent of the legislative body
actually was in framing or inserting any given particular clause or provision.
These considerations are not without practical weight. They go to show
the only safe rule to bej that the legislative intent must be taken as
expressed iy the words which the legislature has used, that all attempts by
any kind of evidence to get at a legislative meaning different from that
embodied in the words of the enactment, would from the nature of things
prove illusory and vain ; that interpretation in these cases is necessarily
conjecture, tending to assume the shape of mere arbitrary discretion ;
and that construction should be strictly confined to pases of ambiguity or
contradiction. " I hold that in respect to the intention of the legislature,
where- the language of the act is explicit, the courts are bound to seek for
it in the words of the act, and are not at liberty to suppose that they in-
tended any thing different from what their language imports." — Mr Senator
Porter, in The Supervisors of Niagara vs. The People, 7 Hill, 511.

CHAPTER VIII.

THE CONSTRUCTION AND APPLICATION OF STATUTES IN
PARTICULAR OASES.

Statutes Relegating public authority — Revenue laws — ^Penal Laws — Laws as
affecting the rights of the goTcrnmcnt — Effect of statutes on contracts in
violation of them — Cumulative remedies and penalties — Retroactive effect
of laws — ^Waiver — ^Rule that the last statute in point of time prevails —
Computation of time in statutes-subject matter — General words — Mis-
description and surplusage — Remoteness of effect — Statutes against
wagers — Corporations — ^The interpretation and proof of foreign laws —
Revision of statutes'— State-laws, how construed in the courts of the United
States — Interpretation of particular words — Miscellaneous cases — Grants
or Patents.

Having in the previous chapters considered the
general principles of interpretation applicable to
statutory law, I now proceed, for the more complete
understanding of the Subject, to examine the con-
struction and application of statutes in particular cases.
This will lead me, perhaps at the risk of a repetition
of matters already somewhat discussed under the head
of the incidents and attributes of statutes, to consider
certain classes of enactments, the application of cer-
tain general rules or maxims of our law to this special
branch of it, to speak of certain arbitrary rules of
interpretation which have been adopted, and finally
to examine the sense in which particular words are
received.

Statutes delegating authority to ptiMio officers. — We
have already* called attention to the subject of public

* Ante, pp. 102, 108.

STATUTES DELEGATING PUBLIC AUTHOEITT. 385

officers created by statute ; and althougli the general
disposition of the judiciary seems to be to treat such
agents with liberal confidence, so long as they appear
to be acting in good faith, with due discretion, and
withia the limits of their conceded powers, and although
in the exercise of mere discretionary authority, the
courts are unwilling to interfere, — yet where public '
officers overstep the bounds of their authority, and
the courts are appealed to as matter of strict right, the
actions of these agents are vigilantly watched, and
their infringements of private right unhesitatingly
repressed. This doctriae we have already partially
considered under the heads of summary judicial and
administrative proceedings.*

So where a statute of the State of Illinois authorized
certain commissioners to borrow money and issue bonds,
but the stock or bonds pf the State were in no case to
be sold for less than their par value, — it appearing that
the securities had been sold for less than par, the sale
was held to be void, and an injunction against the
purchaser ordered.f So in Michigan, where a statute
authorized the agent of the State-prison to let out
convicts, and required him to give notice in a public
newspaper for sealed proposals for letting the convicts,
it was held that the statute must be strictly pursued ;
and a contract made without the statutory notice was
adjudged void. J So again, where county commissioners
were authorized to loan money on mortgage, and upon
nonpayment the commissioners were directed' by statute
to advertise for sale in three places, it was held that a

* AnU, p. 360.

t The State of Illinois vs. Delafleld, 8 Paige, 527. See this case for a
discussion of the meaning of the word par, and of the subject of exchange.
X Agent of State-Prison va. Lalthrop, 1 Michigan, 438.
25

386 STATUTES DELEGATING PUBLIC AUTHORITY.

compliance with the statute was indispensable ; and the
directions of the act having been neglected the sale was
held void.*

In cases of authority of this kiud, where personal
trust or confide^e is reposed in the agent-^where
his discretion is to be exercised — the authority is
purely personal, and cannot be delegated. Thus,,
where authority was conferred upon canal commis-
sioners to enter upon lands, &c., it was held that the
power could only be exercised by them ia person, or
by their express direction, and that an engineer, or
other sub-agent could not exercise the power with^
out the express directions of the commissioners. " It
is of the greatest public importance," says Mr. Senator
Verplanck, " to establish the general rule of agency,
that ' delegated authority cannot be delegated again
without special power so to do,' as governing the
official powers, acts, and contracts of our State offi-
cers."f

Where a public body or officer has been clothed by
statute with power to do and act concerning the public
interest or the rights of third persons, thp execution
of the power may be insisted on as a duty, even though
the phraseology of the statutei be permissive only ; and

* Denning m. Smith, 3 J. C. R. 382 ; Nixon «s. Hyserott, 5 J. R. 68.

In regard to these questions of the power and jurisdiction of public
ofBcers, we may here notice the rule that process regular on its face, and
apparently within the jurisdiction of the court or officer issuing it, is a
complete justification to the ministerial officer by whom it is executed,
though in fact the court or officer had no jurisdiction. So it has been de-
cided in regard to an execution, regular on its face, issued on a justice's
judgment in a case where the justice had no jurisdiction ; Savacool vt.
Boughton, 5 Wend. 170 ; and also in regard to a school-district tax-
warrant regular on its fece, though the district meeting at which the tax
was voted, was illegal ; Abbott vs. Yost, 2 Denio, 86.
+ Lyon DS. Jerome, 26 Wend., 485, 496.

QUORUM. 38?

if the duty is not performed, an action will lie. So,
where the corporation of the city of New York were
empowered to cause sewers to te made in that city, •
and to cleanse the same, it was held that it was their
duty to keep them clean, and that an actioij would lie
for negligence in relation thereto* But in order to-
succeed in such an actiouj it must he clear that a duty
is imposed by law. So, where in New York the officers.
and agents of a city corporation assumed to build a
bridge, under the authority of a statute not constitu-
tionally passed for want of the I'eqiiired legislative
majority, and the bridge fell by reason of its negligent
construction, the corporation was held not to be
liable.f

In regard to the number requisite to constitute a
qmrum, of the members of a public body, or the
number requisite to do business, it has long been
settled that, where a statute constitutes a board of
commissioners or other officers to decide any matter,
as to open books, to receive subscriptions, and* distrib-
ute the stock of a railroad company, but makes no
provision that a majority shall constitute a quorum;
all must be present to hear and consult, though a
majority may then decide.^

* The Mayor of N. Y. vs. Furze, 3 Hill, 612 ; Henley m. Mayor et at
of Lyme Regis, 5 Bing. 91, 3 Barn. & Adol. 77 ; 1 Bing. N. C. 222, S. 0.
in error.

+ The Mayor, &o. of Albany «s. Cunliff, 2 Goms. 165. It must, how-
ever, be admitted that in this case it is not easy to ascertain from the
opinions of the different members of the court, what was the precise point
which they intended to decide. I give the substance of the marginal note-
See also People vs. Cooper, 6 HilJ, 616.

X Withnell m. Gartham, 6 T.R. 388. Grindley ei al. vs. Barker et aL
1 B. and P. 229 ; Bx parte Rogers, 7 Cow. 526. Crocker vs. Crane, 21

388 REVENUE LAWS.

Revenue Laws. — We have already referred* to the
language which has been held in regard to laws passed
for the collection of revenue, with reference to the
principles of strict and liberal construction. We have
here to consider the general principles of interpreta-
tion which are to be applied to them. The Supreme
Court of the United States has said that "laws impos-
ing duties on the importation of goods, are intended
for practical use and a,pplication, by men engaged in
commerce. Merchants are not supposed to be men of
science, — naturalists, geologists or botanists ; and it is
a settled rule in the interpretation of statutes of this
description, to construe the language adopted by the
legislature, and particularly in the denomination of arti-
cles, according to the commercial understanding of the
terms used."f

Wend. 211. Babcock vs. Lamb, 1 Cowen, 238. In New York the Revised
Statutes provide, "Whenever any power, authority or duty is confided by
law to three or more persons, and whenever three or more persons or ofScers
are authorized or required by law to perform any act, such act may be
done, and such power, authority or duty may be exercised and performed
by a majority of such persons or officers, upon a meeting of all the persons
or officers so entrusted or empowered, unless special provision is otherwise
made." 2 R. S. part iii. chap. viii. title 17, § 27, vol. ii. p. 656.

In New York the act of 1848, creating the office of Auditor of the'
Canal Department, conferred on him no power to look behind a draft drawn
by one of the canal commissioners, and adjudge that the commissioner was
without the authority to make it. His powers and duties are strictly of a
ministerial character. People m. Schoonmaker, 19 Barb. 667.
* Ante, p. 834.

t Two Hundred Chests of Tea, 9 Wheat. 430, 488. Elliott b». Swart-
wout, 10 Peters, 187 ; see this case, as to the distinction between woolen
goods and worsted goods.

"Public poUcy, national purposes, and the regular operations of govern-
ment, require that the revenue system should be faithfully observed and '
strictly executed," says Mr. J, Chase, in Priestman m. The United States,
4 DaOas, 28, 84.

REVENUE LAWS. 389

Mr. Justice Story, on tte first Circuit, has said
that, —

Acts of this nature are to be interpreted, not according to the abstract
propriety of language, but according to the known usage of trade and
business, at home and abroad. If an article has one appellation abroad^
and another at home, not with one class of citizens merely, whether mer-
chants or grocers or manufacturers, but with the community at large,
who are buyers and sellers, — doubtless our laws are to be interpreted^
according to that domestic sense. But, where the foreign name is well
known here and no different appellation exists in domestic use, we must
presume that, in a commercial law, the legislature used the word in the
foreign sense. I say nothing, as to what rule ought to prevail where an
article is known by one name among merchants and another by man-
ufacturers or the community at large, in interpreting the legislative
meaning of the Tariff Act. Congress, under such circumstances, may
perhaps be fairly presumed to use it in the move general or more
usual sense, rather than in that which belongs to a single class of
citizens. But this may well be left for decision until the very questions
arises.

I agree in the law as laid down in the case of Two Hundred Chests of
Tea, Smith, Claimant, 9 Wheaton R. 435. That case was as fully con-
sidered, and as deliberately weighed, as any which ever came before
the Court. It was there laid down, that in construing revenue laws,
we are to consider the words not as used in their scientific or technical
sense, where things are classified according to their scientific charaic-
ters and properties, but as used in their known and common commer-
cial sense in the foreign and domestic trade. Laws of this sort tax
things by their common and usual denominations among the people^
and not according to their denominations among naturalists or botan-
ists, or men in science.*

Fenal Laws. — Under the head of incidents and
attributes of statutes in our fourth chapter, and under
that of strict and equitable construction in the last,
we have already had occasion to consider many ques-
• tions in regard to penal statutes. Certain other rules
remain, which more properly belong to this place.

* U. S. m Breed, 1 Sumner, 159, 163, 164.

390 PENAL LAWS.

The question is often raised, whether a given statute
is properly to be classed as a penal or a remedial law ;
and it does not seem clearly settled what constitutes a
penal statute. A statute declaring that an indictment
for an offense committed on board of a boat navigat-
ing a, river or canal, may be found in any county
through which the vessel shall pass, has been said
not to be properly speaking a penal statute, as it
neither creates the offense, prescribes the punishment,
nor alters the mode of trial ; it merely changed the
venue* In Maine, it has been said, that a statute de-
claring that any person who assists a debtor to defraud
his cijeditor by making a fraudulent concealment or
tranisfer of his property, shall be answerable in a
special action on the case to any creditor, in double the
amount so fraudulently concealed or transferred, is not
a penal statute.f A statute giving double damages to
a landlord against a stranger for assisting a tenant in
carrying off and concealing his goods, by which the
plaintiff was prevented from distraining for his rent,
has been said in England to be a purely remedial
statute.:^ And so, in Massachusetts, a statute giving
double damages against a town, for an injury to the
plaintiff caused by a defect in a highway, has been
similarly regarded?* Shaw, C. J., in delivering the
opinion of the court said, " We think the action in the
present case is purely remedial, and that it has none of
the characteristics of a penal prosecution. All damages
for neglect or breach of duty, operate to a certain

* The People m. Hulse, 3 Hffl, 809.

t Frohook m. Pattee, 88 Maine, 103 ; see also, Quimby ®«. Carter, 20
Maine, 218 ; Philbrook vs. Handley, 27 Maine, 58 ; Thacher vs. Jones, 31
Maine, 528.

X Stanley vs. Wharton, 9 Price, 801.

PEITAL LAWS. ■ 391

extent as punishment ; but the distinction is (in the
case of a penal action), that it is prosecuted for the
purpose of punishnient, and to deter others from
offending in like manner. Here, the plaintiff sets out

, ihe liability of the town to repair, and an injury to
Mmself from a failure to perform that duty. The law
gives him enhanced damages ; but they are recoverable
to his own use, and in form and substance, the suit
calls for indemnity."* So, too, it has been, said, a
statute giving four times as much damage as is allowed
l)y law for the detention of other debts, is penal in its
character; but as it is given to theparty injured, who
seeks the recovery of a just debt to which the increased
damages are made an incident, a suit therefor is not
properly to be regarded as a penal action.f

But on the contrary, where a staltute gave treble
damages against any person who should commit waste on
land pending a suit for its recovery, the court said, that
the act did not apply to a party whoUy ignorant that
any suit was pending, saying, " We can hardly suppose
the legislature intended to punish so severely, a tres-
passer wholly ignorant of the pendency of the suit.

, The statute is highly penal, and should therefore be
limited in its application to the object the legislature
had itL view." J Wiere a bridge company act declared

* Reed vs. Northfleld, 13 Pick. 94, 100, 101. And on the ground that it
was not a penal action, it was held in this case not to be necessary that
the declaration should conclude, contra formam statuii.

See to this latter point, "Wells m. Iggulden, 5 Dowl. & Ryl. 13 ; S. 0.
3 Barn. & Ores. 186 ; Peabody ns. Hayt, 10 Mass. 36 ; Nichols ««. Squire,
5 Pick. 168 ; Lee vs. Clark, 2 East, 333 ; Newcomb vs. Butterfleld, 8 J. E.
266.

t The SuflFolk Bank vs. The Worcester Bank, 5 Pick. 106 ; Keed vs.
Northfleld, la Pick. 94; Palmer vs. York Bank, 18 Maine, 166 ; Bayard v».
Smith, 17 Wend. 88.

X Reed ««.. Davis et al. 8 Pick. 515, 516.

392 PENAL LA-VrS.

that it should not be lawful for any person to cross the
lake over which the bridge was constructed, withiu
three miles of it, without paying toll, a person entered
the lake on the ice six miles from the bridge, and came
off on the other side sixty rods from it. In an action
brought to recover back tolls paid, the court held that
no toll could be demanded, saying, " The act is in a
measure penal, and ought to be strictly construed. In
the construction of statutes made in favor of- corpora-
tions and particular persons, and in derogation of com-
mon right, care should be taken not to extend them
beyond their express words and their clear import."*

Some special rules are to be noticed. Where a
penalty is imposed by statute upon a party for enter-
ing into a contract, the imposition of the penalty in
law amounts to an implied prohibition of the act for
which the penalty is inflicted, and the contract is
thereby rendered illegal and void.f

In penal suits, unless a general form of declaration
is expressly authorized by statute,- the declaration
must set forth the particular acts or omissions which
constitute the cause of action, and by which the alleged
penalty was incurred. This is the general rule.J

* Spague m. Birdsall, 2 Gowen, 419, 420.

t Williams vs. Tappan, 3 Foster, 385. Brackett m. Hoyt, 9 Foster, 264.
It was decided in this case that it was the offer for a sale of pressed hay,
and not the sale unaccompanied by an offer, that was made illegal by the
statute.

X 1 Chit. PI. 405; Cole vs. Smith, 4 John. 193; Bigelow vs. Johnson,
13 John. 428 ; Collins vs. Ragrew, 15 J. R. 5 ; The People vs. Brooks,
4 Denio, 469. The Revised Statutes of New York authorize a more com-
pendious mode of declaring in proceedings of this class, by merely alleging
the "indebtedness" of the defendant, with a reference to the statute. 2 R.
S. 482, § 10. But this is abolished by the Code of Procedure, § 140, and
the old rule, as stated in the text, is revived. Morehouse et al. vs. Oiilley, 8
Howard Pr. R. 431.

PENAL LAWS. 393

Where a statute authorizes any person on giving
security for costs to prosecute for penalties against an
excise law in the name of the overseers of the poor,
where those officers had neglected for ten days to pros-
ecute, the defendant cannot object that the ten days
had not elapsed, nor that sufficient security had not
been given*

In Pennsylyania where a statute forbids the sale of
liquors on Sunday, and prescribes a penalty of fifty
dollars against any one who shall be duly convicted
thereof, the proper proceeding under it is a criminal
proceeding, and not a qid td/m action.f

It has been said that the same expressions may be
differently construed, according to their appearing in
a civil or a criminal action. So in a prosecution for
libel, where the defendant was convicted, motion was
made in arrest of judgment, on the ground that the
act under which the conviction was obtained, had
been repealed after conviction. Its language was
doubtful; but^ it was said by Tilghman, C. J., "It is
said, the law is not drawn so clearly as it might
have been. If the same expressions had been applied
to a civil action, I should have thought myself war-
ranted in giving it a different construction, because
then it would have operated in a retrospective manner,
so as to take away a vested right. But there is a wide
difference between a civil and a criminal action. In
nothing is the common law which we have inherited
from our ancestors more conspicuous, than in its mUd
and Inerciful intendment toward those who are objects
of punishment; we apply the pAnciples of the law to

* Thayer w. Lewis, 4 Denio, 269.

+ Specht vs. The Commonwealth, 24 Penn. 108.

394 PEITAL STATUTES.

the construction of statutes." And the judgment was
arrested*

It has been said that although legislative enactments
of an ordinary remedial or directory character in ref-
erence to corporations, may perhaps be applicable to
some stock associations formed by articles of copartner;
ship, provisions creating misdemeanors and imposing
penalties and forfeitures- can not be so extended by im-
plication without violating a fundamental rule in the
interpretation of statutes, and enacting an ex post facto
law by judicial legislation.f

A question has been raised, whether two penalties
can be incurred in one and the same day ; and it seems
to depend much on the nature of the offense and the
language used. So; for keeping or injuring greyhounds,
it was held that but one penalty could be demanded.^
But for selling books illegally, it was held that where
there had been two distinct acts of sale on the same
day this constituted two different offenses, for which
two penalties were recoverable.§

In England it has been decided in regard to what
are called qui tarn actions, or those brought by in-
formers for the violation of statutes, that the right to
the penalty vests in the informers immediately on filing
the information ; and therefore though the king may
pardon the offense so as to discharge the share of the
crownj he cannot deprive the informer of his portion. |

* Commonwealth m. Duane, 1 Binney, 601.

t Curtis w. Leavitt, 17 Barb. 89, 862.

X Marriott es. Shaw, Com, a?* ; The Queen us. Mathews, 10 Mod. 27 ;
Hardyman m. Whitaker, Bull. N. P. 189 n. (S.) ; Rex vs. Bleasdale, 4 T. R.
809 ; Dwarris, p. 642. So too, for exercising a trade on Sunday, ^Cripps
*s. Burden, Dwarris, p. 643.
, § Brooke, q. t. vs. MillikeUj 8 T. R. 509. v

I Grosset vs. Ogilvie^ 6 Bro. P. C. 627.

LAWS AFFEOTIlira THE STATE. 395

The Revised Statutes of New York declare, that
where the performance of any act is prohibited by
any statute, and no penalty for the violation of such
statute is imposed either in the same section contain-
ing such prohibition, or in any other section or statute,
the doing such act shall be deemed a misdemeanor.*

Laws as affecting the state or government. — We
have already had occasion to call attention to the force
and meaning of the maxim nvMv/m tempus occwrrit
regi (ante, p. 105) ; and also to the general rule in the
construction of statutes declaring or affecting rights
and interests, not to interpret them so as to embrace
the sovereign poWer of the state unless that idea be
distinctly expressed, or result by necessary implication.
So in Mississippi it has been said to be the settled
doctrine that the general words of a statute do not
include the state or affect her rights, unless she be
specially named, or it be clear and indisputable from
the act that it was intended to include the state.f

* 2 E. S., part iv. chap, i., title 6, vol. ii., p. 696, § 55. [Sec. 39:|l
t Josselyn vs. Stone et al., 28 Mississippi, 753 ; ante, p. 36. See also
p. 62, as to proTisioiis ; 1 Black. Com., 261 ; Com. Dig. tit. Parliament, R.
8 ; The King m. Allen, IB East, 333 ; The King m. Inhabitants of Cum-
berland, 6 Term R. 194; United States m. Hoar, 2 Mason R. 314; Com-
monwealth vs. Baldwin, 1 Watts Penn. R. 54 ; People vs. Rossiter, 4 Cowen,
143 ; [Jhited States vs. Hewes, U. S. D. C. for Pennsylvania, Jlily, 1840 ;
1 Kent Com. p. 460.

In regard to royal grants, the old rule appears to have been that they
were taken, contrary to the present rule in regard to grants, most strongly
in favor of the gfantee, 2 BI. Com. 347; Stanhope vs. Bishop of Lincoln et
al. Hob. 243 ; Turner & Atkyns, B. Hard. 309 ; Bro. Abr., Patent, 62. But
the rule appears subject to many qualifications. Sir John Moljyn's Case, 6
Co. 5. ; Alton Woods Case, 1 Cctke, 26. See opinion of Mr. Justice Story in
Charles River Bridge vs. Warren Bridge, 11 Peters, 589. The idea seems
to have resulted from a notion of the impropriety of setting strict bounds to
royal munificence. See Domat's rules, § 17, ante, p. 285.

396 ACT3 IN VIOLATIOK OF STATUTES.

Effect of statnites on contracts^ or acts in violation of
t7iem.—-'We have already* called attention to the rule
which declares void all agreements made in contra-
vention of statutes ; the subject is of sufficient import-
ance to demand here more particular attention. The
general principle is that an individual shall not be
assisted by the law in enforcing a demand originating
in a breach or violation on his part of its principles or
enactments.f This is expressed in the maxims JEke twrpi
cont/racPu oritv/r non actio ; Mb dolo mcHo non oritwr
actio^ and other similar and familiar forensic adages.
The rule finds frequent application in the common law
and has decided a great number of cases. So, agree-
ments in consideration of future illicit cohabitation ; for
the sale of libelous or immoi"al works; immoral wagers ;
agreements in restraint of trade or of marriage, for the
sale of offices, affecting the course of justice, relating to
trading with an enemy; and generally all contracts
tainted in any way with fraud, are absolutely void and
incapable of being enforced. J

The general principle is the same in regard to legis-
lative enactments, and is uniformly true in regard to
all statutes made to carry out measures of general
policy. This often results from the terms of the stat^
utes themselves. So, the statutes against usury, against
gaming, against stock-jobbing, and in many other
cases, peremptorily declare all contracts in violation of
their provisions void. And the rule holds equally good
if there be no such express provision, in regai^d to all
statutes intended generally to protect the public in-
terests or to vindicate public morals.

* Ante, p. 84.

t Ohitty on Contracts, ch. iv. ; Parsons on Contracts, 882 note a.

X Chitty on Contracts, ch. iv.

ACTS m VrOLATION OF STATUTES. 397

So, policies effected in Eagland on vessels sailing
during war, in contravention of the convdy acts, were
held void* So where the voyage was against the
provisions of the East India Company acts,f or the
South Sea Company acts. J So, a note discounted by
the teller of a bank for his own benefit, in violation
of the statute of the State of New York (1 R. S., 595,
§ 28) concerning the discounting of 'commercial paper
by officers and agents of banking corporations, is
void.§

It is very important, how-ever, to observe the modi-
fications and qualifications by which this, like almost
all the general rules of our system, is hedged ^bout.
We have a|ready|| had occasion to notice that when
the statute violated is only passed to secure the revenue,
^as for instance, prohibiting sales of certain articles
without a license, and containing a penalty by way of
securing payment of the license-money,— -the mere
violation of this revenue statute can not be set up as
avoiding a contract,^ So again, a sale of property
out of England, the seller not bein^ a British subject,
is'held valid, though he knows that the purchaser
intends to smuggle the property into England,**

* Wainhouae vs. Oowie, 4 Taunt., 178. Darby vs. Newton, 6 Taunt., 544.

t Johnson vs. Sutton, 1 Doug., 254. Camden vs. Anderson, 6 T. K.,
709. Chalmers vs. Bell, 3 B. & P., 604.

I Toulmin m. Anderson, 1 Taunt., 227. Hodgson vs. Fullarton, 4
Taunt, 787.

§ Henry vs. Salina Bank, 1 Corns., 83. || Ante, pp. 87 and 89.

1 Johnson vs. Hudson, H East, 180. Brovm vs. Duncan, 10 Barn. &
Ores. 98. Cope vs. Rowlands, 2 Mees. & Wels. 157. See Harris vs. Kunnels,
12 Howard, 79.

** Holman vs. Johnson, Cowp. 841 ; Biggs vs. Lawrence, 3 D. & E. 454 ;
Clugas vs. Penaluna, 4 D. & E. 466 ; Warnell vs. Reedf 5 D. & E. 599 ;
Pellicat vs. Angel, 2 C. M. &.Ros. 811.

398 ACTS IN VIOLATION OF STATUTES.

It has been said that eyea though a statute merely
inflicts a penalty for doing a certain act, without ex-
pressly prohibiting it, a contract having such matter
for its consideration or object is wholly invalid.* But
this seems subject to qualification, dependent on the
point whether the act is ■ prohibited, or whether a
penalty is merely attached to its violation.

It has been said that the merely selling goods
knowing that' the buyer will make an illegal use of
thpm, is not sufficient to deprive the vendor of his
just right of payment ; and that to effect this it
is necessary that the vendor should be a sharer in
the illegal transactidh.f This was said in a case
where the act prohibited was forbidden for the
purposes of revenue ; but when we take into view the
formidable consequences of the rule that every one is
presumed to know the law, the doctrine may not
be unjust in general application. A seller, for in-
stance, may know the destination intended by the
purchaser for the articles which he sells, that desti-
nation may be illegal, the law presumes that the seller
knows the fact of the illegality as well as the fact
of the sale, although in truth he may be perfectly
ignouant of the legal objection, or his attention may
be in no way called to the point.

. We may here notice a point bearing upon this
branch of our subject, as connected with the conflict
of laws. We have just seen that sales of property
out of England by a foreigner, of goods intended to

* Seidenbender m Charles, 4 Serg. & R. 150. De Begnis w. Annistead,
10 Bing. 187, citing Lord Holt's dictum in Bartlett vs. Vinor, Carthew, 252,
that a penalty ipaplies a prohibition. Vide p. 898, also ante, pp. 392 and 41.

t Hudson M. Temple, 6 Taunt. 181.

ACTS IN VIOLATION OF STATUTES. 399

be smuggled into Englaijd is valid ; and so in this
country, as to contracts of sale, mere knowledge on
the part of the seller that the goods are to be used
in another State, contrary to the laws of such State,^
does not make the sale illegal in a State where the
sale is not prohibited, and consequently the contract
is valid. So, where spirituous liquors were sold in
Massachusetts, where the sale was legal, upon an
action being brought in New Hampshire, where such
sales are Ulegal, it was held that mere knowledge on
the part of the vendor that the purchaser intended
to sell them in New Ha,mpshire, contrary to the laws
of that State, was not a defence to the action.*

Again, where a statute is framed merely for a
special or collateral purpose, as an act passed to give
to a certain class a readier mode of redressiijg their
rights, a violation of this statute will not render the
whole transaction illegal, nor deprive the violator of
the statute of his legal remedies in other respects.f
Thus, where a statute prohibited masters of vessels
under a penalty, from shipping seamen without a cer-
tain agreement being signed, but did not declare the
voyage reijdered illegal by reason of thp violation of
the statute, — an insurer on the ship was held not to
be thereby relieved from his contract.

So again, a buyer of spirits cannot refuse payment
because the seller violated the revenue laws' in the
sale, by not transmitting a permit truly specifying the
strength of the spirits. " Where the consideration and
the matter to be performed are both legal," says the
King's Bench, " we are not aware that the plaintiff

* Smith vs. Godfrey, 8 Foster, 379.

t Redmond «« Smith, 7 Man. & Gr,, 457.

400 ACTS IN VIOLATION OP STATtTTES.

has ever been precluded by an infringement of the law
not contemplated by the contract, in the performance
of something to be done on his part-"*

So on the same principle, in Pennsylvania, it has
been held that a party who erects an obstruction in a
navigable stream, and thereby occasions an injury to
another, cannot, in an action for such injury, set up as
a defence that the plaintiff was unlawfully engaged in
worldly employment on Sunday, when the injury
occurred. The law relating to the observance of the
Sabbath defines a duty of the citizen to the State, and
to the State only.f " We should," says the Supreme
Court of Pennsylvania, " work a confusion of relations,
and lend a very doubtful assistance to morality, if we
should allow one offender against the Jaw to the
injury of another, to set off against the plaintiff that
he, too, is a public offender."

We have already had occasion^ to call attention to
the rule that where an instrument contains a clause or
provision in contravention of a statute, it renders the
whole instrument invalid. I may here remark that
the rule is in its nature arbitrary, and calculated to
work injustice, and that it appears to be subject to
conceptions. So, where there are different and indepen-
dent covenants in the same instrument, part may be
good and part bad. So, a personal covenant to pay a
rent charge may be good, and the security of the rent
charge on the living may be bad.§

* Wetherell vs. Jones, 3 Barn. & Ad., 221,
t Mohney vs. Cook, 26 Penn., 342.
I Ante, p. 91.

§ Mouys vs. Leake, 8 T. R., 411. Kerrison vs. Cole, 8 East, 234.
Dwarris, p. 638. See Chitty on Contracts, p. 636.

r CUMULATIVE REMEDIES AND PENALTIES. 401

Cumulative JRemedies and Penalties. — ^Where a
precise remedy for tlie violation of a right is provided
by statute, it often becomes " a matter of interest to
know whetlier the statutory remedy is the only one
that can be had, or whether it is to be regarded as
merely cumulative, the party aggrieved having also
a right to resort to his redress for the injury sustained,
at common law, or independently of the statute. In
regard to this we have already noticed the rule that
where a statute does not vest a right in a person, but
only prohibits the doing of some act under a penalty,
in such a case the party violating the statute is liable to
the penalty only ; but that where a right of property is
vested by virtue of the statute, it may be vindicated
by the common law, unless the statute confines the
remedy to the penalty. So, where a statute vested in
a town the right of disposing of the privilege of tak-
ing alewives in a river within the limits of the town,
and enacted that persons obstructing the passage of
the fish should be subject to a penalty, it was held
that the remedy prescribed by the statute was cumula-
tive, and that a common-law action on the case would
lie, by the vendee of the privilege against any person
obstructing the passage of the fish.*

So, too, in England, under the original copy-
right statute, 8 Anne, c. 19, it was held that the pen-
alties and forfeitures imposed by the act were merely
cumulative remedies, and that a common-law action on

* Ante, p. 95 ; Barden vs. Crocker, 10 Pick. 383, 389. The regulation
and preservation of the alewive fishery, has been an object of the J>articular
attention of the legislature in Massachusetts ; see Coolidge vs. Williams,
4 Mass. R. 144, where it is said to be a part of the common law of the
State, that a town may appropriate the fish in its waters, if not appropriated
by the legislature.

402 CUMULATIVE REMEDIES AND PENALTIES.

the case would lie for an infringement of the owner's
right of property * So also in New York, in the act
giving K. E. Livingston an exclusive right to the
navigation of the Hudson Kiver, the statutory • for-
feitures imposed on parties infringing his privilege were
held to be cumulative, and an injunction was sustained.f

We have also noticed the rule, that if a statute
gives a remedy in the affirmative, without a negative
expressed or implied, for a matter which was actionable
at the common law, the party may sue at the common
law as well as upon the statute ; for this does not
take away the common-law remedy.^ So, where the
legislature authorized the erection of a milldam, and
provided a summary mode of appraising the damage
of those who might be injured by it, it was held that
the remedy was merely cumulative, and did not take
away the common-law iright of action on the case for
the injury; and stress was laid on the fact that the act
was not couched in negative terms.§

But on the other hand, it is a rule of great import-
ance, and frequently acted upon, that where by a statute
a newright is given and a specific remedy provided, or a
new power and also ^e means of executing it are provid-
ed by statute, the power can be executed and the right
vindicated in no other way than that prescribed by
the statute. So, an indebitatus assumpsit will not lie for
the benefit derived from a sewer, where the law has

* Beckford vs. Hood, 7 T. R. 620, cited with approbation jn Barden vs.
Crocker, 10 Pick. 383.

t Livingston vs. Van Ingen, 9 J. R. 606, 562, 671. The acts creating the
monopoly were deemed by the Supreme Court of the United States to be
unconstitutional, so far as they conflicted with the general coasting system
of the United States, Gibbons m. Ogden, 9 Wheat. 1.

I Com. Dig. Action upon Statute C. 2 Inst. 200. Ante, p. 98.

§ Crittenden vs. Wilson, 5 Co wen 165

CUMULATIVE REMEDIES AND PENALTIES. 403

provided for its construction by tax or assessment.*

So, where a party by subscribing an act of association,

as for the purpose of making a road or building a

bridge, simply engages to become the proprietor of a

certain number of shares, without any distinct or

specific promise to pay such assessments as may be

imposed, the only remedy in case of non-payment

is by a sale of the shares to raise the sum assessed

on them, upon the ground that the coirporation has no

power at common law to make any assessments of this

kind, and tliat, when a statute gives a new power and

at the same time provides a means of executing it, those

who claim the power can execute it in no other way.

"Where on the other hand there is an express promise to

pay the assessment, then the party is answerable to

the corporation on the promise, and an action will lie.f

So in Massachusetts when an action was given by stat-

* City pf Boston vs. Shaw, 1 Met. 130, 188.

t In Massachusetts, see New Bedford and Bridgewater Turnpike Co
vs. Adams, 8 Mass. 188 ; Andover and Medford Turnpike Co. vs. Gould,
6 Mass. 40 ; Worcester Turnpike Co. vs. Willard, 5 Mass. 80. In Franklin
Glass Co. vs. White, 14 Mass. 286, the same rule was applied to a manu- '
facturing Co. ; see also Essex T. Co. va. Collins, 8 Mass. 292. In Taunton
and S. B. T. Co. va. Whiting, 10 Mass. 827, the subscriber was held liable.
See also Ripley va. Sampson, 10 Pick. 370, and Chester Glass Co. vs. Dewey,
16 Mass. 94; see also Trustees of Phillips Limerick Academy es. Davis, 11
Mass. 113, where it was held that no action would lie on a voluntary subscrip-
tion to erect an academy. In Connecticut the whole subject has been very
elaborately examined, in the Hartford and New Haven R. R. Co. m Kennedy,
12 Conn. 607, et seg. per Huntington, J., where assumpsit for an assessment
was held to lie against the stockholder of a corporation. In New York see
Jenkins va. Union Turnpike Co., 1 Oaines' Cases in Error, 86; The
Goshen and Minisink Co. va. Hurtin, 9 J. R. 217 j. The Dutchess Cottcin
Manufactory va. Davis, 14 J. R. 238; and Spear va. Crawford, 14 Wend.
20, where the defendant was held liable. The question seems generally to
turn on the precise form qf the association or corporation, and whether a
promise to pay is to be implied gr not. As to assessments on pews, see
Trustees of F. P. 0. in Hebron vs. Quackenbuah, 10 J. R. 217.

404 CUMULATIVE REMEDIES AND PENALTIES.

ute against the directors of an insolvent bank, it was
held that no action would lie against them at common
law, on the same ground'that where a new right is
given or a new duty imposed by statute, and a
remedy provided to enforce such duty or for the viola-
tion of such right, the remedy given must be pur-
sued.* So, too, in the same State an action of debt does
not lie upon an award of damages of a committee of
the sessions for locating a highway ; a remedy by dis-
tress warrant, being prpvided by the statute. " Where
a statute gives a right and furnishes the remedy, that
remedy must be pursued."f And so, as at common
law and before the statutes of 18 Eliz. and 6 Geo. II.
the putative father of an illegitimate child was under
no legal liability to mainfain his illegitimate oflfepring,
and as that liability has been created wholly by
statute, the remedy prescribed must be followed : the
father is liable under the filiation order, but no action
of assumpsit for the support of the child will lie. J So
too, in Indiana w,here the exclusive privileges of ferries
were not known till they were created by statute, the
owners of ferries must rely on the provisions of the
act for their security.§ So, too, it has been said in
Michigan, that where a statute gives a new right and
prescribes a particular remedy, such remedy must be
strictly pursued and the party is confined to that
remedy only, — as to recover threefold the amount

* Hinsdale vs. Lamed, ei al. 16 Mass. 65.

t Gedney m. Inhabitants of Tewksbury, 3 Mass. 307, 309, per Sedg-
wick, J. vide ante, p. 94.

\ Monoriefus. My, 19 Wend. 405. Cameron vs. Baker, 1 Can & Payne,.
268. Furillio vs. Crowther, 7 Dowl. & Ryl., 612.

§ Lang vs. Scott, 1 Blackford, 405 ; approved Almy r«. Harris, 6 John.
K. 175.

CUMULATIVE REMEDIES AND PENALTIES. 405

• • • • *

of usurious interest paid * In New Hampsliire it has
been said that where a statute authorizes the doing of
certain acts (such as the destruction of a highway
by a railway company), the necessary consequence of
which will be to injure the property of another, and at
the same time provides a remedy for the recovery of
the damages, the party injured is confined to the stat-
ute remedy for such damages, and no remedy can be
had upon a common-law declaration.f

In Maine, it has been said that if a statute gives
merely a new remedy where one before existed at
common law, it is cumulative, and the party injured is
at liberty to pursue either. If a statute give the same
remedy which the common law does, it is merely affirm-
ative, and the party has his election which to pursue. But
if a statute withhold the remedy which before existed
at common law, the common-law right ceases to exist. J

The analogy of these rules holds good in the criniinal
law. Thus, where an offense intended to be guarded
against by a statute, is punishable before the making
of any statute prescribing a particular method of
punishing it^ then such particular remedy is merely
cumulative, and does not take away the former remedy ;
but where the statute enacts that the doing of auy
act not punishable before shall for the future be
punishable in such and such a particular manner, there
it is necessary that the particular method prescribed
by the act be specifically pursued, and not the com-
mon-law mode of an indictment.8

* Thurston vs. Prentiss, ei al. 1 Kichigan, 193.
t Henniker m. Oontoocook Valley R. R., 9 Foster, 147.
X Gooch vs. Stephenson, 13 Maine (1 Shepley) 371.,
§ By Lord Mansfield, in Rex vs. Robinson, 2 Burr. 799, where held that
xin indictment would lie for disobedience to a filiation order of the quarter

406 RETROACTIVE EFFECT OF LAWS.

It has been said, however, to be a clear and
established principle, that when a new offense is created
by act of Parliament, and a penalty is annexed to it
by a separate and substantive clause, it is not necessary
for the prosecutor to sue for the penalty, but he may
proceed on the prior clause, upon the ground of its
being a misdemeanor* '

It is no objection in this country to an indictment
for an offense against a statute of a State, that the de-
fendant is liable to punishment for the same act under
a law of the United States, A State may pass laws
declaring acts criminal, and may punish the violation
of the law, although the offender may be again prose-
cuted by the Federal Grovernment for violating her
laws by the same act which violated the law of the
State. -In other words, a party in committing a wrong-
ful act, may by one act violate the laws of the two
governments, and render himself amenable to both.f

Rei/roactvve effect of laws. — We have already
spokenj of laws in this aspect ; and we have stated
the general rules to be, that retrospective laws which
conflict with a State constitution,§ which violate the

sessions, though a particular forfeiture of twenty shillings per month was
affixed jxt any disobedience of the statute under which the order was made.
See Castle's Case, Oro. Jac, 644. In Stephens vs. Watson, 1 Salk. 45, it
was held that an indictment would not lie for keeping an ale-house without
a license, because it was no ofiense at common law, and the statute making
it an offense had made it punishable in another manner.' See Rex m'^
Robinson, approved in Sturgeon vs. The State, t Blackf , Ind. 39.

• The King ■»«. Harris, 4 T. R., 206. See this case cited and com-
mented on in the Hartford & N. H. R. R. Co. vs. Kennedy, 12 Conn., 499, 527..

t The State vs. Moore, 6 Indiana, 436. ,

X Ante, p. 188.

§ The Constitution of Tennessee, art. xi., § 20, contains a positive
declaration, " That no retrospective law, or law impairing the obligation of
contracts, shall be made."

EETROACTIVE EFFECT OF LAWS. 407

provisions of tlie Constitution of the United States
by impairing the inviolability of the obligation of
contracts, or which tend to divest vested rights of
property, are absolutely void, as not being within the
scope of the legislative power ; and that the courts will
always struggle to give laws a prospective construc-
tion or interpretation. But in cases which do not
come within the foregoing exceptions, it is in the
power of the legislature to pass retroactive laws ; and
the judiciary will not interfere with them. The ques-
tion is of so much practical importance, that the fol-
lowing decisions ought hot to be overlooked.

"It is not in the power of the legislature," says the
Supreme Cpurt of Maryland, " to give a, statute a
retrospective ' operation, so as to divest vested rights
acquired under a will."* Says the Supreme Court of
Louisiana, — " However repugnant to logic and ^sound
policy retrospective laws maybe, retrospective laws in
civil matters do not violate the constitution unless
they tend to divest vested rights, or to impair the
obligation of contracts.f

In Pennsylvania, it has been held that no statute
should be held to operate retrospectively, unless its
language admits of no other construction ; and so it was
decided that the act of 2Qth of April, 1850, in regard
to the lien of judgments on the estates of decedents,
was not retrospective. J '

* Wilderman vs. Mayor and City Council of Baltimore, 8 Maryland, 551.

t Municipality No. 1 w. Wheeler, 10 La. Ann. R. 745, 746. And the court
cites Marsade, § 62 : " Mais enfln, tant qu'une loi existe, si mauvaise, si
peu logique qu'elle puisse dtre sous tel ou tel rapport, le pouvoir judici-
aire ne pent pas ne point I'appliquer. Dura fex, sed est fee. En fait, done, le
kgislateur pent porter une disposition retroactive; et toute irrationnelle
que sera cette disposition, elle n'en devra pas moins s'appliquer.''

X Neffs Appeal, 21 Penn., 243.

408 RETROACTIVE EFFECT OF LAWS.

In MicWgan, this language has been held : " In these
United States, it is said that in a private case between
individuals, the court will struggle hard against a con-
struction which, by a retroactive operation, will affect
the rights of parties ; and statutes are generally to be
construed to operate in future, unless a retrospective
effect be clearly intended;" but the mere fact of a
statute being clearly retrospective does not of itself
make it unconstitutional,*

In Connecticut, an act authorizing a sale by the courts
of equity of real estate, and of any rights corporeal
or incorporeal existing or growing out of the same,
which are held in joint tenancy or coparcenary, when-
ever partition cannot be made in any other way, has
been held " not to be retroactive within the legal im-
port of that term, but to be purely a remedial law
acting upon existing rights, and providing a remedy
for existing evils;" and it was added, "if this were in
fact a retroactive law it would not for such reason be
an unconstitutional one."f

In Massachusetts, where a statute was passed givjng
towns a remedy against paupers for expenses incurred
for their support, it was held that, as prior to the act
no such suit could be maintained, the act must be con-
strued to have a prospective operation only, on the
ground that the legislature could not have enter-
tained the opinion that a citizen free from debt by
the laws of the land, could be made a debtor merely
by a legislative act declaring him one.J

The subject of the retroactive effect of statutes

* Scott vs. Smarts' Exrs., 1 Mich., 295.
t Richardson vs. Muryson, 23 Oonn. 94.
t Medford ««. Learned, 16 Mass. 216.

RETEOACTIVE EFFECT OF LAWS. 4:09

constantly presents itself in connection witli the sub-
ject of vested rights and their immunity from legisla-
tive interference. We have already* considered the
difficulty of drawing a line between those vested rights
that are absolutely sacred, and those held to be under
the control pf the legislature. The subject is of vast
importance in reference to the daily exercise of legis-
lative power; but until some clear and settled rules
are declared by authority, we can only hope to arrive
at an approximation to correct principles by a careful
examination of the adjudged cases.
. In Ohio, it has been held that a retrospective act
passed in March, 1835, to, render valid previous con-
veyances by married women, which were then void as
not complying with a statute of ,1820, is an unauthor-
ized exercise of legislative power, and as such null — on
the ground that the act divested married women of
their property, without consent, without compensation,
and not for crime.f

A Pennsylvania act of Assembly, declaring«fche chil-
dren of a particular bastard child " able and capable"
to inherit and transmit the estate of the deceased
mother of the bastard as fully as if the bastard had
been born in wedlock, has been construed'not to
divest real estate which had previously passed by
descent from the mother to her ■ brother, so as to vest
it .in the children of the deceased bastard. Such a
construction would be in hostility to the rule of the
common law, that a bastard cannot inherit: if con-
strued retrospectively, the act would divest vested
rights, a,nd be in direct hostility to the provision of

* Ante, p. 177.

t The Lessee of Good vi. Zerohw, 12 Qhio, 394.

410 RETROACTIVE EFFECT OF IaWS.

the bill of rights of the State, which declares that no
citizen shall he deprived of his property, unless by the
law of the land.*

Prior to 1848, the courts of Pennsylvania had
decided that a testator's mark to his name at the foot
of a testamentary paper, but without proof that the
name was written by his express direction, was not a"
valid signature under their statute of wills of 1833.
To overrule this, an act was passed in 1848, directing,
that every will theretofore made, or thereafter to be
made, to which the testator had made his mark, except
such as niight have been finally adjudicated prior to
the passage of the act, should be valid. A question
arose as t© the applicability of the act to a will exe-
cuted in 1840; and the court held that the act of 1848,
if retroactive, was an exercise of judicial power in set-
tling a question of interpretation, and as such was
void ; and moreover, if construed retroactively, it was
void on the further ground that it violated the consti-
tutional* provision giving to property the protection
of the law of the land ; they consequently held that
the act was merely prospective in its operation.f

The subject of the retroactive effect of statutes with
reference to vested fights, has been examined in a very
interesting case in Maryland. Suit was brought in
1846 on a single bill executed by the defendant
in 1840. The defendant pleaded that the note was
usurious and void, under an act of 1'704. The plain-
tiff replied a statute passed on the 10th of March,
1846, declaring substantially that in any suit or

» * Norman vs. Heist, 5 Watts & Ser. 171.

t Greenough V8. Greenough, 11 Penn. 489. See C. J. Gibson's interest-
ing opinion, and cases cited.

EETRO ACTIVE EFFECT OF LAWS. 411

action thereafter to be brouglit in any court of law or
equity upon any contract, the plaintiff should be at
liberty to recover the principal and legal interest. It
was insisted on behalf of the defendant, that the act
of 1846 should not be construed retrospectively ; that
if retrospective, it was unconstitutional, or beyond the
sphere of legislative power, so far as operating on
existing contracts, upon the ground that it divested
the vested right of pleading usury as it existed before
the act of 1846.

But the. act was held valid. The court admitted the
rule to be that an act is to "be construed as prospective
in its operation in all cases susceptible of doubt ; but
held that this could have no application to a case
where the legislature had directed, in language too
express and plain to be mistaken, that they designed
to give the statute a retroactive operation, — ^that in
such a case there was no room for interpretation.* The
objection as to the unconstitutionality of the law was
also overruled, on the ground that it was obvious that
no provision of the Constitution of the United States
was violated ;f and as to the provision in the Mary-
land Bill of Eights, art. 15, declaring "retrospective
laws punishing acts committed before the existence of
such laws, to be oppressive and unjust," that it related
solely to retrospective criminal laws, and was an ex-
press recognition of the legislative power to pass
retrospective laws in regard to civil cases and con-
tracts, as laws healing imperfect deeds or validating
defective acknowledgments. The objection that the

* See also on this point Goshen ot. Stonnington, 4 Conn. -220. <

t Satterlee m. Matthewson, 2 Peters, 413; Watson vs. Mercer, 8
Peters, HO.

412 EETROACTIVE EFFECT OF STATUTES.

riglit to plead usury under the act of 1704 was a
■Rested right, and that the act of 1846 was void as
tending to divest it, shared a similar fate. The court
admitted the sacredness of vested rights, and declared
that an act which divested a right under the pretense
of regulating the remedy was as objectionable as if
aimed at the right itself But they held that when
vested rights were spoken of as being guarded against
legislative interference, they were those rights to which
a party may adhere, and upon which he may insist,
without violating any principle of morality. They
held that the borrower Had no moral right to repudiate
his contract so as to escape the payment of the sum
actually received, and that the act in question was no
more than an exercise of legislative authority on the
subject of remedies, a power which the legislature
might exercise in relation to past as well as future
contracts.*

A New York act of 1860, chap, 172, declares, that
" no coi-poration shall hereafter interpose the defence
of usury" in any action. It has been said that this is
in the nature of a penalty or forfeiture remitted by
the legislature ; and held, that the act was applicable to*
an equity case where the defence was set up, and the
proofs taken and closed, before the act was passed.f
The defence of usury is so odious in all highly civil-
ized and especially in all commercial communities,
that it is very difficult to obtain for it an impartial
hearing ; but as long as the prohibition stands on the
statute book, it certainly is the duty of the judiciary
fairly to carry out the legislative will ; and I cannot

* Baugher vs. Nelson, 9 Gill, 299. The case is 'indexed as Grinder vs.
Nelson.

t Curtis «s. Leavitt, 17 Barb. 811.

BETROACTIVE EFFECT OF STATUTES. 413

understand how an act can be considered within the
just limits of the legislative power, nor how it can be
regarded otherwise than as an invasion of the judi-
cial prerogative, which by a sweeping change of the
law, not only affects the interests of parties litigant,
but absolutely controls the determination of suits at
the time of its passage pending for decision in the
proper forum. If the legislature has this power, it is
very obvious that a valid law might be framed general
in its terms, but really intended to affect private
objects, and calculated to work the grossest injustice.
In conijiection with this subject, the following case
in New York is important : Clark and Cornell, com-
missioners of highways in a town, by direction of
the voters of the town sued a turnpike company; they
were unsuccessful, and obliged to pay costs. These
costs the town refused to pay. The commissioners
then sued the town ; and the court of last resort
held that they had no remedy. The legislature then
(1851) passed an act directing the question, whether
the commissioners should be paid or not, to be sub-
mitted at the next meeting of the voters of the town.
The voters decided that they would not tax themselves
for the purpose. The legislature was then again
appealed to; and in 1852 a law was passed, appoint-
ing three commissioners to determine the amount of
costs, &c., due Clark and Cornell, to make an a^ard
thereof; and declaring it the duty of the supervisors of
.Chenango county, in which 'the town was situated,
to apportion the amount upon the taxable property
of the town, and to provide for its collection like
other taxes. Suit was brought by the town against
the supervisors, to restrain the levy of the tax,
on the ground of its being unconstitutional, as

414 RETEOACTIYE EFFECT OF LAWS.

infringing the vested rights of the tax payers of the
town. But the law was sustained, as a mere exercise of
the power of taxation, and on the ground that the act
of 1851 was not in the nature of, a contract, nor judi-
cial in its character. Perhaps the decision may be
Sustained on the grounds on which it is put ; but it is
obvious that the result of the matter is that the legis-
lature compels payment out of the pockets of the
defendants of a claim which the law had already pro-
nounced they were not bound to pay. Clark and
Cornell were the agents of the town. They present to
their principals a claim which is rejected and contested.
The courts decide that the principal is not liable.
The legislature then steps in, and in effect compels the
payment of the claim by the defendants. This may
be called taxation, but in truth it is the reversal of
a judicial decision.* The power of taxation is a great
governmental attribute, with which the courts have
very wisely, as we shall hereafter see, shown extreme
unwillingness to interfere; but if abused, the abuse
should share the fate of all other usurpations.

In England, on the subj ect of retrospective statutes, it
has been held, that an act in regard to practice — declar-
ing that when a new trial was granted on the ground
that the verdict was against evidence, the costs of the
first suit should abide the e^ei^t, unless the court should
othePwise order — was retroactive ; but a clause in the
same act, that error might be brought upon a special
case unless the parties agreed to the contrary, was held
not to be so ; and Maule, J., said, "As a general rule an
act is to be construed so as to be prospective only ; for

* Town of Guilford vs. Superyisors of Chenango Co., 3 Kernan, 147.

THE MORE RECENT STATUTE CONTROLS. 415

if it were otherwise construed, it wopld often defeat the
intention of the parties who acted under the old law."*

Last statute in point of time controh. — We have
alreadyf had occasion to remark, that importance is
attached to the time of the expression of the will of
the legislature. So, if two statutes repugnant to each
other be passed in the same session, the latter only
shall have effect.! So again it is said, if the latter
part of a statute be repugnant to the former part
thereof it shall stand, and so far as it is repugnant be
a repeal of the former part ; because it was last agreed
to by the makers of the statute.§ And this principle
has been declared by the Supreme Court of the State
of iSTew York. I So in Kentucky it has been said, " If
there be an absolute inconsistency between these stat-
utes, the act bf 1825 being posterior in date, and also
more comprehensive in its terms, must have superseded
the other so far as they conflicted."^ So in Pennsyl-
vania it has been said, that in cases of irreconcileable
repugnancy the rule is to let the last part determine
ihe intentions of the lawgiver.**

But it is only in cases of irreconcilable r^ugnancy
that thi^ rule applies ; it gives way to the fundamental
principle, that the intention of the legislature is to
govern. " A subsequent statute," says Parsons, C. J,
" generally wUl ^©ntrol the provisions of former stat-

* Hughes «s. Lumley, 4 Ellis & Blackb. 358, 359 ; Jenkins vs. Betham,
15 0. B. 169 and 190.

t Ante, pp. 60, 63, 81, 129.

X Bacon, Abr. Stat. B.'

§ Bacon, Abr. StatD:

1 Harington m. Trustees of Rochester, 10 Wend. 547.

T Naz. Lit. & Benev. Inst. m. Commonwealth, 14 B. Munroe, 266,

** Packer m. Sunbury & Erie E. R. Co., 7 Harris (Penn.) R. 211.

416 MISDESCRIPTION AND SURPLUSAGE.

iites, which are repugnant to it according to its strict
letter. But there are ezceptions to this rule, depending
on the construction of the last, statute agreeably to
the intention of the legislature."* " The general rule
is conceded to be ," it has been said in Pennsylvania,
" that where two statutes contain repugnant provisions,
the oiie last signed by the governor is a repeal of one
previously signed. But this is so merely because it
is presnmed to be so intended by the law-making
power. Where the intention is otherwise, and that
intention is manifest upon the face of either enact-
ment, the plain meaning of the legislative power, thus
manifested is the paramount rule of construction. It
is no part of the duty of the judiciary to resort to
technical subtleties to defeat the obvious purposes
of the legislative power in a matter over which that
power has a constitutional right to control."f

Misdescription and swphisage.—The maxim, Falsa
demonsPratio non nocet; applies to statutes as well as
in other cases. It was early held that, in an act of
Parliament, the misnomer of a corporation where the
express i^ention appears shall not avoid the act, any-
more than in a will, when the true corporation intended
is apparent. J So, where a statute is referred to by
general descriptive particulars, some of which are mani-
festly false and others true, the former may be rejected
as surplusage, provided the remainder is sufficient to
show clearly what is meant.§ Thus again, where a
statute referred to the vote of a town by a wrong date,

* Pease i)S. Whitney, et al. 5 Mass. 880, 382.

t The Southwark Bank M. The Commonwealth, 26 Pennsylvania
Eeports, pp. 448, 449.

X The Chancellor of Oxford's Case, 10 Rep. 57.

§ The Wateryliet Turnnjke Co. m. M'Kean, 6 Hill, 616.

CAUSE AND EFFECT. 417

•where the reference -would have been good ■without
any date at all, it was held that the erroneous date
might be rejected as 'slirplusage.*

Oofmection between cause and effect. — The relation
of cause and effect sometimes presents itself in regard
to the construction of statutes ; and here we find a class
of questions analogous to those growing out of the
iubject of remoteness or consequentiality of damages,
and dependent on the maxim, proxima coMsa nxm
remota spectatur.j; So, where the embargo act of
•22d December, 1807, required a bond conditioned
to reland certain goods in some port of the United
States, "the dangers of the seas only excepted," it
was held by the Supreme Court of the United States,
where a vessel was driven by stress of weather into
one of the West Indies, and there detained by the
government of the island, that this was a casualty
within the exception; the court saying, "an effect
which proceeds inevitably and of absolute necessity
from a specified cause, must be ascribed to that cause."J

In Pennsylvania it is provided by statute (act of
22d April, 1846), that when money is collected on
a recognizance given for the appearance of a person
charged with a criminal offense, it shall be applied,
after payment of costs and expenses, to satisfy the
damages sustained by any person by reason of the
misdemeanor. A party being indicted for keeping a
gambling-house, and his recognizance being forfeited,
a person who lost money at play in the house
claimed a part of the moneys collected on the recog-

* Shrewsbury lis. Boylston, 1 Pick. 108.
t Sedgwick on the Measure of Damages, chap. iii.
X The United States vs. Hall, 6 Oranch, 171, 178.
2T

418 , COMPUTATION OF TIME.

nizance ; but he was held not to be so entitled, on the
ground, among others, that his misfortune was not
the natural consequence of the misconduct of the
keeper of the gambling-house ; " the direct and imme-
diate cause of the loss, was his own inexcusable
folly."*

Computation of Time. — Where the computation of
time, as prescribed in statutory enactments, is to be made;,
from an act done, much controversy has taken place
as to whether the first day — that on which the act is
done, that on or from which the time is to begin to run,.
^s to be included in the reckoning. The earlier En-
glish decisions included the day.f But in New York
from an early period, it was decided to exclude the
day on which the act is done, and the same rule
applies to notices ; and such is, I believe, now the
English rule.J In New York, it has been said, that
" in questions of the computation of time arising under
our own rules, our statutes, and upon promissory

* Commonwealth m. Robbins, 26 Penn. 165, 167.

t The King vs. Adderley, Doug. 463 ; Castle vs. Burditt, 3 T. R. 623 ^
Glassington m. Rawlins, 3 East, 407. In Lester vs. Garland, however,- 15
Ves. 248, the day was excluded, and it was intimated that no general
rule existed.

X 3 Chit. Practice, 109. Pitt vs. Shew, 4 Barn. & Aid. 208. Ex parte
Dean, 2 Cowen, 605. Jackson vs. Van Valkenburgh, 8 Cowen, 260. Coftiml.
Bank of Oswego vs. Ives, 2 Hill, 8S6. Homan vs. Liswell, 6 Cowen, 659.
Columbia Turnpike Road vs. Haywood, 10 Wend. 422. See Small vs.
Edrick, 5 Wend., 187, where a contrary construction was giveff to pecu-
liar phraseology. Comml. Bank of Oswego vs. "Ives, 2 Hill, 856. The
decisions in the other States do not seem uniform. Sims vs. Hampton, 1
S. & B. 411. Portland Bank vs. Maine Bank, 11 Mass. 204. Presbrey vs..
Williams, 15 «5i(Z. 193. Bigelow us. Willson, 1 Pick. 486. Commonwealth
vs. Keniston, 5 Pick. 420. Hampton vs. Erenzeller, 2 Browne's B. 18.
Ryman vs. Clark, 4 Blaokf. 329. Jacobs vs. Graham, 1 ihid. 892. Arnold
vs. The U. States, 9 Cranch, 104. Pierpont vs. Graham, 4 Wash. C, C. R.
232. Cornell vs. Moulton, 3 Denio, 12.

COMPUTATION OF TIME. 419

notes, the day of the date is excluded."* In the ,
same State, where a statute requires fourteen .days,
notice of trial ; fourteen days are required exclusive
of the first day of the court.f And in the same State,
the day on which the Revised Statutes took effect was -
excluded, in computing the time in regard to the
statute of limitations.^

In Alabama, it has been held that, in the compu-
tation of time from an act done, the day of perform-
ance is to be excluded; the court saying that the
law refuses to recognize the parts or fractions of a
day. So, where a statute provided that the lien
acquired by an execution should not be lost if an
alias execution should issue without interval of
more than ninety days, an original execution was
returned on the 14th April, and an alias issued on the
14th July next thereafter, or on the ninety-first day,
held that the lien was not lost ; § the court saying
that the statute must be cpnstrued as if.it had said
that the lien should not be lost if an execution issued
to the sheriff without interval of more days ihcm
ninety days. But this rule as to disregarding frac-
tions of a day, does not apply to statutes which
as between different acts, give a preference or priority
to the one which is first done.| In the same State
it is said to be the practice of the courts in the
computation' of {imCj to include one day and ex-
clude the other, except where the statute requires

* Wilcox vs. Wood, 9 Wend. 348, per Savage, 0. J.

t Columbia Turnpike Road vs. Haywood, 10 Wend. 422.

t Fairbanks vs. Wood, 17 Wend. 329.

§ Lang vs. Phillips, 27 Ala.y 811. Judd vs. Fulton, 10 Barb. 117.

1 Lang vs. Phillips, 27 Ala., 311.

420 COMPUTATION OF TIME.

specially a given number of entire days to intervene,
in which case both are excluded.*

When the last day for the performance of a gi^htx
act falls on a Sunday, the act must be done on the
"preceding day.f

It was early settled in England, that in all acts of
Parliament where " months " were spoken of without
the word " calendar," and nothing added from which
a clear inference could be drawn 'that the legislature
intended calendar months, they should be understood
to inean lunar months, or a month of twenty-eight
days.J Lord Kenyon regretted this ; but the rule was
early adopted, though with equal reluctance, in New
York. " The courts," it was said in one case, " have
taken the rule as they found it settled, that where
there is nothing in a statute from which they can infer
that calendar time was intended, the month must be
co&sidered a lunar one." But as the legislature never
in fact intended a lunar month, the courts have relied
on any circumstances inducing the belief, that calendar
time was in fact in their contemplation.§ All doubt
has now been removed in New York, by a statutory
provision,! which declares, that wherever the word

* Owen «». Slatter et at, 26 Alaba. 547. See, in N. T. Fairbanks m.
"Woods, 17 Wend. 329 ; Snyder «s. Warren, 2 Cow. 518.

t Broome vs. Wellington, 1 Sandf. Sup. Ct. Rep. .664; Ex parte
Dodge, 7 Cowen, 147 k Anon. 2 Hill, 376.

t Bishop of Peterborough vs. Catesby, Cro. Jac. 167, 168. Barksdale
Ds. Morgan, 4 Mod. 185. Sir Wollaston Dixie's Case, 1 Leon. 96. The
King «.?. Peckham, Carth. 406. The King vs. Adderley, Doug. 462. Castle
vs. Barditt, 3 T. E., 623. Lacon vs. Hooper, 6 T. R. 224, per Lord Kenyon.

§ Loring vs. Hailing, 15 J. R. 119. Snyder vs. Warren, 2 Cowen, 518.
Parsons vs. Chamberlin, 4 Wend. 512. People vs. Mayor, &c. of New
York, 10 Wend. 393. In the last three cases the statute was interpreted
to mean calendar months. See also Jackson vs. Van Valkenburgh, 8 Cow.
260.

5 1 R. S. 606, § 4.

WAIVER. 421

montk is used in a statute, it sliall mean a calendar
month. In Massachusetts and Pennsylvania, the rule
appears to be, that where the word month is used
generally in a statute or contract, it will be considered
to mean a calendar month.*

A year is the time in which the sun completes his
circuit through the twelve signs of the zodiac, viz.
365 days, and about six hours ; but in leap-year,
the st|iBte 24 Geo. II. c. 25 enacts that the year
shall ^msist of 366 days, the intercalary day being
accounted with the day preceding it as one day ; and
in New York, the same provision has been adopted.f

Waiver. — ^Under this head we have already noticed
the general rulej that statutory provisions designed
for the benefit of a party may be waived ; but that
where the enactment is to secure general objects of
policy or morals, no consent will render a non -compli-
ance with the statute effectual. . In Connecticut, a law
of 1850 provided, that auditors might be appointed in
actions of assumpsit, if the cause of action embraced
matters of acccmnt. An auditor was appointed by
consent, ip an action brought by a declaration embrac-
ing a count on a note and the common counts. No
other claim was in fact made than on the note, but
the parties went to trial before the auditor, without
objection ; after a report by the auditor, the defendant
opposed its acceptance by the court, on the ground

* Hunt vs. Holden, 2 Mass. 170 ; Avery et dl. m. Pixley, 4 Mass. 460 ;
Churchill vs. Merchants' Bank, 19 Pick. 632 ; Brudenell »«. Vaux, 2 Dall.
302 ; Commonwealth vs. Chambre, 4 Dall. 148 ; Moore vs. Houston, 8 S. &
R. 144.

t 2 R. S. part i. chap. xix. tit. 1, § 3 ; See The King m. Inhabitants of
Worminghall, 6 Maule & Selw. 360, a case on a yearly hiring.

\ Ante, chap. iv. p. 109.

4:22 SUBJECT MATTER.

that tlie case did not come within the act of 1850 ;
but the objection was considered bad, and it was said
to be like the cases where parties are held by their
acts to waive objections to judges, commissioners, to
a juror, or the panel of jurors.*

In the same State it has been held under a statute
declaring a contract made on a usurious consider-
ation to be utterly void, that the statute was made
for the benefit of the party liable upon the Mitract,
and that he might at his option avoid the security or
waive the benefit of the law.f So, the provisions of
a statute requiring a bond with surety to be given by
the party appealing from the judgment of a justice of
the peace, is made solely for the benefit of the obligee,
who may waive a strict compliance therewith.^

Consent, however, will never give jurisdiction. Thus,
where an appeal is taken in a cause not appealable, or
to a court not having jurisdiction, it is not in the power
of the parties to confer jurisdiction by waiving all
objections.§

SuhjecPmatter. — It is a general and very sound rule,
applicable to the construction of every statute, that
it is to be taken in reference to its subject-matter. In
this way often the operation of general words may be
limited. So, the stock-jobbing acts are general, and
their terms would apply to transactions in foreign

* Andrews vs. Wheeton, 23 Conn. 142. See also, King la. Lacey, 8 Conn.
R. 499 ; Selleck m. Sugar Hollow T. P. Co. 13 Conn. 453 ; Smith m. The
State, 19 Conn. 493 ; Crone vs. Daniels, 20 Conn. 331 ; Quinebaug Bank
vs. Leavens, 20 Conn. 87; Groton and Ledyard vs. Hurlburt et al. 22
Conn. 178.

t Wales OT. Webb, 5 Conn. R. 164.

I Ives m. Pinch,- 22 Conn. 101.

§ Ives vs. Finch, 22 Conn. 101.

WAGERS.

423

•stock; a construction, however, •whicli the courts
have rejected, in obedience to the obvious intention of.
the< legislature that the provisions of these enactments
are to apply only to British stocks*

General words hyw qualified by pa/rticula/r words. —
It is a rule of right reason that general words may be
qualified \)j particular clauses of a statute, but that
on the other hand a thing which is given in par-
ticular shall not be taken away by ^general words.
This in the civil law is expressed by the phrase. In
toto jure generi per speciem derogatur^ et illud potis-
eimum habitum quod ad speciem direetum mt. In the
less classical Latin of the early English law, the same
idea is conveyed in the words, generalis clausula non
porrigitur ad ea quoe speciaUter smt comprehensa. In
conformity to this doctrine it is held that where a
general intention is expressed in a statute, and the
a,ct also expresses a particular intention, incompatible
with the general intention, the particular intention
shall be considered as an exception.f Where general
words follow particular words, the rule is to construe
the former as appliciable to the things or persons
particularly mentioned.^ So, a statute treating of
persons or things of an inferior rank, cannot by
general woi-ds be extended to those of a superior.§

Statutes in regard to wagers. — At common law,
wagers are not unlawful, unless immoral or against
public policy ; but the tendency of legislation in this

* Salkeld m Johnston, 1 Hare, 196 ; Henderson m. Bise, 3 Starkie,
1S8 ; Wells m Porter, 2 Bing. N. C. 722; Elsworth w. Cole, 2 M. & W. 31.

t Churchill vs. Crease, 5 Bing. 180 — 492-3. '

t Sandiman vs. Breach, 7 B. & C. 100.

§ 4 Rep. 4 ; 2 Rep. 46 ; 2 Inst. 478 ; Dwarris, 656. But see, contra, 2
Inst. 136.

424: CORPORATIONS.

country, is to make them so without exception. In
New York, a statute* declares all wagers, bets, or
stakes, on racing, gaming, or any lot, chance, or un-
known or contingent event, void, and all contracts for
or on account of any money or property, &c. wagered,
bet, or staked, void; the act, however, being declared
not to apply to insurances on interest, nor to contracts
on bottomry or respondentia. Under this statute it
has been held, that an agreement in the sale of a horse,
— that the animal should on or before a given day trot
a certain distance at a certain rate of speed, and in
case he failed, then that the vendor should deduct or
pay back to the purchaser one half of such sum as the.
failure might take from the market value of the
horse, — is an agreement in the nature of a stake or
wager on a race, and as such void under the statute.f
Corporations. — The Eevised Statutes of New York
declare that the charter of every corporation that shall
hereafter be granted by the legislature shall be sub-
ject to alteration, suspension, and repeal in the discre-

* 1 R. S. part i. chap. xx. title 8, art. 3.

t Hall VI. Bergen, 19 Barb. 122.

The policy of different countries varies very much on the subject of
wagers. In England, at common law wagers are valid contracts, unless
contrary to public policy, or immoral, or in any way tending to the detri-
ment of the public ; or, unless they affect the interest, feelings, or character
of a third person (see Ohitty on Contracts, in voo. Wagers). But the courts
have frequently expressed their disapprobation of these contracts, and in
some cases, where trivial or contemptible, have refused to try actions upon
them. Gaming debts and securities are void by statute.

The French Code declares as a general rule the invalidity of wagers :
" La hi rCatxorde aucune action pour une dette du jeu ou pour le paie-
ment d'un joon."— Code Civil, Liv. 3, Tit. 12, Chap. Prem. § 1965. But a
class of exceptions is created in favor of martial sports, foot and horse
races, tennis, &e., subject, however, to the discretionary exercise of the ,
judicial power, where the demand appears exorbitant.

FOREIGN STATUTES. " 425

tion of the legislature.* In construing this provision,
it has been said that the legislature could not convert
a rplroad company into a banking, insurance, or
mining company, for the obvious reason that such an
act would create a new company of a new and distinct
character ; but that an act authorizing the railroads
of the State, with the consent of two thirds in value
of the stockholders, to subscribe to a railroad in
Canada, was constitution'al, as the subscribing com-
panies would remain the same as before as to their
character, structure, objects, and business.f

But in cases where no such power is reserved by
the legislature, the true doctrine is that no radical
change or alteration can be made or allowed in the
charter of a corporation, by which new and additional
objects are to be accomplished, or new responsibilities
incurred, so as to bind the individuals composing the
company without their assent. J

InterjoretaHon and proof of foreign statutes. — When
the statutes of other countries, or of other States
of this Union, come up for construction, the deci-
sions of the courts of the State enacting the law
are held to be a conclusive or authentic interpreta-
tion ;§ and this very rightly, for it must always be
impossible for any tribunal to have the same means of
judging of the true intention, scope, and purport of a
foreign statute as the courts of the State or country
where it was framed, and the institutions of which
it was intended to fashion or control.

* 1 R. S. 600^ § 8.

t White vs. Syracuse and Utica Railroad Co., 14 Barbour, 561.
I Hartford and New Haven Railroad Company vs. Croswell, 5 Hill, 384.
Middlesex Turnpike Company vs. Locke, 8 Ma?s. R. 268.
§ Thompson vs. Alger, 12 Met. p. 428.

426 FOREIGN STATUTES.

The Supreme Court of the United States has said,
that where English statutes, such for instance as the
statute of frauds and the statute of limitations, have
been- adopted into our legislation, the known and settled
construction of those statutes by their courts of law has
been considered as silently incorporated into the acts,
or has been received with all the weight of authority.
It was said that this rule did not strictly apply to the
English statute of monopolies, under which the grants
of patents have there issued ; but that the principles
and practice which had regulated their grants of
patents, as being tacitly referred to in some of the
provisions of our patent statute, afforded materials to
illustrate it.*

Connected with this subject, another and very
interesting question has arisen, which is whether the
interpretation of foreign laws is a question for the jury,
or for the court. In some cases it has been intimated
that the interpretation of foreign law is matter of fact,
for the jury. " The question in such a case," says the
Supreme Court of Ohio, " is not what is the just and
true interpretation, but what is the actual interpret-
ation of the statute by the foreign tribunal. It
is a matter of fact."-}- In a case in Massachusetts,
turning on the construction of a statute of the
State of Georgia, the statute itself was proved, and
the depositions of eminent lawyers in that State,
relating to the construction given there to the
statute in question, were also read, and the court was
requested to decide what was the law of Georgia in
regard to the matter in hand ; but the application was

* Pennock & Sellers vs. Dialogue, 2 Peters, 1, 18.

t Ingraham vs. Hart, 11 Ohio, 256 ; Burchard, J. dissented.

FOREIGN STATUiaiS. 427

denied, and it was held to be a question of fact, for the
jury to decide, as to what had been the construction
given by the courts in the State of Georgia, to the
statute before them.* But on the contrary, it has
been expressly decided in Pennsylvania and Alabama,
that the interpretation of a foreign statute belongs to
the court.f

As to the proof of foreign laws, it has been said in
Massachusetts, that a volume purporting on the face of
it to contain the laws of a sister State is admissible as
prima facie evidence to prove the statute law of that
State : " The connection, intercourse, and constitutional
ties which bind together these several States, require
that this species of evidence should be sufficient, until
contradicted." But it was said at the same time, that
the court did not mean to decide that the law of any
country merely foreign could be so proved.^ In
Michigan, it has been said that the court will pre-
sume the law of a sister State to be the same as their
own State, unless the contrary is shown.§ It has been
held in Pennsylvania, that judicial cognizance will
be taken of the law of another State, no proof of it
.whatever having been given. || It appears to me very

* Holman vi. King, 7 Met. 388. . y

t Bock vs. Lauman, 24 Penn. 4'36. In Connecticut it is regulated by
a statute ; see Hale w. N. J. Steam Nav. Co. 15 Conn. 539 ; Lockwood «s.
Crawford, 18 Conn. 361. Inge m. Murphy, 1.0 Alab. 885.

X Raynham ««. Canton, 3 Pidk. 293.

§ Crane vs. Hardy, 1 Michigan, 56.

II Bock w. Lauman, 24 Penn. 436. See, on the subject of proving for-
eign law as matter of fact, Bristow w. Sequeville, 5 Exch. 275. A student
in a foreign university is incompetent to prove the law of that country.
See also Trimbey m. Vignier, 1 Bing. N. 0, 151. In this case, in the
Kings Bench, the question being on a point of French law, growing out of
the construction' of the Code de Commerce, and the opinions of French

428 REVISION OF STATUTES.

proper that the interpretation of a foreign law, as of
a domestic, should be confided to the court; and
equally dangerous to assume the existence of the law
of another jurisdiction, whether of another State or
a wholly foreign country, as a fact, without submilvfcing
it to the ordinary tests of proof.

We may remark, as connected with the question of
foreign statutes, in regard to the rule which we have
already (p. 99) had occasion to notice, that ignorance
of law is no excuse, that the principle does not apply to
foreign law. Juris ignorcmtia, est cum jus nost/rv/m
ignoramus ; and it has been held that ignorance of
the law of a foreign government is ignorance of fact;
and the laws of the other States of the Union being in
this respect regarded as foreign laws, it has been de-
cided in Massachusetts that money paid by mistake,
through ignorance of the law of another of the United
States, can be recovered back.*

Revision of statutes. — It is proper here to notice
some principles peculiar to this country, growing out
of the frequent revision of our statutory law, and the
changes consequent thereupon.

In New York it has been said that " it has long been,
a cardinal and controlling maxim, that where a law
antecedently to a revision of the statutes is settled
either b]^ clear expressions in the statutes, or adjudi-
cations on them, the mere change of phraseology shall

advocates haying been taken by consent, but appearing contradictory, the
court examined the Code itself, and decided the case upon its own con-
struction of the clause in question. Vander Donokt vs . Thellusson, 8 0. B. R.
817 : Belgian laws proved by a merchant and stock-broker. Inglis et al. ts,
Usherwood, 1 East, 615, turned upon a question of Russian law, but the
construction or meaning seems to have been admitted.
* Haven w. Foster, 9 Pick. 112.

REVISION OF STATUTES. 429

not be deemed or construed a change of the law, unless
such phraseology evidently purport an iiltention in the
legislature to work a change.* So in New Hamp-
shire, it has been held that upoh the revision of the
statutes the construction will not be changed by such
alterations as are merely designed to render the pro-
visions more concise.f

In the adoption of the Code, it has been said in
Alabama that, the legislature must be presumed to
have known the judicial construction which had been
placed on the former statutes ; and therefore the
re-enactment in the Gode of provisions substantially the
same as those contained in a former slatute, is a legis-
lative adoption of their known judicial construction.;]:

In Massachusetts it has also been held in regard to
the revision of statutes, to be a well-settled rule that
when any statute is revised or one act framed from an-
other, some parts being omitted, the parts omitted are
not to be revived by construction, but are to be con-
sidered as annulled ; to hold otherwise would be to im-
pute to the legislature gross carelessness or ignorance,
which is altogether inadmissible. So, in that State a
Very useful statute passed ia 1*754, concerning donations
and bequests to pious, and charitable, &c. was decided
not to be in force, on the ground that the legislature

* Yate's Case, 4 J. R., 359. Matter of Theriat vs. Hart, 2 Hill, 380.
Pannelee vs. "f hompson, 7 Hill, 77. Taylor ««. Delancy, 2 C. C. in Error,
150. Goodell vs. Jacksdh, 20 J. B., 722. Crosfrell vs. Olrane, 7 Barb., 191.
Young vs. Dake, 1 Seld., 463. Elwood vs. Klock, 13 Barb., 50. Douglass
vs. Howland, 24 Wend., 35. Dominick vs. Michael, 4 Sand. S. C. R. per
Duer, J. 874, 409.

t Mooers vs. Bunker, 9 Foster, p. 421.

I Duramus vs. Harrison &'Whitilian, 26 Ala., 326.

430 CONSTRUCTIOlir OF STATE LAWS IN U. S. COURTS.

had in 1 '78 5 legislated on the same subject, and omitted
to re-enact the provisions of the statute*

Another rule connected with the subject of the
revision of statutes, may be appropriately stated here.
In this country the State statutes have been frequently
revised and altered upon the report of officers appointed
for the purpose^ revisors or commissioners ; and in sub-
mitting their proposed revision or alteration to the
legislature, the legal advisers of the State have stated
in the shape of a reports or of notes their reason for
the proposed change of phraseology' or provision, and
the meaning which they affixed to it ; but it has been
held that such reports or notes are not to be taken as
an authoritative construction of the revised or amended
law, as the revisors might have meant one thing and
the legislature another ; and that the meaning of the
statute is to be obtained and arrived at in the usual
way.f »

State staVwbes how construed in the United States
courts.' — One great object of the Federal Constitution
among others, was by the creation of a national judi-
ciary to secure a tribunal free from all local influences
to decide on controversies between the States them-*
selves, between citizens of different States, and be-
tween citizens and foreigners. Besides this, in order
to secure the supremacy of the Constitution of the
United States, An appeal lies, in cases affecting- the
construction of the Federal charter or of acts of Con-
gress, from the highest State courts to the Supreme

* Ellis e«. Paige et al. 1 Pick. 4:8 ; Bartlett, et al vi. King, Exr., 12
Mass. R. 537 ; Nichols vs. Squire, 6 Pick. 168.
t Forrest vs. Forrest, 10 Barb. 46.

CONSTRUCTION OF STATE LAWS IN U. S. COURTS. 431

Court of tke United States.* It necessarily results that
statutes of the several States, come constantly under
revision in the Supreme Court of the United States.
The rules of constructiou which are there applied to
them, become therefore a matter of the highest interest.
.On this subject the general doctrine is, that in
construing the statutes of the several States, so far .
as those statutes belong to the local law of the States,
the Supreme Court of the United States looks ' to the
decisions of the highest courts of the State; and where
the construction is settled by such tribunal, the Fed-
eral tribunal adopts it as its own.f And the same
principle has been declared to hold good in regard
to State constitutions. J So, in an early case in the
Supreme Court of the United States, turning on the
Pennsylvania, actsi respecting the i^gistry of deeds,
C. J. Marshall said, "Were this act of lYlS now for
the first time to be construed, the opinion of this
court would certainly be, that the deed was not regu-
larly proved. But in construing the statutes of a
State on which land-titles depend, infinite mischief
would ensue should this court observe a different
rule from that which 'has been long established in
the State;" * * * " th*e court yields the construc-
tion which would be put on the words of the act, to
that which the courts of the State have put on it, and

* Martin vs. Hunter's Lessee, 1 Whisat. 364 ; Cohens vs. Virginia, 6
Wheat. 413, where the appellate jurisdiction was sustained in an elabo-
rate opinion by Marshall, C. J. '

t M'Keen «s. Delancy's Lessee, 5 Or. 22; Polk's Lessee vs. Wendell et
al. 9 Cr. 87; Gardner vs. Collins etal. 2 Pet. 58; Shelby vs. Gruy, 11
Wheat. 861; Green vs. Lessee of Neal, 6 Pet. 291 ; Nesmith vs. Sheldon, 8
How. 812.

X Webster vs. Cooper, 14 How. 488. i

432, CONSTEUCTIOlir OF STATE LAWS IN U. S. COURTS.

on which many titles may probably depend."* " The
laws imposing a tax on lands, and regulating its col-
lection, in perhaps almost all the States," says Mr.
Justice M'Lean speaking for the Supreme Court of
the United States, " are peculiar in their provisions,
having been framed under the influence of a local
policy. And this policy has to some extent influenced
the construction of those laws. There can be no class
of laws more strictly local in their character, and
which more directly concern real property, than
these. They not only constitute a rule of property,
but their construction by the courts .of the States
should be followed by the courts of the United States,
with equal, if not greater strictness than the con-
struction of any other class of law8."f

The rule of aooption of State constl-uction by the
Federal judiciary has "been said to grow out of the
constitution of the Federal tribunal. The jurisdiction
of the Supreme Court, over cases where citizens of
another State than the one in which ,the suit arises
are concerned, rests upon the ground that the Federal
courts, in applying the law, will be more free from
Undue influence. But the law to be applied is the
local law, and that law is to be administered as it is,
not reviewed or altered. And the tribunals of each
State are rightly considered best to understand what is

* M'Keen vs. Delancy's Lessee, 6 Cranch, 22, 32, 33.

It has been said, that the Supreme Court adopts the local law of real
property as ascertained by the decisions of the State courts, whether those
decisions are upon the construction of the statutes of the State, or form a part
of the unwritten law of the State. Jackson «s. Chew, 12 Wheat. 153 ;
Also see Shelby vs. Guy, 11 Wheat. 861, as to the adoption of State law
generally; and Swift vs. Tyson, 16 Peters, pp. 1 and 18.

t Games et al, vs. Stiles, 14 Peters, 322, 328.

STATE STATUTES, HOW CONSTRUED IN U. S. COURTS. 433

the law of the State* This course is pursued, it has
been again said, " not on the ground of authority, but
of policy .f It would be injurious to the citizens of a
State to have two rules of property. Such a course
by the courts of the Union would produce unfortu-
nate conflicts, and encourage litigation," *
But the rule is not without exceptions. It does
not apply to decisions on charters granted by the
British crown, under which certain rights are claimed
by the state on the one hand and by private indi-
viduals on the other; and in regard to these, the
Supreme Court reserves its absolute independence of
judgment. J So, again, it has been said by the Supreme
Court of the United States, that the rule of that court
recognizing the decisions of the highest courts of the
States made in regard to State statutes, as containing
an authoritative exposition of their true meaning, does
not relate to private- statutes, relating to particular
persons, or to statutes giving special jurisdiction to a
State court for the alienation of private estates, "for
the reason that whatever a State court may do in such
a case, its decision is no part of the local law."§ But
I may be permitted to doubt whether the same reasons
of comity, policy, and practical expediency which
recommend the rule as to public statutes, should not
make it operate with equal effect on private statutes ;
evejcy statute affecting the tenure of real property in a
State, whether public or private, is certainly in some
sense a part of the local law.

* Wood arguendo, in Martin vs. Waddell, 16 Peters, 367, 390 ; Elmen-
dorf M. Taylor, 10 Wheaton, 152 ; Bell vs. Morrison, 1 Peters, 3'59 ; Green
vs. Neal, 6 Peters, 801.

t Woolsey vs. Dodge, 6 M'Lean, 142. *

\ Martin vs. Waddell, 16 Peters, 367, 418.

§ Williamson et al. vs. Berry, 8 How. 495, 548.

28 -

434 STATE STATUTES, HOW CONSTRUED IN U. S. COURTS.

So, too, vhere the Supreme Court of tlie United
States have first decided upon State laws, the Federal
tribunal does not feel bound to surrender their con-
victions on account of a contrary decision of a State
court.* So, again, when the decisions of a State court
are conflicting, the Supreme Court of the United
States does not consider itself bound to follow the last
case contrary to their own convictions, and especially,
they have said, where after a long course of decisions
some new light springs up, or an excited public
opinion has brought out new doctrines subversive of
former safe precedent. In Michigan, the original
manuscript of the statute of limitations left out the
saving clause " beyond seas ;" but the published law
contained the exception, and had been so received and
construed by the people and the courts for a long
series of years, and a subsequent legislature sanctioned
the law as published ; nevertheless, the Supreme Court
of Michigan decided that the printed statutes did not
form a part of the laws of that State, but that the
original roll must be received as the exact record of
the legislative will. But the Supreme Court of the
United States disregarded the decision of the Michigan
tribunal, and decided that the printed statute might
control the case.f

In a case before the Supreme Court of the United
States, it was contended that the decisions of the local
tribunals on questions of general commercial law were
to be treated as having the binding force of statutory
enactments. But the court rejected the proposition. J

* Rowan vs. Runnells, 5 Howard, 139.
t Pease vs. Peck, 18 Howard, 695.

I Swift vs. Tyson, 16 Peters, pp. 1 and 18. As to harmony between the
decisions of tribunals of co-ordinate jurisdiction in regard to the con-

CONSTRUCTION OF PARTICULAR WORDS. 435

Having, in the previous pages, endeavored to give
a general outline of tlie system of our law in regard
to the interpretation and application of statutes, I
close this branch of my subject by some instances of
the power of interpretation "and construction as ^-
plied tp particular words. It is not designed to ■So
more than to give an idea of the mode in which the
judicial authority in this respect is exercised.

Banking PrmGijples.—K statutory authority to a
corporation to loan and negotiate their moneys and
effects upon banking principles, has been said, "if the
phrase has any peculiar meaning, to be an authority to
deduct the interest at the commencement of loans, or
to make loans upon discounts, instead of the ordinary
forms of security for an accruing interest.^'*

Billiards. — A license by the legislature of billiard
tables, cannot be understood to authorize any other
species of gaming.f

Burgla/ry at common law means the crime of break-
ing into a house in the night time, with the intent to
steal or commit a felony ; and it has been held in
Alaba,ma, that this term, when used in their Code,
must receive the same construction.^

Oattle. — Various cases have been decided as to

struction of statutes, I may notice that in Merville vi. Townsend, 5 Paige,
80, Mr. Chancellor Walworth said " that where the Supreme Court had
given a judicial construction to a provision of a recent statute, that decision,
if not clearly wrong, should be followed by the Court of Chancery, so that
different rules of construction might not prevail in the courts of law and
equity in relation to the same statutory provisions."

* Maine Bank vs. Butts; 9 Mass. 49.

t Barker vs. The State, 12 Texas, 273.

X Ex parte Vincent, 26 Ala. 145, the court say, "When words are

used by the legislature in relation to a matter or subject, which, when used

^ in reference to the same subject at the common law, have obtained a fixed

and definite meaning, the inference, we think, is irresistible, that they were

intended to be used in the common-law sense.''

436 CONSTRUCTION OF PARTICULAR WORDS.

what are considered cattle in England ; and the con-
struction varies with' the statutes in which they are
used*

Corporate Name. — "Where an act required certain
suits to be brought in the corporate name of cities or
villages, it was held that the phrase meant th$^ name
by which the city or village was designated in its
charter, and a suit brought in the name of the
" President and trustees " of the village, &c. was held
imprbperly commenced.f

Ckt/rtilage. — This term, which . is peculiar to En-
gland, and not very applicable to this country, has
been held in Michigan to embrace a barn standing
eighty feet from a dwelling house, in a yard or lane
with which there was a communication from the house
by a pair of bars. J

Deny. — Where, in case of an alleged encroachment
on the highway, the occupant must, within a limited
time after notice, deny the encroachment, his denial
must be in writing.§

Descent. — "Descent from the mother" can not be
held to mean descent from the maternal grandfather.!

From. — The word " descent from a parent," cannot
be construed to mean " descent through a parent."^

* 3 _Bing. 581. 2 W. Black. 723. Ex pa/rte HiU, 3 0. & P. 225..
Dwarris, p. 750.

t The President & Trustees of the village of Romeo vs. ChapmaD^
2 Mich. 179. '

X The People vs. Taylor, 2 Michigan, 260.

§ Lane «s. Gary, 19 Barb. 637. See. to same effect, Gilbert «s. OoL
Turnpike Co. 3 John. Cas. 107 ; and Matter of Cooper, 15 John. 638. In
M'Ewen m. Montgomery Insurance Co., 5 Hill, 101, it was held that a
verbal notice is good, unless the notice be a legal proceeding, and then it
must be in writing.

\ Case «s. Wilbridge, 4 Indiana, 51.

T Gardner m. Collins, 2 Peters, 58.

CONSTRUCTION OF PARTICULAR WORBS. 437

High Seas. — This word, as used in the Crimes Act
of the United States (1825, ch. 2T6, § 22), is used in
contradistinction to arms of the sea, and bays, creeks,
&,c. within the niVrow headlands of the coast ; and
comprehends only the open ocean which washes the
seacoast, or is not included within the body of any
oounty in any particular State.* It has been held
that by the same phrase, under the act of 30th April,
1790, is meant any waters on the seacoast which are
without the boundaries of low-water mark.f

Improvidence. — As to what improvidence is, for
which a person will be held incompetent to be an
administrator, see Coope vs. Lowerre, 1 Barb. Ch. K.
45.

Justifiable cause. — Where an act declares it to be a
<5rime for, a master to force a seaman on shore in a
foreign port without justifiable cause, these words do
not mean such a cause as in the mere maritime law
might authorize a discharge, but such a cause as the
known policy of the American laws on the subject
contemplates as a case of moral necessity for the
safety of the ship and crew, and the dug performance
of the voyage.^

Maliciously. — ^When an act declares it to be a
■crime to force a seaman on shore '■'• maUciousVy and
without justifiable cause,"- the word maliciously is not
limited to acts done from hatred, revenge, or passion,
but it includes all acts wantonly done, or willfully
done, that are against what any man of reasonable
knowledge and ability must know to Jbe his duty.§"

* U.^S. «j. Grush, 5 Mason, 290.* U. S. xis. Robinson, 4 Mason, 307.
t U.*S. m. Ross, 1 GaU. 624.
% Per Story, J., U. S. m. Coffin, 1 Sumner, 394.
§ Per Story, J., IT. S. w. Coffin, 1 Sumner, 394. U. S. «!. Ruggles,
5 Mason, 192. Phillips' Case, 1 Moody's Crown Cases, 264, 2V3.

438 CONSTEUCTION OF PARTICULAR WORDS.

May and shall. Shall and may. Shall or may. —
These words have been a fertile source of difficulty.
In an early case on the construction of an English
statute, empowering churchwardens and overseers to
make a rate to reimburse constables, it was insisted
that the statute only put the act in their power by
the word "wjoy/' and did not require the doing it as a
duty. " Sed non allocatur • for where a statute directs
the doing of a thing for the sake of justice, or the
public good, the word may is the same as the word
shall: thus, the 23 Hen. VI. says the sheriff may take
bail ; this is construed shall, for he is compellable
to do so."* So, under the acts giving the chancellor
power and authority to grant a commission of bank-
ruptcy, it was held not to be discretionary but dejure.f

This subject has been recently much considered in
England on the true construction of the act called^he
County Courts Extension Act, which declares that in
certain cases " a judge at chambers may, by rule or
order, direct that the plaintiff shall recover his costs."
The word m^y was here held not to be discretionary,
but to mean ^hall / and the court said that " when a
statute confers an authority to do a judicial act in a
certain case, it is imperative on those so authorized to
exercise the authority when the case arises, and its
exercise is duly applied for by a party interested and
having the right to make the application; that the
word may is not used to give a discretion, but to
confer a power upon the court and judges, — and the
exercise of such power depends not upon the dis-

* Rex et Regina vs. Barlow, 2 Salk. 609.

t Alderman Backwell's Case, 1 Vern. 152; 1 Cas. in Eq. Abr., 52 j
2 Ch. Oases, 143-190. Stamper vs. Miller, 8 Atk. 211.

CONSTRUCTION OF PARTICULAR WO»DS. 4:39

cretion of the court or the judge, but upork the
proof of the particular case out of which such power
arises."*

The Supreme Court of the State of New York, has .
said that where a statute declares that a public officer
or public body " may " have power to do an act which
concerns the public interests or the rights of third
persons, may means shall^ and the execution of the
power may be insisted on as duty ; and so it was
decided in regard to a power conferred on the
corporation of the city of New York, to repair
sewers, &c.f

Thus the rule that " may " is to be interpreted as
'■'■ shall" or '■'•must'''' is not by any means uniform; its
application depends on what appears to be the true
intent of the statute. So, in a case upon a bank charter,
where it was said " that the capital stock of said corpor
ration moAj consist of 500,000 dollars ," the Supreme
Court of the United States said, " Without question
such a construction (viz. shall for way), is proper in
all cases where the legislature mean to impose a
positive and absolute duty, and not merely to give a
discretionary power." But no general rule can be laid
down upon this subject, further than, that exposition
ought to be adopted, in this as in other cases, which .
carries into effect the true intent and object of the
legislature in the enactment. The ordinary meaning

* MacDougall m. Paterson, 11 C. B. 755. This decision of the pommon
Pleas is at variance with the rulings i of the Court of Exchequer on the
same act in ^ones «s. Harrison, 6 Exch. 328, 2 L. M. & P. 257, and Latham
«s. Spedding, 20 Law Journal, N. S., Q. B. 802, where the court held the
grammatical rule to govern, and that the use of the word moAi left the
whole matter discretionary with the judges. See also on this subject
The King m. The Mayor of Hastings, 1 Dowl. k Eyl. 68.

t The Mayor, &c., of N. York m. Furze, 3 Hill, 612.

440 CONSTRUCTION OF PARTICULAR WORDS.

of ihe language must be presumed to be intended,
unless it would manifestly defeat the object of th^
provisions. Now, we cannot say that there is any
. leading object in this charter .which will be defeated
by construing the word " may" in its common
sense."*

Where the words of a statute were " It shall and
may be lawful for the president, &c., to remove a toll-
gate," the words were held not to be imperative, but
that the renfoval was left to the discretion of the com-
pany, on the ground 4h at may in statutes means sTudl
only in cases only where the public interest and rights
are concerned, and where the public or third persons
have a claim de jure that the power be exercised.f

So too, where a statute was in these words, "If any
person die, &c., his heirs 'shall or ma/y'' recover in one
action," — ^it was held that they were not bound to
unite in one proceeding, but that they might bring
several suits.J

Navigate. — The words " navigating a river," should
be construed in reference to the understanding of per-
sons engaged in the business of navigation.§

Notice. — ^Where a statute requires service of a no-
tice on an individual, it means personal service, unless
some other mode of service is specified. |

* Minor m. Meeh's. Bk. of Alex'a, 1 Peters, 46, 64.

In thfe King vs. the Bailiff's, &o., of Eyre, the words " shall and may ' '
were held to be permissive and not mandatory. Smith on Statutes, p. 726 ;
2 D. & R.; 172.

t The Newburgh Turnpike Co. w. Miller, 5 John. Ch. R. 112.

J Malcolm vs. Rogers, 6 Cow. 188. See Attorney General m. Lock, S
Atk. 164, where the words "shall and may,^' were held to be obligatory.

§ The People vs. Hulse, 8 Hill, 309.

II Ruthbun vs. Acker, 18 Barb. 893.

JUDICIAL LIABILITY. ' 441

Sted. — The. word steal, in a statute implies a simple
larceny*

I may here notice a few miscellaneous cases of gen-
eral interest. In Alabama it has been said that where
a statute affects a community, and requires as a con-
dition to its validity that something should be donie
before it goes into operation, in such a case the act
has no force or effect until the thlhg required to be
done is performed. But where the statute affects one
or more designated persons, it matters not whether
they are natural or artificial, those interested in the
object of the act, may always dispense with a prelim-
inary step, and may claim the benefit of its provisions
without requiring the performance of a condition
which can affect themselves alonfe.f

We have already had occasion to notice the ancient
rule of the English system, which holds a judge ex-
empt from all responsibility, civil or criminal, for any
act done or omitted to be done by him in his judicial
capacity. This rule, however, has been infringed upon
in some of the States by statute. So in Alabama,
the county court judges are required to give official
bonds, on which actions at law will lie " for any in-
jury, waste, or damage sustained in any estate in con-
sequence of any neglect or omission of taking good
and sufficient security from guardians, executors, or
administrators ;" but under this statute no suit can be
maintained on the bond for the faUure of the judge to
require a guardian to renew his bond, or to give fur-

* Alexander ««. The State, 12 Texas, 540.

See Dwarris 670, 693, for the construction of many particular words in
(the English statutes.

t Savage et al. va. Walshe et al. 26 Ala. 619.

442 BANKING SYSTEM OF NEW YORK.

■felier security on account of the insolvency or removal
of the original sureties.*

The Supreme Court of Massachusetts have said,
" That the language of a statute is not to be enlarged
or limited by construction, unless its object and plain
meaning require it." And a statute declaring that in
case a collector of customs should die or resign^ the
collector so resigning, or the representative of the col-
lector so dead, should divide the fees with the suc-
cessor in office, was held not to apply to a collector
removed from office.f

Where a party was sentenced on the 6th of Octo-
ber, 1825, to solitary confinement for ten days,, and
hard labor for two years, and committed on the same
day, it was held that the commitment was to be reck-
oned as part of the term ; for, as the liberty of the sub-
ject is concerned, the statute ought to receive a con-
struction favorable to the prisoner, J

* Hamilton w. Williams, 26 Ala., 527.
t Doane m. Phillips, Currier ®s. Phillips, 12 Pick. 223.
X CommoBwealth m. Keniston, 6 Pick. 420.

See the People us. Hennessey, 15 Wend., 147, for a case upon a statute
against embezzlement by servants.

The BanMng System of New Yorlc.—l have thought it desirable to
compress into this note the principal decisions interpreting and applying
the statutes of the State of New York, on this important subject. Prior
to the year 1838, an act commonly called the Restraining Act, 1 R. S.,
589, part 1st, ch. xx., tit. 20, prohibited in New Yoi;k under heavy pen-
alties almost every branch of banking, such as receiving deposits, mak-
ing discounts, issuing notes for circulation, &c., to all persons, associations,
institutions, or companies, not specially authorized by law. In consequence,
it became the practice to grant special charters conferring the privilege of
banking. And to regulate this corporate banking so carried on under'

BANKING SYSTEM OF NEW YOEK. 44:3

special charters, a system of elaborate checks, restraints, and penaltie^
was imposed; see R. S., 589, part i. oh. viii. tit. 2, " Of Monied Corpor-
ations. Art. 1 being entitled. Regulations to prevent the insolvency of
monied corporations, and to secure the rights of their stockholders and
creditors ; and Art. 2, Regulations concerning the election of directors of
monied corporations. •

The granting of these charters in time became tainted with favoritism
and abuse; and the State Convention of 1821 inserted in the Constitution
then framed a provision requiring the assent of two thirds of the members
elected to each branch of the legislature, to every bill creating, altering,
&c., any body politic or corporate. Cons, of 1821, Art. 7, Sec. IX.

This, however, was not found sufficient to reach the root of the eviL
In February, 1837, the Restraining Act was in part repealed ; and on the
18th of April, 1838, the whole system was remodeled, and the business-
thrown open to general competition, by the passage of an act entitled " An
Act to authorize the business of banking," permitting all persons on certain
conditions to form associations for the purpose of carrying on the busi-
ness. It has been a subject of great interest to know how far the provi-
sions of the old system attach to the new ; see Tracy vs. Talmadge, 18 Barb.,
456, where a history of the changes are given, per Roosevelt, J. The first
question that arose was, whether the associations formed under the act
were corporations. In Thomas vs. Dakin, 22 Wend., 9, the Supreme
Court held, that they possessed all the essential features of corporations,
and that they were corporations; that it was competent, however, for the
legislature to create corporations or authorize their creation by a general
law; that the act of the 18th of April, 1838, was valid and constitu-
tional, on the assumption that it received the assent of two thirds of the
members elected to each branch of the legislature, that being the majority
requisite to the valid creation of a corporation ; and they also held that it
would be presumed to be thus passed, unless the fact was denied by plea j
and they refused to pass on the question upon demurrer. Nelson, C. J.,
dissented, on the ground that the legislature could not pass a bill of this
kind as a majority bill. In Warner vs. Beers, 23 Wend., 103 (April, 1840),
the Court of Errors held that the associations organized under the general
b'anking law, and in conformity with its provisions, were not bodies politic
and corporate within the spirit and meaning of the consUUiPion, and that
the act of the 18th of April, 1838, to authorize the business of banking, was
constitutionally passed, although it might not have received the assent of two
thirds of the members elected to each branch of the legislature. It was
admitted that the associations formed under the free banking law had cor-
porate powers ; and whether they were corporations, mere partnerships, or
joint-stock companies, and whether, if corporations, a law permitting cor-
porations to be formed ad Ubituni came within the spirit of a constitutional
restriction on corporations with grants of exclusive privileges, were the chief
points discussed in the Court of Errors. From the nature of that tribu-

M4 BAI^TKING SYSTEM OF NEW YORK.

nal, however, it is impossible to leam the precise views of the majority of
the court on the subject. The strongest argument was probably the iwgiir
mentum ad inconvenienti growing out of the capital already invested in the
free banks. See the result of the decision stated in GiUet vs. Moody, S
Comsi, 485.

• In Purdy vs. The People, 4 Hill, 384, the case was whether a law alter-
ing the charter of the city of New York was constitutionally passed, it not
having received a vote of two thirds of the members of both houses. The
court decided that the law was void ; and language was used which has
been often relied on as going to show that all corporations being within the
constitutional prohibition, it necessarily followed that the banking associa-
tions were not corporations ; but the only point really decided was, that
municipal corporations came within the constitutional restrictions upon the
creation of corporations. See The People vs. Purdy commented on in The
Supervisors of Niagara vs. The People, 7 Hill, 510.

In The Supervisors of Niagara w. The People, 7 Hill, 504, it was, however,
finally decided that the associations under the act of 1838 were " monied or
stock corporations" within the meaning of statutes passed long anterior to
the act of 1888, subjecting such corporations to taxation on their capital.
Senator Porter, in delivering the prevailing opinion of the court, said it was
obvious that Warner vs. Beers, and Purdy vs. The People, decided only that
the banking associations were not corporations toithin the spirit and, mean-
ing of the State constitution, and that municipal corporations were embraced
in the State constitution ; for the purposes of the principal case, he was of
opinion that the banking associations were corporations within the tax laws.
For that purpose, however, he went into an elaborate investigation of the
principal points of difference between corporations and partnerships, and in-
sisted that the free banks were evidently endowed with a corporate^haracter.

The decision of this involved question may be stated to be, that the
free banking associations are corporations to all intents and purposes; but
that the intent of the State Constitution being to impose restraints on special
grants of privilege, and these associations being, on the contrary, a modified
form of free banking, they did not come within the spirit of the constitution
as if the constitutional clause had stood, " Corporations shall not be created
unless, &c., provided the charters contain any exclusive grants of privilege."
See Gillet vs. Moody, 3 Com., 485, for C. J. Bronson's statement of the
result of the controversy.

The question, however, still remains, assuming these institutions to be
corporations, how far they are subject to the detajls of the old system
devised to regulate chartered banks. In The matter of the Bank of Dansville
6 Hill, 370, it was endeavored to apply to the free banks the provisions of
the Revised Statutes (I. 598) which gave the Supreme Court power, by sum-
mary proceeding, to review the elections of the specially-chartered insti-
tutions. It was insisted that the free bank in question was a corporation ;
but the summary jurisdiction was denied on the ground, among others,
that " the only monied corporations in existence at the time those powers

BANKING SYSTEM OF NEW YORK. 445

were conferred, were such as had an organization prescribed by law." A
board of directors or trustees was provided by the old charters, elected at
stated periods, and for a stated time, and in a specified manner ; whereas
the general banking law provided in terms for no other ofBcers than a
' treasurer and cashier ; and it was said that it could not be supposed that
the legislature intended the court should have a summary jurisdiction over
the contracts upon which the banking associations were organized under the
free banking law.

In Gillet vs. Campbell, 1 Den., 320, it was held that an assignment by
the president and cashier of part of the effects of a free bank exceeding
$1,000 in value, did not come within the 8th section of the statute to pre-
vent the insolvency of moneyed corporations, and that the assignment was
valid although not authorized by a previous resolution of the board of direct-
ors. But the decision has been questioned by the same learned judge who
delivered it. See Gillet vs. Moody, 3 Coms., 486.

Gillet vs. Moody, 3 Opmst., 479, was a bill filed by a receiver of a bank-
ing association against a stockholder and director to set aside a transfer of
certain state bonds made in exchange of his stock, and which came within
tit. ii. art. 1, § 1) declaring it unlawful for the directors of any monied
tjie terms of the provisions- of the Revised Statutes (part i. ch. xviii.
corporation to divide, withdraw, or in any manner pay to the stockholders
or any of them any part of the capital stock, &c., or to reduce the capital
stock, withoi/t the consent of the legislature, and ; it.was held by the Court of
Appeals that the bainking associations were not corporations in any qualified
sense, as within the intent and meaning of some particular statute, buit cor-
porations to all intents and purposes ; and that the transaction was illegal and
void, although a doubt was intimated whether the provisions of the 10th
section applied to the directors personally. It may be noticed that in this
case it was also held that stopping payment by a bank is prima /ode evi-
dence of insolvency; and also that the title of the Revised Statutes in
regard to moneyed corporations was a beneficial statute, not to be defeated
by a narrow construction.

Talmadge vs. Pell, 3 Seld., 328, was a bill filed to set aside an operation
in stock, on the ground that traffic in stock did not come within banking
power. The transaction was held illegal on that ground, and it was further
held that the tree banking associations were moneyed corporations, and as
such liable to all general laws relating to that class of corporations, except in
so far as those laws or some of their particular provisions have been modi-
fled or superseded by, or are inconsistent with, the free banking act of 1838.

In Tracy vs. Talmadge, 18 Barbour, 456, Mr. Justice Roosevelt, who
was in the legislature in 1838, and who is very familiar with the whole -
matter, said, speaking of this subject, "The only question is. Did the
legislature in forming these associations, or rather in authorizing their
self-formation, intend that certain penal provisions of law previously
enacted to govern the action of chartered banks, undisputed corporations,

446 BANKING SYSTEM OF NEW YORK.

should apply to these new forms of limited partnership ; and is that inten-
tion, if entertained by the law-making power, expressed in a manner so
clear as to require no implication or interpretation to discover it? — the rule
being inflexible, and as just as it is inflexible, that penal enactments when
not perfectly clear admit of no extension by judicial interference."

I haye no room for a discussion of the question ; but considering the
differences between the organization of the old safety-fund banks, as they
were called, and the free banks, it must be admitted that the precise extent
to which the provisions of the revised statutes are to be applied to the new
institutions, and especially to their officers, is still unsettled.

Since writing the above note, and while this sheet is passing through
the press, I have received a work specially devoted to " The Banking System
of New York," for which I am indebted. to the kindness of the learned
author, John Oleaveland, Esq. The volume contains a vast quantity of in-
formation, both of a legal and historical character, which is nowhere else to
be found collected, and must undoubtedly prove of great value to all per-
sons, whether in or out of this State, who occupy themselves in any way
with matters relating to this most important branch of finance. Mr. Cleave-
land's long familiarity with this particular subject, his devotion to his pro-
fession, and his reputation as an accurate jurist, are sufficient guarantees
in regard to the execution of the work.

CHAPTER IX.

OP THE INTERPRETATION AND APPLICATION OP TREATIES,
OP PATENTS OR GRANTS OP LAND, AND OP MUNICIPAL
ORDINANCES.

Treaties — Part of the Supreme Law of the Union — How far they affect State
Legislation — How far they may have a retrospective effect — Patents or
Grants of Land — Resumptions of, in early times — Rules of construction
applicable to Municipal Ordinances — Centralization and Local Sovereignty
— Instance of the former in Rome and France. Development and appli-
cation of the latter in America. Towns and Cities. Delegation of Legis-
lative Sovereignty. Mode of the exercise of the delegated authority.
Cases — General authority of the Courts — Contracts in violation of Ordin-
ances void — Passage of Ordinances.

In treating of the interpretation and application of
written law, we have thus far considered the exercise
of legislative power in regard to the enactment
of statutes, in cases in which that power is unre-
strained by any paramount or fundamental law.
Before passing to the subject of constitutional limita-
tions upon legislative action, we have to examine some
topics which are so intimately connected with our
general subject, that they cannot with propriety be
omitted. Treaties, Patents or Grants of Land, and
Municipal Ordinances, form a part of our written law,
and are all in some respects^overned by considera-
tions and rules of the same kind as those wfiich apply
to statutes'.

448 TREATIES.

Treaties. — The Constitution of the United States*
declares that all treaties made or to be made
under the authoritj of the United States, shall 'form
a part of " the supreme law of the land ;" and the con-
struction o^ these instruments thus necessarily enters
into the scope of this work. The subject has been
so fully discussed by writers on international law,^ that
any elaborate examination of it here would be out of
place. Some brief observations must, howe'rer, be made.

The effect produced by the grant of the treaty-
making power to the Federal Government and by the
recognition of treaties as a part of the supreme law, is
very important in regard to questions affecting State
sovereignty, and vested rights of property. Thus, it
has even been intimated that the stipulations in the
treaty of Peace between the United States and En-
gland, of 1^83, were, in regard to the confiscation laws,
paramount to the constitution of Pennsylvania.f

It has been insisted that the Federal Government
had no power to make a treaty that could operate to
annul a legislative ^ct of any of the States, or to destroy
vested rights ; but the contrary has been expressly
decided. So, it has been held that the treaty of peace
of 1783 with England repealed an act of the legisla-
ture of Virginia, of ITTT, concernifig sequestrations and
forfeitures, and that a suit might be brought for the
recovery of a debt, though it was barred by the State
law. J So. again in New York, a State statute incon-
sistent with a treaty has been held to be repealed
by it.§

* Art, 6, I 2. *"

t Mssee of Henry Gordon vs. Kerr, 1 Wash. C. 0. R. 823.

X Ware w. Hylton, 8 Ball. 286.

§ Denn ex dem. Fisher ds. Harnden, 1 Paine C. C. R!, 54.

TREATIES.

449

It Has even been decided tliat a treaty may operate
retrospectively, so as to destroy rights not only vested,
but fixed by judicial action. In 1800, an American ship
captured a Frencli schooner, and a decree of condem-
nation was pronounced by the Circuit Court on the
23d of September, 1800. Pending a writ of error, on
the 21st of December 1801, a convention was ratified
with France, by which it was agreed that all property
captured should be mutually restored. The Supreme
Court held that they were as much bound by a treaty
as by an act of Congress, and reversed the judgment
on this ground alone ; and Marshall, 0. J. said.

The Constitution of the United States declares a treaty to be the
supreme law of the land. Of consequence, its obligation on the courts of
the United States must be admitted. * * It is in the general true that
the province of an appellate court is only to inquire whether a judg-
ment when rendered was erroneous or not. But if subsequent to the
judgment, and before the decision of the appellate court, a law inter-
venes and positively changes the rule which governs, the law musit be
■obeyed or its obligation denied. It is true that in mere private cases
between individuals, a court will and ought to struggle hard against
a construction, which will, by a retrospective operation, affect the rights
of parties ; but in great national concerns where individual rights
acquired by war are sacrificed for national purposes, the contract
making the sacrifice ought always to receive a construction conforming
to its manifest import ; and^'if the nation has given up the vested rights
of its citizens, it is not for the court but for the government to consider
whether it be a case proper for compensation. In such a case the
court must decide according to existing laws, and if it be necessary to
set aside a judgment, rightful when rendered, but which cannot be
afBrmed but in violation of law, the judgment must be set aside.*

On the other hand, in regard to the effect of the
war of 1812, with England, on the treaty of 1*794,
with that country, it has been determined by the

* U. S. vs. Schooner Peggy, 1 Cranch, 109.
29

4^50 TREATIES.

Supreme Court of the United States, without deciding
the general point whether treaties in all cases become
extinguished ipso facto by war, that the termination
of a treaty even if effected by war," cannot divest
rights of property already vested under it. " If real
estate," said the Court, " be purchased or secured un-
der a treaty, it would be most mischievous to admit
that *he extinguishment of the treaty extinguished
the right to such estate. In truth, it no more affects
such rights, than the repeal of a municipal law affects
rights acquired under it. If, for example, a statute of
descents be repealed, it has never been supposed that
rights of property already vested during its existence
were gone by such repeal. Such a construction would
overturn the best-established doctrines of law, and sap
the very foundation on which property rests."*

A treaty is in many cases merely a contract, and not
a legislative act ; in cases of this kind it addresses
itself to the political, not to the, judicial department ;.
and the legislature must execute the contract before it
can become a rule for the court.f But there are
many other cases where the treaty is to be regarded
not as a contract but as a rule ; and in these cases it
has the effect of an act of the legislature. J v

It is important to notice the rule that in the
construction of this class of documents the judiciary,
in one respect, do not occupy the same position nor
hold the same language that they do in regard to other
matters of written law. "Whenever the nation, by

* Society, &o. w. New Haven, 8 Wheat., 494.

t Poster & Elam m. Neilson, 2 Peters, 314 ; See United States e«.
Peroheman, 7 Peters, 61.

I United States «s. Arredondo, 6 Peters, TvSS.

PATENTS OF LAND.

451

its properly constituted agents has declared its inter-
pretation of a treaty, that interpretation becomes
binding on the courts. The Supreme Court of the
United States has said, " However individual judges
might construe a treaty, it is the duty of the court to
conform itself to the will of the legislature, if that will
has been clearly expressed ; the courts cannot pro-
nounce the course of their own nation erroneous."*

Grants or Patents of Lam,d. — The doctrine of the
English law is, that the king was the original owner
of all the land in the kingdom, and that the crown is
the only source of title. ' We declare and apply the
same principle 'in regard to our republican govern-
ment ; and it is our fundamental rule that all individ-
ual title to land within the United States must derive
either from the grants of our own local state or territo-
rial governments, or from that of the United States,
or from royal governments established here prior to the
Revolution, or from the English Crown.f Grants or
'patents of land, therefore, emanating as they do directly
from the sovereign power, though, like charters of
incorporation, they are in some respects mere priva,te
instruments, — in other respects they so largely affect
public interests as to "approach the dignity of statutes,
and cannot with propriety be altogether omitted in a
work like the.present.

* Foster et al vs. Neilson, 2 Peters, 253, 307, a case upon the construc-
tion of the treaty of San Ildefonso of 1st Oct., 1800:

Many cases have been decided, both in the Supreme Court of the Uni-
ted States and in the courts of the several States, upon the construction of
particular treaty stipulations ; but they do not fall strictly, within the prov-
ince of this work, and a notice of them would swell this volume far beyond
its intended limits.

, t See 2 Black Com., 51-59, 86, and 105 ; -See also Kent Com., part
vi., ch. li., vol. iii., p. 878, >

452 PATENTS OF LAND.

The tenure by grant or patent from the crown in
early times, partook of the precarious character which
then attached to all political power. A pretext or a
reason being found in the allegation that the liberality
of the government was abused or misapplied, these
grants were- frequently resumed, sometimes by the
executive, sometimes by the legislative branch. There
are cases of the same kind in the colonial periods
of this country ; and their history in both instances bears
strong traces of that want of a proper understanding
of the true limits of the lawmaking power, and of those
loose notions of the sacredness of vested rights, from
the influence of which we are not yet altogether
emancipated.*

* See A Biseowrse upon Ch'cmts and Eeswmptions; showing how our
ancestors home proceeded with such ministers as have procured to themselves
grants of the crown revenue; and that the forfeited estates ought to he applied
towards the payment of the -public debts. By the author of the Essay on
Ways and Means: London, 1700. It is a ^151017 of various resumptions
of crown grants, cited as authorities for the resumption, then proposed, of the
Irish grants. This, which is one of the most recent instances of the vicious
exercise of legislative power in England in^ disregard of private right on a
large scale, deserves more particular notice.

The estates of the adherents of James '11., in Ireland, were, upon the
triumph of William III., forfeited to the crown, and distributed by him
among his favorites, male and female, in the shape of grants. A strong
opposition to the government existed in Parliament ; they laid hold on this
abuse, as they considered it, of the royal power ; a bill was introduced into
the Commons to resume the grants, tacked to a bill of supply, in that way
forced through the Lords, and, notwithstanding the great reluctance and
indignation of the king, became a law. Smollett's Hume, ch, vi., § 25, 26 ;
Lord Campbell's Chan., vol. iv., pp. 146, '7. In order to do justice to pur-
chasers and creditors, or rather to mitigate the injustice of the act, trustees
were appointed to hear and determine all claims; and they were also
empowered to sell the lands to the best purchaser, and the proceeds were
appropriated to the army arrears. The act is the 11 and 12 William III.,
c. 2, and is entitled, an Act for granting an aid to his majesty by sale of the
forfeited and other estates and interests in Ireland, and by a land tax in

PATENTS OF LAND. 453

I have said that the governments of the Union and
of the States have succeeded to the right of the British
sovereign in the public lands. That right was fre-
quently exercised during the colonial power, and

England for the several purposes therein mentioned of two shillings in the
pound.

Speaking of this transaction, Mr. Hallam says " that as thfe grants had
been made in the- exercise of a lawful prerogative, it is not easy to justify
the act of resumption passed in 1699. The precedents for resumption of
grants were obsolete and from bad times. * * Acts of this kind shake
the general stability of possession, and destroy that confidence in which
the practical success of freedom consists, that the absolute power of the
legislature, which in strictness is as arbitrary in England as in Persia, will
be exej'cised in conformity with justice and lenity. * * There can be no
doubt that the mode adopted by the Commons of tacking, as it was called,
the provisions for the purpose to a money-bill, so as to render it impossible
for the Lords even to modify them without depriving the king of his
supply, tended to subvert the constitution and annihilate the rights of a
co-equal House of Parliament. * * If the Commons have desisted from
encroachments of this kind, it must be attributed to that which has been
the great preservative of the equilibrium in our government, the public
voice of a reflecting people averse to manifest innovation, and soon offended
by the intemperance of factions." — Comt. Hist. vol. iii., ch. 15, § 192, '3.

A striking case of the same disregard of private rights occurs about
the same time in the history of the colony of New York.

An act of the Colonial Assembly of New York, entitled an act " for the
vacating, breaking, and anmJling several grants of land made by Colonel
Fletcher, "the late governor of this province under his majesty," passed the
12th of May, 1699, recites in the preamble that, " their excellencies, the
lords justices of England have, by their instructions unto his excellency the
governor, bearing date the 10th day of November, 1698, directed his said ,
excellency to use all legal, measures for the breaking of extravagant grants
of lands in this province." It then goes on to recite eight grants to God-
frey Dellius, DeUius and others. Nicholas Bayard, John Evans, The Church-
wardens, &c., of Trinity Church, and Caleb Heathcote ; declares them all
extravagant within the meaning of the lord justices' instructions ; breaks,
vacates, and annuls them, and directs the records to be obliterated, and
declares the crown to be re-seized and possessed of the premises. What-
ever may be thought of the right t^o .annul these grants ; as to their extrava-
gance a notion may be formed from the first to Godfrey Dellius, which
contained about seventy miles on the Hudson river, by twelve broad, at
the reserved rent of one racoon-skin per annum ! Van Schaick's Laws, vol.

454 PATENTS OF LAND.

many titles grow out of royal grants or patents. In
regard to these, it has been said that in England
nothing passes as against the' crown by implication,
and that royal grants are always to be strictly con-
strued.* But we have already had occasion to notice
that on this subject the cases are somewhat conflicting.
In regard to this rule of strict construction, so far as it
exists, the Supreme Court of the United States has said
that the decisions and authorities on this point apply
properly to a grant of some prerogative right to an
individual to be held by him as a purchase, and which
is intended to become private property in his hand.

i., pp. 31 and 61. This act was repealed on the 27th of November, 1702,
andihe repealing act was itself repealed, or rather disapt)roved by the queen
on the 26th of June, 1708. The act of 1699 also contained a clause
that it should not be in the power of the provincial governors to
grant or demise certain lands for any longer period than for their own
time in the government, and in regard to this, in Bogardus vs. Trinity
Church, 4 Sandf. Oh. E., 737, it was contended that the effect of the
repeal or disapproval of the repealing act was to undo all that had been done
while the repealing law continued in force ; but it was held not to be so.
"Such a rule of construction," said Mr. V. 0. Sandford, "applied to private
rights, would be deemed most tyrannical, arbitrary, and unjust. For
instance, we have an act of Congress requiring a residence of five years to
entitle an aUen to naturaUzation. Suppose that Congress at its late session
had repealed this law, and enabled aliens at once to become citizens, and
an alien now arriving here should take the necessary oaths, become a citi- ■
zen and purchase lands, and at the next session of Congress the act of the
late session should be repealed, — would not the doctrine that thereby
all that was done under the statute while it existed was avoided, be
deemed monstrous and absurd ? The principle is the same in respect of
the repeal act of 1702. Rights acquired under it prior to the Queen's dis-
approval were as valid and effectual as if the act of 1699 had never been
enacted."

I ought not to close this long note, without saying that my attention has
been drawn "to the subject of it by the-kindness of my very learned friend,
M. S. Bidwell, Esq.

* Banne Case, Davies Rep., 157; Jura Coronse, 117; 7 Conn. R. 200.

See also Charles River Bridge vs. Warren Bridge, 11 Peters, 420.

PATENTS OF LAND. 455

For instance, the grant to an individual of an exclu-
sive fishery in any portion of it, is so much taken from
the cofnmon fund intrusted to his care for the common
benefit. In such cases, whatever does not pass by the
grant still remains in the crown for the benefit and
advantage of the whole community. Grants of that
description, are therefore construed strictly."*

There are in the State of New York, many grants
from colonial governors, which have been upheld to
pass the land under water if within the grant, on the
aground that the king of England was originally the
proprietor of the soil under navigable waters, that
his title extended to the province of New York, that
he had power to grant such title to a subject, and that
the power was delegated to the colonial governor, as
the immediate representative of his sovereign.f And
in cases of this kind the conveyance of land by the
sovereign authority invests the grantees with the
reqilisite power to take and hold them.J

The subject of grants or patents of land is still one
of great importance in this country. Vast districts
of land still belong, in this country, in fee simple to
the government of the United States. Other tracts
belong to the separate States. The legislative bodies

* Martin et al. vs. Waddell, 16 Peters, 367, 411.

But with great deference for that high tribunal, it is to be doubted
whether this be the origin of the rule. In the times when it originated,
there was but little regard for the interest of the community, little respect
paid to private rights where they came in conflict with the government, and
the profoundest deference for the royal power and dignity. It is rather in
the old feudal notions of this class that the doctrine will, I think, be found
to have originated.

t Gould M. James, 6 Oowen, 369. Rogers w. Jones, 1 Wend. 237. The
People ■»«. Schermerhom, 19 Barb. 540.'

X Goodel vs. Jackson, 20 J, R. 706. Jackson vs. Lervey, 5 Cowen, 397.
North Hempstead vs. Hempstead, 2 Wend. 109.

466 PATENTS OF LAND.

exercising the power of* these sovereignties, which
have succeeded to the rights of the British Crown,*
have appointed certain public officers to sell and
grant these lands, and have provided many forms and
checks to secure regularity and to protect equally the
public and private rights. , But the general principle
is, that when these proceedings are consummated by
a grant the earlier steps can no longer be inquired
into, and that in the absence of fraud a good title is
acquired. The patent or grant establishes the fact of
every prerequisite having been performed.f

In New York it is now declared (1 K. S. 198, part
i., chap, ix., title 6, art. 1), that the commissioners of
the land office shall have the general care and superin-
tending of all lands belonging to the State, the super-
intendence whereof is not vested in some other office
or board ; and they have also the power to direct the
granting of the unappropriated lands of the State
according to the directions from time to time to be
prescribed by law. This includes the power to grant

* Martin vs. Waddell, 16 Peters, 3B7.

t Polk's Lessee vs. Wendell et al. • 9 Cranch, 87 ; Polk's Lessee vs.
Wendell et ai. 5 Wheat., 293 ; Bouldin i>s. Massie's Heirs, 7 Wheat., 122,
149 ; Stringer et al. vs. Lessee of Young et al. 3 Pet., 320, 340; Patterson
vs. Winn, 11 Wheat., 380 ; Patterson vs. Jenks et aV 2 Pet., 227 ; Sam-
peyreac and Stewart vs. The United States, 7 Peters, 222 ; New Orleans
vs. The United States, 10 Peters, 662 ; Pollard and Pickett vs. Dwight et
al. 4 Cranch, 421 ; Bodley and others vs. Taylor, 5 Cranch, 191 ; Massje
vs. Watts, 6 Cranch, 148 ; Blunt's Lessee «s." Smith and others, 7 Wheat.,
248 ; BOardman and others vs. The Lessees of Reed and Ford et al. &
Peters, 328 ; Bagn^U et al. vs. Broderick, 13 Peters, 436 ; The Philadelphia
and Trenton Railrbad Co. vs. Stimpson, 14 Peters,448; Brush M.Ware
et al. 15 Peters, 93 ; Stoddard et al. vs. Chambers, 2 Howard U. S. R.,
284; The People vS. Mauran, 5 Defiio, 389; Jackson®*. Marsh, 6 Cowen,
281'; See Mr. Blackwell's able work on Tax Titles, p. 99.

PATENTS OP LAND. " 45T

lands under the waters of navigable waters, op lakes.*
Tlie New York statute provides ttat every appli-
cant for a grant of land under water shall, previous to
his application, give notice thereof, by newspaper
advertisement, for six weeks ; and it has been held
that this preliminary notice, directed by the statute,
is absolutely necessary to confer jurisdiction of any
particular case on the commissioners, and that without
it any grant by them is void.f No grant of land under
water can be made to any person other than the
proprietor of the adjacent land, and every such grant
that shall be made to any other person shall be void ;
and it has been decided that ejectment will lie for the
interest conveyed by these State grants of land under
water.J The statute requires that letters patent shall
contain an exception and reservation to the people of the
State of ail gold and silver mines ;§ but the omission
of this reservation does not vitiate the letters patent.

* 1 R. S. 208, part i., chap, ix., title 5, art. 4. ■ Gould vs. James, 6
Oowen, 369. Rogers ««. Jones, 1 Wend. 237. The People ««. Schenner-
hom, 19 Barb. S. C. R. 640.

t -People vs. Schermerhom. 19 Barb. 540. We have already seen that
a somewhat analogous provision in regard to application to the legislature,
Ijas been held to be merely directory. Ante, p. 66. ^ Smith vs. Helmer,
7 Barb. p. 416, and the People vs. Mauran, 5 Denio, 389, decide also, that
the notice iS not essential, on the ground that omnia solemnia, premmuntur
rite acta, and on the general doctrine which makes State grants conclusive
evideiice of the correctness of the previous proceedings. This rule we have
alreaidy had occasion to notice.,

I 1 R. S. lit supra; Champlain and St. Lawrence R. E. vs. Valentine,
19 Barb. 484.

See Furman vs. The City of New York. 5 Sandf. 16, as to graints of land
under water by the corporation of that city. The act authorizing the
corporation to make these grants was based on the petition of the city
government; and the preamble of the act referred to, and in part recited, the
petition. It was held that both the preamble and the petition might be
referred to, to remove ambiguities in the act.

§ 1 R. S. p. 198, § 6, vt supra.

458 ' GRANTS OF LAND.

The authority of the commissioners may be executed
by their issuing letters patent under the seal of the
State ; or the commissioners may grant land under
their own seals*

Where the legislature authorizes owners of lands
on the shore of a river or sea to fill up and dock out
in front of their lands to a designated exterior line,
the shore being irregular and crooked, and the exte-
rior line straight, questions of difficulty have presented
themselves as to the relative share of the proprietors
in the new front ; the Superior Court of New York has
declared that the following rule, previously applied by
the Supreme Court of Massachusetts to the formation
of alluvial deposits on a river, is sound and just :f — (1)
Measure the bank or line of the river opposite to the
newly-formed line, and compute how many rods, yards,
or feet each proprietor owns on the original river line ;
(2) then let the number of feet or rods on the newly-
formed line to which each proprietor is entitled,
bear the same proportion to the number he owns on
the old line, as the whole length of the new line
bears to the whole length of the old. This prin-
ciple, however, could not be applied if the whole
line were not to be adjusted, but only a boun-
dary between two conterminous proprietors. This
latter case has been considered both in Maine and in
New York ; but as the matter is one of detail, I refer
to the cases.;}:.

* The People vs. Mauran, 5 Denio, p. 389.

t Deerfleld vs. Ames, 17 Pick. 45 ; O'Donnell vs. Kelsey, 4 Sandf. 202.

I Emerson vs. Taylor, 9 Greenleaf. 44 ; O'Donnell vs. Kelsey, 4 Sand-
ford, 202.

In Maine, as to the rules for apportioning flats to the owners of up- •
lands, see Treat vs. Chapman, 35 Maine, p. 34, and cases there cited bolh
in that State and Massachusetts.

MUNICIPAL ORDINANCES. 459

Mwaicvpal Ordinances. — The remaining brancli of
this portion of our subject is one of much interest in
many points of view, and especially in this country.
In the application of authority and intelligence to the
administration of public affairs, two great systems
have, from the earliest times, divided the minds of
men, — centralization, and local or distributed power.
With reference to our peculiar system, we sometimes
call the latter local sovereignty. Of the former, or
the concentration of authority in one single, central
head and hand, in th© old world Imperial Rome pre-
sents the greatest exemplar. In the modern world,
France offers the most favorable specimen. This sys-
tem, by whatever name the government be called,
republic, monarchy, or empire, and whether nominally
administered by a consul, a king, or an emperor, is
practically a despotism. Its essential idea is complete
subordination of all interests to the predominance of a
single will. Under some circumstances, under certain
conditions, when by some rare fortune virtuous inten-
tions, moderation, and intelligence inspire and actuate
the master, such a system may result in that tranquil-
lity and prosperity which are the certain evidences of
good g(fvrernment.* Cases of this Mndj however, are
but exceptions to the great rule which teaches that

* " If aman," says Gibbon, " were called upon to fix the period of the world
during which the condition of the human race was most happy and pros-
perous, he would without hesitation name that which elapsed from the
death of Domitian to the accession of Commodus. The vast extent of the
Roman empire was governed by absolute power, under the guidance of
virtue and wisdom. The army was restrained by the firm but gentle hand,
of four successive emperors whose characters and authority commanded
involuntary respect. The forms of the civil administra,tion were carefully
preserved by Nerva, Trajan, Hadrian, and the Antonines, who delighted

460 ' MUNICIPAL ORDINANCES.

permanent prosperity can only flow from equality and
justice. Centralization or despotism corrupts the sov-
ereign, debilitates and demoralizes tlie subject ; and
history aflfords no instance where, within a brief
period, it has not ended in convulsion and disaster.

Of the other scheme, or the distribution of power
among local authorities, England affords the only signal
instance in the Old World. Notwithstanding the theo-
retical despotism of her Parliament, her system practi-
cally secures that division of authority, those checks and
counter-checks, which are only another name for lib-
erty. But to obtain a correct idea of the full extent
and operation of local action and local sovereignty, a
wider range of observp.tion must be taken. Beyond
all doubt, this country affords the strongest and best
instance of its operation. American freedom is based
on the idea of local action, localized power, local sov-
ereignty,' and has received its best developments from
the intelligence and energy of its people, fostered to
the highest degree by a system which seeks, as far as
safely possible, to strip the central authority of influ-
ence, and to distribute its functions among local
agents and bodies.*

The two great national governments, therf, which
have been thus far the most successful in forming a

in the image of liberty, and who were pleased to consider themselves as
the accountable ministers of the laws." — Hkl. ch. iii.

Gibbon surveyed the anpient world with an eye of wonderful scrutiny
and wisdom. His authority is now as absolute as when he wrote. But in
regard to the affairs of his^ own time, he appears to have had little more
philosophy or independence than any other placeman.

* Of this system, perhaps the convention of the State of New York of 1846
presents the strongest illustration of what is commonly called decentraliza-
tion. By the means of frequent local elections and division of power, it
has carried local sovereignty to a point never tried before. It cannot yet
he said with confidence, whether the Via% of wisdom has not been passed.

MUNICIPAL ORDINANCES. 461

compromise between tlie principles of local* action and
centralization, are England and the United States.
Their aim has been to combine the benefits of order
and discipline resulting from a central authority, with
that freedom of thought and action which can only be
obtained in the highest degree, by the absence of
authority and supervision. Of these two, however,
our system,, based as it is on a federation of state sov-
ereignties supreme in the great mass of their domestic
affairs, these state sovereignties again sedulously en-
deavoring to distribute authority among the smaller
political and geographical subdivisions, is far the most
conspicuous as exhibiting the benefits resulting from
localized power and action.

It is in connection with these considerations, that
the subject of municipal ordinances has its chief inter-
est to us in this country. Corporations or associations
endowed with certain artificial attributes relating to
their management and duration were borrowed from
the civil law, and very early applied to the adminis- .
tration of many kinds of business. And the same
system, i. e., grants of charters, was extended to the,
government of boroughs and towns in England. In
this country, the town goyernments or organizations
are among the most important parts of the machinery
by which the local action and independence of the
country is preserved. When the towns become pop-
ulous they generally receive charters of incorporation,
and. act upon the' interests of person and property con-
fided to them by means of whkt are called municipal
ordinances. The rules governing this branch of writ-
ten law thus become matters of great importance.*

* The account which the learned and:,'sagacious historian of the Anglo-
Saxon period in England gives, of the condition of thie boroughs or towns

462 MUNICIPAL ORDINANCES.

So far as these municipal institutions fall under
the general rules applicable to corporations, a highly
fertile and complex branch of our law, they have
been very ably treated by various writers, and fall
outside of the scope of this work. But municipal ordi-
nances or laws regarded as the enactments of the gov-
erning-power of towns or cities made by virtue of a dele-
gated sovereignty, fall directly within the limits of our
subject, and by reason of the multiplicity of these insti-
tutions and the immense number of individuals and
the masses of property under their control, are of very
great importance. I shall, therefore, in this chapter,
state some of the prominent rules that govern enact-
ments of this kind, which, within the sphere of their
authority, have all the force of statutes.

We have had occasion (ante,- pp. 164, 166) to
notice the general rule that a legislative body is not

at Jhat early period, is very curious. He says, " What, then, was the Situa-
tion of the Anglo-Saxon burghs? Rendering a light and easy tribute, and
performing moderate services, they were protected against compulsory
taxation. Beyond their settled and accustomed contribution, no pecuniary
aid could be required, except by an illegal exertion of power. As a body,
they were often, if not always, freed from the feudal bond. The rights of
the territorial magistracy resulted from their own internal condition, and
not from the nomination of the crown. The Laghman acted as judge, not
by virtue of the king's 'writ' and 'seal,' but because he owned the Man-
sus to which the judicial right or duty appertained ; and if, as there is
every reason to suppose^ the election of Reeves and other similar officers by
the Leet juries has descended from the Anglo-Saxon age, the other func-
tionaries were virtually appointed by the people. Legislation was the
prerogative of the sovereign and his Witan ; yet, though the laws thus
enacted, extended in general terms to all those who were subjected to his
supremacy, still, the mode of accepting the statutes and of carrying them
into effect, depended upon the deliberations of the burghmoot, and the
discretion of its members ; and London was as much entitled to the name
of a distii^ct state or community as the Kentish kingdom."— Palgrave's
Commonwealth, vol. i., ch. 21, pp. 682 and 683.

MUNICIPAL ORDINANCES. 468

competent to delegate its functions. But this is sulb-
ject, like most of the general rules in our complex
and artificial system, to a large class of exceptions.
It is well settled that in many case's, a certain amount
of legislative power may be entrusted to municipal
corporations. Sp in New York, a city ordinance in
regard to the sale of coal by weight, fixing the num-
ber of weighers and imposing a penalty on those who
should sell coal not weighed, has been sustained.*
So in New Hampshire, it has been said that the legislag
ture may constitutionally authorize a city to etiact, ana
a city may enact, an order that no intoxicating liquors
shall be used or kept in any refreshment saloon or
restaurant within the city, for any purpose whatever.f
So in the same State, it has been held that an act
declaring that a bowling-alley within twenty-five rods
of certain specified buildings should be deemed a pub-
.lic nuisance, but that the act should only be in force
in such towns as should adopt it, has been held consti-
tutional ; and an indictment for keeping a bowling-
alley in the situation contemplated by the statute, in
a town where the act had been adopted, has been
sustained on the general ground that powers of local
legislation may be granted to, cities, towns, and other
municipal corporations.^

So, too, it has been held that the taxing power for
local purposes may be delegated to the local authori-
ties; and on this ground acts authorizing municipal
corporations to subscribe to railroad corporations
have been sustained, against the objection that they

* stokes & Gilbert vs. The Corporation of New York, 14 Wend., 87.
t The State vs. Clark, 8 Foster, 176.
t The State vs. Noyes, 10 Foster,"279.

464 MUNICIPAL OEDINANOES.

were void as being a delegation of the Supreme
authority.* But I confess that it appears to me, not-
withstanding the weight of authority on this head,
that a delegation of the power to municipal corpora-
tions to tax their citizens for works of such large and
general utility as railroads, cannot be fairly called a
taxation for local purposes, nor justified on that ground.
The road may benefit the locality, but it is not easy
to see h'ow it can be properly called a local object.
1^ Again, the highe,st powers of the State are some-
times delegated to these corporations for purposes of
general safety. So in New York, on an order of the
mayor and two aldermen of the city, buUdings may
be destroyed to prevent the spread of a conflagration.f
In this act provision was made for compensation to
the owner; and it seems to be settled, under the
general constitutional clause declaring that private
property shall not be taken for public use without
compensation, that when acts in connection with mea-
sures of municipal regulation authorize .the taking
of private property, compensation must be provided,
or the appropriation will be unconstitutional and void. J
But if private property is not absolutely taken, it seems
clear that cities acting within the powers conferred
by their charter, may, when necessary to the health
of the city, direct and control the occupation of prop-

* Sharpless vs. The Mayor of Philadelphia, 21 Penn., 147 ; Moers vs.
City of Reading, 21 Penn., 188; State of Louisiana m. Executors of John
McDonogh, 8 La. Ann. R., 171 ; New Orleans vs. Graihle, 9 La. Ann. R.,
561 ; Slack vs. MaysvUle and Lexington R. R., 13 B. Monroe, 1 ; The Jus-
tices of Clarke Co. vs. The P. W. and R. R. Turnpike Co., 11 B. Monroe, 143.

t The Mayor, &c. of New York vs. Lord, 17 Wend. 285; S. C, 18
ibid., 126; Russell vs. The Mayor, &c. of New York, 2 Denio, 461.

t Baker vs. The City of Boston, 12 Pick, 184; Clark vs. The Mayor,
&c., of Syracuse, 13 Barb., 32.

MUNICIPAL OEDINANCES. 465

erty, and may in so doing, to some extent, interfere
wi^ private rights without providing for compensa-
tion.* So in Boston it was held that the city authori-
ties were authorized to fill up a creek in the exercise
of their powers for the preservation of the health of
the city.f

The same power is exercised in regard to nuisances.
So the city of Albany being authorized by its charter
to remove and abate nuisances in and about the docks
and wharves, and to prevent obstructions in the Hud-
son river opposite the city, it has been held to have
the power ^o remove an ark or float moored in the
basin and obstructing the navigation.^ So again when
at the time of the first appearance of the Asiatic chol-
era in this country, the Board of Health of Albany
declared certain buildings a nuisance and they were
pulled down, it was held to be rightly done. But
this J)ower of abolishing nuisances by mere municipal
ordinances, without any judicial investigation and
without any obligatory notice to the party in interest,
involves great interference with private property;
and it is well settled that it will not be permitted,
unless the charter clearly confers the authority ;§ and
on this principle it has been recently decided that the
city of Syracuse, in the State of New York, had not
the power. I

In regard to the e:^ercise of judicial construction
with respect to the powers delegated to these subor-
dinate bodies, it has been said in England generally,

* Clark vs. The Mayor of Syracuse, 13 Barb., 32.
t Baker vs. The City of Boston, 12 Pick., 184
t Hart vs. The Mayor of Albany, 9 Wend., 571.
§ The People vs. Jhe Corporation of Albany, 11 Wend., 639.
1 Clark vs. The Mayor of Syracuse, 13 Barb., 32.
30

466 MUNICIPAL ORDDfANCES.

ia speaking of by-laws framed by corporations, tbat
tbey ought to have a reasonable construction ; that
they are not to be construed so strictly as to make
them void, if every particular reason of making them
does not appear* But in regard to corporations of a
public character, this does not seem to be the mod-
ern English doctrine. "When" public functionaries,"
says Lord Cottenham, speaking of the Poor-Law Com-
missioners, "depart from the powers which the law
has vested in them, and assume a power which does
not belong to them, the court no longer considers
them as acting under their commission, but treats
them, whether a corporation or individuals, as persons
dealing with property without legal rights ; and when
such persons infringe or violate the rights of others,
they become, like all other individuals, amenable to
the jurisdiction of this court by injunction."f

In this country, in regard to the ordinances of
municipal corporations, and the exercise of their dele-
gated sovereignty, the doctrine is in conformity with
the general rule which we have elsewhere noticed
in regard to special powers, as well as with the
principles in regard to corporations generally, that the
authority conferred upon these subordinate bodies is
to be strictly construed, and must be closely pursued.
In New York it is declared by statute, in regard to
towns and corporations, that' they shaU. not possess
any power except such as was specially given, or as

* The Master, &c., of Vintner's Co. va. Passey, 1 Burr. 235, 289.

+ Erewin vs. Lewis, 4 M. & Oraig, 249 ; see also Agar vs. Regent's Canal
Co. Cooper's Equity Cases, 77 ; The River Dun Navigation Co. vs. North
Midland Railway Co., 1 Railway Cases, 185 ; Attorney General vs. Aspin-
wall, 2 M. & C, &c., 618 ; Same vs. Corporation of Poole, 4 M. & C, 80 ;
Same vs. Mayor of Dubhn, 9 Bligh, 896.

MUNICIPAL ORDINANCES. 46Y

shall be necessary to the Exercise of the powers so
given;* and these provisions are in general strictly
construed. So the common council of a city, under
general words which give it power to provide for the
good government oi the city, have no authority to fur-
nish an entertainment for the citizens and guests of
the city at the public expense. A contract for such
purpose is absolutely void, and even if performed by
the party with whom it is made, payment cannot be
enforced against the city.f So a town, which is only
authorized to sue and be sued in its own name, cannot
authorize commissioners of highways to bring a suit
in their own names for injuries to the property of the
town. A resolution to that effect is void, and the
commissioners who bring the suit are remediless for
their costs and expenses.^ Nor can there be any sub-
sequent ratification of an act or proceeding which the
town has no authority to order. So where a munici-
pal corporation was recognized as having an exclusive
right to control and regulate the use of the streets of
a city, and as being endowed in that respect with
legislative sovereignty, it was held that an ordinance
making a perpetual grant of a right to lay down a
railway m a street of the city was not a legislative
act, but a practical surrender of the power jof the cor-
poration, and void.§ When the supervisors of the
city of New York refused to pay certain salaries, on
the ground of the unconstitutionality of the law under
which the salaries were claimed, and the common

» 1 R. S., 337, § 22 ; 1 E. S., "699, § 1, 3.
t Hodges 1)8. City of Buffalo, 2 Denio, 110.

X Cornell vs. Town of Guilford, 1 Denio, 510 ; see the continuation of
the controversy, Town of Guilford »«. Cornell, 18 Barb., 616.
§ Milhau ««. Sharp, 17 Barb., 486.

468 MUNICIPAL OEDINANOIS.

council assumed the defence of the suits brought
against the supervisors for the penalty incurred by
the violation of their duty, it was held that they had
no right to do so, and that the drafts given for the
expenses of the suits were void*

So a common council authorized to make and pub-
lish ordinances for the purpose of abating nuisances,
has no power to direct the removal of -a person sick
with an infectious or contagious disease, from one
place to another, without his consent ; and still less to
order the forcible seizure of a person's house and its
occupation as a pest-house against his will.f In the
same State the Court of Appeals has said, " The ordi-
nance of a municipal corporation must conform strictly
to the provisions of the statute giving power to pass
the ordinance in question, or its proceedings will be
void." • So when the Common Council of the city of
Schenectady was authorized by ordinance to pitch,
level, and flag streets " in such manner as they might
prescribe," and they passed an ordinance delegating
this power to a city superintendent, and directing the
expenses to be paid by the owners of the property in
front of which the improvement was made, it was
held that the ordinance was void.J

In Massachusetts, however, the rule that the dele-
gated power is to be strictly construed, does not seem
so severely adhered to. Where a city ordinance was
passed directing an assessment for certain work, and the

* Halsted vs. The Mayor; &c. of the City of New York, 8 Com., 481 ; for
other cases growing out of this same matter, see Purdy «s. The People, 4
Hill, 384; andMon-is vs. The People, 8 Denio, 392. The unconstitution-
ality of the appointment of the ofBcers in question was left open by the
latter case.

t Boom vt. City of Utioa, 2 Barb., 104.

{ Thompson vs. Schermerhorn, 2 Selden, 92.

MUNICIPAL ORDINANCES. 4:69

work was done, but not in conformity to the ordinance *
the Supreme Court of Massachusetts said, " The gen-
eral principle that the city ordinance must^be adhered
to, is a Bound one ;" but the assessment was held
binding, and the court in deciding the cause used this
language : " Without prescribing any general rule on
this subject, and conceding that the subject of devia-
tion from the ordinance is not free from difficulties in
limiting the extent to which departures may be per-
mitted in the mode of construction, the court are of
opinion, that the grounds of defence here relied upon
are insufficient ; and that, when the deviation is made
at the request,-or with the assent of the land-owner
liable to be assessed, he should be estopped from set-
ting it up ; and also when the departure is not sub-
stantially and palpably an intended deviation from
the ordinance, especially when not attended with any
substantial increase of expense, and an assessment is
made therefor by the city authority, it is not compe-
tent for one who is otherwise duly assessed to avoid
the payment of his assessment by raising the objection
of a departure from the ordinance in the mode of con-
-struction."

It is a general rule that municipal by-laws and ordi-
nances must not be iu conflict with the general law ;
and on this ground it has been held in Connecticut,
that a by-law of a borough prohibiting the taking of
oysters from the waters within the borough during a
certain period of the year, under a penalty therein
prescribed, which the borough is authorized by its
charter to make, is abrogated by a general law of the
State, passed subsequent to the granting'of the charter

* City of Lowell w. Hadley, 8 Met., 180.

470 MUNICIPAL ORDINANCES.

prohibiting the doing of the same act under a penalty-
prescribed in the statute, so far as such by-law pro-
hibits the act, whether such by-law was made before
or after the passing of the general law ; and therefore
no action for the doing of the act after the passing of
such general law can be maintained upon the by-law*
A case of great interest has presented itself in New
York, in regard to the general powers of municipal
corporations and the control of the courts over them.
While an application was pending, before the Common
Cbuncil of the city of New York, in 1853, for leave to
construct a railroad in Broadway, the main avenue of
the city, suit was brought in the Superior Court for
an injunction restraining the members of the Common
Council from making the grant. The complaint
charged that the corporation had no power in the
premises under their charter ; that the grant would
create an injurious monopoly; that the road would be
a public nuisance, and that the members of the city
government were actuated by fraudulent and corrupt
motives. The injunction was granted, and served on
the members of the Common Council. That body,^
however, totally disregarded it ; declared by resolution,
"that the courts had no power to interfere with the
municipal legislation of the city ; that the Common
Council would not allow any other body to interfere
unlawfully with the authority which it held from the
people, and which it was bound to exercise according
to its own judgment and on its own responsibilities,
and not according to the views and directions of any
judge or any other individual citizen;" and proceeded to
pass the grant. The authority of .the court thus being

* Southport 1)8. Ogden, 23 Conn. R., 128.

MCTNICIPAL ORDINANCES. 471

set at defiance, an application was made for an attach-
ment against all the members of the Common Council,
as for a contempt.

The course taken by the Common Council neces-
sarily involved the precise question whether the courts
could exercise any jurisdiction over a" municipal cor-
poration for a breach of trust, violation of gefieral
principles of law, or bad faith. The question was one
of very great interest, and attracted the attention
which its importance deserved. Many objections were
urged to the application for the attachment ; but the
one of principal importance was, that the resolution in
question was an act -of legislation, with which the
courts could not rightfully interfere. And it was
contended that no court of equity could interfere jn
any case, or for any purpose, with the legislative ac-
tion of a municipal corporation, no matter how gross
the violation of law, or even of the provisions of its
own charter, or hOw great the nuisance threatened, or
how corrupt the motive. ,

But the doctrine was denied : it was declared that
there was no distinction between a muniqjpal corpo-
ration or any other corporation aggregat^n respect to
the powers of courts of justice over its proceedings ;
and that "although such a municipal body is clothed
with legislative and even political powers, yet in
the exercise of all its powers, it is just as subject to
the authority and control of courts of justice to legal
process, legal restraint, and legal correction, as any
other .body or person, natural or artificial." This doc-
trine was asserted on the uniform authority of the
English cases and those of our own courts, and also on
tie constitutional provision, "that all corporations

472 MUNICIPAL ORDINANCES.

shall have the right to sue and shall be subject to be
sued iu all courts, iu like cases as natural persons ;"*
while it was admitted that the court had no right to
interfere with the proper legislative discretion of the
corporation, it was declared that it could interpose
its authority whenever it was necessary to prevent
abuse, injustice, or oppression, the violation of a trust,
or the consummation of a fraud. On the ground,
therefore, that the complaint alleged sufficient cause
to give the court jurisdiction, that the injunction was
rightly issued, and that as long as in force it was
entitled to obedience, an attachment was granted.f

Where a municipal corporation has power to make
reasonable by-laws, it has been said that the question
whether a given by-law is reasonable, is a question for
the court, and not for the jury, and evidence on the
subject is inadmissible.^ If unreasonable, the court
holds them void.§ So, a by-law of the city of Boston

* Cons, of N. Y., 1846, art. 8, § 3.

t Davis vs. The Mayor, &c. of the City of New York, 1 Dujer, 461.

The cause^me up again on the return to the' attachment. People vs.
Compton, 1 Due™512. The doctrine of .the previous case was sustained;
one of the aldermen was imprisoned for fifteen days, and the rest, with
the'exception of one who apologized, were fined $100 and costs.

t Commonwealth vs. Worcester, 8 Pick. 462. But how is the court to
obtain the necessary knowledge ? In Vandine's Case, 6 Pick. 191, it is
said, " To eirrive at a correct decision, whether the by-law be reasonable
or not, regard must be had to its object and necessity. Minute regulations
are required in a great City, which would be absurd in the country.'' Ne-
cessity is certainly a fact ; and how is the judicial knowledge of this fact to
be arrived at ? I believe it mayTse said that there is a deficiency in our
system of the administration of justice, in not providing the courts with
means to obtain for themselves satisfactory evidence or instruction in re-
gard to questions of fact which are left to them to decide. The difficulty
presents itself in regard to the construction of technical words in statutes,
as well as in the matter above referred to.

§ Vandine's Case, 6 Pick. 187, 191.

MUNICIPAL ORDINANCES. 473

in regard to sewage, has been held in that Stat% to
be void for inequality and unreasonableness*

We have already seen that a statute of a local or
municipal character is as fatal to the validity of all
contracts based on a violation of it, as if the act be
one of a general char^^jjfer. And it has been intimated
that a corporation ordinance was equally efficacious.f

In regard to the enforcement or sanction of by-laws,
the rule is that they can only be enforced by a
pecuniary penalty, unless there is some express act
giving power to inflict other punishment- J

As to the passage of municipal ordinances, the fol-
lowing decision is to be observed. It is a general
rule of practice in legislative bodies which consist of
two branches, that alL business before them, and un-
finished at the end of a session, is discontinued ; and that
if taken up at all at a session following, it must be taken
up de novo. It has been held in New York, that the
analogy of this rule applies to acts of a municipal cor-
poration of a legislative character ; and consequently
an ordinance granting to a city-railroad company leave
to use the streets for that purpose, which passed the
Board of Assistant Aldermen of the city of New York
in 1852, but was not passed by the Board of Aldermen
till 1853, after a new Board had been elected, has
been decided to be void.§

* City of Boston M. Shaw, 1 Met. 130.

t JExparie Dyster m re MbUne, 1 Mferivale, 155 ; Bell va. Quin, 2 Sand-
ford, 146 ; Beman vs. Tugnot, 5 Sandf. 154, amte, p. 86.

i Gee vs. WUden, 2 Lvtw. 1320 ; Bosworth'w. Budgen, 7 Mod. 459 ; 2
Str. 1112 ; Leathley va. Webster, Sayer, 251 ; Gray on Corporations, 8 ; Hills
vs. Hunt, 15 Com. B. 1, 6 J. Scott, 1, 26.

§ Wetmore vs. Story, Abbott's Practice Cases, vol. iii. p. 263.

Some points -of local municipal interest may here be noticed. In New ^

474 MUNICIPAL ORDINANCES.

^i reference of tlie admissibility of the books of a
municipal corporation as evidence, the Supreme Court
of the State of New York has said, " that the corpora-
tion of the city of New York more nearly resembles
the legislature of an independent state, acting under a
constitution prescribing its pig^ers, than an ordinary
private corporation. The acts of tbis corporation
concern tbe rights of the inhabitants of the city ; it
-.jexercises a delegated power, not for its own emolu-
ment, but for the interests of its constituents ; and
while it keeps within the limits of its authority, tbe
constituents are bound by the acts of the corporation.
When tbe citizen wisbes to show those acts, he must
resort to the authentic record of them ; which is the
original minutes of the corporation."*

York, as to the power of the corporation as to the construction of piers and
bridges, see Marshall m. Guion, 4= Denio, 681.

In the same State it has been held that an arrest cannot be made on
Sunday for a violation of a corporation ordinance. Wood vs. City of Brook-
lyn, 14: Barb. 425.

^ee Trustees of Clintonyille ve, Keeting, 4 Denio, 841, for a decision on
the validity of a trustee's ordinance imposing a fine for selling ardent
spirits.

For a long and interesting case on the subject of the powers of muni-
cipal corporations, see the Attorney General of the State of New York vi.
The Mayor, &c., of New York, 3 Duer, 119.

* Denning vs. Roome, 6 Wend., 651, note 800 ; 8 Phillips on Evidence,
p. 1160.

CHAPTER X.

LIMITATIONS IMPOSED UPON LEGISLATIVE POWER BY THE
CONSTITUTIONS OF THE SEVERAL STATES OF THE UNION.

The general character of conatitutional proTisions regarded as limitations upon
legislative power-r-Prinoipal Restrictions imposed by the State oonstitu-
tions— Guarantee of private property — Trial by jury — ^Protection of law
— Searches and seizures — Taxation — Police regulations — Titles of bills —
Amendments — Repeal — Constitutional majorities — Religious tests — Reli-
gious societies — Creation of judges — Incorporations — ^Tru|t funds — Di-
Torees— Suits against the State.

We have thus far examined the subject of written
law with reference to the general principles of 'the
jurisprudence which we have derived from the English
stock, and which govern wherever that system ob-
tains. We now proceed to consider a branch of the
great topic which is confined exclusively to this coun-
try— I mean CoNSTiTUTioiirAL Law..

The late chief justice of the United States, in his
survey of the. events leading to the Declaration of
Independence, on which he looked with almost a con-
temporary eye, when speaking of the first State gov-
ernments organized in lYYG, says that "the untried
principle was everywhere adopted of limiting the
constituted authorities by the creation of a written
constitution prescribing bounds not to be transcended

4r76 CONSTITUTIONAL LAW.

by the legislature itself."* It is in this point of view
that I have now to examine the subject of our consti-
tutional law.

The provisions of the constitutions of the several
States of the Union, as well as those of the Federal
charter itself, may be divided into two great heads :
those which relate to political power and organization ;
and those which are intended to serve as securities for
private rights, and which are specially framed as
checks on legislative action. Of the constitutional
provisions which distribute, arrange, and determine
political power, this work is not intended to treat. It
is confined to the consideration of those clauses which,
for the purpose of protecting private and personal
rights are inserted as limitations upon legislative
action.

This gteat head of Constitutional Law is peculiar
to American jurisprudence.f It is full of importance

* MarshaU's Life of Washington, vol. ii., p. 871. He makes an excep-
tion as to the novelty of the idea, in favor of " Connecticut and Rhode Island,
whose systems had ever been in a high degree democratic."

t I have already (ante, p. 214) had occasion to notice what are called
the principles of the English OonstitutioDi and have stated the fact that
they do not in any wise interfere with the theoretical supremacy of the
British Parliament. Mr. Justice Story has said, " According to the theory
of the British Oonstitution, their Parliament is omnipotent. To annul cor-
porate rights might give a shock to public opinion which that government
haS chosen to avoid; but its power is not questioned." Dartmouth College
VI. Woodward, 4 Wheat., 518. "The absolute power of the legislature,"
Bays Mr. Hallam, speaking of the resumption of the Irish grants in 1699,
" in strictness is as arbitrary in England as in Persia." Hallam's Comi.
Sist; vol. iii., p. 198, ch. xv.

In regard to Canada, I may notice that an act was passed in 1840,
entitled an act to re-unite the provinces of Upper and Lower Canada, and
for the government of Canada, 28d July, 1840 — 8 and 4 Vict., c. xxxv. —
which operates as a sort of constitution for the united provinces. The act
declares that from and after the re-union of the two provinces, there shall

CONSTITUTIOITAL LAW. 47T

to every citizen of the Republic ; to the la-wyer it is
a matter of commandbig interest ; nor will it ever be
possible to understand the character ot to write the
history of our people, without a complete knowledge
of this fertile and complex subject.*

It is not possible that the eminently sagacious men
who framed our systems of administration supposed
that they would remain forever inviolate ; and it is
one of the most curious circumstances connected with
their formation, that in laying, down these barriers
against legislative invasions of private right they wholly
omitted to provide any positive guarantee or specific
protection for them. No sanction or penalty is at-
tached. A prohibition or command not to do certain
things is laid on the legislature, but not a word is said
as to the mode in which the fact of violation is to be
established, or how the prohibition is to be enforced.
•

be in the proTince a Legislative Council and Assembly, and that within the
province Her Majesty shall have power, by and with the advice and con-
sent of the Council and Assembly, to make laws for the province, — such
laws Twt teing repugnant to this act or such parts of an act of the 81 Geo.
IIL, as are not repealed, or to any act of Parliament made or tO be made
and not hereby repealed, which does or shall by express enactment or by
necessary intendment extend to the provinces of Upper and Lower Can-
ada, or to either of them, or to the province of Canada. The act, however,
mainly relates to the arrangement and distribution of political power, in-
cluding the subject of the church, taxation, and the judiciary and does not
seem to contain, except incidentally, any such guaranties of private rights
as are to be found in our State constitutions. It is interesting, however, as
containing the germ of the great principle of constitutional limitation upon
legislative power.

* The term Constitution, like many others in our law, appears to claim
a Latin original, and to have been primarily used for the will of the sove-
reign declaring, decreeing, and expounding the law. " Qiiodewmque, igitwr,
Imperator per eputolam et subteripUonem staimt, vel cognoscens cUorevit,
vel de piano interheutm est, vel edieto prceeepit, legem esse constat. Mma
stmt qvas vulgo Oonatitutumes appellanms." — Dig. de Cqpstitutionibus Prin-
icpum, 1. 1, § 1 ; Vicat. Vooab. Utriumq. Juris in voo.

478 CONSTITUTIONAL LAW.

If the draughtsmen of our Constitutions thought it
wisest to leave this important point to be decided by
the practical sagacity of the people for whom they were
framing new institutions, the *event has thus far jus-
tified their confidence. No difficulty whatever has as
yet resulted from the absence of any' specific provision
on the subject; the authority to determine the consti-
tutionality of a law, or in other words, to decide
whether the legislature has in a given case overstepped
the line of the Constitution, and the power to arrest
the action of the ministerial officers of justice when a
decision adverse to the validity of a law is arrived at,
have been claimed by and surrendered to the judi-
ciary. Nor is it less curious to observe that this is the
result of the action of the judiciary itself.

The subject was early considered in a case in Pennsyl-
vania ; and Mr. Justice Patterson asserted the power of
the judiciary in very distinct and emphatic terms. He
said, " It is an important principle which, in the discus-
sion of questions of the present kind, ought never to be
lost sight of, that the judiciary in this country is not
a subordinate but co-ordinate branch of the govern-
ment ; and whatever may be the case in other coun-
tries, yet in this there can be no doubt, that every
act of the legislature repugnant to the constitution is
absolutely void."*

In New York, the rule was asserted in 1791 ;f in
South Carolina, in 1Y92 ;J and in 1802, in Maryland.§

* Van Home's Lessee v>. Dorrance, 2 Dallas, 804, a case in relation to
the territorial controversy between Pennsylvania and Connecticut.

t Hayburne's Case.

X Bowman vs. Middleton, 1 Bay, 262 ; Lindsay vs. The Charleston Com-
missioners, 2 Bay, 88.

§ Whittington ve. Polk, 1 Harr. <fc Johns. 286.

* CONSTITUTIONAL LAW. 479

Finally, tlie whole subject was elaborately examined
and discussed by the Supreme Court of the United
States, and the principle deliberately and definitively
settled, that the power of determining whether a*|iven
law is repugnant to the principles of a constitution
with which it is alleged to conflict belongs to the judi-
ciary, and that their decision is conclusive,*

* Marbury i)s. Madison, 1 Cranch, 137 ; Kent Com., 1, 451.

The point, however, seems to have been open in Pennsylvania as late as
1825. In that year, the power of the judiciary over unconstitutional acts
of the legislation was much discussed in Eakin vs. Baub, 12 Serg. & Rawle,
330. By the Pennsylvania act of 26th of March, 1785, § 2, the right of
entry into lands was taken away after the expiration of twenty-one years
next after the title of the claimant accrued ; but the fourth section saved
the rights of persons beyond seas, and gave them ten years after coming
into the United States to commence an action. An act of the 11th of
March, 1815, repealed the fourth section of the act of 1785, so far as the
same related to persons beyond the seas, and extended the limitation of the
second section of the act of 1785 to them. A court of Common Pleas held
this act to be retrosp'ective in its operation, so as to form an immediate bar
to the claims of persons beyond sea, who had been out of possession twenty-one
years prior to the passage of the act of 1815. The Supreme Court of Penn-
sylvania held, that if the act were retrospective it would be unconstitutiona,l
B[ void, but that it must be construed to be prospective in its operation ;
cl they reversed the judgment below. In delivering the opinion, how-
ever, much care was taken in the discussion of the true functions of the
judges in regard to laws clearly unconstitutional. Tilghman, C. J., and
Duncan, J., asserted the power of the judiciary to declare such laws uncon-
stitutionill and void ; but Gibson, then J., but afterwards C. J., denied it
so far as it related to laws conflicting with a State constitution, while he
admitted it as to laws conflicting with the Constitution, laws, or treaties of
the United States, under the clause of the Federal Cdhstitution declaring
their supremacy. But in regard to the State constitutions, he held that no
such power was conferred by them on the judges, and that it rested with the
people alone to correct abuses in legislation, by instructing their representa-
tives to repeal the obnoxious acts. He says, up to that time, though the
power had been asserted (Austin vs. The University of Pennsylvania, 1
Yeates, 260), it had never been exercised. Since that period (1825), however,
the doctrine seems as firmly established in Pennsylvania as in the other
States. See in this case Mr. J. Duncan's opinion in regard to the
retrospective effect of repealing acts on vested lights, for many cases cited.

480 - CONSTITUTIONAL LAW.

Since- this period the power has been repeatedly-
asserted and universally recognized. " It is the duty of
the judiciary, as the appropriate means of securing ^o
the people safety from legislative aggression, to annul
all legislative action without the pale of our written
constitutions."*

The constitutions of the several States of the Amer-
ican Union generally contain, sometimes, in the shape
of a declaration or bill of rights, the enunciation of
certain general principles of free government which
are intended to be, as it were, the foundatioas, or to
serve as the landmarks, of liberty and law. Such are
the declarations of the natural equality of man — of
the abstract right to life, liberty, and the pursuit of
happiness. To these I have already had occasion to call
the attention of the reader.f And of these, as I have
remarked, many are framed in such general terms as
scarcely to be susceptible of judicial application;
other constitutional clauses have as yet given rise to
no question of legislative power or judicial construe-
indeed, the learned chief justice himself seems subsequently to have giveniH
his complete adhesion to the generally received doctrine. In a more recent
case, he says, " It is idle to say that the authority of each branch of the gov-
ernment is defined and limited by the Constitution, if there be not an inde-
pendent power able and willing to enforce the limitations. * * From
its very position it is apparent that this conservative power is lodged in
the judiciary, which, in the exercise, of its undoubted rights, is bound to
meet every emergency, else causes would be decided not only by the legis-
lature, but sometimes without hearing or evidence." De Chastelleux «s.
Fairchild, 16 Penn., 18. In Georgia, the power of the judiciary over
unconstitutional enactments, as necessarily flowing from the character of
our institutions, was declared in Grimball vs. Ross, Charlton's Rep., p. 175.

" The right of all courts. State as well as national, to declare unconstitu-
tional laws void, seems settled beyond the reach of judicial controversy."
Story Oomm., § 1842.

* Beebe vs. The State, 6 Indiana, 601.

t Ante, p. 179.

CONSTITUTIONAL LAW. 481

tion, or are matters of local or comparatively minor
interest. None of these are witHn tlie necessary
scope of this work. I shall, consequently, chiefly con-
fine myself to the consideration of those prominent
constitutional provisions which are to be generally
found in the constitutions of all the States, and which,
from: their importance and the frequent necessity of
r#urring to them, have been Often discussed and
interpreted. The most important of these appear to
be that class of constitutional restrictions on legislative
power which declare, —

That private property shall not be taken for public
uses without compensation ; taking in connection with
this the subject of taxation and police regulations ;

That the right to trial by jury shall be inviolate;

That no citizen shall be deprived of life, liberty, or
property, except by the law of the land, or by due
course of law;

That unreasonable searches and seizures shall not
be permitted.

Some of the decisions upon these clauses, I shall now
proceed to examine, in order to exhibit the practical
operation and effect of these constitutional limitations.
Before doing so, however, it is necessary to consider
the general doctrines upon which the courts act in con-
struing the provisions of the State constitutions.
Whether there be any check on legislative power in-
dependent of, or in addition to those which are to be
found in the constitution, is a question which we have
already examined elsewhere ; and I need only here
refer to that discussion.*

* Vfde ante, oh. v. " No court can pronounce any act of the legisla-
ture Toid for any supposed inequality or injustice in its operation, provided
31

482 . COWSTITUTIONAL LAW.

The leading rule in regard to the judicial construc-
tion of constitutional provisions, is a wise and sound
one wHcli declares that in cases of doubt every pos-
sible presumption and intendment will be made in
favor of the constitutionality of the act in question,
and that the courts will only interfere in cases of clear
and unquestioned violation of the fundamental law.
It has been repeatedly said that the presumptionl'is
that every State statute the object and provisions of
of which are among the acknowledged powers of legis-
lation, is valid and constitutional ; and such presump-
tion is not to be overcome unless the contrary is
clearly demonstrated.* " Courts ought not," says the

it be on a subject-matter fairly within the scope of legislative authority, and
the provisions of the law be general. Hence it is true no doubt, that the
legislature, by general enactment, might tax any given species of prop-
erty, either private or corporate, to the full value of the property itself; for
the power of taxation, when once conceded to the legislature over any given
subject, " implies the power of destruction even," as was declared in the
case of M'OuUoch vs. The State of Maryland, 4 Wheat. 816." Armington et
al. m The Towns of Barnet, Ryegate, et al. 15 Verm. 746.

In Indiana, it has been held that so much of the act to prohibit the
manufacture and sale of spirituous and intoxicating liquors, approved Feb-
ruary 16, 1865, as is prohibitory of the right to manufacture such liquors,
and also so much thereof as relates to the establishment of agencies and the
appointment of agents to sell such liquors, is unconstitutional and void, as
conflicting with the right to the enjoyment of property, with which the
legislature had no right to interfere. Beebe vs. The State, 6 Indiana, 601.
See this case for an elaborate discussion of the power of the State legisla-
ture independent of the State constitutions.

In Pennsylvania it has been said that " the General Assembly cannot
pass any law to conflict with the rightful authority of Congress, nor per-
form a judicial or executive function, nor violate the popular privileges re-
served by the Declaration of Rights, nor change the organic structure of the
government, nor exercise any other power prohibited in the constitution."
Sharpless m. Mayor of Philadelphia, per Black, C. J,, 21 Penn. 147, 161.

* Fletcher m. Peck, 6 Oranch, 87; Eos parte M'CoUom, 1 Oowen, 664;
Morris m. The People, 3 Denio, 881 ; Newell m. The People, 8 Seldl. 109,
per Edmonds, J. ; De Camp vi. Eveland, 19 Barb. 81.

CONSTITUTIONAL LAW. • . ■ 483

learned ChaMsellor of the State of New York, " except
in case* admitting of no reasonable doubt, take
upon them to say that the legislature has exceeded its
power and violated the constitution, especially where
th© legislative construction has been given to the con-
stitution by thos% who framed its provisions and con-»
temporaneous with its adoption."* "It has been
al'ivays said," says the Supreme Court of New York,
"that the power of the courts of justice to declare the
nullity of legislative acts which violate the provisions
either of the Constitution of the United States or of
the State, while> it is undoubted, shall be exercised
with extreme caution, and nfever where a serious doubt
exists as to the true interpretation of the provisions
alleged to be repugnant. Especially has this been
said to be so when the objections do not touch the
substance of the law or the authority of the legislature,
but are merely criticisms on its sense and phraseology ."f
So in lUinois,^ it has been said, the inquiry into the
Validity of an act on the ground that it is unconstitu-
tional, is an inquiry whether " the will of the repre-
sentative as expressed in the law, is or is not in con-
flict with the will of the people as expressed in the
constitution. And unless it be clear that the legisla-
ture has transcended its authority, the courts will not
interfere." J In Massachusetts it has been said that " acts

* Clark m. The People, 26 Wend. 599.

t The Sun Mutual Insurance Go. m The City of New York, 5 Sand-
ford, 10.

t Lane et al. vs. Dorman et wis., 3 Scam. 238. In Maryland it has been
said, that it is the province of the judiciary to decide upon the law arising
in questions before them, and upon the constitution as the pfiramount.law.
But it is more in fulfillment of their own duty than to restrain the excesses
of a co-ordinate department of the government. Crane w. Meginnis, 1
am & Johnson, 463.

484- . CONSTITUTIONAL LA"W.

of a legislature constitationally organized are to be
presumed constitutional, and it is only wliere they
manifestly infringe some of the provisions of the con-
stitution, or violate the rights of the subject, that their
operation and eflfect can be impeded by the judicial
,, power."* In Pennsylvania it has been expressly de-

* Foster et al. m. The Essex Bank, 16 Mass. 245. See this case>for a
discussion of the power of the legislature to pass retrospective laws. A
banking company was incorporated in 1799 for the term- of twenty years.
In 1819, before the term had expired a general law was passed whereby
all corporations then existing and thereafter to be estatjished, whose
power would expire at a given time, were to be continued in existence as
bodies corporate, for three years after the time limited by the cbarter, for
the purpose of suing and being siJfed, settling and Closing their concerns,
and dividing their capital stock, but not for continuing their business.
After suit brought by the plaintiff, the twenty years for which the bank
was originally chartered expired, and a suggestion was filed that the corpora-
tion was dissolved. It was insisted that the act of 1819 was retrospective,
and that it impaired the obligation of contracts, and that it violated vested
rights, — on the ground that the right of the corporation was to exist for
twenty years, that this right could in no way whatever be interfered with, and
that the contract was altered. The objection, however, was overruled. It
was decided that the law was within the constitutional power of the legis-
lature, and the banking corporation were held to answer. Parker, J., said,
" If the legislature were to enact that A. B. was guilty of treason, and that
he should suffer the penalty of death, it would be the sworn duty of the
court, or of any member of it, to grant a habeas corpus and discharge him.
Or if they should enact that his estate should be conflscatad or transferred,
or taken for the use of the public without an equivalent, such acts would
not be laws, and they never could be executed but by a court as corrupt
or as passionate as the legislature which should have passed them.

" So, if the legislature should attempt to destroy or impair the legal force
of contracts, by declaring that those who were indebted should be dis-
charged witl;out paying their debts, or on paying a less sum than they
owedj or in something different from what was agreed, such acts would be
unconstitutional although not expressly prohibited ; because, by the funda-
mental principles of legislation, the law or rule must operate prospectively
only, unless in cases where the public safety and convenience require that
errors and mistakes should be overruled ; the power to do which has been
immemorially exercised, and is, we believe, within the constitutional power of
the legislature, for it is doing no one wrong to prevent his taking advantage
of a mere error or mistake. The law complained of is a general law, oper-

CONSTITUTIONAL LAW. 485

clared to be an established principle of construction,
that where the meaning of the constitutional Clause is
doubtful, a statute alleged to conflict with it must be
held valid*

Where, however, the violation of the constitution is
clear, no argument of inconvenience has any weight.
So in Indiana, it has been said, " It is urged in argur
ment that this ruling may be a deadly blow to the
common-school system of Indiana. We do not so

ating upon all bodies corporate ; and it is convenient for them and the pub-
lic that their power of suing and being sued should be continued beyond
the period within which they are empowered to make coiitracts, in order
that their concerns may be properly adjusted. Upon the whole, we cannot
discern any principle by which it can be decided that this statute is void.
It is not retrospective in the proper sense of that term, for it provides for a
future existence of the corporation for limited and Specific purposes. It
does not infringe or interfere with any of the privileges secured by the char-
ter, unless it be considered a privilege to be secured from the payment of
debts or the performance of contracts ; and this is a kind of privilege which
we imagine the constitution was not intended to protect. It does not im-
pair the force or obligation of contracts, but on the contrary provides a way
of enforcing them both in favor of and against the corporation.

" Many statutes have been referred to in the argument, which are much
more 'questionable as to their constitutionality, than thp one under consider-
ation : The statutes of limitation, operating upon contracts already in force ;
The suspension of those statutes after the debtor may have considered that
he had a right to be discharged within a certain period ; The statutes made
for curing defects in the proceedings of courts, towns, officers, &c., when
the party to be affected might be said to have a vested right to take ad-
vantage of the error. The truth is, there is no such thing as a vested right
to do wrong ; and a legislature which, in its acts not expressly authorized
by the constitution, limits itself to correcting mistakes, and to providing
remedies for the furtherance of justice, cannot be charged with violating its-
duty or exceeding its authority. Had they provided that all corporations-
should cease to transact business three years before the time for which
they were created, expired, in order that they might bring their affairs to a
cloise, it might justly be said that their privileges were|taken away, and th&
grant of the government was impaired. But to provide for their continu-
ance for such purpose, three years beyond their term, is no breach of their
privileges, and is in fact nothing more "than establishing a mode by which
their business may be closed and their contracts carried into execution."

* Th§ Farmers and Mechaftcs' Bank vs. Smith, 3 Serg. & R. 63, 73.

486 CONSTITUTIONAL LAW.

regard it. However that may be, tlie responsibility
does nbt lie with the judiciary. If the legislative
department will infringe on the constitution, the duty
of the courts may be arduous and unpleasant, but it
is a plain one regardless of the consequences.* So in
the same State, " It will not be for us," says the Su-
preme Court of Indiana, " to inquire whether the law
be a good or a bad one in the abstract, unless the fact,
as it might turn out to be, should become of some
consequence in determining a doubtful point on the
main question, that is, whether it is a violation of the
constitution."!

The subject has been examined by a very learned
and accomplished jurist in New York, and the follow-
ing language held : —

It is highly probable that inconveniences will result from following
the constitution as it is written. But that consideration can have no
weight with me. It is not for us, but for those who made the instru-
ment, to supply its' defects. If the legislature or the courts may take
that oflBce upon themselves, or if, under color of construction, or upon
any other specious ground, they may depart from that which is
plainly declared, the people may well despair of ever being able to
set a boundary to the powers of the government. Written constitu-
tions will be worse than useless.

Believing, as I do, that the success of free institutions depends
on a rigid adherence to the fundamental law, I have never yielded to
considerations of expediency in expounding it. There is always some
plausible reason for the latitudinarian constructions which are resorted
to for the purpose of acquiring power, — some evil to be avoided, or
some good to be attained, by pushing the powers of the government
beyond their legitimate boundary. It is by yielding to such influences
that constitutions are gradually undermined, and finally overthrown.
My rule has ever been to follow the fundamental law as it written,
regardless of consequences. If the law does not work well, the people
can amend it; and inconveniences can be borne long enough to await
that process. But if the legislature or the courts undertake to cure

' * The State vs. Springfield Township, 6 Indiana, 84.

t Beebe m. The State, 6 Indiana, 501.

CONSTITUTIONAL LAW. 487

defects by forced and unnatural constructions, tliey inflict a wound
upon the constitution which nothing can heal. One step taken by
the legislature or the judiciary in enlarging the powers of the government
opens the door for another, which will be sure to follow ; and so the
process goes on, until all respect for the fundamental law is lost, and
the powers of the government are just what those in authority please
to call them."*

As in regard to statutes, so in regard to constitutions:
contemporaneous and legislative exposition are fre-
quently resorted to, to remove and explain ambiguities.
So, in regard to the Constitution of tlie United States,
it was objected that the judiciary act of 1*789 was
unconstitutional, on the ground that it assigned circuit
duty to the judges of the Supreme Court. But the
Supreme Court said, in 1803, "To this objection, which
is of recent date, it is sufficient to observe that prac-
tice, and acquiescence under it for a period of several
years, commenciug with the organization of the judicial
system, affords an irresistible answer, and has, indeed^
fixed the construction. It is a contemporary interpre-
tation of the most forcible nature. This practical
exposition is too strong and obstinate to be shaken or
controlled."f And the same language has been held
in regard to State constitutions. In Pennsylvania, it
has been said that " the uniform construction given to
a provision of the constitution by the legislature, with
the silent acquiescence of the people, including the
legal profession and the judiciary, and the injurious
results which would ensue from a contrary interpreta-
tion, are proper elements of a legal judgment on the
subject." J So in New York, — " Great deference," says

* Bronson, J., in Oakley m. Aspinwall, 3 Corns., BAT, 668.
t Stuart vs. Laird, 1 Oranch, 299.

I Moers vs. The City of Reading, 21 Penn., 188; Norris «s. Olymer, 2
Penn, 277.

488 CONSTITUTIONAL LAW.

Marcy, J., in the Supreme CoTirt, " is certainly due to
a legislative exposition of a constitutional provision,
and especially when it is made almost contempora-
neously with such provision, and might be supposed
to result Irom the same views of policy and modes of
reasoning which prevailed among the framers of the
instrument expounded."* " Upon a question of real
doubt," says Chancellor Walworth, in the Court of
Errors in New York, " as to the meaning of a partic-
ular clause in the constitution, a legislative construc-
tion, if deliberately given, is certainly entitled to much
weight, although it is not conclusive upon the judicial
tribunal."f

As to the general rules of construction and inter-
pretatioii to be applied to the particular phraseology
of a statute, it has been said by the Court of Appeals
of Maryland, " that constitutions are not to be inter-
preted according to the words used in particular
clauses. The whole must be considered with a view
to ascertain the sense in which the words were em-
ployed ; and its terms must be taken in the ordinary
and common acceptation, because they are supposed
to have been so understood by the framers and by the
people who adopted it. This is unquestionably the
correct rule of interpretation. It, unlike the acts of
our legislature, owes its whole force and authority to
its ratification by the people ; and they judged it by
the meaning apparent on its face according to the
general use of the words employed, when they do not
appear to have been used in a legal or technical
sense."^

♦ People j)s. Green, 2 Wend., 266, 274.
t Coutant vs. The People, 11 Wend., 511.
t Manly vs. The State, 7 Maryland, 185.

CONSTITUTIONAL LA"W. 489

The principle that a statute is void only so far as its
provisions are repugnant to the constitution, that one
provision may thus he void and this not affect other
provisions of the statute, has been frequently declared*
"The principle is now "well understood," says the
Supreme Court of the State of Massachusetts, " that
where a statute has been passed by the legislature
under all the forms and sanctions requisite to the
making of laws, some part of which is not within the
competency of the legislative power, or is repugnant
to any provision of the constitution, such part thereof
will be adjudged void and of no avail ; whilst all other
parts of the act, not obnoxious to the same objection,
will be held valid and have the force of law. There
is nothing inconsistent in declaring one part of the
same statute valid and another part void."f

It seems to be settled in regard to constitutions as
to statutes, that no ^trinsic evidence can be received
as to their intent or meaning. " A constitution or a
statute is supposed to contain the whole will of the
body from which it emanated ; and I would ^st as
soon resort to the debates in the legislature for the
constitutionality of an act of Assembly, as to the
debates in the convention for the construction of the
Constitution.''^

I have already had occasion to notice, that consti-
tutions, like statutes, are in some cases construed

* Edwards vs. Pope, 3 Scam., 465; 8 Marshall, 73; Ely vs. Thompson,
3 Wash. C. 0. R., 313 ; Gibbons vs. Ogden, 9 Wheaton, 1, 203 ; City of
New York vs. Mihi, 11 Peters, 102 ; Clark vs. Effis, 2 Blacljf. 8.

t Fisher vs. M'Girr, 1 Gray 22; Commonwealth vs. EimbaU, 24
Pick., 361;"Norris vs. Boston, 4 Met, 288; Clark *. Ellis, 2 Black-
ford, 10.

i Per Gibson, J., in Eakin vs. Eaub, 12 Serg. & Rawle, 352. It is,
howe'ver, a dissenting opinion.

490 CONSTITUTIONAL LAW.

to be directory merely * Indeed, the jfollowing lan-
guage has been used by a very accomplished judge in
Pennsylvania : "That every thing in the Constitution
addressed to the legislature by way of positive com-
mand is purely directory, will hardly be disputed. It
is only to enforce prohibitions, that the interposition of
judicial authority is thought to be warrantable."f

In regard to the change, of a State constitution, it
has been held that the new constitution creates no new
State, that all laws in force when the latter took effect,
and which were not inconsistent with it, remained in
force without an express provision to that effect, and
that all inconsistent or repugnant laws were repealed
by implication; and where the new constitution of
the State of Ohio contained a clause to this effect,
"The General Assembly shall never authorize any
county, town, or township, by vote of its citizens or
otherwise, to becoroe a stockholder in any joint-stock
company, corporation, or association ;" it was held that
a law enacted before the adoption of the new constitu-
tion, authorizing such subscription, was not repealed
by implication, as the new clause referred only to
future laws. J

The Supreme Court of Louisiana has very discreetly
expressed its unwillingness to decide a question as to
the unconstitutionality of the law of another State,
when the question was still open in the State which

* Ante, ch. vii., p. 878.

+ Per Gibsq^, J., in Eakin w. Raub., 12 Serg. & Rawle, 364. It is,
however, a dissenting, and without any disrespect to this able and lamented
jurist, I may add, a very heterodox opinion; vide ante, p. 479.

t Cass vs. Dillon, 22 Ohio, 607. But see Mr. J. Ramsay's able dissent-
ing opinion.

CONSTITUTIONAL LAW. 491

passed tlie law, and tlie case could be decided on other
grounds,*

In regard to the subject of strict and liberal con-
struction, considerations analogous to those which we
have discussed under this head as to the interpreta-
tion of statutes present themselves, in regard to tlie .
interpretation of constitutions. Where a constitutional
provision is of doubtful import, it is frequently suscep-
tible of two interpretations, one the more restricted or
severe, and the other more enlarged or equitable.
Questions of this kind have presented themselves in
the history of many if not all the individual States ;
but we are more familiar with them in regard to the
Federal Constitution. So in regard to the Bank of the
United States, it was contended by the advocates of
an enlarged or equitable construction, that the clause
giving Congress power to make all laws necessary and \
proper to carry into execution the powers specifically \
granted, confeiTed on that body the power to create ^
the institution ; whUe on the other hand the advocates
of a stricter interpretation, insisted that this general
clause could only be used to enlarge powers already
expressly given, and could not be construed to give a
new and distinct head of authority. So again, the advo- i
cates of a protective tariff have found the congressional /
authority in the clause giving power to regulate com-
merce; while the friends of free trade have insisted
upon a stricter construction, and asserted that the
authority to regulate commerce could not be so exerted
as to protect manufactures.

These questions have given rise to two great schools
of construction : the topics which they involve are of

* Shelden vs. Miller, 9 La. Ann. R. 187.

492 CONSTITUTIONAL LAW.

perpetual and vital interest; but they approacli so
near the demesnes of politics, and are so mucli influ-
enced by the organization and shape of parties, that
they are out of place here. Still, some general con-
siderations are too apparent to be overlooked. An ar-
bitrary or equitable power over acts of ordinary legis-
lation, has been resisted on the ground " that the leg-
islature is ever at hand," as it has been said, to explain
its meaning. This consideration in favor of a re-
stricted interpretation of statutory enactments, has less
weight in regard to constitutional law. There are, as a
general rule, no regular or frequent convocations of the
people to revise or consider the fundamental law ; and
in regard to the Constitution of the United States, any
serious amendment, requiring as it would the concur-
rence of two thirds of the legislatures of all the States,
can scarcely be thought within the regions of hope or
probability ; so that it is apparent that the arguments
of hardship, irregularity, injustice, and inconvenience,
will address themselves to the judiciary in constitu-
tional cases with more force than in regard to ordinary
legislative acts, just in proportion as it is more
difficult to revise a constitution or to escape its power,
than to amend or to evade a statute. Another con-
sideration will impress itself still more forcibly on the
minds of those who are called to consider questions
connected with the interpretation of constitutional law.
Statutes can and do enter into the details of our daily
transactions, they can and do prescribe minute directions
for the control of those affected by them. Constitutions,
on the other hand, from the nature and necessity of
the case, in many instances go little beyond the mere
enunciation of general principles ; and it is impossible
and would l^ad to endless absurdity, to endeavor to

CONSTITUTIONAL LAW. 493

apply to a declaration of principles tlie same rules of con-
struction tliat are proper in regard to an enactment of
details. In regard to a statute, the general duty of tlie
judge is that of a subordiaate power, to ascertain and
to obey the will of a superior ; in regard to a constitu-
tion, his functions are those of a co-ordinate authority,
to ascertain the spirit of the fundamental law, and
so to carry it out as to avoid a sacrifice of those inter-
ests which it is designed to protect. No absolute rules
of interpretation in such a matter, can be framed. Still,
I cannot refrain from saying, as a general rule, while a
strict adherence to the mere letter of a written Consti-
tution would rehder our system practically intolerable,
that on the contrary, a loose and careless mode of inter-
pretation is attended by the most serious dangers. It
puts all our institutions in the power of the judiciary ;
it abolishes all restraints on legislation, and tends
directly and inevitably to alter the very nature of our
government.*

Having thus considered the general principles to be
applied to the construction of constitutional limita-
tions upon legislative power,/ we approach the examina-

* The analogies of history often throw light upon the annals of remote
and obscure periods ; and our schools of strict and liberal construction
may tend to render intelligible the sects or schools of Roman ^aw, " The
freedom of Labeo was enslaved by the rigor of his own conclusions. He
decided according to the letter of the law the same questions ^hich his in-
dulgent competitor (Capito) resolved with a latitude of equity more suitable
to the common sense and feelings of mankind." See Gibbon, ch. XUv. Our
Labeos and Capites, our Sabinians and our Proculeans, might easily be
named. Indeed, the analogies between the whole body of Roman juris-
prudence and the English, are most curious and striking. The division
into two great bodies, of strict and equitable law ; the formulae by which
questions of fact were distinguished from questions of law ; the severe re-
gard to mere symbolical forms, are as apparent in the one system as the
other.

494 GUARANTEE OF PRIVATE PROPERTY.

tion of particular provisions ; and of these, as I have
said, there is none more important than that which
declares that —

Private property shall not he taleen for pvhlio pw-
poses without compensation. — In considering the sub-
ject of constitutional checks as imposed in this coun-
try on legislative power, we find two limitations of
paramount importance : the one guaranteeing th&invi-
olability of private property, the other protecting the
obligation of contracts ; the one intended to guard
present ownership and enjoyment, the other to se-
cure future transactions, or rights of property not yet
converted into possession. These provisions are both
to be found in the Constitution of the United States^
and the latter in some of the State constitutions ; but
as the one in regard to private property is to be found,
with the exception of New Hampshire and South
Carolina,* in all the State constitutions, I shall con-

* The constitution of New Hampshire is silent on the subject of com-
pensation ; but it has been held that the duty to provide remuneration is
none the less imperative. Bristol vs. New Chester, 3 N. H. E. 535. In
South Carolina there is no constitutional provision whatever ;' and it has
been there held that the legislative power over private property is supreme
and absolute. The State w. Dawson, 3 Hill, 100. This was an indictment
for obstructing road commissioners in cutting down timber to repair a road ;
the act giving them general power to take so much timber, earth, or rock
as should be necessary to keep roads in repair. The case was chiefly put
on the question whether the act infringed the constitutional guarantee of
the " law of the land," which we shall hereafter consider. It was upheld
chiefly on the ground of long usage and acquiescence ; and Evans, J., de-
livering the prevailing opinion of the court, says expressly, that the general
power of the legislature to appropriate private property, is not involved.
Since the decision of this case, however, the precise question seems to have
been considered and determined. It was held in a case growing out of a
right to a ferry, that the legislature has the constitutional right to deprive
an individual of his property for great national purposes. Stark d«.
M'Gowan, 1 Nott and M'Cord, 387.

On the other hand, in New Hampshire the abstract right to compen-

GUARANTEE OF PRIVATE PROPERTT. 49&

sider it under our present head, reserving the clause
in regard to the obligation of contracts till we come
to the subject of the Constitution of the United
States.

In discussing the constitutional guarantee of pri-
vate property, I shall first consider the precise nature
of the legislative power over private property, and to
what branch or branches of the sovereign power of
the State the restricting clause is intended to apply ;
Secondly, consider, under the head of delegation of
the power, by whom it can be exercised ; Thirdly,
examine the question, what is a taki/ng of private prop-
erty within the meaning of the clause ; and lastly,
speak of the rules which determine how and when
compensation must be made. Before entering, how-
ever, into this examination, it is proper to give the
leading provisions of the different State constitutions
on the subject, in order the more fully and accurately
to understand the precise nature of the question as it
presents itself in the several States :

Maine. — " Private property shall not be taken for public us6s with-
out just compensation, nor unless the public exigencies require it."*

New Hampshire. — " No part of a man's property shall be takeii
from him or applied to public uses, without his own consent or that of
the representative body of the people."!

sation, independent of all constitutional provision, has been declared.
"The power of the legislature is limited, undoubtedly, in its nature, by
the public exigencies ; but it is a power recognized by the constitution.
There is no doubt that when this power is exercised, a just compensation
is to be made. The constitutions of some of the States exprtssly declare
that such compensation shall be made ; and natural justice speaks on this
point when a constitution is silent." Bristol vs. New Chester, 3 N. H. 535.

* Cons, of Maine, art. 1, § 21.

t Cons, of New Hampshire, Bill of Rights, § 12.

496 GUARANTEE OF PRIVATE PROPERTY.

*.
Vermont. — " Private property ought to be subservient to public uses

when necessity requires it ; nevertheless when any person's property is
taken for the use of the public, the owner ought to receive an equiva-
lent in money." " No part nf any person's property can be justly

taken from him or applied to public uses without his own consent or
that of the representative body of freemen."*

Massachusetts. — " No part of the property of any individual can with
justice be taken from him or applied to the public use, without his own

consent or that of the representative body of the people." -" And

whenever the public exigencies require that the property of any indi-
vidual shall be appropriated to public uses, he shall receive a reason-
able compensation therefor."f

Rhode Island. — " Private property shall not be taken for public
uses without just compensation." J

Connecticut. — " The property of no person shall be taken for public
use without just compensation therefor."§

New York. — " Nor shall private property be taken for public use
without just compensation.'' "When private property shall be taken for
any public use, the compensation to be made therefor when such com-
pensation is made by the State, shall be ascertained by a jury or by not
less than three commissioners appointed by a court of record, as shall be
prescribed by law. Private roads may be opened in the manner to be
prescribed by law ; but in every case the necessity of the road and the
amount of all damages to be sustained by the opening thereof, shall
be first determined by a jury of freeholders; and such amount, together
with the expenses of the proceedings, shall be paid by the persons to be
benefited."||

New Jersey. — " Private property shall not be taken for public use
without just compensation ; but land may be taken for public highways,
as heretofore, until the legislature shall direct compensation to be
made."^

Pennsylvania. — " Nor shall any man's property be taken or applied

* Cons, of Vermont Decl. of Rights, ch. i., art. 1, §§ 2, 9.

t Cons, of Massachusetts Decl. of Bights, art. 10.

X cSns. of Rhode Island, art. 1, § 16.

§ Cons, of Conn., art. 1, § 11.

\ Cons, of New York, art. 1., § 6 and 7.

t Cons, of New Jersey, art. 1, § 16.

6UABANTEE OF PRIVATE PROPERTY. 497

to public use, wiihout the consent of his representatives, aud without
just compensation being made."*

Delaware. — " Nor shall any man's property be taken or applied to
publid use, without the consent of his representatives, and without
compensation being made."f y

Maryland. — " The legislature shall enact no law authorizing privates
property to be taken for public use without just compensation, as
agreed upon between the parties or awarded by a jury, being first paid
or tendered to the party entitled to such compensation."J

Virginia. — " The General Assembly shall not pass any law whereby
private property shall be taken for public use without just compensa-
tion ."§

Louisiana. — " No ex post facto law, nor any law impairing the
obligation of contracts, shall be passed, nor vested rights be divested,
unless for purposes of public utility, and for adequate compensation
previously made."||

Ohio. — " Private property shall ever be held inviolate, but subserv-
ient to the public welfare. When taken in time of war or other
public exigency imperatively requiring its immediate seizure, or for
the purpose of making or repairing roads which shall be open to the
public without charge, a compensation shall be made to the owner in
money ; and in all other cases where private property shall be taken
for public use, a compensation therefor shall be first made in money,
or first secured by a deposit of money ; and such compensation shall
be assessed by a jury, without deduction for benefits to any property
of the owner."^

Indiana. — " No man's particular services shall be demanded with-
out just compensation. No man's property shall be taken by law
without just compensation, nor, except in case of the State, without
just compensation first assessed and tendered."**

Illinois. — " Nor shall any man's property be taken or applied to
public use, without the consent of his representatives in the General
Assembly, nor without just compensation being made to him."ff

* Cons, of Pennsylvania, art. ix., § 10.
t Cons, of Delaware, art. 1, §8.
X Cons, of Maryland, art. iii.; § 46.
§ Cons, of Virginia, art. iv., sect. 5, § 15.

1 Cons, of Louisiana, art. 105. H Cons, of Ohio, art. 1, § 19.

** Cons, of Indiana, art. 1, § 21. tt Cons, of Illinois, art. xiii., § 11.
32

498 GUARANTEE OF PRIVATE PROPERTY.

Florida. — " We declare — that private property shall not be taken
or applied to public use, unless just compensation be made therefor."*

Alabama. — " Nor shall any person's property be taken or applied to
public use, unless just compensation be made therefor."f

Mississippi. — " Nor shall any person's property be taken or applied
to public use without the consent of the legislature, and without just
compensation being first made therefor."|

Tennessee. — " No man's particular services shall be demanded, or
property taken or applied to public use, without the consent of his
representatives, or without just compensation being made therefor."§

KentucJey. — " We declare — nor shall any man's property be taken
or applied to public use without the consent of his representatives, and ,
without just compensation being previously made to him."||

Having thus given the leading provisions of tt«^
State constitutions on the subject, I now procef ^'^
consider first, the precise nature of the power ot one
State over private property, and the precise extent of
the constitutional limitation. The language of the
clauses above cited is very broad and sweeping, and
a hasty consideration is sufficient to satisfy us that
the words cannot be taken in a strict or literal sense.
It may be here remarked at the outset, that this
clause furnishes a good illustration of the impossibility
of construing constitutional provisions in a spirit of
literal strictness. When a tax is levied, " private
property" is clearly taken for public use, and taken
without " compensation ;" and so in other cases which
will present themselves in the examination of the
subject. If, therefore, the clause was rigidly inter-
preted, it would at once arrest the operations of any
government to which it was applied. Such, however,

' • Cons, of Florida, art. 1, § 14.

t Cons, of Alabama, art. 1, § 13.
X Cons, of Mississippi, art. 1, § 18.
§ Cons, of Tennessee, art. 1, § 21.
J Cons, of Kentucky, art. xiii, § 14.

EMINENT DOMAIN. 499

is not its construction. The restriction on taking
private property without making compensation, is
confined to only one branch of the public authority
over private rights of property, and does not apply to
the power of taxation or to the general police powers
of the legislature. These legislative powers are not
limited by it, and there are other less important
exceptions which we shall be obliged to notice.

We have, therefore, to keep as clearly as we
can in view, the exact nature of the powers of the
State over property. They embrace not only the
power of taxation, as well as general control for the
p-^r^oses of police, public health, and public morals,
t3^^p.so the power of taking private property when
any public interest of T^hatever degree calls for it ; and
of this demand or exigency, the legislature or sover-
eign power of the State being the sole and absolute
judge, whether in part or the whole, whether required
for the ordinary expenses of government or for rare
and extraordinary emergencies, whether absolutely
required for the public safety or called for by mere
considerations of convenience, the subjection of private
property to the State or government is complete and
universal. This absolute power of the State over
the property of its citizens or subjects, seems to be
conceded by all writers, and to be declared under all
systems of government. Differences exist as to the
right to compensation ; but all agree that when the
government demands, private rights must give way,
that the property of the indiyidual must be surrendered
to the general welfare. The power which commands
and enforces these concessions, seems to derive its

500 EMINENT DOMAIN.

name from a- French original, and is known by the
term eminent domain.*

The abstract power is, as I have said, universally
recognized. As to the limitations on the power, differ-
ent systems recognize very different rules. In France,
the right to compensation is universally and peremp-
torily declared.f In England, though in no country
is a wiser and more scrupulous respect paid to private
rights, still their doctrine of parliamentary supremacy
recognizes no absolute right to remuneration. " If the
legislature thought it necessary," said Lord Kenyon,.
spe,aking of turnpike acts, paving acts, and navigation

* Vattel says, seo. 1, c. xx., § 244, " Le droit qui appartient A la soeieU ou
au souverain, de disposer en cog de neeeasiU etpour lesalut public de tout hien
renfermi dam Vetat, ia/ppelle Domairie Eminent. Ge droit faitpartie du
smtverain pouvoir." See Domat as to the right to take private propertyj
Des Loix Civiles, lib. i., tit. ii., sect, xiii., 432, et seq. He cites a curious
old ordinance of 1303, in the time of Philippe le Bel ; Et possesaorea ilia-
rum possemonum ad eas demittendMmjusiopretio compellantur.

•' All separate interests of individuals in property are held by the govem-
ment under the tacit agreement or implied reservation that the property
may bt taken for public use upon paying a fair compensation therefor,
wheneret the public interests or necessities require that it should be so
taken. Notwithstanding the grant to individuals, the eminent domain, the
highest and most exact idea of property, remains in the government or
in the aggregate body of the people in their sovereign capacity ; and they
have a right to resume the possession of the property in the manner
directed by the constitution and laws of the State, whenever the public
interests require it. The only restriction upon this power is, that the
property shall not be taken for the public use without just compensation
to the owner, and in the mode prescribed by law. The right of emin&it
domain does not, however, imply a right in the sovereign power to take
the property of one citizen and transfer it to another, even for a full com-
pensation, where the public interests will be in no way promoted by such
transfer." Beekman vs. Saratoga and Schenectady R. R. Co., 8 Paige, 73.
See also, as to eminent domam, Varick vs. Smith, 6 Paige, 159.

t The Code Napoleon (book ii. tit. ii. 645) says, " No one can be com-
pelled to give up his property except for the public good, and for a just
and previous indemnity." See also Kent's Comm. ii., 339, note.

EMINENT DOMAIN. 501

acts, " as they do in many cases, they would enable the
commissioners to award satisfaction to the individuals
who happen to suffer. But if there be no such power
the parties are without remedy, prbvided the commis-
sioners do not exceed their jurisdiction."*

In this country, we have thought it wise to put
restraints on the exercise of this power, and these
restraints are expressed in the constitutional clauses
which I have above cited. But, as I have said, the
constitutional limitation which requires compensation
for the sacrifice of private! property, does not apply to
every branch of- the power of eminent domain. It is
only intended to operate on the exercise of the legis-
lative power where property is taken for objects of
general necessity or convenience, such as roads, canals,
public buildings, public works of all kinds, and does
not attach to the power of taxation, or the general au-
thority over property with reference to public health
or public morals. As we shall see hereafter, certain
special constitutional limitations have been imposed
by some of the States on the power of taxation ; but
neither that nor the general police powers are affected
by the clauses in regard to the taking of private
property.

In regard to taxation, it is well settled that neither
the provision that private property shall not be
-taken for public use without just compensation, nor
the other clause, which we shall hereafter examine,
declaring that no person shall be deprived of his
property without, due process of law, limits the
legislative power. Therefore, an act of the legis-

* Governor, &c. of Cast Plate Manufacturers m. Meredith, 4 Term, 795 ;
-action against defendants as commissioners under a paving act ; and held
that they were not liable.

502 TAXATION.

lature directing a certain tax to be assessed upon
a particular town, is constitutional and valid.* So,
too, in Pennsylvania,, in a case already cited {ante^ p.
185), it tas been decided that, no matter how une-
qually or oppressively the power of taxation be exer-
cised, the courts have no power to interfere.f

Under this head of taxation is now generally under-
stood to be embraced, the mode usually practiced in
this country of assessing the expense of local improve-
ments ; and thus property is daily taken for opening
streets and other objects of a similar nature, often
without any pecuniary compensation, and the bur-
then thrown on a particular and small locality. In
opening streets and making other similar local im-
provements in the United States, it is the general
practice when authorizing the work to be done,
to cause the expense, which includes the value of the
property taken, to be assessed exclusively upon the
owners of real estate immediately adjacent to the
projected improvement. These lands are adjudged
to be benefited by the improvement, and are taxed
in proportion to the aniount of such benefit; and
the whole tax and expense is levied upon them. It
has been urged that this mode of disposing of private
property was a violation of the clause declaring that
private property was not to be taken without just
compensation, and that it disregarded the proper prin-
ciples of taxation. But all these objections have been
overruled, and it has been decided in many of the
States, that in the absence of any express constitutional

* People ««. Mayor of Brooklyn, 4 Corns., 428 ; Town of Guilford ««.,
Cornell, 18 Barb.. 615; ^own of Guilford «s. Supervisors of Chenango-"
Co., 3 Kernan, 147; Ante, p. 414.

t Kirby rs. Shaw, 19 Penn. (7 Harris), R., 258.

LOCAL IMPROVEMENTS. 503

provision upon the subject of taxation, the power to
tax implies the power to apportion the taxation ; and
that the remedy against unwise and unjust mades of tax-
ation lies with the legislature and with the people, and
not with the judiciary* So in Pennsylvania, the
doubts seem now set at rest, and the constitutionality
of these proceedings maintained.f

In Connecticut, also, it has been decided that a
statute authorizing a municipal corporation to grade
and improve streets, and to assess the expense among
the owners and occupants of land benefited by the
improvement, in proportion to the amount of such
benefit, is a > constitutional law ; that such an assess-
ment is an exercise of the power of taxation vested in
the State government, and is not in conflict with any
provision of the constitution. The same rule applies
where power is given to lay out highways, streets, and
avenues ; and though in cases of this kind the assess-
ment for benefit,, as it is called, may equal the value
of the property taken for the improvement, still it is
said not to conflict with the provision that private
property shall not be taken without compensation.
Where an assessment for benefit falls on the same
person from whom property is taken, it is said that

* Pe6ple vs. Mayor of Brooklyn, 4 Comstock, 419 ; overruling the
People vs. The Mayor of Brooklyn, 6 Barb., 214; Livingston vs. The
Mayor of New York, 8 Wend., 85 ; In the Matter of Opening Fttrman
Street, 17 Wendell, 649. See in Kentucky, Sutton's Heirs vs. Louisville, 5
Dana, 30 ; City of Lexington vs. M'Quillan's Heirs, 9 Dana, 613.

t M'Master vs. Commonwealth, 3 Watts, 292 ; In the Matter of the
District of the City of Pittsburgh, 2 Watts & Serg., 320 ; In the Matter of
Fenelon's Petition, 7 Penn. 173 ; and Extension of Hancock Street, 18 Penn.
(6 Harris) 26, where it is declared to be no longer an open question in Pennsyl-
vania ; Schenley and Wife vs. City of Allegheny, 25 Penn., 128, affirms
Sharpless vs. City of Philadelphia, 9 Harris, 147, as to the paving and
grading of streets in cities, and the assessment of the expense of the same.

504 LOCAL IMPROVEMENTS.

the estimated benefit is tlie compensation for tlie land
taken ; but that this is only a mode of taxation*

In Michigan, too, it has been decided that the terms
"private property" and the "property of individ-
uals," in the constitutional provisions prohibiting the
taking of property for public use without compensa-
tion, &c., were not intended to include money raised
by assessment for the purpose of paving streets ; and
that money attempted to be raised for these purposes
is not sought to be taken by virtue of the sovereign
right of eminent domain, but in the exercise of the
sovereign power of taxation. And the provisions of
the constitution relative to taking private property
for public use or improvement, and the mode of ascer-
taining the compensation therefor, does not apply to
to such assessment.f

In Louisiana, however, where the constitution (art.
105) provides that " taxation shall be equal and uni-
form throughout the State,"J the system of assessing
the expense of street assessments and other municipal
improvements on such neighboring proprietors as are
most benefited by them, has been pi'onounced uncon-
stitutional, on the ground that in that State the
right of eminent domain and the power of taxation
are both limited under the constitution ; and that the
legislature has no power of apportioning taxation for

* Nichols vs. Bridgeport, 23 Conn., 189 ; The People ex rel. Griffln vs.
The Mayor, 4 Corns., 419.

t Williams- Bs. Mayor of Detroit, 2 Michigan, 660. A distinction is here
taken between the power of eminent domain and that of taxation. I believe
that in strict language the power of eminent domain, as the general phrase,
expresses the absolute power of the State over private property for all
purposes ; and that the power of taxation is but a branch of it. But see
post, p. 508 ; Commonwealth vs. Alger, 7 Gushing, 53, 85.
I See also Camming vs. Police Jury, 9 La. Ann R., p. 503.

POLICE POWERS. 505

public purposes whatever, of a local nature, except on
tte principles of equality and uniformity*

In Pennsylvania, it lias been decided that an act
authorizing municipal corporations to subscribe to the
stock of a railroad corporation, is within the constitu-
tional powers of the legislature ; that it is not a ,taking
of private property for public use without compensa-
tion, because though the property of the citizen may
be more heavily taxed than before, it is not taken;
and that the acts of this kind fall within the scope of
the legislative power to permit the appropriation of a
local tax within the consent of the local authorities,f
and the same point has been decided in Louisiana,
after much deliberation.^

It being thus settled that the clause in regard to
private property does not apply to taxation, we have
next to notice a further limitation of its sweeping
phraseology. The clause prohibiting the taking of
private property without compensation, is not in-
tended as a limitation of the exercise of those police
powers which are necessary to the tranquillity of every
well-ordered community, nor of that general power
over private property which is necessary £|c the
orderly existence of all governments. It has always
been held that the legislature may make police
regulations, although they may interfere with the full

* Municipality No. 3 ■»«. White, 9 La. Ann. R., 447.

t Sharpless W Tlie Mayor of Pliiladelphia, 21 (9 Harris) Penn., 147.
Black, C. J., Woodward, and Enox, concurred in the judgment. See to
same point, Moers w. City of Reading, 21 Penn., 188. In the last case,
Lewis and Lowrie, JJ., dissented. The discussion is able and interesting.

t Police Jury vs. M'Donogh's Succession, 8 La. Ann. R. 341 ; New Orleans
«». Grarhle, 9 L. Ann. R., 561. See also in iEentucky, Slick ««. Maysville
and Lexington R. R. Co., 13 B. Mfjinroe, p. 1 ; Justices of Clarke Co. m.
The P. W. & K. R. Turnpike Co., M B. Munroe, 143.

506 POLICE POWERS.

enjoyment of private property, and though no com-
pensation is given. So, an act authorizing harbor-
masters to direct vessels where to station, though
interfering with private engagements, is not a violation
of the constitution.* A statute of Massachusetts
which, without compensation, imposes a penalty on
any person who shall take, carry away, or remove
any stones, gravel, or sand from any of the beaches in
the town of Chelsea for the protection of the harbor
of Boston, and the prohibition of which extends as
well to the owner of the soil as to strangers, has been
held constitutional and valid ; this is not such a taking
of private property and appropriating it to public use,
as to render it void because no compensation is pro-
vided for the owners, upon the ground that it is only a
just and legitimate exercise of the power of the legis-
lature to regulate and restrain such particular use of
property as would be injurious to the publicf

In the same State, it is well settled that the legis-
lature has power to make regulations in the nature
of police regulations, which, though affecting the
value and even the enjoyment of private property, are
helc^iot to conflict with the constitutional provisions
devised to secure and protect private property. By
an ordinance passed in 1641, by the colony of Massa-
chusetts, the proprietors of upland bordering on the
sea have an estate in fee in the adjoining flats above
low-water mark, and within one hundred rods of the
upland ; but notwithstanding this right, the legislature
has power to establish lines in the harbor of Boston,

* Vanderbilt v». Adams, 7 Cowen, 849.

t Commonwealth vs. Tewksbury, 11 Met. 56. It was well said in this
case, to be extremely difGcult to lay do jrn any general rule.

POLICE POWERS. 607

beyond wHcli no wharf shall be extended or main-
tained, and to prohibit building beyond such lines;
and such statutes, although they make no compensa-
tion to the proprietors, are not unconstitutional as
taking private property and appropriating it to public
uses without compensation*
In this case the Court said :

We think it is a settled principle, growing ouVn the nature of
■well-ordered civil society, that every holder of property, however
absolute and unqualified may be his title, holds it under the implied
liability that his use of it shall not be injurious to the equal enjoyment
of others having an equal right to the enjoyment of their property,
nor injurious to the rights of the community. All property in this
commonwealth, as well that in the interior as that bordering on tide-
waters, is derived directly or indirectly from the government, and held
subject to those general regulations which are necessary to the common
good and general welfare. Rights of property, like all other social
and conventional rights, are subject to such reasonable liniitations in
their enjoyment, as shall prevent them from being injurious, and to
such reasonable restraints and regulations established by law, as the
legislature, under the governing and controlling power vested in them
by the constitution, may think necessary and expedient. •

This is very diflFerent from the right of eminent domain, — the right
of a government to take and appropriate private property to public
use whenever the public exigency requires it, which can be done only
on condition of providing a reasonable compensation therefor. The
power we allude to is rather the police power, the power vested in the
legislature by the constitution, to make, ordain, and establish all man-
ner of wholesome and reasonable laws, statutes, and ordinances, either
with penalties or without, not ffipugnant to the constitution, as they
shall judge to be for the good and welfare of the commonwealth, and
of the subjects of the same.

It is much easiei; to perceive and realize the existence and sources
of this power than to mark its boundaries, or prescribe limits to its
exercise. There are many cases in which such a power is exercised by
all well-ordered governments, and where its fitness is so obvious that all

* Commonwealth vs. Alger, 7 Cush. 5S, per Shaw, 0. J.

508 POLICE POWERS.

well-regulated minds will regard it as reasonable. Such are the laws
to prohibit the use of warehouses for the storage of gunpowder near
habitations or highways; to restrain the height to which wooden
buildings may be erected in populous neighborhoods, and require them
to be covered with slate or other incombustible material ; to prohibit
buildings from being used for hospitals for contagious diseases, or for
the carrying on of noxious or offensive trades ; to prohibit the raising
of a dam and causing stagnant water to spread over meadows near
inhabited villa^^ thereby raising noxious exhalations, injurious to
health and dangRus to life.

Nor does the prohibition of such noxious use of property, a pro-
hibition imposed because such use would be injurious to the public,
although it may diminish the profits of the owner, make it an appro-
priation to a public use, so as to entitle the owner to compensation.
If the owner of a vacant lot in the midst of a city could erect thereon
a great wooden building, and cover it with shingles, he might obtain a
larger profit of his land than if obliged to build of stone or brick, with
a slated roof. If the owner of a warehouse in a cluster of other build-
ings could store quantities of gunpowder in it for himself and others,
he might be saved the great expense of transportation. If a landlord
could let his building for a small-pox hospital or a slaughter house, he
might obtain an increased rent. Eut he is restrained, not because the
public have occasion to make the lik§ use or to make any use of the
> property, or to take any use of the property, or to take any benefit or
profit to themselves fi:om it, — but because it would be a noxious use,
contrary to the maxim, sic utere two ut alienum non ladas. It is not
an appropriation of the property to a public use, but the restraint of
an injurious private use by the owner ; and it is therefore not within
the principle of property taken under the right of eminent domain.
The distinction, we think, is manifest in principle ; although the facts
afid circumstances of different cases are so various that it is often diflB-
cult to decide whether a particular Zeroise of legislation is properly
attributable to the one or the other of these two acknowledged
powers.*

There is now no occasion and no ground to deny or question the
full and sovereign power of the commonwealth, within its limits, by
legislative acts to exercise dominion over the sea and the shores of the

* Oommonwealth vs. Alger, 7 Gush. B8, 84. I have already, ante, p.
600, called attention to what I suppose to be the true rules of terminology
in regard to eminent domain and taxation.

POLICE POWERS. 60&

sea, and all its arms and branches, and the lands under them, and all
other lands flowed by tide-water, subject to the rights of riparian owner-
ship. Whether any portion of this sovereignty reniained in the British
crown, it is now immaterial to inquire ; for it is quite certain that the
entire right of property in the Boil, was granted to the colonists in their
aggregate capacity ; and if any power remained in the crown, it was
that of dominion and regulation of the public right ; and this was
wholly determined by the Declaration of Independence, acknowledged
and acceded to by the treaty of peace, sanctioned by an act of Parliar
ment. This right of dominion and controlling power over the sea and
its coasts, shores^ and tide-waters, it is settled that it vested in the
several States in their sovereign capacity respectively, and was not
transferred to the United States by the adoption of the Constitution
intended to form a more perfect union. Special jurisdiction has been
from time to time vested in the General Government for special
purposes ; but the general jurisdiction remains with the several States,
subject, hov^ver, to such regulations as Congress may make in the
exercise of their admitted powers to regulate foreign cammerce and
commerce among the States. Such is the principle determined by the
Supreme Court of the United States, the ultimate tribunal to decide
questions of this kind.*

So it has been expressly decided in the same State
that the clause in the constitution declaring that private
property is not to be taken for public use without com-
pensation, does not apply to the laws declaring that
certain property shall be destroyed or confiscated as
being injurious to the. interests of public policy, as
liquor or gunpowder. It is competent for the legisla-
ture to. declare the possession of certain articles of
property, either absolutely or when held in particular
places and* under particular circumstances, to be un-
lawful, because they would be injurious, dangerous, or
obnoxious.f

* Commonwealth w. Alger, 7 Gushing, 53, 83, citing New Orleans vs.
The United States, 10 Pet. 662, 737 ; PoUard vs. Hagan, 3 How. 212.
t Fisher w. M'Girr, 1 Gray, pp. 26, 41,

510 PUBLIC WATERS.

On the same general grounds, the power of the
legislature over the great internal communications of
a State, whether by land or water, has been asserted.
It has been contended that a navigable river is a
public highway, and that the legislature cannot inter-
fere with its use without adequate indemnity. But
the contrary has been decided. In Massachusetts, an
act of the legislature authorizing the building of a
bridgef over navigable waters within the limits of the
commonwealth, has been held not unconstitutional.
The legislature are to determine when the public con-
venience and necessity require such an obstruction to
navigation, and upon what terms and conditions it
shall be allowed. It has power to regulate aad control
by law, ail public highways and navigable waters.*
So in Maine, it has been held that the legislature
may lay out a highway or change the course of a
public river, when the public convenience requires it,
although private rights may be thereby affected.f

"We have next to consider another limitation on the
general words of the clause under consideration. The
constitutional restriction on legislative action in regard

* Commonwealth vs. Breed, 4= Pick. 464. In this case it was insisted
that the act was obtained by fraud. The court said, " If a legislative act
may be avoided for this cause, yet fraud is always a question of fact pecu-
liarly within the province of a jury, and cannot be inferred by the court."
The question whether and to what extent it can be shown that a given
legislative act was obtained by fraud, seems stiU open. • In regard to
strictly private bills, strong arguments may be urged ; but there seems, even
in these cases, great diflBculty in asserting the power of the judiciary over
the subject. See Stark «s. M'Gowan, 1 Nott & M'Cord R. 400, n.

;. t Spring w. Russell eJ al, 7 Greenleaf, 292 ; where held that a plain tiff had
no right of action against certain canal proprietors who, under the authority
of the legislature, had turned the][channel of Saco River, and thus prevented
the plaintiff from floating his logs down*the river, as he otherwise would
have done.

INCHOATE RIGHTS. 611

to private property, does not prevent the sovereign
power from acting upon personal rights that are not
vested at the time of the passage of the law. So in
regard to the husband's interest in the wife's property,
it has been held that as to real property belonging to
her at the time of the marriage, he takes, by the rules
of the common law, a vested interest which no subse-
quent legislation can defeat; but as to her future
acquisitions they may be regulated by law, — ^in other
words, he takes whatever interest, if any, that the
legislature before she is invested with them may
think proper to prescribe. All prospective possible
rights arising from existing le^slation, are liable to
be abridged or revoked by future legislation ;* and
consequently they do not conflict with the legislative
provisions as to the obligation of contracts, nor with
those relating to the inviolability of property.f
So" again in regard to mere inchoate rights, as of
dower during coverture, the right can be divested
or regulated by an act of the legislature, at any time
during the husband's life. J

Having arrived, therefore, at the result that the
constitutional restrictions upon the power of eminent
domain do not apply to those branches of it which
regulate taxation and police enactments, nor affect
rights not actually vested, we have next to observe
that the power to take is universal and absolute : it
applies to every species of property, and the legisla-
ture is the sole judge of the exigency calling for the
interposition of its authority.

* Sleight M. Read, 18 Barbour, 159.

t White vs. White, 5 Barb. 474 ; Blood vs. Humphrey, 17 Barb. 660.

i Moore vs. City of New York, 4 Sandf. 461.

512 ALL PROPERTY CAN BE TAKEN.

First, all property can be taken, lio 'matter whether
real or personal, whether susceptible of manual pos-
session or a mere chose in action. So in Pennsyl-
vania, it has been held, where land is taken for a
railroad, that the interest which tenants hold under a
covenant for a renewal of their leases, is a proper sub-
ject of compensation.* Thus a franchise to build and
maintain a toll-bridge, may be appropriated, and the
right of an incorporated company to maintain such a
bridge under a charter from a State, may, under the
right of eminent domain, be taken for a highway ; and
so of a railroad.f So too in Vermont, it has been
decided that an act of the legislature authorizing
the Supreme and County Courts to take the fran-
chises of a turnpike corporation for a public highway,
on making compensation, is constitutional. J So in
New Hampshire, it has been held that the franchises
of a corporation may be taken by virtue of the
exercise of the power of eminent domain.§

As the power to take is universal, so it is absolute :
that is to say, the legislature are the sole judges
of the existence of the exigency which demands the
sacrifice of the rights of individuals. " I admit," says
Mr. Chancellor Walworth, "that the legislature are
the sole judges as to the expediency of exercising the
right of eminent domain for the purpose of making"

* North Penn. R. E. Co. vs. Davis, 26 Penn. R. (2 Casey) 238.

t West River Bridge vs. Dix, 6 How. 507 ; Richmond F. and P. R. R.
vs. Louisa R. R., IS How. 88 ; Boston and Lowell R. R. Corp. vs. Salem and
Lowell R. Co. 2 Gray, 1.

X Armington et al. vs. Barnet et al, 15 Verm. 875 ; see the sagacious
remarks of Mr. J. Redfield, in this case, on the Charles Eiver Bridge Case,
11 Peters, 589.

§ Backus m. Lebanon, 11 N. H. R. 19.

NECESSITY FOR TAKING. 513

public improvements either for the benefit of the
inhabitants of the State generally, of of any particular
section thereof."* " It is the undoubted and exclusive
province of the legislature," says the Supreme Court
of the State of Maine, " to decide when the public
exigencies require that private property be taken for
public uses."f ,

In New York, it has been decided that an act au-
thorizing commissioners to enter upon and appropriate
the lands of individuals for the purpose of draining a
swamp, is a lawful exercise of the power of eminent
domain, and the taking of such lands as far as is neces-
sary, is a lawful taking of the same for public use. It
is for the legislature to judge of the degree of the
necessity which exists for the exercise of the right of
eminent domain ; and the courts will not interfere to
restrain the commissioners by injunction, unless they
are violating the plain and manifest intent of the
statute, or are proceeding in bad faith.J

Thus far we have observed that the clause in regard

* Varick vs. Smith, 5 Paige, 160.

t Spring «s. Russell, 7 Greenl. 292.

I Hartwell vs. Armstrong, 19 Barb. 166. But the condition of providing
a full compensation to the owner, is fundamental and imperative; and
where an act authorizing the draining of a swamp, provided that the dam-
ages or compensation to the owners of lands taken, should be made col-
lectable and payable by assessing the same on the several owners of the
land drained, according to the number of acres respectively owned by each, —
it was held that this was not the just compensation required by the consti-
tution, because the burden ought to be borne by the public at large bene-
fited by the improvement, and because the apportionment by area of surface
was inequitable ; and the act was held yoid. The constitutionality of a law
to drain wet lands at the expense of others, is discussed in Woodruff vs.
Fisher, 17 Barb. 224 ; and it was intimated that unless the work was for the
public good and not for private benefit, the act could not be sustained; but
it was said that perhaps after such an act of legislation, it is to be presumed
that the work will be beneficial to the owners of the lands generally.
33

514 PROPERTY NOT TO BE TAKEN FOR PRIVATE USE.

to private property has no effect upon legislative su-
premacy in regard to taxation or general police povi^efs
— however these powers may be affected by other spe-
cial constitutional clauses, — nor in regard to rights not
vested at the time of the passage of any given legisla-
tive enactment. "We have also stated that the power
to take private property applies to all property, and
that the legislature is the sole judge as to the fact
whether the public welfare demands the sacrifice of
the private right. We have still to consider certain
other questions which have presented themselves in.
regard to the power of the State legislatures over pri-
vate property. And of these the most important is
whether, under our forms of government, and under the
operation of the constitutional clause above cited, pri-
vate property can be taken for any but public purposes.
It seems to be the sounder construction, that the
declaration that private property shall not be taken
for public use without compensation, impliedly prohib-
its private property being taken for private use at all.
So, in New York, the Supreme Court has said, " The
constitution, by authorizing the appropriation of pri-
vate property to publio use^ impliedly declares that,
for any other use^ private property shall not be taken
from one and applied to the private use of another.*
So, again, in the Court of Errors, Mr. Senator Tracy
said, that the words "private property shall not be
taken for public use without just compensation, should
be construed as equivalent to a constitutional declara-
tion that private property, without the consent of the

* In the matter of Albany Street, 1 1 Wend., 151. In this case it was held
that the corporation of the city of New York had no power to take more
of the land of an individual for the purpose of a street than was actually
required for that purpose.

PROPERTY NOT TO BE TAKEN FOR PRIVATE USE. 515

owner, shall be taken only for the public use, and then
only upon a just compensation."* This accords with
the principles in regard to the nature of a law^ which we
have already discussed at I'ength. An appropriation
of private property for private purposes, is a mere-
abuse of the powers of legislation. An act framed for
such purposes has not the character of a law, and is
prohibited by the general ideas which define and limit
the proper functions of the legislature. Indeed, in the
same State it has been expressly decided that a stat-
ute which authorizes the transfer of one man's prop-
erty to another, without the owner's fconsent, is uncon-
stitutional and void although compensation be made.
So, a city corporation cannot, for the purpose of
making a street, take the whole of a lot, if a portion
only be wanted for the object; and the act under
which the proceedings are had must be read as if con-
taining a proviso that the owners consent as to the part
not actually needed, — otherwise the act is unconstitu-
tional and void.f

Having thus considered the nature of the power
of eminent domain so far as it is intended to be lim-
ited by the constitutional restriction, before proceed-
ing to the second head — ^that of delegation of the
power — some other decisions in regard to this constitu-
tional clause, growing out of circumstances peculiar
to the several States of the Union, may be noticed
here. In New York it ha^ been held that the stat-

* Bloodgood vs. The Mohawk and Hudson R. R. Co. See 18 Wend. 9
and 59.; see, also, matter of John and Cherry streets, 19 Wend. 659, and
Varick m. Smith, 5 Paige, 137.

t Embury w. Conner, 3 Coms. 511, and cases cited. The same doctrine
is asserted in Taylor «s. Porter, 4 Hill, 140 (ante) ; Beekman vs. Saratoga
and Schy. R. R. Co., 3 Paige, 73 ; and Varick »s. Smith, 5 Paige, 159.

516 SPECIAL CASES.

utory provisions whicli authorize towns to determine
wlien cattle may run at large on highways, are uncon-
stitutional and void, inasmuch as they authorize the
appropriation without com'pensation of the grass and
•herbage on the track of highways, which, subject to
the public right of way, are the property of private
proprietors.*

In the same State, the general highway act giving to
commissioners of highways the power to lay out new
roads through wild or unimproved lands, without the
consent of the owner of the lands taken, is pronounced
unconstitutional and void, because no compensation is
made to the proprietors; and has been so recently
held, although the power has been sanctioned by
statutes and exercised nearly ever since the State had
an existence or a government.f

In Pennsylvania, it has been the invariable usage,
from the first settlement of the commonwealth down
to the present day, to reserve six 'acres out of every
hundred for roads ; and it is held that this six per
cent, belongs to the State, and she may constitution-
ally appropriate it to the use for which it was meant
without compensation. J In the same State, it has been
held, in regard to turnpikes or plank roads, that a
'person on whose land such a road is located can
recover damages to an amount which, if added to the
present value of his land, would make it worth as
much as it was before the road was made.§

An act of the legislature of Massachusetts incorpo-

* Tonawanda Railroad Co. vs. Hunger, 5 Denio, 25'6.

t Wallace vs. Karlenowefski, 19 Barb. 118; Gould vs. Glass, it. 179.

I Plank Road Company vs. Thomas, 20 Penn. R,, 93.

§ Plank Road Co. .vs. Thomas, 20 Penn. R., 93.

DELEGATION OF THE POWER. 517

rated an aqueduct company for tlie purpose of supply-
ing a village with pure water, with adthority to take
springs ; but the act did not in terms require the
corporation to supply,' on reasonable terms, all—per-
sons applying for water. It was insisted that this act
was unconstitutional, on the ground that it authorized
the taking of private property for a use not public.
But it was held good, on the ground that if such a
corporation should undertake, capriciously and oppres-
sively, to enhance the value of certain estates by fur-
nishing them with a supply of water, and depreciate
that of others by refusing them, it would be a plain
abuse of their franchise.*

Delegation of the Power of Eminent Domain. —
Having thus attempted to define the limits of the
legislative power in regard tO private property, the
next important question arises, by whom the power
must be exercised. It has been insisted that the
power of taking property by virtue of the right of emi-
nent domain, must be exercised by the State directly,
without the intervention of any ii^rmediate agents ;
but all doubts in regard to thiy are now put at
rest, and the contrary doctrine firmly established. So;
it has been decided in New York, that the right of
eminent domain may be exercised in regard to rail-
roads and other similar public works, either directly
or through the medium of corporations or joinifc-stock
companies ; while at the same time it has been held,
as we shall - see hereafter, that statutes authorizing
the appropriation, in order to be constitutional and
valid, must make provision for the assessment and

518 DELEGATION OF THE POWER.

payment of tlie damages of the land owner.* " In all
the cases where individuals or corporate bodies are
authorized to take private property for the purpose
of making highways, turnpike roads, and canals ; of
erecting and constructing wharves and basins; of
establishing ferries ; of draining swamps and marshes,
and of bringing water to cities and villages, the object
of the legislative grant of power is the public^ benefit
derived from the contemplated improvement, whether
such improvement is to be effected directly by the
agents of the government, or through the medium of
corporate bodies or of individual enterprise."f In
Connecticut, it has been said, "It is now established
by the current of decisions, that the property of indi-
viduals taken by railroad feompanies and similar cor-
porations under their charters is, from the public
benefits resulting therefrom, to be deemed to be taken
for the public use within the constitutional provision
on that subject.''^ In Michigan, it has been said, " In
the second of the articles of compact, the ordinance of
17 8 7, it is among other things provided that no man
shall be deprive"of his liberty or property, but by
the judgment of his peers or the law of the land; or
should the public exigencies make it necessary, for the
common preservation, to take any person's property,
or to demand his particular services, full conlpensation
shall I be made for the same. This provision was evi-
dently framed with a jealous eye to arbitrary execu-
tive power, and was not designed to restrict judicial

* Bloodgood ««. Mohawk and Hudson R. R. Co., 18 Wend., 9 ; S. C. in.
error, 18 Wend,, 17, 78.

t Beekman vs. The Saratoga and Sch'y R. R. Co., 3 Paige, 75, per
Walworth, Ch.

I Bradley vs, N. Y. and N. H. R. R. Co., 21 Conn., 294.

WHEN PROPERTY DEEMED TAKEN. 519

or legislative authority, but rather to limit and confine
the power ove» persons and property to them ;" and
under the above clause it was held, that the territorial
legislature could lawfully authorize a railroad corpo-
ration to take private property for their use ; in other
words, that the power of eminent domain could be
delegated*

In Tennessee, it has been held that the taking of
the land of an individual for the erection of a grist-
mill thereon, at which all the inhabitants of the
neighborhood should be entitled to have their grind-
ing done in turn, and at fixed rates, was such a public
use as to authorize the exercise of the right of eminent
domain, though the whole property and profits of the
mill were to belong to the individual proprietora,^on
the ground of the public utility of having such a mill,
where each individual had an equal right to be served.f

When property is deemed to he taken. — The next
principal subject of inquiry in regard to the guarantee
of private property, is as to what taking or appropri-
ation the limitation applies.

It seems to be settled that, to entitle the owner to
protection under this clause, the property must be
actually taken in the physical sense of the word, and
that the proprietor, is not entitled to claim remunera-
tion for indirect or consequential damage, no matter
how serious or how clearly and unquestionably result-

* In this case, it was also held that it was no objection to the charter
of a railroad, in a constitutional point of view, that it did not provide for
notice to the owners of the lands, of proceedings to assess the damages for
taking-the same. Swan vs. Williams, 2 Michigan, 437.

t Harding vs. Goodlet, 3 Yerger, 41. In New Hampshire it has been
said by the Supreme Court of that State, that the power of eminent domain
may be exercised either through the action of general laws or of judicial
tribunals. Bachus vs. Lebanon, 11 N. H. 19.

520 WHEN PROPERTY DEEMED TAKEN.

ing from the exercise of the power of eminent domain.
This rule has been repeatedly declared fc. many of the
States of the Union. So, in New York, the conse-
quential damages resulting from the raising of the
grade of a city street sustained by adjacent proprie-
tors gives no action against the railroad corporation,
acting under the authority of the legislature and with
the consent of the city government.* So, in the same
State, in taking land for railroad purposes, the only
right of the party whose property is entered on is to
be paid for the land taken, and that without any
reference to the fact that the land of whicli he is
deprived is taken for the construction of a railroad,
and that its use by the railroad company may be seri-
ously injurious to the rest of his adjacent property.f
So, again, the damage likely to result from a road to a
mill on the proprietor's adjacent land, is not a subject
of inquiry. J So, again, in New York, a franchise may
be said to be " taken within the meaning of the con-
stitutional guarantee of private property, when the
owner is deprived of the power or means of exercising
it ;" but it is not " taken" when its emoluments are
merely diminished by an improvement which does not
destroy or impair such power or means. This is on
the ground that, when the public good calls for new
grants, it is right they should be made, although they
may become rivals to pre-existing establishments made
under legislative authority. And thus it has been
held, that where a public avenue was opened across a

* Radcliff'sEx'rs. vs. Mayor &c., of Brooklyn, 4 Comstock, 195 ; Chapman
118. Albany and Schenectady R. R. Co., 10 Barb., 360; see, also. First Bap-
tist Church m. Utica and Schenectady R. R. Co., 6 Barb., 313.

t Albany Northern Railroad Company vs. Lansing, 16 Barb., 68.

I Canandaigua and Niagara Falls R. R. Co. vs. Payne, 16 Barb., 273.

WHEN PROPERTY DEEMED TAK^. 621

stream, and nearly alongside of a toll-bridge, the
apprehended diminution of the tolls on the bridge is
not a grievance for which the bridge proprietors are
entitled to redress, the statute granting their franchise
not having conferred an exclusive right ; and it was
also held that, as the proposed avenue did not occupy
any part of the site of the bridge, but merely passed
over one end thereof, and occupied a portion of the
causeway leading to it, the proprietors were not enti-
tled to compensation, it not-appearing that the appro-
priation of the part of the causeway required for the
avenue would, of itself, diminish the travel over the
bridge or throw any physical obstacles in the way of
crossing it.*

So, in Pennsylvania, in regard to taking private
property for railroads, it has been decided, in making
compensation, that consequential damages are not to
be estimated unless provided for in the act of incorpo-
ration; and acts of incorporation are constitutional
though no provision be made for such damage.f So,
in the' same State, it has been held that, under the
constitutional provision declaring that " private prop-
erty shall not be taken or applied to public use with-
out just, compensation being made," no remedy is
provided for damages done by cutting down the grade
of a street, although such 'cutting down destroy a
building on adjacent property. The Supreme Court,
Gibson, C. J., delivering this opinion, said,, that they
grieved to say there was no redress ; " the ' constitu-

* Matter of Hamilton Avenue, 14 Barb., 405.

f Monongahela Navigation Co. m. Coons, 6 W. & Serg. 114; Henry
M. Pittsburgh and Allegheny Bridge Co., 8 Watts & Serg. 85 ; MifBn vs.
Railroad Company, 16 Penii. 198 ; Reitenbaugh vs. ''Oh'ester Valley Rail-
road Co., 21 Penn, 100.

622 WHEN PROPERTY DEEMED TAKEN.

tional provision for tlie case of private property taken
for public use extends not to the case of property
injured or destroyed."* So, in the same State, it has
been held the legislature has the power to vacate or
close a public street without the consent of those
whose private interests may be affected by it, and with-
out providing compensation for the injury. The value
of property may be taken away by closing the ave-
nues which lead to it ; but it is a consequential loss,
and must be borne by thos$ who suffer it,f

So, in Connecticut, it has been decided that, to
entitle a person to the assessment of damages in his
favor sanctioned by the laying out of highways, the
^damages must be direct and immediate, producing a
legal injury, and not remote and consequential. Thus
the loss of the use of a creek, crossed by the highway,
for the transportation of merchandise in common with
the public, is not a damage for which the claimant is
entitled to be indemnified. J

In Massachusetts it has been held that a mere entry
of commissioners, under an act of the legislature,
authorizing certain boundaries to be ascertained, is not
unconstitutional though no compensation is provided
for the entry. No property is appropriated.!

In Maine the compensation provided by statute for
damages occasioned by the location and construction of
.railroads, has been said to extend only to real estate or
materials taken ; and it has been held that for dam-
ages indirectly resulting from the legal acts of a char*

* O'Connor »s. Pittsburgh, 6 Harr. Penn. R., 187.
t Paul M. Carver, 26 Penn. 223.
I Clask vs. Saybrook,'21 Conn. 318.
§ Winslow lis. GifFord, 6 Cashing, 327.

WHEN PROPERTY DEEMED TAKEN. 623

tered corporation, the law affords no remedy.* The
true construction of the provision has been elabor-
ately examined in the State ; and the Supreme Court
has there decided that by the taking of property
within the scope of this clause, is meant such an
appropriation of it as deprives the owner of his title or
a part of his title, and that it does not prevent the
legislature from authorizing acts operating injuriously
to private property and without compensation, unless
such property is taken and appropriated or attempted
to be taken and appropriated, for the owner.f

In Vermont too, the course is to limit the compen-
sation to damages sustained by the actual taking of
property, all other loss sustained by individuals comes
under the head of da/mnum absque injwria^ ftr under
the head of sacrifices which individuals must bear for
the common benefit.^

*. Rogers m. Kennebec and Portland Railroad Con, 85 Maine, 319.

t Cushman w. Smith, 34 Maine, 247.

I See Hatch us. Vt. Central R. R. Co., 25 Vermont, 49, where the subject
is discussed in an able opinion of Redfleld, J. .

For other cases where private property is injured by.the construction
and grading of highways and railways, when it is not taken within the
clause, see Day et al. vs. Stetson, 8 Greenl. 365 ; Callenderm Marsh, 1 Pick.
418 ; Canal Appraisers vs. The People, 17 Wend. 571 ; Susquehanna
Canal Co. M.Wright, 9 Watts & Serg. 9.

In England, the disposition seems to be to extend "the protection of
private property so as to reach every thing' that injuriously affects it, as
where high embankments are made in front of adjacent premises, or where
annoyance and injury is caused by the close proximity of a railroad, or by the
noise of its engines, and in many other cases. Queen bs. Eastern Counties R.
Co., 10 Ad., and El. 681 ; Glover vs. North Staff. R. Co., 5 Eng. Law and Eq.
R. 335. The act of the 6 and 7 Will. IV. c. 109, gives remuneration to proprie-
tors for lands taken, used, damaged, or injunously affected, in the construc-
tion of the ShefBeld and Rotherham Railway Company ; Turner et al. vs.
The SheflSeld and Rotherham Railroad Co., 10 Mees. & Wels. 425, where
held that the Company was liable to make compensation for dust and

624 WHEN PROPERTY DEEMED TAKEN.

To differ from the voice of so many learned and
sagacious magistrates, may almost wear tte aspect of
presumption ; but I cannot refrain from the expression
of the opinion, that this limitation of the term taking
to the actual physical appropriation of property or a
divesting of the title is, it seems to me, far too narrow
a construction to answer the purposes of justice, or to
meet the demands of an eq'ual administration of the
great powers of government.

The tendency under our system is too often to sac-
rifice the individual to the community ; and it seems
very difficult in reason to show why the State should
not pay for property of which it destroys or impairs
the value, as well as for what it physically takes. If
by reas«n of a consequential damage the value of
real estate, is positively diminished, it does not appear
arduous to prove that in point of fact the owner is de-

drifting frcan the railway station and embankment into the plaintiff's hpuse.
The statute & and 9 Victoria, c. 18, 8th May, 1845, entitled "An act for con-
solidating in one act, certain provisions usually inserted in acts authorizing
the taking of lands for undertakings of a public nature," and commonly
called the Land piauses Consolidation Act, provides compensation for land
or any interest taken or injuriously affected by the execution of public
works; Jind the right to compensation extends to consequential damage.
Bast and West India Docks and Birmingham Junctfon Railway «s. Gattke,
3 Man. & Gr. 165; 6 Railway Oases, 871. See also, Glover «s. North
Staffordshire Railway Co., 15 Jur. 678, 20 L. J., Q. B. 876 ; where lands
held to be injuriously affected by the proximity of the railway and passage
of the. trains. See also, Shelford's Law of Railways, by the Hon. Milo L.
Bennett, of the Supreme Court of Vermont, where the American cases are
also to be found on many subjects connected with railroads. It is not an
agreeable observation to make, but I believe it cannot be denkd, that the
protection afforded by the English government to property, is much more
complete in this respect than under our system; although Parliament
claims to be despotically supreme, and although we boast our submission
to constitutional restrictions ; so difficult is it to judge of systems until
their practical operation is carefully observed.

COMPENSATION. .525

prived of property, thougli a particular piece of prop-
erty may not be actually taken. Objections of tbe
same kind migbt be urged to our system of assessment
for local improvements, by which, in too many cases,
the only compensation for real estate actually taken, is
in an hypothetical and imaginary benefit conferred.
It may be true that if the benefit cbnferred by an
improvement on adjacent proprietors were not taken
into consideration, some inequality would result; but
it seems more conformable to equity, and indeed to
the language of the constitutional clause, that an indi-
vidual advantage should be conferred in a few cases
on a citizen, than that in many he should be a direct
and certain loser, in consequence of public improve-
ments.

But considerations of this kind have been silenced
by the universal demand for works tending to develop
the internal resources of the country ; a general dis-
position has been felt not to cramp these entej-prises
by a too sweeping or extensive compensation; and
the matter can only be now remedied by the insertion
of carefully drawn clauses in our legislative acts,
which shall give to property the full protection that
the constitutional guarantee has failed to secure.

Compensation. — In our examination of the clau'se
which we are now discussing, the last head to be con-
sidered is in regard to the time and mode of making
compensation. On this subject much diversity of
opinion has existed, as to whether payment or tender
of compensation should be made a condition precedent ^
to any act of interference with private property. The
only certain guarantee, of course, would be to make
compensation, in all cases, precede the first act of inter-
ference with individual property ; but it is at once

626 COMPENSATION.

apparent, in this as in many other acts of administra-
tive power, that coniicting interests present themselves,
difficult to be reconciled. In the construction of works
of public improvement, as railroads or canals for in-
stance, before it is known what lands wUl be wanted,
preliminary steps, such for instance as surveys, are
indispensably necessary. These preliminary steps are,
in themselves, a trespass, and may sometimes, as by the
felling' of trees, work actual injury to the proprietor.
On the other hand, if payment be not made before the
work is actually begun, then, if it be discontinued or
left in an imperfect state, the owner might be entirely
remediless. In such a conflict of interests the current
of decisions seems to tend to establish the rule that,
the preliminary steps in regard tO public works may
be taken without making compensation, but that,
before any definitive act be done toward the construc-
tion of the improvement which is in the nature of the
assertion of ownership, payment must be made or ten-
dered, or a certain -and adequate remedy he provided;
and, unless this is done in the act authorizing the work,
the statute is wholly unconstitutional and void, and
any step taken under it is an unauthorized trespass.*

So, in New York, it has been decided, in regard to
the exercise by the State of its right of eminent do-
main, not to be necessary that payment or compensa-
tion should be made before entry ; all that is requisite
is that the law should provide a certain and adequate
remedy by which the individual can obtain compensa-

* In Mississippi, as we have seen above, the clause is explicit that con-
pensation shall be first made ; and under that provision it has been there
held that payment is a condition precedent to the seizure for public use.
Thompson vs. Grand Gulf R. R. and Banking Co., 3 How. Miss. R. 240.

COMPENSATIOir. ■ 527

tion without unreasonable delay. The owner is not to
be left dependent on the future justice of the legisla-
ture to provide compensation for his property * It is
sufficient, however, that the law provides for compen-
sation, and it is not necessary that the payment of such
compensation should be made a condition precedent to
entry upon appropriation of the premises.f

In Maryland, the constitution provides (art. iii.,
§ 46 ; cmte^ p. 497) that the compensation, as agreed on
between the parties or awarded by a jury,- shall be
first paid or tendered to the party entitled to such
compensation ; and under this it has been held that it
is sufficient if provision be made for compensation,
first to be paid or tendered to the owner, to be fixed
either by contract with him or by the assessment of
commissioners, giving, the owner the right of appeal
from their decisions and securing a trial by jury in the
appellate court ; and the neglect or refusal to appeal
is held as a waiver of the right to a jury trial ; and
on payment or tender of the compensation assessed,
the property may be taken for* public use. The pro-
hibition against taking private property for public use
until compensation be paid or tendered, means taking
the property from the owner and actually applying it
to the use of the public, and does npt prevent a sur- '
vey and other necessary preliminary steps. The owner
is secure in the use and enjoyment of his property
until his damages are regularly ascertained and paid

* Bloodgood vs. Mohawk and Hudson E. R. Co., 18 Vend., 9 ; Baker
r». Johnson, 2 Hill, 342; People w. Hayden, 6 Hill, 359; Rexford m.
Knight,! Kern. 308.

t People vs. Hayden, 6 Hill, 359 ; Smith vs. Helmer, 7 Barbour, S. C,
R. 416.

528 . COMPENSATION. /

or tendered ; and this satisfies the (Constitutional pro-
vision* So, in Maine, it has been held that the legisla-
ture may authorize a temporary occupation of property,
as an incipient proceeding, without compensation; but
before the taking is completed, payment must be made
or tendered.-}-

When the power of taxation in a municipal corpora-
tion is so limited as to be inadequate to pay the dama-
ges occasioned by the laying out of a street within a
reasonable time, the Supreme Court of Pennsylvania
has held that it would restrain the opening of the street
by injunction till security for proper compensation
should be given.J

The mode of making compensation is next to be
considered. It was said, in an early case, that the
legislative discretion was absolute only as to the ex-
istence of the necessity to take private property ; that
as to the amount of compensation, it could only be
arrived at in one of three ways : (1.) By the parties :
that is, by stipulation between the legislature and the
proprietor. (2.) By .commissioners mutually elected
by the parties. (3.) By the intervention of a jury.
And in this case it was held, that an act appointing
commissioners at the mere pleasure of the legislature,

* Stewart vs. The Mayor, 7 Maryland, 601.

t Cushman lis. Smith, 34 Maine, 247. For cases as to whether pay-
ment must precede or be. simultaneous with taking, see Hooker «s. The New
Haven and Northampton Co., 14 Conn. 146 ; Smith m. Helmer, 7 Barb.,
416; People vs. Hayden, 6 Hill, 3S9 ; Rubottom vs. M'Olure, 4 Blackf.,
505 ; Thompson vs. Grand Gulf R. R. and Banking Co., 8 How. Miss., 240 ;
Pittsburgh vs. Scott, 1 Penn. 309. In England it has been decided, under
a railroad act providing for compensation to be made for all injury done,
that trespass could not be brought till damage was actually sustained, Thick-
nesse M.Lancaster Canal Co., 4 Mees. and Wels. 472.

t Keene vs. The Borough of Bristol, 26 Penn., 46.

COMPENSATION. 529

and jto make compensation in vacant lands, was for
both reasons unconstitutional and void*

But it does not seem now to be necessary that the com-
pensation should be assessed by a jury, in the common-
law sense of the phrase. Mr. Chancellor Walworth,
in the Court lof Errors in the St^ate of New York, has
used this lajiguage : " The mode of ascertaining dama-
ges by commission (i. e. commissioners appointed by
the governor) has been adopted by the legislature in
a great variety of cases ; and I can see nothing in the
provisions of the constitution which render such a
course exceptionable." * ' * " The provision of ^he
constitution as to the right of trial by jury, has no
relation to cases of the kind now under considera-
tion."+

The constitution of New York declares that when
private property is taken the compensation shall be
ascertained by a jury or by not less than three com-
missioners appointed by a court of record.;}: This pro-
vision is not satisfied by a Sitj charter which author-
izes the common council to appoint five disinterested
freeholders to appraise and fix the compensation in
regard to a public work; and the act is unconstitu-
tional.§ Under this same provision, it has been also
decided that by this section is not meant a common-
law jury, ^nd that unanimity is not required;' but that
the action of a majority of twelve appraisers satisfies
the clause, the Court of Appeals using this language :||

* Van Home's Lessee vs. Dorrance, 2 Dall. 313, 315.
f Beekman vs. Saratoga and Schy. R. R. Co., 3 Paige, 75.
X Cons. art. L, § 7, ante, 496.
§ Clark vs. City of Utica, 18 Barb. 461.
I Cruger vs. Hudson R. R. Co., 2 Kern. 196, per Johnson, J.
34

530 COMPENSATION.

The question then remains, whether these appraisers are a jury-
within the meaning of the constitution. If that term had not acquire($
a peculiar meaning when applied to this class of cases, by prior leg^-
lative usage, and had not been continually in use in that special sense
up to the time of the convention by which the constitution was framed,
I should, without any doubt resting on my mind, be of opinion that
the peculiar tribunal provided wy this act, was not a jury. That term^
when spoken of in connection with trial by jury in the second section
of the same article, 'imports a jury of twelve men whose verdict is to
be unanimous. Such must be its acceptation to every one acquainted
with the history of common law, and aware of the high estimation in
which that institution so constituted, has for so long a period been held.-
But from an examination of the statutes upon the subject of taking
^jrivate property for public purposes, during a period of twenty years
immediately preceding the sitting of the convention, it is apparent that
the term " a jury" had been in frequent use, as descriptive of a body of
jurymen, drawn in the ordinary mode of drawing juries, to whom was
committed the appraisement of damages for private property taken for
public uses, and whose decision was to be made by a majority. It
seems to have been thus used because the term was descriptive of the
civil condition of the persons composing it, and by way of distinguish-
ing between such a body of jurymen and the commissioners appointed
by courts, under many other act^ to perform the same functions. "V^e
have been furnished with references to many of these acts, by the coun-
sel for the defendants.

These instances are certainly sufficient to establish the position that
at the time of the convention there was a known legislative usage in
respect to this subject, according to which the term "jury" did not
necessarily import a tribunal consisting of twelve men acting only upon
a unanimous determination, but on the contrary was used to describe
a body of jurors of different numbers, and deciding bj^majorities or
otherwise, as the legislature in each instance directed. The conven-
tion ought, therefore, to be deemed to have used this term in the sense
in which it was then known to the law, and to have selected out of the-
modes of proceeding theretofore in use in taking private property, those-
two modes which they thought best calculated to secure both public
and private rights, — appraisement by commissioners, or by juries, giving
to this latter term not the restricted meaning which belongs to it when
used in reference to trial, civil or criminal, but the broader sense which
it had acquired by legislative use. Had they intended to confine it tO'

COMPENSATION. 631

the narrower meaning, familiar ^ they were with the previous practice
upon the subject, I think they would have found clear terms to express
that intention.

As to the kind of property or currency in wMcli
compensation should he made, it was intimated in an
early case hj the Supreme Court of the United States,
that no just compensation could Tbe made except in
money, on the ground that money is the common
standard by which all values are ascertained ;* bnt in
New York it has teen expressly decided that the
benefit accruing to a person whose land was taken for
a street, might be set off agaiast the loss or damage
sustained by him by the taking of his property for a
street, and if equal to the damage or loss, it was a just
compensation for the property taken, to the extent
of such benefit ;f and a similar residt has been arrived
at in. Pennsylvania.^ Indeed, in the latter case, it was
intimated " that it should rest in the wisdom of the
legislature to determine the nature and kind of com-
pensation to be made ;" but there seems no good reason
for permitting the mere legislative discretion to be the
supreme arbiter of the meaning of the constitutional
provision in this, any more than in any other respect.
The compensation, to be constitutional must be a just
one.

Some special rules have here to be noticed. In
Massachusetts, in estimating the damages for land
taken for a highway or railroad, any direct or peculiar
benefit or increase of value accruing therefrom to land

* Van Home's Lessee vs. Dorrance, 2 Dall. 313, said in Satterlee vs.
Matthewson, 16 Serg. & Rawle, 179, to have been questioned,
t Livingston vs. The Mayor, &c., 8 Wend. 85.
X M'Master vs. The Commonwealth, 3 Watts, 292.

532 COMPENSATION.

of the same owner adjoining or connected with the
land taken, and forming part of the same parcel or
tract, is to be considered by the jury and allowed by
way of setrojff; but not any general benefit or increase
of value received by such land in common with other
lands in the neighborhood, or any benefit to other land
of the same owner, though in the same town. And
the time at and from which the benefit accruing to the
owner of land taken for a highway or railroad, is to be
estimated, in assessing his damages for such taking, is
that of the actual location of the work*

It has been held in New York, that where the
right of eminent domain is once exercised and lands
taken for a public use, as for a canal,, the fee is
divested, and though the use may be abandoned, the
property does not revert to the original owner.f In
Massachusetts too, it has been held that where the land
of an individual is taken under the authority of the
legislature for public use, and a fuU compensation is
paid to the proprietor for a perpetual easement therein,
and the same land is afterwards appropriated by legis-
lative authority to another public use of a like kind,
the owner of the land is not entitled to any further
compensation. So, where a turnpike has by law been
converted into a common highway, no new claim for .
compensation can be sustained by the owner of the
land over which it passes. So, too, where a canal com-
pany paid full damages for the flowing of the plaintiffs
land, and the canal was afterwards discontinued, and the
land was flowed by another company, it was held that

* Meacham vs. Fitchburg R. R. Co., 4 Oush. 291.
t Heyward vs. The Mayor, &o., of N. Y., 3 Seld. 814 ; Rexford vs. Knight,
1 Kern. 808.

COMPENSATION. 633

the plaintiff was not entitled to redress, ,and his com-
plaint was dismissed.*

Under the act of the State of New York of 1851, in
relation to railroad companies, such companies have no
right to enter upon and occupy, or cross, a turnpike or
plank road, without the consent of the owners, except
upon the condition of first paying the damages sus-
tained by the turnpike or plank-road company, after
the same shall have been ascertained under 'the
stgjUte.f

It may not be amiss to sum up the result of our
examination. If the brief and sweeping clause, " Pri-
vate properk/ shall not he taken for pvMio use without
just compmsaiion^'' be made to express the modificar
tions and qualifications which construction has inserted
in it and added to it, it will stand nearly as -follows :
Private property shall in no case he taken for private
use. Private property may he taken for public use vn
the exercise of the general police powers of the State,
or of taxation, without moikmg compensation tJierefor.
And the power of taooation includes the power of cha/rg-
ing the expense of local improvements exclusiveh/ upon,
those immiediatehf henefited thereby. Private prc^erty
may also be taken for pubUc use in the exercise of the
power of eminent domain, hut not without just comperv-
sation hei/ng made or provided for before the taking is
absolutely consummated. The right of compensation, how-
ever, does not attach vn cases where the vahie of property is
merel/y impaired and the title to it not dimested, nor does
it exist in cases where the right to the property taken is not

" Chase vs. Sutton Manufacturing Co., 4 Cush. 1S2.
t The Ellicottville and Great Valley Plank Road Co. vs. The Buflalo and
P. R. R. Co., 20 Barb. 644.

634: LAW OF THE LAND.

absolutely vested at the time of the legislati/oe act affecting
it. This is substantially the form that the constitutional
provision has assumed in the hands of the courts ; and
upon a careful examination of the process by which
this result has been arrived at, it must be admitted
that in practice our constitutional guarantees are very
flexible things, and that the judicial power exerts an
influence in our system which makes the subject of
interpretation one of the first magnitude.

The Lam of the land, and due course of law. — jj^e
next come to the great constitutional provision which
guarantees to life, liberty, and property the protection
of law. Magna Carta declares, " NuLlus Uber homo
ca/piatur vel imprisonetur, aut dissaisietur, a/at reiega-
tur, aut exulatur, aut aliquo modo destruetur., nee super
eum ibi/mus, nee super eum mittemus, nisi per legale
judicium pa/rium . suorum, vel pee legem teee.^."*
And deducing its origin from this grand original, this
important limitation of legislative power is to be
found, I believe, without exception, in the constitu-
tion of all the States of the Union .f In order to
understand precisely how private rights are in this
respect secured, I give the clause as it stands in the
fundamental law of several of the States : —

New Hampshire. — " No person shall be held to answer for any
crime or offense, until the same is fully and plainly, substantially and
I formally described to him, nor be compelled to accuse or furnish evi-
dence against himself. And every person shall have a right to
produce all proofs that may be favorable to himself, to meet the wit-
nesses against him face to face, and to be fully heard in his defence, by
himself and counsel. And no person shall be arrested, imprisoned,

* Magna Carta, § 29.

t As to the identity of meaning between the phrases "Law of the
land " and " due process of law," see Mayo vs. Wilson, 1 N. H. R. 55.

LAW OF T^ LAND. 535

despoiled, or deprived of his property, immunities, or privileges, put
out of the protection of the law, exiled, or deprived of his life, liberty,
or estate, but by the judgment of his peers or the law of the land."*

Vermont. — " That in all prosecutions for criminal offenses, a person
hath a right to be heard by himself and his counsel, to demand tlie
cause and nature of his accusation, to be confronted with the wit-
nesses, to call for evidence in his favor, and a speedy public trial by
An impartial jury of his country ; without the unanimous consent of
which jury, he cannot be found guilty ; nor can he be compelled to
give evidence against himself; nor can any person be justly deprived
of his liberty, except by the laws of the land or the judgment of his
peers."f

Massachusetts. — "No person shall be held to answer for any crime
or offense until the same is fully and plainly, substantially and formally
described to him, or be compelled to accuse or furnish evidence against
himself. And every person shall have a right to produce all proofs
that may be favorable to him, to meet the witnesses against him face
to face, and be fully heard in his defence, by himself or his counsel, at
his election. And no person shall be arrested, imprisoned, or despoiled,
or deprived of his property, immunities, or privileges, put out of the
protection of the.law, exiled, or deprived of his life, liberty, or estate,
but by the judgment of his peers or the law. of the land."^^

Rhode Islarid. — " In all criminal prosecutions the accused shall
enjoy the right to a speedy and public trial by an impartial jury, to
be informed of the nature and cause of the accusation, to be con-
fronted with the witnesses against him, to have compulsory process for
obtaining them in his favor, to have the assistance of counsel in his
defence; and shall be at liberty to speak for himself; nor shall he be
deprived of life, liberty, or property, unless by the judgment of his
peers or the law of the land."^

Connecticut. — " In all criminal prosecutions the accused shall have
a right to be heard, by himself and by counsel, to demand the nature
and cause of the accusation, to be confronted by the witnesses against
him, to have compulsory process to obtain witnesses in his favor, — aiid
in all prosecutions by indictment or information, a speedy public trial

* Constitution of New Hampshire, part i. § 15.
t Constitution of Vermont, ch. !.,•§ 10.
I Constitution of Massachusetts, part i., § 12.
§ Constitution of Rhode Island, art. i., § 10.

'536 LAW g^ THE LAND.

by an impartial jury. . He shall not be compelled to give evidence-
_ against himself, nor be deprived of life, liberty, or property, hut by due
course of law. And no person shall be holden to answer for any crime
the punishment of which may be death or imprisonment for life, unless
on a presentment or an indictment of a grand jury, except in the land
or Dav,al forces, or in the militia when- in actual service, in time of war
or public danger."*

New York. — " No member of this State shall be disfranchised or
deprived of any of the rights or privileges secured to any citizen
thereof, unless by the law of the land or the judgment of his peers."f

" 6. No person shall be subject to be twice put in jeopardy for the
same oflfense ; nor shall he be compelled in any criminal case, to be a
witness against himself, nor be deprived of life, liberty, or property,
without due process of law ; nor shall private property be taken for
public use without just compensation."J

Pennsylvania. — " That he cannot be compelled to give evidence
against himself, nor can he be deprived of his life, liberty, or property,,
unless by the judgment of his peers or the law of the land."§

" That all courts shall be open, and every man, for an injury
done him in his lands, goods, person, or reputation, shall have remedy
by the due course of law, and right and justice administered without
sale, denial, or delay ."||

Delaware. — "The accused shall not be compelled to give evidence
against himself; nor shall he be deprived of life, liberty, or property,,
unless by the judgment of his peers or law of the land."*^

"All courts shall be open; and every man for an injury done him
in his representation, person, movable or immovable possessions, shall
have remedy by the due course of law, and justice administered accord-
ing to the very right of the cause and the law of the land, without sale,,
denial, or unreasonable delajf or expense."**

Maryland. — "That every free man, for an injury done him in his
person or property, ought to have remedy by the course of the law of
the land, and ought to have justice and right, freely without sale, fully

* Constitution of Connecticut, art. i., § 9.

t Constitution of New York, art. i., § 1.

t Constitution of New York, art. i., § 6.

§ Constitution of Pennsylvania, art ix., part of § 9.

II Constitution of Pennsylvania, art. ix., part of § 11.

IT Constitution of Delaware, art i., part of § 7.

** Constitution of Delaware, art i., part of § 9.

LAW OF THE LAND. 537

■without any denial, and speedily without delay, according to the law
of the land.'"*

" That no free man ought to be taken and imprisoned, or disseized
of his freehold, liberties, or privileges, or outlawed, or exiled, or in any
manner destroyed or deprived of his life, liberty, or property, but by
the judgment of his peers, or by the law of the land; provided, that
noHiing in this article' shall be so construed as to prevent the legisla-
ture from passing all such laws for the government, regulation, and
disposition of the free colored population of this State as they may
deem necessary ."f

Virffinia. — " Nor can he be compelled to give evidence against
himself; that no man be deprived of his liberty, except by the law of
the land, or the judgment of his peers."J

South Carolina. — " No freeman of this State shall be taken, or
imprisoned, or disseized of his freehold, liberties, or privileges, or out-
lawed, or exiled, or in any manner destroyed, or deprived of his life,
liberty, or property, but by the judgment of his peers, or by the law of
the land."^

Much, discussion has taken place in regard to what
is meant by the phrase, the law of the land. J'erhaps,^
in most respects, there is nowhere to "be met with a
better definition ^f it than is to be found in the argu-
ment of Mr. "Webster, in the Dartmouth College case.
" By the law of the land is most clearly intended the
general law which hears before it condemns ; which
proceeds upon inquiry, and renders judgment only
after trial. The meaning is, that every citizen shall
hold his life, liberty, properto, and immunities under
the protection of general rules which govern society.
Every thing which may pass under the form of an
enactment is not the law of the land."

The same doctrine has been declared in a very elab-
•

* Constitution of Maryland, art. 1,, § 17.

t Constitution of Maryland, art. i., § 21.

X Constitution of Virginia, Bill of Eights, § 8.

§ Constitution of South Carolina, art. ix., part of § 2.

538 LAW OF THE LAND.

orate case in the State of New York. An act of that
State authorizing private roads to be laid out over the
Igpds of an' owner without his consent, provided for
the damages to be assessed by a jury of six freehold-
ers, and declared that the road should, when laid out»
be for the use of the applicant and his assigns ; and in
an action of trespass the validity of this statutory pro-
vision came up for consideration. The constitution of
the State, as it then stood, provided " that no member'
of this State shall be disfranchised or deprived of any
of the rights or privileges secured to any citizen
thereof, unless by the law of the land or the judgment
of his peers" (Cons, of 1821, art. vii., § 1); and also,
that " no person shall be deprived of life, liberty, and
property, without due process of law" (7J. § 7). Af-
ter showing that the act worked a transfer of property
from one individual without his consent to another,
the. Supreme Court held that no such legislation was
compatible with "the law of the land," nor such a
proceeding compatible with " due process of law."
They said, " The words ' by the law of the land,' as
used in the constitution, do not mean a statute passed
for the purpose of working the wrong. That con-
struction would render the restriction absolutely nuga-
tory, and turn this part of the constitution into mere
nonsense. The people froul'd be made to say to the
two Houses, ' You shall be vested with the legislative
power of the State, but no one shall be disfranchised
or deprived of any of the rights or privileges of a
citizen, unless you pass a statute for the purpose.' In
other words, You shall not do the ^rong unless you
choose to do it." * * * " The meaning of the sec-
tion is, that no member of the State shall be disfran-
chised or deprived of any of his rights and privileges.

LAW OF THE LAND. 539

unless the matter shall be adjudged against him upon
trial had according to the course of the common law.
Itinust be ascertained judicially that he has forfeited
his privileges, or that some one else has a superior
title to the property he possesses, before either of
them can be taken from him. It cannot be done by
mere legislation." So, of the phrase " due process of
law," it was said, " It cannot mean less than a prose-
cution or suit, instituted and conducted according to
the prescribed forms and solemnities for asserting
guilt or determining the title to property. The same
measure of protection against legislative encroachment
is extended to life, liberty, and property ; and if the
latter can be taken without a forensic trial and judg-
ment, there is no security for the others. If the legis-
lature can take the property of A and transfer it to
B, they can tak6 A himseW, and either shut him up in,
prison or put him to death. But none of these things
can Jj>e done by mere legislation. There must be
due process of law."* In North Carolina and Ten-
nessee, the term law of the laud has received the same
construction.f

In New York, the subject has been again recently
considered, in reference to the temperance laws. An
act, passed in 1855 (9th April), entitled An Act

* Taylor w. Porter, per Bronson, J., 4 Hill, 140. Nelson, J. jdiasented,
on the ground of the antiquity of the system of laying out private roads in
the State of New York, and the universal acquiescence in its propriety.

t Hoke vs. Henderson, 3 Dev., 12; Jones vs. Perry, 10 Yerg., 59. See
also, in Iowa, Reed vs. Wright, 2 Greene, Iowa, 22. . In Texas, James vs.
Reynolds, 2 Texas, 251, In Pennsylvania, Brown vs. Heummel, 6 Barr,
87, and Ervine's Appeal, 16 Penn. R., 256 ; Kinney vs. Beverly, 2 Hen. &
Munf., 336 ; Arrowsmith vs. Burlingim, 4 M'Lean R., 498 ; and Blackwell
on Tax Titles, 27, 34.

640 LAW OF THE LAND.

for the prevention of intemperance, pauperism, and
crime, declared sutstantially that intoxicating liquor
should not be sold, or kept for sale, except for medical,
sacramental, chemical, and mechanical purposes ; and
a violation' of this provision was declared a misde-
meanor, punishable by fine and imprisonment. It was
further enacted that, upon complaint of a violation
of this prohibition, liquor illegally kept should be
seized, and if found to be kept in violation of the act,
or if not claimed, should be adjudged forfeited and
destroyed. Proof of the sale of liquor was to be
considered sufficient to sustain an averment of an ille-
gal sale, and proof of delivery, to be prima facie evi-
dence of sale. No person was to be allowed to main-
tain an action to recover for any liquor sold or kept
by him, unless he could prove that the liquor was
lawfully sold or kept within the act ; and finally, it
was declared that all liquor kept in violation of the
act should be deemed a public nuisance. Toynbee and
Berlaerich having been found guilty of violatii^ the
act, appealed to the Supreme Court ; and the act wa&
held to be in conflict with the constitutional provision
above cited. It was considered that the object of the
statute was to prohibit the common and ordinary use
of a species of property long and familiarly known ;
that liquor came clearly within the definition of prop-
erty ; that the prohibition of its sale worked a virtual
deprivation of property ; that to do this by fines, for-
feitures, and imprisonment, coupled with a presumption
against nuisance, was not due process of law; that
the right of protection belonging to the citizen was
seriously impaired by requiring him, preliminarily, to
prove that the liquor was lawfully kept ; that it was
not competent for the legislature to declare any recog-

LAW OF THE LAND. 541

nized species of property a nuisance; and that the
whole act was void as being an arbitrary interference
with the rights of property guaranteed by the consti-
tution.*

Some other decisions may be noticed. The vested
interest of a husband in a legacy bequeathed to his
wife cannQ#be altered by subsequent legislation;
and the act of 1848, by which it was attempted so
to operate retrospectively, is unconstitutional on the
ground that it takes away property without due pro-
cess of Icnv.j- .

We have already J had occasion to notice that certain
summary administrative proceedings, have been sus-
tained against the objection that they did not conform
to the la,w of the land. So, in Louisiana, the construc-
tive service of a tax bill, by advertisement in the of&cial
newspaper, without any personal service whatever,
has been held not to conflict with the provision in the
State constitution that "no person shall be deprived

* People w. Berberich & Toynbee, 11 Howard Pr. R. 289. Mr. Justice
Brown delivered the leading opinion. Mr. Justice Strong, concurring with
him, adverted to the invasion of the rights of property effected by the abo-
lition of slavery, and observed that the question whether it was competent
for the legislature to prohibit the manufacture of liquors, was not before
them. Mr. Justice Rockwell concurred in the reversal on a minor point —
that of the defendant being tried at the special sessions ; but dissented from
his brethren in their general views of the constitutionality of the act, hold-
ing it to be a legitimate exercise of the discretion of the legislature, found^jh
on considerations of public policy tending to promote the morals, healtl^F
and safety of the community. The whole discussion is Very able, and of
great interest to all persons investigating the fundamental principles of our
government. The decision has been affirmed on appeal, and has been
reported while these pages are passing through the press. Wynehamer vs.
The People, 3 Keman, 378.

t Westervelt w. Gregg, 2 Keman, 202. ,

X Ante, p. 352.

642 TRIAL BY JUET.

of life, liberty or property, without due process of
law."*

The Superior Court of New Hampshire has said,
" There is no doubt of the great fundamental principle
that parties shall be heard before judgment shall be
passed against them ; but when the legislature have
fixed the particular time and manner of giving notice
to parties, it is not for us to set aside the statute unless
it is clearly uncon8titutional."f

Trial hy Jury. — ^The, trial by jury is very dear to
the race to which we belong. There can hardly be
named any institution which has survived so many
changes, or existed under such various forms of gov-
ernment. JVuUtis Uber homo capietw, vel vmprisone-
tur, nisi per legale judicitim pa/rivmi suorum, are- the
words of Magna CaHa^ more than six centuries ago.
"When this country threw off the government of En-
gland, the passionate attachment of our people to this
form of procedure was repeatedly and energetically
declared ; and the constitution of the youngest State
of the American confederacy adopts the trial by jury
as a part of its fundamental law. Springing up under
the feudal despotism .of the Plantagenets, it has sur-
vived alike their rule, that of the house of Tudor,
dnd of the house of Stuart, and now flourishes with all
its original vigor under the mildest and wisest form of
monarchy of which history makes mention ; while

fdring the same period, transplanted to a different
emisphere, it has struck deep its roots into the new
soil, and is, perhaps, the most cherished institution of
the greatest exemplar of free and intelligent govern-
ment that the world has ever seen.J

* City of New Orleans vs. Cannon, 10 La. Ann. R., 764.

t Webster w. Alton & N. D., 9 Foster, 869, 884

X The Declaration of Rights made by the first Continental Congress, in

TRIAL BY JURY. 548

The following extracts from some of the State con-
stitutions, will give a sufficient idea of the manner in
which this institution has been incorporated into the
fundamental law of the several States. It is proper to
remark that the clauses here given apply, as a general
rule, to civil cases, and that the State constitutions
contain special provisions in regard to the trial by jury
in criminal cases : —

Maine. — "In all civil suits and in all controversies concerning
property, the parties shall have a right to a trial by jury, except in
cases wliere it has heretofore been otherwise practiced ; the party
claiming the right may be he'ard by himself and his counsel, or either,
at his election."*

New Hampshire. — " In all controversies concerning property, and
in all suits between two or more persons, excepting in cases wherein it
hath been heretofore otherwise used and practiced, the parties have a right
to a trial hy jury, and this right shall be deemed sacred and inviolable ;
but the legislature may by the constitution be empowered to make such
regulations as will prevent parties from having as many trials by jury
in the same suit or action, as hath been heretofore allowed and prac-
ticed, and to extend the civil jurisdiction of justices of the peace to the
trials of suits where the sum demanded in damages doth not exceed
four pounds, saving the right of appeal to either party. But no such
regulations shall take away the right of trial hy jury, in any case not in
this article before excepted, unless in cases respecting mariners'
wages."!

Vermont. — " That when an issue in fact, proper for the cognizance
of a jury, is joined in a court of law, the parties have a right to trial
hy jury, which ought to be held sacred."|

1V74, declares that " the respective colonies are entitled to the great and
inestimable privilege of being tried' by their peers of the viciijage, accord-
ing to the course of the common law." And the Declaration of Independ-
ence, in its eloquent recital of the causes of separation, commemorates
among others, " acts of legislation for depriving us, in many cases, of the
benefits of trial by jury." Shepard's Const. Text Book, p. 262.

* Constitution of Maine, art. i., §'20. »«

t Constitution of New iHampshire, part i., § 20.

% Constitution of Vermont, ch. i., § 12.

54:4 TRIAL BY JURY.

Massachusetts. — " In all controversies concerning property, and in
all suits between two or more persons (except in cases in which it has
heretofore been otherwise used and practiced), the parties have a right to a
trial hyjury ; and this method of procedure shall be held sacred ; unless
in oases arising on the high' seas, and such as relate to mariners' wages,
the legislature shall hereafter find it necessary to alter it."*

Rhode Island. — " The right of trial by jury shall remain invio-
late."!

New York. — " The trial by jury in all cases in which it has been
heretofore used, shall remain inviolate for ever. But a jury trial may
be waived by the parties in all civil cases, in the manner to be pre-
scribed by law."J

New Jersey. — " The right of trial by jury shall remain inviolate ;
but the legislature may authorize the trial of civil suits, when the mat-
ter in dispute does not exceed fifty dollars, by a jury of six men."§

Pennsylvania. — " That trial by jury shall be as heretofore, and the
right thereof remain inviolate."||

Delaware.—" Trial by jury shall be as heretofore."^
Virginia. — " That in controversies respecting property, and in suits
between man and man, the ancient trial by jury of twelve men, is pref-
erable to any other, and ought to be held sacred."**

South Carolina. — " The trial by jury, as heretofore used in this
State, and the liberty of the press, shall be for ever inviolably pre-
served."ff ^

Michigan. — "The right of trial by jury shall remain, but shall be
deemed to be waived in all civil cases, unless demanded by one of the
parties in such manner as shall be prescribed by law."U

"The legislature may authorize a trial by a jury of a less number
than twelve men."§§

* Constitution of Massachusetts, part i., § 15.
t Constitution of Rhode Island, art. i., § 16.
X Constitution of New York, art. i., § 2.
§ Constitution of New Jersey, art«i., § 7.
I Constitution of Pennsylvania, art. ix., § 6.
T Constitution of Delaware, art. i., § 4.
** Constitution of Virginia, Bill of Rights, § 11.
tt Constitution of South Carolina, art. ix., § 6.
XX Constiftition of Michigan, art. vi., § 27.
§§ Constitution of Michigan, art, iv., § 46.

TRIAL BY JURY. 545

Georgia. — " Trial by jury, as heretofore used in this State, shall

remain inviolate."* '

Florida.; — " The right of trial by jury shall for ever remain

inviolate."!

Alabama. — " The right of trial by jury shall remain inviolate."J
Mississippi. — " The right of trial by jury shall remain inviolate."§
Tennessee. — " The right of trial by jury shall remain inviolate." |
Kentucky. — " We declare — that the ancient mode of trial by jury

shall be held sacred, and the right thereof remain inviolate, subject to .

such modifications as may be authorized by this constitution."^
Ohio. — "The right of trial by jury shall be inviolate."**
Indiana. — " In all criminal cases whatever, the jury shall have the

right to determine the law and the facts. In all civil cases the right of

trial by jury shall remain inviolate."f f

Illinois. — " The right of trial by jury shall remain inviolate, and

shall extend to all cases at law, without regard to the amount in con-

troversy."JJ

The general idea intended to be conveyed by the
constitutional guarantee of the trial by jury, undoubt-
edly-is, that all contested issues of fact shall be
determined by a jury, and in no other way; and this
doctrine has been very faithfully carried out by the
judiciary. Indeed, it may be claimed for them as a
merit in this country, that they have never evinced
any jealousy of the great co-opdinate power of the
jury, and that they have always striven to carry out
the theory of our system in regard to it.; So, in Indi-
ana, where a statute exists for the relief of iona-fide

* Constitution of Georgia, art. iv., § 5.
t Constitution of Florida, art. i., § 6.
I Constitution of Alabama, art. i., § 28.
§ Constitution of Mississippi, art. i., § 28.
1" Constitution of Tennessee, art. i., § 6. •
t Constitution of Kentucky, art. xiii., § 8.
** Constitution of Ohio, art. j;, § 6.
tt Constitution of Indiana, art. i.,' §§ 19 and 20. ,

It Constitution of Illinois, art. xiii., § 6.
35

546 TRIAL BY JUEY.

occupants of land who make improvements while"
holding under a title which proves defective. In
cases of this class, where the honorfide occupant has
put improvements on his land, and a superior title is
established against him, if he is willing to pay for the
value of the land without the improvements, the suc-
cessful claimant can not obtain possession until he
pays the value of the improvements made by the occu-
pant. But where a statute of this kind provided that
the value of the improvements, and of the land with-
out the improvements, should be assessed by three
persons to be appointed by the court, it was held that
this part of the law was unconstitutional and void, on
the ground that the assessment should be made by a
jury; and the court said, "Where facts are to be
found, or the value of property assessed, the method
must be determined in accordance with the clause in
the constitution."*

In Ohio, it has been held that this constitutional
limitation places the essential and peculiar features of
the institution, as known to the common law, beyond
the reach of legislative control ; and, consequently, an
act directing certain cases to be tried by a jury of six
men was decided to be unconstitutional and void, the
court saying that both the number and the unanimity
of the jury were inherent attributes secured by the
constitutional provision.f The same general principle
has been .declared in Kentucky, and in many other
of the States. J

* Armstrong w. Jackson, 1 Blackf., 375.

t Work M. The State of Ohio, 22 Ohio State R., 296. It was, however,
admitted that in regard to proceedings in which a jury was not required at
common law, the legislature'might in its discretion authorize a jury of any
umber.

I Bnderman vs. Ashby, Pr. Dec, 65 ; Stidger «s. Rodgers, Pr. Dec, 64 ;

TRIAL BY JURY. 547

Indeed, the constitutional provision has been in
some of the States very largely construed; and it has
been held that any improper interference with the
functions of the jury comes within the spirit of the
clause. So, as to the power to discharge a jury, it has
been held in Alabama* that within the meaning of the
constitutional provision, a court has no power arbi-
trarily to interfere and arrest a jury trial; and that
this can only be done in cases of pressing and legal
necessity. An unauthorized discharge, whether in the
•case of a murder or a felony, is equivalent to an ac-
quittal.*

But, on the other hand, the guarantee is to be rea-
sonably interpreted. It was not intended by this pro-
vision to tie up the hands of the legislature, so that no
regulations of the trial by jury could be made ; and
it has been decided that the provision is not violated,
so long as the trial by jury is not substa;ntially im-
paired, although it be made subject to new modes
and even rendered more expensive.f

It is also to be understood, that when the constitu-
tion guarantees the right of trial by jury, it does not
mean to secure that right in all possible instances, but
only in those cases in which it existed when our consti-

Carson vs. Commonwealth, 1 A. K. Marsh. 290 ; Hughes vs. Hughes, 4
Monroe, 43.

* Ned vs. The State, 7 Porter, 187 ; Oobia vs. The State, 16 Ala., 781 ;,
M'Cauley vs. The State, 26 Ala., 135. The rule seems substantially the
same in the other States. See as to the power of discharging a jury, or
entering a nolle prosequi in criminal cases. Commonwealth m. Tuck, 20
Pick. 856; Mount m. The State, 14 Ohio, 295 ; Mahala vs. The State, 10
Yerg., 532; The People m. Denton, 2 Johns. Cases, 275. The People «s,
Olcott, 2 J. C, 301 ; The People vs. Barrett, 2 Caines, 305. In civil cases, the
courts possess an unlimited power to order new trials; and to these, there-
fore, the rule does not at all apply. Mc Parte Edward Henry, 24 Ala., 638.

t Beers vs. Beers, 4 Conn. K., 539 ; Colt vs. Eves, 12 Conn., 243, 263.

548 TRIAL BY JURT.

tutions were framed. It is well settled that the consti-
tutional guarantee of a trial by jury, in the usual terms
that "the trial by jury shall remain inviolate," does-
not apply except to offenses which at the time of the
adoption of the constitution were such, either by stat-
ute or common law ; and that it is competent for the
legislature to make offenses created by statute since
that period triable by summary proceedings without a
jury*

So, on the same principle, it has been settled in
Virginia that where, by statute passed previous to the
adoption of the constitution, the Court of Chancery
had jurisdiction to try a matter without the interven-
tion of a jury, that right was not taken away by the
adoption of the constitution.f And in Kentucky
it has been decided that'the constitutional clause does
not enlarge the right of trial by jury, so as to extend
it to cases where, previous to the constitution, that
mode of trial did not belong to the party as a matter
of right.J So, too, in the State of Pennsylvania, it has
been held that an act prohibiting the sale of intoxica-
ting liquors on Sunday, and authorizing a conviction
for the violation of the statute, is not unconstitu-
tional by reason of not providing for a trial by jury,
.The legislature may declare a new offense, and pre-
scribe the mode of trial.§ Indeed, extensive and sum-
mary police powers are constantly exercised in all the
States of .the Union for the repression of breaches of

* Boring vs. "Williatos, 17 Ala., 510 ; Tims vs. The State, 26 Ala , 165.

t Watts «s. Griffin, 6 Litt., 247. •

t Harris ««. Wood, 6 Munroe, 642 ; Creighton vs. Johtison, 6 Litt , 241 ;
Swing vs. Directors of the Penitentiary, Hardin R., 5 ; Harrison vs.
Chiles, 8 Litt. R., 200. See in Pennsylvania, Emerick vs. Harris, 1 Binney,
416. .

§ Van Swartow vs. The Commonwealth, 24 Penn., 131.

TRIAL BY JURY, ,S49

the peace and petty offenses ; and these statutes are
not supposed to conflict with the constitutional provi-
sions securing to the citizen a trial by jury ; and so it
has been held, in Vermont, in regard to drunkenness
and the sale of intoxicating liq^u'ors* Statutes giving
-sumnaOTy remedies against public officers and their
■sureties have, in Kentucky, been held not to be within
i;he constitutional limitation ;f but in Indiana, a con-
trary opinion has been expressed.^

Where a law creates or extends a summary juris-
-diction for the trial of causes without a jury, it does
not violate the constitutional provision securing "that
right, provided on an appeal the party is entitled to a
jury as of right, — upon the ground that the defendant,
if he thinks proper, can have his case decided by a
Jury before it is finally settled-!

In Connecticut, the Bill of Eights declares "that in
all criminal prosecutions the accused shall have a right
^o be heard by himself and by counsel, to demand the
nature and cause of the accusfitibn, to be confronted
by the witnesses against tim, and to have compulsory
process to obtain witnesses in his favor." But this has

* In re Powers, 25 Vermont R., 261 ; Murphy vs. The People, 2 Cowen,
.^15 ; Jackson ex. dem. Wood ra. Wood, 2 Oowen, 819. See in Mp,^sachu-
setts, Mountfprt vs-. Hall, 1 Mass., 443 ; Inhahs. of Shirley vs. Lunenburgh,
11 Mass., 379.

t Murry vs. Askew, 6 J. J. Marsh. 27; Wells vs. Caldwell, 1 A. K.
Marsh. 441.

t Dawson vs. Shaver, 1 Blackf., 204.

§ Morford vs. Barnes, 8 Yerger, 444; Beers vs. Beers, 4 Cpnn., 535,;
Emerick m. Harris, 1 Bmney, 416 ; M'Donald «s, Schell, 6 Serg. & Eawle,
•240 ; Stewart vs. Mayor, &c., 7 Maryland, 501. As to trial by jury, gener-
ally, see Mr. J. Strong's opinion' in People w. Berberrick & Toynbee, 11
Howard P. R., 333, and Wynehamer m The People, 3 Kernan, 878; The
People vs. Duflfy, 6 Hill, 75.

650 TRIAL BY JURT.

been held not to apply to the proceedings of a grand
jury in finding an indictment.'^

As to the question of interest in a juror, in Massa-
chusetts, it has been held to be no sufficient exception
to an indictment for an offense to which the law
annexes a fine for the use of the town where the
offense is committed, that the foreman of the grand
jury who found the indictment is a taxable inhabitant
of the town.f

In connection with this subject, it is proper to
call attention to the provision to be found in some of
our fnore recent constitutions, forbidding the court to
instruct juries in regard to the facts of a cause. So,
the constitution of California declares that "judges
shall not charge juries with respect to matter of fact,
but may state the testimony and declare the law."J
I cannot but regard this as a very unfortunate inno-
vation. The jury loses no small portion of its value
when deprived of the aid of an upright and intelligent
judge, accustomed to scrutinize, to compare, to analyze
and to weigh testimony. Indeed, so long as the right
to state the testimony is left, the prohibition becomes
almost nugatory ; it would be difficult, if not impos-
sible, for the most skillful magistrate so to sum up the
evidence as to avoid communicating to the jury his
view of the verdict which should be rendered. The
provision, I think, comes from a jealousy of the bench,,
for which no atdequate reason can be alleged.§

» The State M.Wolcott, 21 Conn., 272.
t Commonwealth vs. Thos. Ryan, 6 Mass. R., 90.
I Cons., art. 6, § 17.

§ The Constitution of Tennessee, art. vi., § 9, contains the same provi-
sion in the same words.

In Massaq^usetts, it has been held that a statutory provision authorizing.

SEARCHES AND SEIZURES. 551

Searches and Seizures. — The provisions in. regard
to search-warrants, to be found in both the State
and Federal constitutions, were no doubt suggested
by the abuses which experience had show;i to
result in England, from the practice of granting gen-
eral warrants issued on suspicion, and without any
specification whatever, tb search any house, to break
open any receptacle, seize, and carry away all or any
property. These general warrants w^re declared ille-
gal in the last century ; and Lord Camden's reputation
derives no. 'small portion of its luster from the vigor
with which he on that occasion ^defended some of
the fundamental principles of liberty.* I give below
the provisions of several of the State constitutions on
this important subject: —

Maine. — " The people shall be secure in their persons, houses, papers
and possessions, from unreasonable searches and seizures ; and no war-
rant to search any place, or seize any person or thing, shall issue with-
out a special designation of the place to be searched, and the person or
thing to be seized, nor without probable cause supported by oath or
affirmation."j-

Feraiojii.---" That the people have a right to hold themselves,

additional punishment to be inflicted on a convict upon an information, is
not unconstitutional. Ross's Case, 2 Pick. 165. The statute permitting a
judge of probate to appoint a guardian to a spendthrift is' not unconstitu-
tional, on the ground that the spendthrift might -appeal to the Supreme
Court,, where a trial by jury can be ordered. Bond m. Bond, 2 Pick., 382.
A strong opinion has been expressed in that State, that a pecuniary pen-
alty cannot be constitutionally imposed by a court-martial without a jury.
Brooks vs. Daniel, 22 Pick., 498. Morton, J., said, " It assuredly is a nov-
elty to find a court-martial dealing with mulcts and forfeitures, or a com-
mon-law court sustaining an action upon the sentence of a court-martial."
But the case was decided on another ground.

* Entick m. Carrington, 19 Howell's State Trials, No. 1029 ; Commonr
wealth m. Dana, 2 Met. 335.

f Constitution of Maine, art. i., § 5.

652 SEARCHES Airo SEIZURES.

their houses, papers, and possessions, free from search or seizure ; and
therefore, warrants without oath -or affirmation first made affording
sufficient foundation for them, and whereby an officer or messenger
may be commanded or required to search such suspected places, or to
seize any person or persons, his, her, or their property, not particularly
described, are contrary to that right, and ought not to be granted."*

Massachusetts. — "Every person has a right to be secure from
all unreasonable searches and seizures of his person, his house, his
papers, and all his possessions. All warrants, therefore, are contrary
to this right, if the cause or foundation of them be not previously sup-
ported by oath or affirmation, and if the order in a warrant to a civil
officer to make search in all suspected places, or to arrest one or more
suspected persons, or to seize their property, be not accompanied "with
s, special designation of the persons or objects of search, arrest, or
seizure ; and no warrant ought to be issued but in such cases, and with
the formalities prescribed by the laws."f

Rhode Island. — " The right of the people to be secure in their
persons, papers, and possessions, against unreasonable searches and
seizures shall not be violated ; and no warrant shall issue but on com-
plaint in writing, upon probable cause, supported 'by oath or affirma-
tion, and describing as nearly as may be, the place to be searched and
the person or things to be seized."J

Connecticut. — " The people shall be secure in their persons, houses,
papers, and possessions, from unreasonable searches or seizures;
and no warrant to search any place, or to seize any person or things,
■shall issue without describing them as nearly as may be, nor without
probable cause supported by oath or affirmation."!
, JV^ew Jersey. — " The right of the people to be secure in their per-
sons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated ; and no warrant shall issue but upon
prbbable cause, supported by oath or affirmation, and particularly
describing the pfece to be searched, and the papers and things to be
seized."!

Fennsylvoinial—" 8. That the people shall be secure in their per-
sons, houses, papers, and possessions, from unreasonable searches and

* Constitution of Vermont, ch. i., § 11.
t Constitution of Massachusetts, part i., § 14.
J Constitution of Rhode Island, art. i., § 6.
§ Constitution of Connecticut, art. i., § 8.
; i Constitution of New Jersey, art. i., § 6.

SEARCHES AND SEIZURES. • 553

seizures ; and that no warrant to search any place, or to seize any per-
son or things, shall issue without describing them as nearly as may be,
nor without probable cause, supported by oath or affirmation."*

Delaware. — " The people shall be secure in their persons, houses,
papers, and possessions, from unreasonable searches and seizures ; and
no warrant to search any place, or to seize any person or things, shall
issue without describing them as particularly as may be, nor then, un-
less there be probable cause, supported by oath or affirmation."!

Maryland. — "That all warrants, without oath or affirriiation, to
search suspected places, or to seize any person or property, are grievous
and oppressive ; and all general warrants to search suspected places or
to apprehend' suspected persons, without naming or describing the
place or the person in special, are illegal, and ought not to be granted."^

The provisions above cited are of great import-
ance as guarantees of private right against lawless
invasion ; but very few cases have arisen in regard to
them. I notice some of the most prominent.

Where a search-warrant recites an information on
oath, that certain described goods have been stolen by
A and B, and are in the house of C, it is not neces-
sary that the warrant should state the name of the
owner of the goods.§ But the warrant must describe
the persons whose houses are to be entered and the goods
which are the object of search.J K a search-warrant
for lottery tickets, and a complaint correctly describ-
ing the things to be seized, be on the same paper, and
the warrant direct the officers to search for the things
mentioned in the complaint, the warrant is legal and

* Constitution of Pennsylvania, art. ix., § 8.
. + Constitution of Delaware, art i., .§ 6.

I Constitution of Maryland, art. i., § 23.

§ Bell ®s. Clapp, 10 J. R. 263 ; see also, as to search warrants in New
York, Beaty «s. Perkins, 6 "Wend. 382.

1 Sandford vs. Nichols, 13 Mass. 288, decided with reference to the
provision of the Constitution of the United States on this point, 6th art. of
Amendments.

554 . TAXATION.

sufficient, though the warrant itself contain no further
description.*

The clauses which we have thus considered, together
with that in regard to the obligation of contracts,
which we shall examine in the next chapter, are by
far the most important provisions that our State con-
stitutions contain for the protection of the property,
liberty, and life of the citizen. They are, indeed, the
principal safeguards that our system contains. Many
other minor checks upon legislation have,- however,
been suggested by the gradual acquisition of experi-
ence ; and to some of the more important of these I
now turn the attention of the reader.

TaxaUon. — Under the head of the clause in regard
to private property we have had occasion to notice,f
that the restraining effect of that limitation has never
been applied to taxation ; and that, as a general rule,
the taxing power has been treated by the judiciary as
vested in the absolute discretion of the legislative
bodies.

This doctrine has been repeatedly declared, both by
the State and Federal tribunals. So it has been said
in New Hampshire, that the power of taxation is
essentially a power of sovereignty or eminent doniain. J
So, the Supreme Court of the United States have said,
that tjiere is no limitation whatever upon the legislative
power of the States, as to the amount or .objects of
taxation. In truth, the wisdom and justice of the
representative body, and its dependence on its constit-
uents, furnish the only security against unjust and

* Commonwealth vs. Dana, 2 Met. 329.

t Ante, p, 600.

X 'ferewster u. Hough, 10 N. H. R. 148.

TAXATION. 565

excessive taxation, except only in those States where
express provisions have been inserted in their constitu-
tions, intended to secure equality and uniformity in
the exercise of the power. In these cases, of course
the construction and application of the constitutional
check bring the matter, to a certain e:j:tent, within the
. control of the courts.* So, in the State of Vermont,
the Supreme Court has said, " If the legislature have
the right of taxation over any given property or pos-
session, that power is admitted to be unlimited and un-
controllable, except by their own discretion. "f

In several of the States, however, owing perhaps to the
results of experience in regard to the abuse of the legis-
lative power, various precise and specific constitutional
restrictions have been laid upon the taxing power.
The insertion of these clauses of course brings the
subject of- taxation within the ultimate control of the
judiciary"; and the matter is so important that I annex
some of the provisions on the subject, 4o be found in
th^ more recent constitutions.

Michigan.-^-" 1h.& legislature shall provide an uniform rule of
taxation, except on property paying specific taxes, and taxes stall be
levied on such property as shall be prescribed by law."*

Illinois. — " The General Assembly shall provide for levying a tax by
valuation, so that any person and corporation shall pay a tax in pro-
portion to the value of his or her property; such value to be ascer-
tained by some person or persons to be elected or appointed in such
manner as the General Assembly shall, direct, and not otherwise ; but
the General Assembly shall have power to tax peddlers, auctioneers, bro-

* Providence Bank vs. Billings, 4 Peters, 614 ; Brewster vs. Hough, 10
N. H. 138 1 Mack vs. Jones, 1 Poster, 893 ; Blackwell on Tax Titles, p. 9.

t Herrick vs. Randolph, 13 Verm. 529. Taxes are neither judgments
nor contracts, and are not the subject of set-off as such. Peirce vs. City of
Boston, 3 Met. 520.

I Constitution of Michigan, art. xiv., § 11.

556 . TAXATION.

kers, hawkers, merchants, commission merchants, showmen, jugglers,
inn-keepers, grocery-keepers, toll-bridges, and ferries, and persons using
and exercising franchises and privileges Id such manner as they shall
from time to time direct."*

Tennessee. — '• All property shall be taxed according to its value ; that
value to be ascertained in such manner as the legislature shall direct,
so that the same shajj be equal and uniform throughout the State. No
•one species of property from which a tax may be collected shall be
taxed higher than any other species of property of equal value ; but
the legislature shall have power to tax merchants, peddlers, and pijivi-
leges, in s^oh manner as they may froni time to time direct. A tax
f on white polls shall be laid in such manner and of such an amount as
may be prescribed by law."f ^

Louisiana. — " Taxation shall b? fequal and uniform throughout the
State. All property on which taxes may be levied in this State shall
be taxed in proportion to its value, to be ascertained as directed by law.
No one species of property shall be taxed higher than another species
of property of equal value on which taxes shall be levied. The legis-
lature shall have power to levy an income tax, and to tax all persons
pursuing any occupation, trade, or profession." J .

California. — " Taxation shall be equal and uniform throughout the
State. All property in this State shall be taxed in proportion to its
value, to be ascertained as directed by law."§

Wisconsin. — " The rule of taxation shall be uniform, and taxes shall
he levied upon such property as the legislature shall prescribe."!

Texas. — " Taxation shall be equal and uniform throughout the State.
All property in this State shall be taxed in proportion to, its value, to
be ascertained as directed by law, except such property as two thirds
•of both houses of the legislature may think proper to exempt from tax-
ation. The legislature shall have power to lay an income tax, and to
-tax all persons pursuing any occupation, trade, or profession, provided
that the term " occupation" shall ,not be construed to apply to pursuits
either agricultural or mechanical."^

ArJcansas. — " All property subject to taxation shall be taxed accord-

* Constitution of Illinois, art. ix., § 2.
t Constitution of Tennessee, art. ii., § 28.
t' Constitution of Louisiana, tit vi., § 123.
§ Constitution of California, art. xi., § 13.
1 Constitution of Wisconsin, art. viii., § 1.
IT Constitution of Texas, art. vii., § 27.

TAXATION. . ^57

ing to its value ; that value to be ascertained in such manner as the
General Assembly shall direct, making the same equal and ^uniform
throughout the State. No one species of property from which a tax
may be collected shall be taxed higher than another species of prop-
erty of equal value ; provi(^d, the General Assembly shall have power
to tax merchants, hawkers, peddlers, and privileges, in such manner as
may from time to time be prescribed by law ; and provided further;
that no other or greater amounts of revenue shall at any time be levied
than required for -the necessary expenses of government, unless by a
concurrence of two thirds of both houses of the General Assenibly.
No poll-tax shall be assessed for other than county purposes. -No
other or greater tax shall be levied on the productions or labor of the
country, than may be required for expenses of inspection."*

Missouri. — " All property subject to taxation in this State shall be
taxed in proportion to its value."f

• Massachusetts. — " And, further, full power and authority are hereby
given EUd granted to the said General Court, from time to time, to
impose and levy proportionable and reasonable assessments, rates, and
taxes, upon all the inhabitants of, and persons resident and estates lying
within, the said commonwealth ; and also to impose and levy reasona-
ble duties and excises upon any produce, goods, wares, merchandises,
and commodities whatsoever; brought into, produced, manufactured, or
being, within the same."I

In construing these provisions it has been held, in
many of the States, that the words " equal and uni-
form" apply only to a direct tax on property ; and that
the clause in regard to uniformity of taxation does not
limit the power of the legislature as to the objects of
taxation, but is only intended to prevent an arbitrary
taxation of property, according to kind or quality,
without regard to value. Specific taxes have there-
fore been sustained as a valid exercise of the legisla-
tive power. Thus a road tax in Illinois,§ a bank tax

* Constitution of Arkansas, art. ix.. Revenue, § 2.

t Constitution of Missouri, art. xi., § 19.

X Cons, of Massachusetts, § 1, art. iv.

§ Sawyer vs. City of Alton, 3 Scammon, p. 127.

658 EXEMPTIONS FROM TAXATION.

in Massacliusetts,* and a tax on merchants and "bank-
ers' licenses in California,! have all been held legal
and binding. J

In construing the clause in Te^rd to uniformity of
taxation in Louisiana, it has been held that this pro-
vision applies as well to municipal and parochial as to
State taxes, and that an ordinance of a parish police
jury, to compel the inhabitants of a particular portion
of the parish to pay for certain embankments, is uncon-
stitutional.§

Many interesting cases have arisen on the subject of
exemption from taxation. It has been decided that,
where exemption from taxation is made a condition of
a grant, it is in the nature of a contract : the gra4t ^ad
its conditions are equally inviolable. || But where the
exemption results from a general law, and does not
form a portion of a grant, any subsequent legislature

* Portland Bank vs. Apthorp, 12 Mass., p. 252.

t People vs. Dorr, Same vs. Hussey, not yet reported.

X See, also, in Texas, Aulanier vs. Gov., 1 Texas, 653 ; see contra, Crow
vs. The State of Missouri, 13 Miss. R.

§ Cumming vs. Police Jury, 9 La. Ann. R. 503.

In regard to "proportional taxation" in Massachusetts, see City of
Lowell vs. Hadley, 8Met. 181; City of Boston vs. Shaw, 1 Met. 137. An
act providing that the expense of building a particular bridge shall'e borne
in part by the county within which it is situated, when by the operation
of the general laws of the commonwealth the expense would be borne
wholly by the town within which it is situated, does not violate the consti-
tutional provision of Massachusetts requiring taxation to be proportional
and reasonable. The Inhabitants of Norwich vs. The County Commission-
ers of Hampshire, 13 Pick. 60. A city by-law requiring the owners or
occupants of houses to clear the snow from the side-walks in front of their
property, is not strictly a by-law levying a tax. It is rather to be regarded
as a police regulation. The duty required is a duty upon the person in
respect to the property which he holds, and is valid under the constitution
of Massachusetts. Goddard, Petr., 16 pick., 504.

B State of New Jersey vs. Wilson, 7 Cranch., 164.

EXEMPTIONS FROM TAXATION. 559

may repeal the exemption * In New Hampshire, it
lias been said that the legislature could pass laws con-
ferring exemptions from taxation, which would be valid
till repealed. But it was intimated that it was not
competent for the legislature to make any contract by
which a party should be perpetually exempted from
taxation, upon the ground that no such power was dele-
gated to the legislature, — ^that it could not grant away
the essential attributes of sovereignty or right of emi-
nent domain ; that these did not seem to furnish the
subject matter of a contract.f

By a statute of 1793, in Massachusetts, ail persons
who had held the office of a subaltern, or of higher
rank, were exempted from militia duty. This statute
was repealed on the 4th of March, 1800, and the future
exemption of militia officers was limited to such as
should complete a term of five years' service, or be
superseded. In March, 1810, the last statute was-
repealed and a new class of exempts defined, including
the subalterns and officers mentioned in the act of
1Y93, on condition of an annual payment of two dol-
lars. The case was presented of a subaltern officer,
honorably discharged in May, 1Y99, and who, under
the operation of the act of 1793, was exempted from
militia duty. Under the act of 1810 a fine was im-
posed on him, and it was resisted on the ground that
an exemption once acquired under existing laws could
not be revoked ; it being argued that the defendant had

* Herrick vs. Randolph, 18 Verm., 525. See cases in Connecticut as
to exemption from taxation, Atwater ««. Woodbridge, 6 Conn., 223 ; Os-
borne vs. Humphrey, 7 Conn., 335 ; Parker vs. Redfield, 10 Conn., 490 ;
Langdpn vs. Litchfield, 11 Conn., 261.

t Brewster us. Hough, 10 N. H., 145.

660 RELIGIOUS TOLERATION.

a vested right to his exemption. But tlie objection was
overruled ; and while adputtiug that there might be
cases in which it would be deemed a breach of the
public faith to revoke such exemptions, the court said
that they were not authorized to weigh those motives,
nor interfere with the right Of the State to the military-
services of the citizen.*

The constitution of Indiana contains a provision, that
no man's particular services shall be demanded without
just- compensation :f under this it has been held that
a statute requiring professional services to be gra-
tuitously rendered, would be unconstitutional and void ;
and it was also said, that a law which requires gratui-
tous services from a particular class in office, imposes a
tax upon that class clearly in violation of the funda-
mental provision for a uniform and equal rate of assess-
ment and taxation upon all citizens.^

The constitution of Tennessee contains the same pro-
vision declaring " that no man's particular services shall
be demanded, or property taken or applied to public
use without the consent of his representatives, or with-
out just compensation being made therefor." The use
of the disjunctive conjunction is worthy of notice.§

Heligious Toleration. — Most, if not all of our State
constitutions contain , provisions designed to secure the
great principle of freedom of conscience. But there
has been so little disposition to infringe this class of
guarantees, that, like the other clauses in regard to
attainder, freedom of the press, the right to bear arms,
and standing armies, they have been very rarely

* Commonwealth «4. Baird, 12 Mass., 443.
t Constitution of Indiana, art i., § 2i.
J Webb vs. Baird, 6 Indiana, 13.
§ Cons, of Tennessee, art. i., § 21.

RELIGIOUS TOLERATION. 661

flLTOught "within the range of judicial interpretation.
Some few cases may be noticed.

In Maine, the constitution declares substantially that
all men have a natural and inalienable right to worship
Almighty God according to the dictates of their own
conscience ; that no one shall be hurt, molested, or
restrained in his person, liberty, or estate for worship-
ing God after his own conscience ; and that no subor-
dination or preference of any sect or denomination to
another shall ever be established by law ; nor shall
any religious tests be required as a qualification for any
office or trust under the State.* It also provides, as
follows: "A general diffusion of the advantages of edu-
cation being essential to the preservation of the rights
and liberties of the people, to promote this important
object the legislature are authorized, and it shall be
their duty, to require the several towns to make suit-
able provision, at their own expense, for the support
and maintenance of public schools."f Under this
general authority an act was passed in that State
giving to school committees the power to " direct the
general course of instruction, and what books shall be
used in the respective schools." In a case arising upon
this act, it has been held by the Supreme Court of Maine,
that a requirement by a superintending school commit-
tee, that the Protestant version of the Bible should be
read in the public schools of the town, by the scholars
who are able to read, is in violation of no constitutional
provision, and is binding on all the members of the
schools, though composed of divers religious sects ; and
it was said, " The legislature establishes general rules

* Constitution of Maine, art. i., § 3.
t Constitution of Maine, art. yiii.
36

562 RELIGIOUS TOLERATIOlf.

for the guidance of its citizens. It does not necessarily'
follow tliat they are linconstitutional nor that a citizen
is to be legally absolved from obedience, because they
may conflict with his conscientious views of religious
du;fcy or right. To allow this, would be to subordinate
the State to the individual conscience. A law is not
unconstitutional because it may prohibit what a citizen
may conscientiously think right, or require what he-
may conscientiously think wrong. The State is gov-
erned by its own views of duty. The right or wrong
of the State is the right or wrong as declared by legis-
lative acts constitutionally passed ;" and it was held^
that for a refusal to read the books thus prescribed,
the committee might, if they saw fit, expel the disobe-
dient scholar.*

In the State of Massachusetts, it has been held, on
consideration of the second article of their Bill of
Rights, which is similar to the iionstitutional provisions
of Maine in regard to religious liberty above cited, that
the rejection of a witness as incompetent by reason of
his want of religious belief, was not in violation of it ;
the court saying, " It was intended to prevent prosecu-
tions by punishing any one for his religious opinions,
however erroneous they might be."f

Connected with this subject, I may here call atten-
tion to the original provisions of the constitution of
Massachusetts ; which, to a certain extent, recognized
and declared a relationship and connection between the
church and the State. The third article of the original
Massachusetts Declaration of Eights. was as follows: —

* Donohoe w. Richards, 88 Maine, 879, 410. This is the only judiciat
decision of which I am aware, which touches on what has been familiarly
called the Higher Law.

t Thurston vs. Whitney, 2 Cush. 104.

RELIGIOUS TOLERATION. ' 563

" The people have a right to invest their legislature
with power to authorize and require, and the legisla-
ture shall from time to time authorize and require, the
several towns, parishes, precincts, and other bodies
corporate and politic, and religious societies, to make
suitable provision, at their own expense, for the insti-
tution of the public worship, of God, and for the sup-
port and maintenance of public Protestant teachers of
piety, religion, and morality, in all cases where such
provision shall not be made voluntarily." And it was
further declared in the same article, " that the people
of this commonwealth have a right to, and do, invest
their legislature with authority to enjoin upon all their
subjects, an attendance upon the instructions of the
public teachers aforesaid, at stated times and sea-
sons, if there be any on whose instructions they can
conscientiously and conveniently attend." In Adams
vs. Howe et al.^ 14 Mass. 346, the object and pur-
pose of these clauses is stated as follows: — "Three
great objects appear to have been the influential
causes of this solemn declaration of the will of the
people : 1. To establish at all events, liberty of con-
science and choice of the mode of worship ; 2, To
assert the right of the State, in its political capacity,
to require and enforce the public worship of God ; 3.
To deny the right of establishing a,ny hierarchy, or
any power in the State itself to require conformity to
any creed or formulary of worship."

The provision was soon, however, considered un-
friendly to the great interests of religious liberty ; sev-
eral statutes were passed designed- to relieve individuals
from any necessity of supporting the dominant religious
sect in the State ; and various cases are to be found in
the Massachusetts reports, which are of much interest
upon the subject to which they relate. So, under this

564 RELIGIOUS TOLERATION.

clause it was held that a person claiming ministerial
taxes must be the public teacher of one, and that an
incorporated, society *

But these decisions are now of little practical im-
portance, as the provision was struck from the Bill of
Rights by a popular amendment of the constitution in
the year 1833. It may be that as the cycles of human
affairs revolve, the interest of the questions connected
with these decisions, will again become actual an\i
p]*essiDg.f

Under the first constitution, or charter, of the State
of Connecticut also, provision for the support and
maintenance of religious worship was treated as a

* See Barnes vs. First Parish in Falmouth, 6 Mass. 400, where the
general character of the constitutional proTision is discussed ; Turner vs.
Second Precinct in Brookfield, 7 Mass, 60. See also, Kendalls w. The In-
habitants of Kingston, 6 Mass. 624 ; see Adams vs. Howe, 14 Mass. 341, as
to the constitutionality of certain exemptions from the operation of the
constitutional clause created by statute. See also, Holbrook vs. Holbrook,
1 Pick. 248, for another case on exemptions. See also. Gage vs. Currier,
4 Pick. 399.

t Many points of a general bearing will be found decided in the cases to
which this controversy gave rise. So, in a case on the Massachusetts stat-
ute, exempting parties from the constitutional obligation to support the
church, the Supreme Court of that Stale said, per Wilde, J. — " In many
statutes it will be found that the preamble states imperfectly the views of
the legislature, and can afford but little aid in the construction of the en-
acting parts. It is not unfrequently merely introductory to the first sec-
tion, and it appears to me that it was so used in this statute." Holbrook vs.
Holbrook, 1 Pick. 248.

In another case it was said, " Where the provisions of twp statutes are
dissimilar but not repugnant, a party may pursue the provisions of either.
As if by one statute jurisdiction of a matter be given to one court, and
afterwards by a new statute the same matter is made cognizable by another
court, a party may select either tribunal. So, if a special statute providing
that the inhabitants of a particular town may separate from a religious
society on certain conditions, and a general statute is passed dissimilar but
not repugnant, it is sufficient for a person to bring himself within the pro-
visions of either." Gage vs. Currier, 4 Pick. 399.

DIVORCES. 565

duty resting on the State ; and that provision was
made and carried into effect througli the instrumental-
ity of local ecclesiastical societies, established by the
State, through its legislative power ; and under that
constitution the General Assembly constantly exer-
cised the power of establishing and dividing local
ecclesiastical societies ; but the present constitution of
the State provides* that " no person shall, by law,
be compelled to join or support, nor to be classed with
or associated to, any congregation, church, or religiouSi
association ;" and under this constitution it has been
there decided that it is not competent for the legisla-
ture to divide an ancient local ecclesiastical society.f

Divorces. — ^Legislative acts granting divorces from
the marriage tie, like the still more objectionable class
of acts of attainder, derive their origin from the
early periods of English history, when the line between
legislative and judicial power was feebly drawn and
ill understood, and when private rights were &,lmost
completely at the mercy of violent and reckless parti-
san legislation. But that age has fortunately passed,
and the marked improvement that is visible in our
jurisprudence on the subject of legislative divorces
deserves special comment. The facility with which
laws annulling the marriage contract were obtained
from the legislatures of the several States, in our early
history, was discreditable to our system ; but many of
our recent constitutions have shown their increased
respect for the sacred institution of marriage by pro-
hibiting, expressly and absolutely, all divorces,' except

* Cons, of 1818, art. Tiii. 1 1.

t The Second Eccl. Socy. of Portiand m. The First Eocl. Socy. of Port-
land, 23 Conn. 255.

566 DIVORCES.

such as are granted by courts of justice. Some of the
clauses are here given ; —

New York. — " Nor shall any divorce be granted otherwise than

by due judicial proceedings."*

California. — " No divorce shall be granted by the legislature."!
Missouri. — " The General Assembly shall not have power to grant

a divorce in any case."J

Arkansas.— ^^ The General Assembly shall not have power to pass

any bill of divorce, but may prescribe by law the manner in which

such cases shall be investigated in the courts of justice, and divorces

granted."§ •

Texas. — " No divorce shall be granted by the legislature."||
Wisconsin. — " The legislature shall never grant any divorce."^
Tennessee. — " The legislature shall have no power to grant divorces,

but may authorize the courts of justice to grant them for such causes

as may be specified by law ; provided that such laws be general and

uniform in their operation throughout the State."**

Indiana. — "The General Assembly shall pot pass local or special

laws in any of the following enumerated cases :

" Granting divorces. * * * * * * *

" In all the cases enumerated in the preceding sections, and in all

other cases where a general law can be made applicable, all laws shall

be general, and of uniform operation throughout the State."ff

Michigan. — " Divorces shall not be granted by the legislature."U
Louisiana. — " No divorce shall be granted by the legislature."§§
iowa. — " No divorce shall be granted by the General Assembly ."|||

These changes i^ 'the fundamental law of so many

* Constitution of New York, art. i., § 10.
t Constitution of California, art. iv., § 26.
X Constitution of Missouri, art. iii., § 32.
§ Constitution of Arkansas, art. iv., § 24.
II Constitution of Texas, art. vii., § 18.
IT Constitution of Wisconsin, art. iv., § 24.
** Constitution of Tennessee, art. xi., § 4.
tt Constitution of Indiana, art. iv., § 22.

II Constitution of Michigan, art. iv., § 26.
§§ Constitution of Louisiana, art. vi., § 114.

III Constitution of Iowa, art. iv., § 28.

TITLES OF LAWS.

567

of our States, are very curious and interesting; they
show the facility with which our institutions lend
themselves to improvement, and, at the same time, the
rapidity with which a regulation or a law that com-
mends itself to the national judgment is propagated
from one member of the confederacy to another, thus
keeping in harmony, though under various govern-
ments, the general organization and jurisprudence of
the component parts of the empire.

Titles of Laws. — Some of the most important of the
recent additions to our constitutional guarantees, are to
be found in the restrictions imposed on what may be
called the practice and procedure of our legislative bod-
ies. Great abuses have been found to result from a prac-
tice, already mentioned, of ancient date, of incorporat-
ing in the same bill subjects of a very heterogenous
nature„resorted to either for the purpose of surprising
the good faith of the lawmaking body, or of enlisting
hostile interests in suppdrt of the proposed act* To
put a stop to this practice, many States of the Union
have incorporated into ' their -fundamental laws, .the
provisions some of whic)i I proceed to give.

* Acts of this kind are called, in the country from which we derive most
■of both our virtues and our defects, hodge-podge acts. The English stat-
ute, 17 Geo. II., c. 40, is entitled thus: "An act to continue the several
-laws therein mentioned, for preventing theft and rapine On the northern
boi:ders of England ; for the more effectual punishing wicked and evil dis-
posed persons going around in disguise, and doing injuries and violences to
the persons and properties of his Majesty's subjects, and for the more
speedy bringing the offenders to justice ; for continuing two clauses, to pre-
vent the cutting or breaking down the bank of any river or sea-bank, and
-to prevent the malicious cutting of hop-binds ; and for the more effectual
punishmeiit of persons maliciously setting on fire any mine, pit, or delph of
-coal or cannel coal ; and'of persons unlawfully hunting or taking any red
•or fallow deer in forests or chafes, or beating or wounding the keepers or
■other officers in forests, chafes, or parks; and for granting a liberty to

(668 TITLES OP LAWS.

California. — " Every law enacted by the legislature shall embrace
but one subject, and that shall be expressed in the title."*

Missouri. — " No private or local bill which may be passed by the
General Assembly shall embrace more than one subject, and that shall
be expressed in the title."f

Iowa. — "Every law shall embrace but one object, which shall be
expressed in its title."!

Wisconsin. — " No private or local bill which may be passed by the
legislature shall embrace more than one subject, and that shall be ex-
pressed in the title."§ «i

Michigan. — " No law shall embrace more than one object, which
shall be expressed in its title."|

Indiana. — "Every act shall embrace but one subject, and matters
properly connected therewith ; which subject shall be expressed in the
title. But if any subject shall be embraced in an act which shall not
be expressed in the title, Such act shall be void only as to so much
thereof as shall not be expressed in the title."^

carry sugars of the growth, produce, or manufacture of any of his Majesty's-
sugar colonies in America, from the said colonies directly to foreign ports
in ships built in Great Britain, and navigated according to la* ; and to
explain two acts relating to the prosecution of offenders for embezzling
naval stores, or stores of war ; and to prevent the retailing of wine within
either of the Universities in that part of Great Britain called England, with-
out license." I take this from a very interesting ',' Report from the Com-
mittee upon Temporary Laws, Expired or Expiring," ordered to be printed
13 May, 1796, Pari. Reg., vol. xliv., p. 822. The Report contains a general
review of the condition of the statute law of the kingdom, and severely
censures it as "discordant, perplexed, incongruous, verbose, tautologous,,
and obscure." See also, ante, p. 51.

* Constitution of California, art., iv., § 25.

t Constitution of Missouri, art. iii , § 34.

X Constitution of Iowa, art. iv., § 26.

§ Constitution of "Wisconsin, art. iv., § 18.

1 Constitution of Michigan, art. iv., § 20.

H Cons., art. iv., § 19. This section deserves notice for its precise state-
ment of the consequences of a disregard of the constitutional mandate, and
is well worthy of imitation. It puts an end to the mischievous conse-
quences which might flow from the idea of construing a constitutional
direction as directory merely ; and it asserts very distinctly, though indi-
rectly, the power of the judiciary over unconstitutional acts. The consti-
tution of Indiana, in other respects, bears the marks of more accurate
legal knowledge than is always manifest in our constitutions.

TITLES OF LAWS.

Ohio. — " No bill shall contain more than one subject, which shall
1)6 clearly eixpressed in its title."*

KentucJey. — "No law enacted by the General Assembly shall relate
to more than one subject, and that shall be expressed in the title."f

Louisiana. — " Every law enacted by the legislature shall embrace
but one object, and that shall be expressed in the title."J

The evjls whicli these provisions are intended to
preyent, are well stated by the Supreme Court of
Louisiana. " The title of an act often afforded no clue
to its contents. Important general principles were
found placed in acts private or local in their operations ;
provisions- concerning matters of practice or judicial
proceedings, were sometimes included in the same
statute with matters entirely foreign to them ; the re-
sult of which was, that on many important subjects the
statute law had become almost unintelligibie, as they
whose duty it has been to examine or act under it'can
well testify. To prevent any further accumulation to
this chaotic mass, was the object of the constitutional
provision under consideration "§

In the same State, it has been said to be improper
to give this provision " too rigorous and technical a
construction." If in applying it we should follow the
rules of a nice and fastidious verbal criticism, we
should often, frustrate the action of the legislature,
without fulfilling the intention of the framers of the
constitution ; and so it has been said, that an act enti-
tled an act to ^^provids a homestead for widows and
children " was good, though in fact the statute only

* Constitution of Ohio,' art. ii., § 16.
t Constitution of Kentucky, art. ii., § 37.
X Constitution of Louisiana, tit. vi., ? 115.
§ Wallser vs. Caldwell, 4 Ann. R., 298.

5t0 TITLES OF LAWS.

provided/ the pecuniary means sufficient to pv/r chase a
homestead* In the State of Maryland, it has been
said that the provision that " every law enacted by
the legislature shall embrace but one subject, and that
shall be designated by the title," was to prevent graft-
ing upon subjects of great public benefit and import-
ance foreign and pecuniary matters for local and selfish
purposes.f

In California, much less importance has been at-
tached to the provision, the court saying, " "We regard
this section of the constitution as merely directory ;
and if we were inclined to a different opinion, would be
careful how we lent ourselves to a construction which
must in effect obliterate almost every law from the
statute book, unhinge the business and destroy the
labor of the last three years. The first legislature
that met under the constitution, seems to have consid-
ered this section as directory ; and almost every act of
that and the subsequent sessions would be obnoxious
to this objection. The contemporaneous exposition
of the first legislature, adopted or acquiesced in by
every subsequent legislature, and tacitly assented to
by the courts, taken in connection with the fact that
rights have grown up under it. so that it has become a
rule of property, must govern our decision." J

Amendment of Laws. — Serious confusion is con-
stantly caused by the great looseness which prevails
in our legislative bodies in regard to the practice

* Succession of Lanzetti, 9 La. Ann., 329. See, also, Lsefon ps. Dufrocq,
ibid, 540.

t Davis w. The State, Court of Appeals, 7 Maryland, 151. In Texas,
as to the proTJsion that every law must embrace but one object, which
shall be expressed in the title, see Battle vs. Howard, 13 Texas,,345.

X Washington w. Murray, 4 California, 388.

AMENDMENT OF LAWS. 571

pursued hj them on the subject of repealing or ^mend-
ing laws* The former branch of the subject has not
yet received with us the general attention which it
merits ; but at least one State (Maryland)has acted
on it, and many of our recent State constitutions con-
tain provisions on the subject of amending legislative
enactments which are well worthy of careful attention
and of general adoption. I give Some of them :■ —

Maryland,- — " The style of all laws of this State shall be, ' Be it
enacted by the General Assembly of Maryland ; ' and all laws shall be
passed by original, bill ; and every law enacted by the legislature shall
embrace but one subject, and that shall be described in the title ; and
no law, or section of law, shall be revised, amended, or repealed, by
reference to its title or section only.''f

* " Perhaps the greatest evil of all, as it affects^ the interests of the com-
munity at large, is the utter uncertainty that prevails as to what is, and
what is not, repealed. This arises frpm the vicious practice already noticed,
and which pervades the whole body of the statute law, of repealing some
former acts or enactments, not by express reference, but by provisions that
'so much of any former act of Parlia/ment, heretofore made, as is inconsist-
ent with or repugnant to the act in question, shall ie, and is thereby,
repealed ; ' or, as continually occurs, by clauses, upon the same subject)
and for the most part to the same effect, as other clauses in former acts
•(but without any express reference to former acts), leaving it doubtful
whether the later enactments supersede and repeal the earlier, or whether
both are still to remain in force and constitute distinct provisions in the
statute law. The doubts and di£3culties, and, consequently, the vast
amount of litigation, of which this uncertainty is the cause, are -quite
beyond calculation. It has been thought that more than half of the busi-
ness of all the courts of law and equity in the Kingdom consists of disputed
questions upon the construction of acts of Parliament ; and, if that be so,
it is certain that more than a fourth of the whole is caused entirely by this
mischievous course of legislation. It is- often found ioipossible to reconcile
these accumulations of enactments; hence the multiplicity of suits, argu-
ments, and discussions, and, at length, difference among the judges them-
selves, and, ultimately, appeals to tribunals of the last resort."

I take the above extract from a very interesting letter by Sir Fitzroy
Kelly, recently placed at the head of the new commission upon the consolida-
tion of the statute law of England, as I find it extracted in the Boston Law
Reporter for JanuaBy, 1857.

t Cons, of Maryland, art. iii., § 17.

572 AMENDMENT OF LAWS.

Texas. — ■' No law stall be revised or amended by reference to its
title ; but in sudi case the act revised, or section amended, shall be re-
enacted, and published at length."*

Michigan. — "No law shall be revised, altered, or amended, by
reference to its title only ; but the act revised, and the section or sec-
tions of the act altered or amended, shall be re-enacted, and published
at length."f

Indiana. — " No act shall ever be revised or amended by mere
reference to its title ; but the act revised, or section amended, shall be
set forth and published at full length."J

Ohio. — " No law shall be revised or amended unless the new act
contain the entire act revised or the section or sections amended ; and
the section or sections so amended shall be repealed."§

Louisiana. — " No law shall be revised or amended by reference to
its title ; but, in such case, the act revised or section amended shall be
re-enacted, and published at length."||

In regard to the subject of repeal, it has been
decided, in Maryland, that the constitutional provision
that "no law, or section of law, shall be revised,
amended, or repealed, by reference to its title or sec-
tion only," is not inconsistent with the doctrine of
repeal, by implication, of all laws inconsistent with an
independent act of the legislature establishing a new
or revising some previous policy of the State. And,
in "regard to the general policy of the restriction, it
has been said, in the same State, that " this clause was
inserted in the constitution for the purpose of pre-
venting incautious and fraudulent legislation, and to
enable members to act knowingly upon all subjects,
and to guard them from the contingency of voting for
the repeal or revival of laws, through mistake or acci-

* Constitution of Texas, art. vii., § 25.
t Constitution of Michigan, art. iv., § 25.
X Constitution of Indiana, art. iv., § 21.
§ Constitution of Ohio, art. ii., §16.
II Constitution of Louisiana, tit. vi., § 116.

CONSTITUTIONAL MAJORITIES. 573

dent, under the deceptive language often employed in
the title of acts."*

Constitutional Majorities. — The constitutions of most
of the States contain provisions in regard to certain
subjects deemed of special importance, by which no
legislative action can be had unless positive and specific
majorities are obtained-}-. Some of the most prominent
are as follows : — •

Texas. — " No private cofporation shall be created unless the bill
creatiDg it shall be passed by two thirds of both Houses of the legisla-
ture ; and two thirds of the legislature shall have power to revoke and
repeal aill private corporiations, by making compensation for the fran-
chise,"J

Michigan. — " The legislature shall pass no law altering or amending
any act of incorporation heretofore granted, without the assent of two
thii'ds of the members elected to each house ; nor shall any such act
be renewed or extended. This restriction shall not apply to municipal
corporations."§

" The assent of two thirds of the members elected to each house of
the legislature, shall be Requisite to every bill appropriating the public
money or property for,local or private purposes."! *•

* Davis vs. The State, 7 Maryland, 151. In Indiana, as to the construc-
tion of the clause, see Rogers' Admrs. »s. The State, 6 Indiana, 31. The
Constitution of Tennessee contains a provision to the effect, that after a bill
has been rejected, no bill containing the same substance shall be passed
into a law during the same session. — Cons., art. ii., § 19.

t For cases decided on these provisions, as to the requisition of a certain
number of votes, and how the fact is to appear, see Thomas vs. Daken, 22
Wend. 112 ; Warner vs. Beers, 23 Wend. 108 ; Hunt vs. Vanbelstyer, 25
Wend. 605; Purdy m. The People, 4 Hill, 384; Buffalo and N. Falls R.
R, vs. Buffalo, 5 Hill, 209 ; People ex rel. Lynch vs. Mayor, 25 Wend. 680 ;
People vs. Morris, 13 Werid. 325 ; Lansing vs. Smith, 8 Cowen, 146 ; Coml.
Bk. of Buffalo vs. Sparrow, 2 Denio, 97 ; IQe Bow vs. The People, 1 Denio,
9 ; Gifford ««. Livingston, 2 Denio, 380 ; Russell vs. The Mayor, 2 Denio,
461 ; Warner vs. The People, 2 Denio, 272 ; Supervisors of Niagara vs.
People, 4 Hill, 20 ; Supervisors of Niagara vs. People, 7 Hill, 504 ; see,
also, ante, ch. iii., p. 68. f

I Constitution of Texas, art. vii., § 31.

§ Constitution of Michigan, art. xv., § 8.

\ Constitution of Michigan, art. iv., § 45.

574 THE JUDICIARY.

Indiana. — " A majority of all the members elected to each house
shall be necessary to pass every bill or' joint resolution."*

In Micliigan, under tlie clause above cited,— that the
legislature shall pass no act of incorporation, unless
with the assent of at least two thirds of each house, —
it has been decided that by this phrase is meant
the legislative body, or quorum to do business, com-
prising a majority of the members elected, to and
qualified to act as members of the body.f

The Judiciary. — Most of the State constitutions, as
has been elsewhere said, seek to draw a clear line
between the legislative and judicial functions ; but in
hardly any thing have they less agreed than in regard
to the creation and the tenure of judicial office. In
some cases the States disagree with each other ; and in
others their own policy, at different times, is irrecon-
cilably variant and discrepant. In New Hampshire, the
constitution in noble language declares it to be " essen-
tial 'to -the preservation of the rights of every individ-
ual, his life, liberty, property, and character, that there
be an impartial interpretation of the laws and adminis-
tration of justice. It is the right of every citizen to be
tried by judges as impartial as the lot of humanity
will admit. It is, therefore, not only the best policy,
but for the security of the rights of the people, that
the judges of the Supreme Judicial Court should hold
their offices so long as they behave well, — subject, how-
ever, to such limitations, on account of age, as may be
provided by the constitution of the State; and t.,at
they should have honorable salaries, ascertained and
established by standing laws."J

* Constitution of Indiana, art. iv., § 25.

t Southworth vs. Palmyra and Jackson R. R. Co., 2 Michigan, 287.

t Constitution of New Hampshire, part i., art. 35.

THE JUDICIARY. 575

On the otLer hand, 'the constitution of Mississippi
holds this language : " No "person shall ever be ap-
pointed, or elected to any office in this State for life,
or during good behavior ; but the tenure of all offices
shall be for some limited period of time, if the person
appointed or elected thereto shall so long behave
well."*

The practice of the States has been equally discrepant.
In some, the judges'have been appointed for a term of
years ; in some, during good- behavior ; in some, till a
specified age ; in some, they have been created by a
governor and senate ; in some, by the legislature ; and
now, within the last ten years, since the adoption of
the New York constitution of 1846, many of the States
have made them eligible by the popular voice, and for
terms of office varyiijg from six to fifteen years.

I have intended to avoid, in this volume, the discus-
sion of any questions having any political bearing;
nor can it justly be said that. these various systems
have been as yet sufficiently tried to furnish a com-
plete J;est of what may be the best mode of creating
these officers ; or as to that which is probably more
important, what should be the tenure of judicial office
in this country ; but all will agree that there is no
subject of greater importance ; and that every other
consideration must finally give way to the paramount
necessity of securing an honest and an able judiciary.

In Louisiana, the provisions of the State constitu-
t'on creating the judiciary, and prescribing the mode
of their appointment or election, have been held to be
incompatible with the statute authorizing a judge who
is incompetent, or who declines to try a cause,-^or, in
the language of that State, recuses himself, — to appoint

* Constitution of Mississippi, art. i., § 80.

516 SUITS AGAINST THE STATE.

a member of the bar for the purpose ; and the act has
been declared void.*

Suits against the State.— Several of the States have,
by special constitutional clauses, abolished the old
feudal doctrine which forbids all judicial redress against
the government. These provisions are so much the more
important, because they tend to diminish the number of
those applications to legislative consideration which are
among the most fertile sources of that corruption which
is one of the great evils of our age. I annex the pro-
visions as they stand iu several of the State constitu-
tions : —

California. — "Suits may be brought against the State in such
manner and in such courts as shall be directed by law."f
^ Wisconsin. — " The legislature shall direct, by law, in what manner
and in what courts suits may be brought |gainst the State."J

Arkansas. — "The General Assembly ^hall direct, by law, in what
courts and in what manner suits may be commenced against the State."§

Missouri. — " The General Assembly shall direct, by law, in what
manner and in what courts suits may be brought against the State."||

Illinois.—" The General Assembly shall direct, by law, in what
manner suits may be brought against the State."^

Indiana. — " Provision may be made, by general law, for bringing
suit against the State as to all liabilities originating after the adoption
of this constitution ; but no special act authorizing such suit to be
brought, or making compensation to any person claiming damages
against the State, shall ever be passed."**

In New York, the old rule prevails, that the State
cannot be sued, in her own courts, for any cause of

* The State of Louisiana vs. Judge of Sixth District, 9 La. Ann. K. 62.
t Constitution of California, art. xi., § 11.

I Constitution of Wisconsin, art. iv., § 27.
§ Constitution of Arkansas, art. iv., § 22.

II Constitution of Missouri, art. iii,, § 26.
1 Constitution of Illinois, art. iii., § 84.

** Constitution of Indiana, art. iv., § 24. Vide ante, p. 568, note, as to
the Constitution of Indiana.

MISCELLAHEOUS PEOVISIOITS. 571

action. In conformity witli tliis. principle, it has been
decided, that the State courts have no power to
restrain, by injunction, the acts of officers of the State
who are proceed.ing under the authority of law ; and
that th« fact of the statute in question being uncon-
stitutional forms no ground for granting the injunc-
tion.* The courts of the Federal government, how-
ever, are the legal superiors of th,e States in cases in
which they have jurisdiction; and it has been held
that an injunction may be granted by the United
States courts to restrain State officers from collecting
a State tax which was unlawful under the laws of the
United States.f

A few interesting miscellaneous provisions of our
State constitutions may be noticed. By art. iv.,
§ 11, of the constitution of Alabama, the power to
remit fines and forfeitures is given to the governor ;
and in that State it has been held, thg,t this power
cannot be exercised by the legislature, and that, there-
fore, any act which attempts, directly or indirectly, to

* Thompson in. The Commissioner of the Canal Fund, 2 Abhott's Pr.
Rep. 248.

In regard to municipal corporations, the contrary doctrine is held ; and
where an act of such a corporation is clearly illegal, and the necessary effect
of the act will be to injure or impose a burthen on the property of a corpo-
rator, it will warrant the interference of the court by injunction ; Chris-
topher vs. The Mayor, &c. of N. Y., 13 Barb. 567. So, if the municipal
corporation is guilty of a breach of trust; Milhau vs. Sharp, 15 Barb.
193. So, again, the same principle has been decided where the act of the
corporation was in violation of an express law, and tindeii to increase the
taxes ; De Baun m. The Mayor, 16 Barb. 392. In this case Edmonds, J.,
and Morris, J., dissented.

Under the former judicial system of the State, the Court of Chancery
had no power to enjoin proceedings for the collection of an illegal assess-
ment ; Meserole vs. Mayor of Brooklyn, 8 Paige^ 198 ; reversed on appeal,
by the Court of Errors, 26 Wend. 132.

t Osborn vs. The U. S. Bank, 9 Wheat. 738.

578 MISCELLAN-EOUS PE0TISI0N3.

remit a fine, either "before or after it has been paid, is
Tinconstitutional*

lu Louisiana, the constitution declares that the State
shall not become a subscriber to the stock of any
corporation or joint-stock company ;f but it has been
held that this does not take from the legislature the
power to authorize a subscription by a municipal
corporation to a corporation or joint-stock company. J

The constitution of New York, of 1846, making an
effort to eradicate the manorial tenures or long leases,
reserving rents in money, produce, or services, which,
in the language of Mr. Justice Gridley, "experience
had proved to be prejudicial to the prosperity and
interests of the State, as a question of political econ-
omy," prohibited leases or grants of agricultural land
for more than twelve years, in which any rent or ser-
vice should be reserved. It has been held, that this
provision applies only to such rents and services as are
certain, periodical, and which issue out of the land, and
not to covenants for the performance of duties not cer-
tain nor periodical, nor confined to the use of the land
alone.§

The constitution of the State of Indiana declares]
" that all trust funds held by the State shall remain
inviolate, and be faithfully applied to the purposes for
which the trust was created ; " and under this clause

* Haley vs. Clark, ,2&. Ala. 439.

t Art. 121.

I Police Jury ®s. McDonogh's Succession, 8 La. Ann. R. 341 ; CityoflTew
Orleans vs. Graihle, 9 La. Ann. R. 661.

§ Stephens vs. Reynolds, 2 Seld. 454. The constitution of Michigan
contains a similar proviso : " No lease or grant hereafter of agricultural
land, for a longer period than twelve years, reserving any rent, or service of
any kind, shall be valid." — Cons., art xviii., § 12.

I Cons., art. viii., § 7.

GENERAL OPERATION. S79

it has been held, that a law diverting the proceeds
of the sixteenth section, granted by Congrfess to the
inhabitants of each township for the use of schools,
fi-om the use of schools in the congressional township
where the land was situated to the use of the school
system of the State at large, is unconstitutional and
void*

In terminating the examination, necessarily extremely
partial and incomplete, of this interesting subject, the
most superficial observer cannot fail to be struck with
the great and growing uniformity in the fundamental
organization of so many governments which, in their
several spheres, are absolutely independent. Pro-
visions inserted in the revision of one State constitu-
tion are adopted by others;, the judicial interpretation
adopted by the courts of one member of the Union is
followed by its sister States; so that the similarity
between our institutions is daily becoming more and
more manifest. In regard to the division and general
arrangement of political power, the right of suffrage,
the guarantees of private property, the protection of
private rights, — the gradual result of the three quarters
of a century which have elapsed since the foundation
of our institutions was laid, aided by the active
intercourse and communication of our citizens, and by
a press of great intelligence and vigor, has been to
bring the members of the qonfederacy to a similarity
of condition greater than any other age or any other
people can show. So marked a uniformity of language,
laws, and institutions, prevailing through territories
so vast or among populations so numerous, the world
has never before beheld.

* The State vs. Springfield Township, 6 Indiana, 88.

580 GENERAL OPERATION.

On one subject alone does any considerable diversity
of condition or difference of opinion exist. That sub-
ject is rendered embarrassing beyond all others by
disparity of race, and by dissimilarity of climate and
production. But our past history affords us reason-
able grounds to hope and to believe that if the ques-
tion be approached in the fraternal spirit which our
history inculcates, and in the humane temper which
marks our national character, a solution of the diffi-
culties attendant upon it will be found, worthy of the
practical sense to which we lay claim, and calculated
to perpetuate that Union on which not only our dear-
est interests, but the best hopes of humanity depend.

As to the power of the judiciary to investigate the correctness of
legislative action founded on a question of f%ct, the following case may be
noticed : The constitution of New Tork, of 1846, provided that every county
should be entitled to a member of Assembly ; and that no new county
should be Iiereafter created, unless its population shall entitle it to a mem-
' ber. The county of Schuyler was created by laws of 1854, c. 386. The
question was, whether the legislature, in determining the question of popu-
lation, was confined to the decennial State census, taken in 1845, or whether
its own decision on the point was to be considered conclusive, — ^De Camp
vs. Eveland, 19 Barb. 81.

A repealing clause in an unconstitutional statute, declaring that all laws
contravening the provisions of this act be, and the same are hereby, repealed,
does not affect the previous laws,— Tims m. The State, 26 Ala. 165.

Where an act is void because unconstitutional, an amendatory act is
of no effect to give it validity, — Bradley vs. Baxter, 15 Barb. 131 ; M'Spedon
& Baker w. Stout, Sup. Court, N. Y., by Davies, J. (not reported.)

Mr. Rawle's work on the Constitution, published in 1825, contains the
following statement : — " The provincial constitutions of America were, with
two exceptions, modeled with some conformity to the English theory ; but
the colonists of Rhode Island and Providence Plantations were empowered
to choose all their oflBcers — legislative, executive, and judicial; and, about
the same time, a similar charter was granted to Connecticut. And thus,
complains Chalmers, a writer devoted to regal principles, ' a mere democ-
racy, or rule of the people, was established. Every power, deliberative

HOFFMAN'S LEGAL OUTLINES. 581

■#
and active, was invested in the freemen or their delegates ; and the supreme
executive magistrate of the 'empire, by an inattention which does little
honor to the statesmen of those days, was wholly excluded.' He expresses
his own doubts whether the king bad a right to grant such charters.

" But, although in all the other provinces the charters were originally
granted, or subsequently modified, so as to exclude the principle of repre-
sentation from the executive department, these two provinces, at the time
of our Revolution, retained it undiminished. The suggestion of the full,
Tinqualifled extension of the principle of representation may, therefore, be
justly attributed to the example of Rhode Island and Connecticut, which
when converted into States, found it unnecessary to alter the nature of their
governments, and continued the same forms in all respects, except the nom-
inal recognition of the king's authority, till 1818, when Connecticut made
some minor changes and adopted a formal constitution. Rhode Island,
however, is still satisfied with the charter of Charles XL, from which it has
been found sufficient to expunge the reservation of allegiance, the required
conformity of its legislative acts to those of Great Britain, and the royal
right to a certain portion of gold and silver ores, which, happily for that
State, have never been found within it." — Rawle on the Constitution, p. 9.

" Connecticut," says the Federalist, Letter 38, " has always been con-
sidered as the most popular State in the Union."

Mr. Hoffman, in his Legal Outlines, defines the Constitution of a State to
be " The fundamental regulations which determine the manner of execut-
ing the public authority, and which define the relation between the political
body and its members." — ^Lect. ix. p. 365.

Mr. Hoffman's work was, unhappily, left incomplete, the first volume
only, relating to the elements of natural, political, and feudal jurisprudence,
was published. The second and third volumes, intended to treat of the
elements of municipal law, never appeared. The volUme which we have is
the production of an accomplished lawyer and scholar, full of the jnarka
of extensive reading and accurate reflection. The seventh chapter, of law
and its general properties, is particularly valuable.

CHAPTER XI.

LIMITATIONS IMPOSED UPON LEGISLATIVE POWER BY THE
CONSTITUTION OF THE UNITED STATES.

Clanses of the Federal Constitution which operate as checks on legislative
action — General nature m{ the Legislative Power of the Union — General
Principles of Constitutional Construction or Interpretation — Interpreta-
tion and application of Particular Clauses — Habeas Corpus — Bills of
Attainder — Ex-post-faoto Laws — Fugitives from Justice — Fugitives from
Labor — Religious Freedom —Freedom of Speech and of the Press — Search
Warrants and Seizures — Only one Trial for Offenses — Due Process of Law
— Compensation for Private Property taken for Public Purposes — Trial by
Jury — Excessive Bail and Cruel Punishments — The Obligation of Con-
tracts— ^Vested Eights — Conclusion,

Iw my eonsideration of tlie Constitution of the
United States, with reference to the subject of this
work, I shall pursue the same general course which I
have followed in regard to the Constitutions of the
several States. I shall, therefore, not treat of the
organization of political authority, nor of the distri-
bution of power between the State legislatures and
the general government, resulting from the provisions
of the Federal charter! I shall, on the contrary, con-
fine myself mainly to the consideration of those clauses
of the instrument which act as limitations on the action
either of Congress or of the legislatures of the several
States, in regard to matters of private right.

BILL OF RIGHTS. S83

I omit, therefore, as falling outside of the scope and
province of this work, all the interesting cases grow-
ing out of the clauses of the Federal Constitution in
regard to the judiciary, the regulation of commerce,
emission of bills ;of credit, the borrowing of money,
levying of taxes, naturalization, bankruptcy, coinage,
the post-office, patents, copyrights, and the like.
These belong, strictly, to a treatise on the Con-
stitution' of the United States, a subject that has
already been treated by a hand far abler, far more
familiar with the theme, but which now, unhappily,
rests from its useful and incessant labors.*

My chief object, as I have said, being to tr|at
of written law as settling and declaring private
rights and duties, I shall, after an examinatiori of
the general principles of interpretation applica-
ble to the Constitution of the United States, limit
myself almost exclusively to a consideration of
those clauses which have no direct connection with
the organization or distribution of political power, but
are intended, by limiting legislative supremacy, to
operate as definitions of private duty or guarantees
of private right, — to those clauses, by virtue of which
it has been said, that the Constitution of the United
States contains what may be deemed a Bill of Rights

* In addition to the great work of Mr. Justice Storj, and the volumes
of Mr. Rawle and Mr. Sergeaut, the student of constitutional law who wishes
Jumrire fontes -will recur to the Madison Paipers and the Federalist, Mr.
Tucker's Blackstone, the writings of Jefferson and Hamilton passim, and to
our truly national work, the Commentaries of Mr. Chancellor Kent. In
recent days, the speeches and writings of Mr. Webster anfl of Mr. Cal-
houn, great rival chiefs of widely adverse schools, furnish most important
instruction. There is no better or more pleasing cempend for popular use
or elementary instruction, than the Constitutional Jurisprudence of the
Hon. Wm. Alexander Duer, 2d edition, 1856.

,*,

584 ■ CONSTITUTIONAL PROVISIONS.

for the people of each. State ;* and in regard even to
these, I shall discuss them in ^ brief and summary
way, for the same reason that they may be found ably
and amply discussed elsewhere.

The sections of the Constitution of the United
States, containing the clauses designed to perform the
functions to which I have referred, will be found to
be the following : —

Article I,, Section 9.

(2.) The privilege of the writ of habeas corpus shall not be sus-
pended, unless when, in cases of rebellion or invasion, the public safety
may require it.

(3.) No bill of attainder, or ex post facto law, shall be passed.

Section 10.
(1.) No State shall enter into any treaty, alliance, or confederation,
grant letters of marque and reprisal, coin money, emit bills of credit,
make any thing but gold and silver coin a tender in payment of debts,
pass any bill of attainder, ex post facto law, or law impairing the obli-
gation of contracts, or grant any title of nobility.

Article III., Section 2. § 3.
The trial of all crimes, except in cases of impeachment, shall be by
jury ; and such trial shall be held in the State where the said crimes
shall have been committed ; but when not committed within any State,
the trial shall be at such place or places as the Congress may, by law,
have directed.

Section 3.
(1.) Treason against the United States shall consist only in levying
war against them, or in adhering to their enemies, giving them aid
and comfort. No person shall be convicted of treason unless on the

• Fletcher vs. Peck, 6 Cranch, 138. "In like manner," says the
Federalist, "the proposed Constitution, if adopted, will be the Bill of Rights
of the Union." (Letter 84.) That it did not contain a Bill of Rights in
form, was, as is well known, one of the chief arguments used against its
adoption. Story Com. § 1858.

CONSTITUTIONAL PROVISIONS. 586

testimony of two witnesses to the samp overt act, or on confession in
open court.

(2.) Tlie Congress shall have power to declare the punishment of
treason ; but no attainder of treason shall work corruption of blood, or
forfeiture, except during the life of the person attainted.

Article IV.

Full faith and credit shall be given in each State to the public acts,
records, and judicial proceedings of any other State ; hnd the Congress
may, by general laws, prescribe the manner in which such acts, rec-
ord?, and proceedings shall be proved, and the effec't thereof.

Section 2.

(1.) The citizens of each State shall be entitled to all privileges and
immunities of citizens in the several States. ,»

(2.) A person charged in any State with treason, felony, or other
crime, who shall fleefrom justice and be found in another State, shall,
on demand of the executive authority of the State from which he fled,
be delivered up to be removed to the State having jurisdiction of the
crime.

(3.) No person held to service or labor in one State, under the laws
thereof, escaping into another, shall in consequence of any law or regu-
lation therein, be discharged from such service or labor, but shall be
delivered up on claim of the party to whom such service or labor may
be due.

Article VI.

(3.) The senators and representatives before mentioned, and the
members of the several State legislatures, and all executive and judi-
cial officers, both of the United States and of Ihe several States, shall
be bound by oath or afiSrmation, to support this Constitution ; but no
religioiis test shall ever be required as a qualification to any office or
public, trust under the United States.

AMBsnMENTS. — Article I.

Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof, or abridging the freedom of
speech or of the press, or the right of the people peaceably to assemble
and to petition the government for a redress of grievances.

580 OONSTITUTIOBTAL PEOVISIONS.

Article II.

A well-regulated militia being necessary to the security of a free
State, the right of the people to keep and bear arms shall not be
infringed.

Article III.

No soldier shall, in time of peace, be quartered in any house
without the consent of the owner ; not in time of war, but in a man-
ner to be prescribed by law.

Article IV.

The right of the people to be secure in their persons, houses,

papers, and eflfects, against unreasonable searches and seizures, shall

not be violated ; and no warrants shall issue but upon probable cause,

supported by oath or affirmation, and particularly describing the place

' to be searched, and the persons or things to be seized.

Article V,

No person shall be held to answer for a capital or otherwise
infamous crime, unless on a presentment or indictment of a grand
jury, except in* cases arising in the land or naval forces, or in the
militia when in actual service, in time of war or public danger; nor
shall any person be subject, for the same oflFense, to be twice put in
jeopardy of life or limb, nor shall be compelled in any criminal case,
to be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law ; nor shall private property be
taken for public use without just compensation.

Article VI.

In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial by an impartial jury of the State and dis-
trict wherein the crime shall have been committed, which district
shall have been previously ascertaiued by law,'anct to be informed of
the nature and cause of the accusation, to be confronted with the wit-
nesses against him, to have compulsory process for obtaining witnesses
in his favor, and to have the assistance of counsel for his defence.

Article VII.

In suits at common law where the value in controversy shall
exceed twenty dollars, the right of tiial by jury shall be preserved, and

CONSTITUTIONAL PROVISIONS. 587

no fact tried by a jury shall be otherwise re-examined, in any court of
the United States, than according to the rules of the coinmon law.

Article vill.
Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.

Article X.

The powers not delegated to the United States by the Cdnstitution,
nor prohibited by it to the States, are reserved to the States respectively,
or to the people.

Before proceeding to discuss the interpretation
of these clauses in detail, it is desirable to have a
general idea of the nature of the legislative power of
the Union, as well as of the leading principles of con-
struction applicable to the Constitution of the United
States. Eules of interpretation vary with the instru-
ment to be expounded. A statute is not controlled by
the same maxims as those applicable to State constitu-
tions ; and State constitutions are subjected, in some
respects, to different principles of construction from
those which are held proper in regard to the Con-
stitution of the United States.*

* Mr. Justice Story, in the fifth chapter of the second book of his Com-
mentaries on the Constitution, states the rules of interpr^etation applicable
to the Constitution of the United States, to be:

I. That it is to be construed according to the sense of the t^ms and
the intention of the parties.

II. We are to consider its nature and objects, its scope and design as
apparent &om the structure of the instrument viewed as a whole, and, also
viewed in its component parts, taking into view the antecedent situation of
the country and its institutions, the existence and operations of the State
governments, the powers and operations of the confederation, contemporary
history, contemporary interpretation, and practical exposition.

III. It is to receive a reasonable interpretation of its language and its
powers, not straining its words beyond their common and natural sense,
but giving their exposition a fair and just latitude.

588 LEGISLATIVE POWER OF THE UOTOU.

The great political idea, if it may be so called, on
this subject of the Federal Charter, is the one expres-
sed in the tenth amendment above cited, and repeat-

rV. Where a power is granted in general terms, the power is to be con-
strued as co-extensive with the terms, unless some clear restriction upon it
is deducible from the context.

V. A power given in general terms is not to be restricted to particular
cases, merely because it may be susceptible of abuse.

VI. A given power is not to be extended by construction beyond the
fair scope of its terms, merely because the restriction is inconvenient, im-
politic, or even mischievous.

VII. No construction of % given power is to be allowed which plainly
defeats or impairs its avowed objects.

VIII. Where a power is remedial in its nature, there is much reason to
contend that it ought to be construed liberally.

IX. In the interpretation of a power, all the ordinary and appropriate
means to execute it are to be deemed a part of the power itself.

X. Powers may be implied.

XL As between the States and ■ general government, some of the
powers conferred on the latter are concurrent, and some exclusive.

XII. The maxims which have found their way not only into judicial
discussions but into the business of common life, as founded in common
sense and common convenience, are applicable to the construction of the
Constitution.

XIII. The rational import of a single clause is not to be narrowed so as
to exclude implied powers resulting from its character, simply because
there is another clause enumerating certain po\^ers whicb might otherwise
be deemed implied powers within its scope.

XIV. Every word employed in the Constitution is to be expounded in
its plain, obvious, and common sense, unless the context furnishes some
ground to control, qualify, or enlarge it.

XV. Where words have different meanings, resort must be had to the
context to determine the construction.

XVI. Where technical words are used, the technical meaning must be
given them.

XVII. The same word is not necessarily to be construed in the same
sense wherever it occurs in the same instrument.

XVIII. A constitution does not, and cannot from its nature, depend in
any great degree upon mere verbal criticism, or upon the import of single
words.

Some of these rules are, it will be observed, principles of what may be
called political construction ; others, very sound and sagacious maxims ap-
plicable to all interpretation, and especially to that of constitutional law.

LEGISLATIVE POWER OF THE UNION. 589

edly in various ways affirmed* that as to the general
outline of the instrument, and the government created
by it, the Constitution oOhe United States is a grant
and not a limitation of power. Congress can exercise
no powers except those expressly delegated. Of
course, however, this idea does not apply to the ex-
press prohibitions contained in the instrument, whe-
ther imposed upon the States or on the general govern-
ment. In regard to these, the Constitution of the
United States, like those of the several members of
the confederacy, is a limitation on legislative power.

This broad- line of distinction between the powers of
the Federal government and that of the States, leaves
little room in regard to the government of the Union,

The learned author also elaborately discusses the subject of the formation
of the government, whether created by the States as such or by the people
directly, as well as the general question whether the Constitution is to be
Strictly construed. These questions are of the deepest interest, but they
relate more particularly to the distribution of political power ; and I there-
fore content myself here with a bare reference to them.

A Constitution, from its nature, deals in generals, not in details. Its
framers cannot perceive minute distinctions which arise in the progress of
the nation ; and therefore confine it to broad and general principles. Bank
U. S. vs. Deveaux, 5 Cranch, 87, a case as to the citizenship of corporations
aggregate.

* The Federal government is one of delegated powers. All powers not
delegated to it, or inhibited to the States, are reserved to the States or the
people. Briscoe vs. Bank of Commonwealth of Kentucky, 11 Peters, 257 ;
see this case in regard to the clause prohibiting the States to issue bills of
credit.

" A different rule obtains in interpreting the powers in the constitutions of
the United States and the States. In ascertaining the powers of the for-
mer, we examine to see what powers are expressly granted or are neces-
sarily implied for their exercise. In the latter we only examine to see what
are denied by the Federal and State constitutions ; and my view of the law-
making power of these State governments is, that they can do any legisla-
tive act not prohibited by the Constitution; and. without and beyond these
limitations and restrictions, they are as absolute, omnipotent, and uncon-
trollable as Parliament." Mason vs. Waite, 4 Scammon, 134,

690 LEGISLATIVE POWER OF THE UNION,

for the discussion of some of the general questions in
reward to the exercise of the law-making authority
which we have elsewhere considered. But the Federal
Constitution intends to preserve the same lines of
demarkation between the executive, the legislative,
and the judicial powers, as those which the States have
described ; and this separation has given rise to a dis-
cussion in regard to the delegation of legislative power
by Congress, analogous to that we have already con-
sidered. The government of the United States have
by various acts, adopted the legislation of the respec-
tive States in regard to writs, process, imprisonment
for debt, and other matters ;* and in so far as this adop-
tion is a mere application of rules already known and
in force, to questions arising under the jurisdiction of
Congress, it appears to be unobjectionable ; but it has
been intimated that Congress could not adopt prospec-
tively future acts of State legislation on any given
subject, upon the ground that it would be a delegation
of legislative power.f *

We have already considered the rules which govern
the adoption by the Federal tribunals of the decisions
of the State courts, in relation to their constitutions
and their local law.J In deciding, however, on ques-
tions which are not questions of mere local municipal
law, but arise under the law merchant, the Supreme

* Wayman va. Southard, 10 "Wheat. 4; Bank of the U. S. vs. Halstead,
10 Wheat. 51 ; Beers vs. Haughton, 9 Peters, 829.

t U. States «j!. Knight, 3 Sumner, 369 ; In the Matter of Watson Free-
man, 2 Curtis, p. 495 ; Oooley vs. Board of Wardens of Philadelphia, 12
How. 299.

i Webster vs. Cooper, 14 Howard, 488 ; Greene vs. James, 2 Curtis, 187 ;
an£«, p. 483.

GENERAL EULES OF CONSTRTJCTIOJJ'. 591

Court pronounces its own judgment, and does not
accept the Tules of tlie State courts as authority*

Having thus glanced at the general notions of the
legislative power of the Union, we proceed to consider
the leading rules of interpretation applied to the Con-
stitution of the United States.

The political rules of construction in regard to
the federal Charter, have been stated as follows
hj Marshall, C. J., who, assisted by a bar and a bench
of unsurpassed ability, may fairly claim the title of
Expounder of the instrument.

The government, then, of the United States, can claim no powers
which are not granted, to it by the Constitution ; and the powers actu-
ally granted' must be such as are expressly given or by necessary im-
plication. On the other hand, this instrument, like every other grant,
is to have a reasona,ble construction according to the import of its
terms; and where a power is expressly given in general terms, it is
not to be restrained to particular cases, unless that construction grow
out of the context expressly, or by necessary implication; The words
are to be taken in their natural and obvious sense, and not in a sense
unreasonably restricted or enlarged.

The Constitution unavoidably deals in general language. It did
not suit the purposes of the people, in framing this great charter of our
liberties, to provide for minute specifications of its powers, or to declare
the means by which those powers should be carried into execution.
It was foreseen, that this would be a perilous and difficult, if not an
impracticable task. The instrument was not intended to provide
merely for the exigencies of a few years, but was to endure through a
long lapse of ages, the events of which were locked up in the inscrut-
able purposes of Providence. It could not be foreseen what new changes
and modifications of power might be indispensable to effectuate the
general objects of the charter; and restrictions and specifications
which at the present-time might seem salutary, might in the end prove

•■

* Swift vs. Tyson, 16 Peters, 1 ; Carpenter vs. Prov. W. Ins. Co. 16
Peters, 495 ; Foxcroft vs. Mallett, i How. ^77 ; The Gloucester Ins. Co. vs.
Younger, 2 Curtis, 338.

692 GENERAL EULES OF CONSTRUCTION'.

the overthrow of the system itself. Hence, its powers are expressed in
general terms, leaving to the legislature, from time to time, to adopt
its own means to effectuate legitimate objects, and to mold and model
the exercise of its powers as its own wisdom and the public interest
should require.*

And again, the same eminent man has said, —

To say, that the intention of the instrument must prevail ; that this
intention must be collected from its words ; that its words are to be
understood in»that sense in which they are generally used by those for
whom the instrument was intended ; that its provisions are neither to
be restricted into insignificance, nor extended to objects not compre-
hended in them, nor contemplated by its framers, — ^is to repeat what has
been already said more at large, and is all that can be necessary.^-

I proceed now to state the rules of construction not
of a political nature, which are applicable to the
instrument.

The Unconstitutionality must he Clear. — It has been
repeatedly held, that to warrant the courts in setting
aside a law as unconstitutional, the case must be so
clear that no reasonable doubt can be said to exist.
The Supreme Court has said, —

The question whether a law be void for its repugnancy to the Con-
stitution, is at all times a question of much delicacy, which ought sel-
dom or ever to be decided in the affirmative in a doubtful case. The
court, when impelled by duty to render such a judgment, would be un-
worthy of its station could it be unmindful of the solemn obligation
which that station imposes. But it is not on slight implication and
vague conjecture, that the legislature is to be pronounced to have
transcended its powers, and its acts to be considered void. The oppo-
sition between the Constitution and the law, should be such that the
judge feels a clear and strong conviction of their incompatibility with
each other. If such be the rule by which the examination of this

* Martin m. Hunter's Lessee, 1 Wheat. 306—326.

t Marshall, 0. J., in Ogden w, Saunders, 12 Wheat 218 — 882.

CONTEMPORANEOUS EXPOSITION. 593

case is to be igoverned and tried (and that it is, no one can doubt), I
am certainly not prepared to say that it is not, at least, a doubtful
case, or that I feel a clear conviction that the case in question is in-
compatible with the Constitution of the United States.*

Contemporaneous Mcposition. — It is well settled tliat
aid, in regard to the construction of tlie Constitution of
the United States, may be derived from contempo-
raneous exposition and legislative exposition ;f but
this cannot be carried so far as to permit usage to
override the express terms of the instrument ; and Mr.
Justice Story has said that contemporary interpreta-
tion must be resorted to with much qualification and
reserve.^

Mol/rinsic facts not admitted to contradict the words
of the instrument. — The general principle on which we
have heretofore insisted, that the meaning of a written
law is to be found in its terms, and that we are not at
liberty to resort to extrinsic facts and (jircumstances to
ascertain what the framers might have intended, has

* Fletcher w. Peck, 6 Cranch, 128 ; see also, to same point, U. S. vs.
Wonson, 1 Gallison, pp. 4 and 18 ; U. S. Bank vs. Halstead, 10 "Wheat, p.
63 ; Parsons m. Bedford, 8 Peters, 433, 448 ; Ogden vs. Saunders, 12
Wheat. 294. In Green vs. Biddle, Mr. Clay, arguendo, said, " The Court
will exercise its power with the most deliberate caution. This Court is in-
vested with the most important trust that was ever possessed by any
tribunal for the benefit of mankind. The political problem is to be solved in
America, whether written constitutions of government can exist. They
certainly cannot exist without a depositary somewhere of the power to pro-
nounce upon the conformity of the acts of the delegated authority to the
fundamental law. This court is that depositary, and I know not of any
better. But the success of this experiment, so interesting to all, that is dear
to the interests of human nature, depends upon the prudence with which this
high trust is executed." 8 Wheat. 48.

t Johnson, J., in Ogden vs. Saunders, 12 Wheat, p. 290; Stuart vs.
Lakd, 1 Cranch, 299 ; Martin vs. Hunter's Lessee, 1 Wheat. 304; Cohens
vs. Virginia, 6 Wheat. 264, 418 to 421.

X Com. on Con. § 406.

594 EXTEINSIC FACTS.

frequently been declared to apply to the Constitution
of the United States. " It is well settled that the spirit
of a Constitution is to be respected no less than its let-
ter ; yet that spirit is to be collected chiefly from its
its words, and neither the practice of le^lative
bodies nor other extrinsic circumstances, can control
its clear language." Such was the language of Mar-
shall, C. J., in answer to the objection that the State
insolvent laws did not contravene the prohibition upon
laws impairing the obligation of contracts, because
they were supported by the unbroken practice of the
State legislatures for thirty years ; and he proceeded
to say, —

It would be dangerous in the extreme to infer from extrinsic cir-
cumstances, that a case for which the words of an instrument expressly
provide, shall be exempted from its operation. Where words conflict
with each other, where the different clauses of an instrument bear
upon each other, and would be inconsistent unless the natural and com-
mon import of words be varied, construction becomes necessary, and a
departure from the obvious meaning of words is justifiable. But if in
any case, the plain meaning of a provision, not contradicted by any
other provision in the same instrument, is to be disregarded because
we believe the framers of that instrument could not intend what they
say, it must be one in which the absurdity and injustice of applying
the provision to the case would be so monstrous that all mankind
would, without hesitation, unite in rejecting the application.*

Words to be taken in their natwral sense. — Chief
Justice Marshall has said, " As men whose intentions
require no concealment generally employ the words
which most directly and aptly express the ideas they
intend to convey, the patriots who framed our Con-
stitution, and the people who adopted it, must be

* Sturges m. Orowninshi^ld, 4 Wheat. 202, 203.

TRANSPOSITION OF CLAUSES. 595

understood to liave employed words in their natural
sense, and to have intended what they have said."*

Tran^osition of Clcmses. — In regard to the trans-
position of sentences in order to arrive at the construc-
tion of a constitutional provision, Mr. Justice Wash-
ington has used this sensible language : —

In the construction of this clause of the tenth section of the Con-
stitution, one of the counsel for the defendant supposed himself at liberty
so to transpose the provisions contained in it as to place the prohibition
to pass laws impairing the obligation of contracts, in juxtaposition with
the other prohibition to pass laws making anything but gold. and
silver coin a tender in payment of debts, inasmuch as the two pro-
visions relate to the subject of contracts. That the derangement of the
words and even sentences of a law, may sometimes be tolerated in
order to arrive at the apparent meaning of the legislature, to be
gathered from other parts or from the entire scope of the law, I shall
not deny. But I should deem it a very hazardous rule to adopt in
the construction of an instrument so maturely considered as this Con-
stitution was by the enlightened statesmen who framed it, and so
severely examined and criticised by its opponents in the numerous
State conventions which finally adopted it.f

Reference to clauses struch out. — It has been said
by the Supreme Court, that although a clause may
have been struck from the Constitution* by amendment,
it may still be referred to as an aid in the construction
of those clauses with which it was originally associated. J

Acts void in pa/rt and valid in part. — It is well set-
tled that an act may be void in part by reason of its
violation of a constitutional provision, and gobd as to
the remainder. " If any part of the act be unconstitu-
tional," said the Supreme Court of the United States,
" the provisions of that part may be disregarded, while

* Gibbons to. Ogden, 9 Wheat. 188, per Marshall, C. J.
t Ogden vs. Saunders, 12 Wheat, p. 267, 268.
X Fletchers. Peck, 6 Cranch, 189.

596 EFFECTS OF UNCONSTITUTIONALITT.

full effect will be given to such as are not repugnant
to the Constitution of the United States, or of the
State, or to the ordinance of 178T."*

Effects of UnconstitutionaMt/y. — The effect of a
judgment or decree declaring a statute ^oid for un-
constitutionality, is very stringent. It has been said
by the Supreme Court of Massachusetts, that an act of
the legislature which it has no constitutional right or
power to pass, is a nullity, and all proceedings under
it are void. So, where an insolvent debtor is dis-
charged from his debts by virtue of an unconstitu-
tional State bankrupt-law a creditor will not be
conrfdered to have assented to, or ratified the dis-
charge, notwithstanding he may have proved his debt
under the commission and received a dividend, or have
acted as one of the assignees. The dividend received
by him will be considered as a payment pro tanto of
his debt.f

In closing this branch of our subject we may
remark, that it is settled that where the limitations
on the law-making power contained in the Consti-
tution of the United States, are expressed in general
terms, they are' naturally and necessarily applicable
to the government created by that instrument alone,
and have no application to the legislative power
of the State governments. So, it has been decided
in regard to the fifth amendment, declaring that

* Bank of Hamilton «s. Dudley's Lessee, 2 Peters, 526 ; see also, Ogden
vs. Saunders, 12 Wheat. 295, per Johnson, J. " It was not denied on the
argument, and I presume cannot be, but that a law may be void in part
and good in part ; or in other words, that it may be void so far as it has a
retrospective application to past contracts, and valid as applied prospec-
tively to future contracts."

+ Kimberly «s. Ely, 6 Pick. 440.

POWER OF THE FEDERAL JUDICIARY. S97

private property shall not be taken without com-
pensation * So, in regard to the sixth amendment,
securing the right of trial by jury in criminal
cases.f So, in regard to the seventh amendment, in
regard to the right to trial by jury in civil cases. if So,
in regard to the fourth amendment, protecting indi-
viduals against unreasonable seizures.§ So, too, in
regard to the prohibition on cruel and unusual punish-
ments.! Iji *^1 these cases the limitations act upon
Congress, and not on the State legislatures.

It is also to be observed, that the judiciary of the
United States has no general authority to declare acts
of the States void simply because they are repugnant to
the constitution of the particular State. Such power
only belongs to it when it administers the local law of
the State, and' acts as a State tribunal must act.^

It is important to notice the rule which has been
stated, that where a constitution passes, taking away
the power from the legislature to pass laws on a par-
ticular subject, this is eqjiivalent to a repeal of existing
laws on that subject.**

* Barron v». The Mayor, &c., of Baltimore, 7 Peters, 243.

t Murphy vs. The People, 2 Cow. 815 ; Jackson vs. Wood, 2 Cowen, 819.

X Livingston vs. The Mayor, 8 Wend. 100 ; Colt w. Eves, 12 Conn. 243,

§ Reed m. Rice, 2 J. J. Marsh. 45.

II James vs. The Commonwealth, 12 Serg. and Rawle, 220 ; Barker vs.
The People, 8 Cowen-, 687.

t Calder m. Bull, 3 Dall. 386 ; Satterlee vs. Matthewson, 2 Peters, 380.
The Supreme Court has no authority on a vrit of error from a State court,
to declare a State law void on^account of its collision with a State constitu-
tion, it not being a case embraced in the judiciary act, which alone gives
power to issue a writ of error. Jackson vs. Lamphire, 3 Peterg, 289.

** Ogden vs. Saunders, 12 Wheat. 278, per Johnson, J.

I may here notice that it has been said in Illinois, that a proviso in a
constitution, as in a statute, cannot enlarge the enacting clause, it can only
restrain, qualify, or explain. Sarah vs. Borders, 4 Scam. 344 ; see this

598 WRIT OF HABEAS CORPUS.

Having thus considered the principal general rules
which govern in the interpretation of the Constitution
of the United States, I proceed to consider some of the
leading decisions made upon the above-cited clauses
of the instrument, reserving to the last, the examina-
tion of the provision contained in the tenth section of
the first article, in regard to the obligation of con-
tracts, which thus far has proved, in regard to private
rights, to be practically the most important clause
that the instrument contains.

Habeas Corpus. Art. i. sect. 9, § 2. — The writ of
of Jiaheas corpus ad svhjidiend/wm, was first secured to
English liberty by the famous statute 31 Car. 11. c. 2 ;,
but in England, like all the other guarantees of private
right, it is subject to the pleasure of Parliament.
Here, we have fixed it in the Constitution, and de-
clared that it can only be forfeited during periods of
warfare or rebellion. Practically as yet, Congress ha^
never authorized the suspension of the writ. It is
understood that as the unlimited power is vested in.
Congress, the right to judge of the expediency of its
exercise is also absolute in that body.*

Bills of AUavnder. Art. i., sect. 9, § 3. — Bills of
attainder (the enactment of which is forbidden with
us as well by the States as by Congress), as they are
strictly called when inflicting capital punishments, and
Bills of pains and penalties, or those which award
lesser punishment, are believed to be equally within
the scope of the constitutional restriction. f They botb

case as to the ordinance of 1787, and the constitution of Illinois. On the
subject of the ordinance of 1787, see also, 1 Missouri, 4:72, 725 ; Walker,.
Miss. 36 ; 20 Martin, 699.

* Martin ot. Mott, 12 Wheat. 19.

t Fletcher vs. Peck, 6 Cranch, 188.

EX POST FACTO LAWS. 599

belong in fact, as we have already noticed, to the most
vicious class of judicial legislation* The history of
England is filled with instances of the gross abuse of
this tremendous engine of political power ; but they
are now, apparently, as little likely to be resorted to
there as here, unless some violent domestic convulsion
should disturb the equilibrium of that eminently prac-
tical and conservative people.f

JEoc^osirfacto Laws. Art. i., sect. 9, § 3. — This phrase
is now jrell settled to apply only to acts of a criminal
nature. An ex post facto law is one which renders an
act punishable in a manner in which it was not punish-
able when it was committed, whether by personal or
pecuniary penalties.^ The prohibition, whether in
regard to the government of the Union or of the
several States, has no application to retrospective laws
of a civil character, nor any tendency to protect prop-
erty or vested rights of a civil description.§

* AnU, p. 146.

t See Wooddeson's Law Lectures, lect. 41. Mr. Justice Story in his
Commentary, § 1338, says that the power of passing bills of attainder was
used during the American Eevolution with a most unsparing band. In
Jackson rg. Catlin, 2 J. R. 248, it is said, "The act of 22d October, 1779,
attainted, among others, Thomas Jones, of the offense of adhering to the
enemy of this State. It was a specific offense, and was not declared or
understood to amount to treason ; because many of the persons attainted
had never owed allegiance to this State. The forfeitures arising from the
attainder, must be sought for in the act and nowhere else." It Is an inter-
esting case as to the effect of an act of attainder.

Mr. Austin, in his valuable work on Jurisprudence, says, "The sove-
reign Roman people solemnly voted or resolved, that they would never
pass, or even take into consideration, what I will venture to denominate a
bill of pains or penalties. This solemn resolution or vote was passed with
the forms of legislation, and was inserted in the twelve tables in the follow-
ing imperative terms — Frivilegiam irrigawto." :

X Fletcher vs. Peck, 6 Oranch, 138.

§ Watson vs. Mercer, 8 Peters, 110; see, also. Dash vs. Van Kleeck, 7
J. R. 477. This restricted interpretation of a phrase which, on its face, is

600 JUDICIAL PROCEEDINGS.

Faith and Credit of Judicial Proceedings. Art. iv,,
sect. 1. — I have already* called attention to this pro-
vision. The act of May 26, ITQO, provides the manner
of authenticating acts and records, and declares that
when so authenticated they shall have such faith and
credit given to them in any court within the United
States, as they have by law or usage in the courts of
the State from whejice the records are taken. Under
this, it has been decided that if a judgment has the
<effect of record evidence in the courts of the State
from whence it is taken, it has the same effect in the
courts of any other State. At common law, a judg-
ment of the courts of one State would have been
j^rima facie evidence in the courts of any other State.
The Constitution contemplates a power in Congress to
give a conclusive power to such judgments, which
power it has executed by declaring a judgment con-
clusive when the courts of the State where it is ren-
dered, would so pronounce it.f

MuPaal enjoyment of Privileges and Immunities.
Art. iv., sect. 2, § 1; — This clause has not as yet received

•susceptible of a muoli wider construction, has, however, been repeatedly
regretted. In Satterlee w. Matthewson, 2 Peters, 380, where a retrospec-
tive law was sustained, Mr. J. Johnson, dissenting, says, "The whole
diflBoulty arises out of the unhappy idea that the phrase ex post /acto, in
the Constitution of the United States, was confined to criminal cases ex-
clusively, a decision which leaves a large class of arbitrary legisMive acts
without the prohibitions of the Constitution."

In Carpenter vs. Commonwealth of Pennsylvania, 17 How. 456, the Su-
preme Court reviewed the cases, and again decided that the phrase ex post
facto is to be taken as applied to criminal cases only, and that it did not
apply to an explanatory act the effect of which was to charge an estate
with taxes to which it had not been before subjected.

* Ante, p. 77.

i Mills M. Duryee, 7 Cranch, 481 ; Hampton m. M'Connel, 3 "Wheat.
•284 ; Andrews vs. Montgomery, 19 J. R. 162; Borden vs. Pitch, 15 J. R.
121 ; Black's Case, 4 Abbott Pr. Rep. 164.

PEIVILEaES AND IMMUNITIES. 601

the attention which from its importance it would have
been expected to command. It has been considered
but in a few instances, and no general authoritative
exposition of it has as yet been declared. Some partial
interpretations of it have, however, been made.* It has
been held, on the third circuit, in applying the clause,
that an act of the State of New Jersey limiting the
right to take oysters and clams to actual inhabitants
and residents of the State, did .not conflict with it, upon
the ground-that it would be going quite too far to
construe the guarantee of privileges and immunities of
citizens as ampuntiilg to a grant of a co-tenancy
in the common property of a State to the citizens of
all the other States ; and Mr. J. Washington said, —

The inquiry is, What are the privileges attd immunities of citizens
in the several States ? We feel no hesitation in confining these ex-
pressions to those privileges and immunities which are in their nature
fundamental ; which belong, of right, to the citizens of all free govern-^
ments ; 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 these fundamental
principles are, it would perhaps be more tedious than difficult to enu-
merate. They may, however, be all comprehended under the follow-
ing general heads : protection by the government ; the enjoyment of
life and liberty, with the right to acquire and possess property of every

* As to the effect of the clause in New York, see Frost vs. Brisbin, 19
Wend., 11 ; Rogers w. Rogers, 1 Paige, 184. An incorporated company
is not a citizen within the meaning of the clause in the Constitution by
which the citizens of each State are entitled to all privileges and immuni-
ties of citizens in the several States. The People vs. ImlayJ 20 Barb., 68.
In connection with this it may be noticed, that the law ef a State limiting
the remedies of its citizens in its own courts, cannot be applied to prevent
the citizens of other States from suing in the courts of the United States
in that State, for the recovery of any property or money there to which
they may be legally or equitably entitled. The Union Bank of Tennessee
«8. Jolly's Administrators, 18 How., 504 ; confirming Suydam ««. Broad-
nax, 14 Peters, 67.

602 PRIVILEGES AND IMMUNITIES.

kind, and to pursue and obtain happiness and safety ; subject, never-
theless, to such restraints as the government may justly prescribe for
the general good of the whole* The right of a citizen of one State to
pass through, or reside in any other State, for purposes of .trade, agri-
culture, professional pursuits, or otherwise ; to claim the benefit of the
writ of habeas corpus ; to institute and maintain actions of any kind
in the courts of the State ; to take, hold, and dispose of property, either
real or, personal ; and an exemption from higher taxes or impositions
than are paid by the other citizens of the State, — may be mentioned as
some of the particular 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 regu-
lated and established by the laws or constitution of the State in which
it is to be exercised. These and many others which might be men-
tioned are, strictly speaking, privileges and immunities ; and the enjoy-
ment of them by the citizens of each State, in every other State, was
manifestly calculated (to use the expression of the preamble of the
corresponding provision in the old Articles of Confederation) "the better
to secure and perpetuate mutual friendsbip and intercourse among the
people of the different States of the Union."

But we cannot accede to the -proposition which was insisted on
by the counsel, that under this provision of the Constitution the citi-
zens of the several States are permitted to participate in all the rights
which belong exclusively to the citizens of any other particular State,
merely upon the ground that they are enjoyed by those citizens ; much
less, that in regulating the use of the common property of the citizens
of such State, the legislature is bound to extend to the citizens of all
the other States the same advantages as are secured to their own citi-

The Supreme Court of the United States has said, ■
without determining the general interpretation of the
phrase " immunities and privileges," that " according
to the express words and clear meaning of this clause,
no privileges are secured by it except those which
belong to citizenship. Rights attached by law to con-
tracts by the usage of the place where such contracts

* Corfield «s. Coryell, 4 Washington's C. C. Reports, p. 381.

PRIVILEGES AND IMMUNITIES. 603

are made or executed, wholly irrespective of the citizen-
ship of the parties to those contracts, cannot be deemed
privileges of a citizen." According to the law of Louis-
iana, a community of acquets, or gains, is created
between husband and wife when the marriage is
contracted within the State, or when the marriage is
contracted out of the State and the parties afterwards
go into Louisiana to live. But the privilege thus
given to the wife does not extend, by vytue of this
clause in the Federal Constitution, to a native-born
female citizen of Louisiana who was married in Missis-
sippi, and was domiciled with her husband during the
marriage. Land acquired by the husband, during the
marriage, in Louisiana was held not subject to the
Louisiana law in respect to the community of acquets
or gains, upon the ground that the right was one
which attached to the contract of marriage which the
State of Louisiana had a right to regulate, and was not
the personal right of a citizen.*

In New Jersey, it has been decided that a tax laid
upon the agents of foreign insurance companies from
other States, doing business within the State, does not
conflict with the Federal Constitution in this particular,
both for the reason that it was competent for the legis-
lature to impose a tax on citizens of other States as a
substitute for other safeguards of the busiaess to
which, as non-residents, they could not be made sub-
ject; and also, because corporations, though citizens
for the purpose of giving jurisdiction to the Federal
courts, were not citizens in the ordinary sense of the
word.f

* Conner vs. Elliott, 18 How., 591.

f Tatem ««. Wright, 3 Zabriskie, p. 429.

604 ^ FITGITIVES FROM JUSTICE.

The most important question, probably, that can
arise under this clause, is that "which relates to the
protection of slave-property while in transitu ihvovi^
a free State from one slave State to another slave
State, or while the owner is an undomiciled sojourner
in a State where slavery is absolutely prohibited,
or when carried into a free State from unavoidable
necessity, as stress of weather. This grave and
perplexing subject I have already considered in
regard to the doctrine of comity between the States ;*
but it presents itself in a more difficult form under
this clause of the Constitution. As, however, the
question is now under adjudication in our State
tribunals, in a way which musf briag it directly
to the cognizance of the Supreme Court of the "United
States, where indeed it is understood to have been
already incidentally discussed, any examination of it
here would be premature.f

FugiPi/ves from Justice. Art. iv., sect. 2, § 3. — ^The
provision in regard to the delivery or extradition of
fugitive criminals from other States is very often acted
upon, but not many decisions have been made in re-
gard to it. In New Jersey it has been said, that in
considering this clause, it is material to observe that
it does not contain a grant of power. It confers no

* Ante^ p. 76.

t The Lemmon Case, as it is commonly called, People vs. Lemmon, 5
Sandf. 681, presents the transit question in one aspect distinctly, and is now
before the Supreme Court of the State of New Tork on appeal. The case
known as the Dred Scott Case, recently decided by the Supreme Court of
the United States, is understood to have incidentally discussed this subject ;
but we have as yet no authoritative report of the judgment of the court. ,
If the People rs. Lemmon shall go up on appeal to the Federal tribunal, the
case will, in all probability, call for a settlement of the law of this important
question.

FUGITIVES FEOM JUSTICE. ^ 606

right. It is the regulation of a previously-existiiig
right. It only makes obligatory upon every member
of the confederacy, the performance of an act which
previously was of doubtful obligation.*

It has been decided in New York and New Jersey,
that to enable a magistrate to arrest and examine an
alleged fugitive from justice from another State, it
must be distinctly alleged by a complaint in writing,
on oath, that a crime has been committed in the
foreign Staiie, that the accused has been charged in
such State with the commission of such crime, and that
he has fled from such State, and is found here. These
facts must not be left to inference.f

In New York, it has been said that' when a pris-
oner is brought up on habeas wrpy,s, and it appears
that he has been arrested as a fugitive from jus-
tice, by a warrant from the executive of one State
on the requisition of the executive of another State,
under the Constitution and laws of the United States,
the court or judge will not inquire, into the probable
guilt of the accused. The only inquiry is, whether the
warrant states that the fugitive has been demanded
by the executive of the State from which he is alleged
to have fled ; and that a copy of the indictment or
affidavit charging him. with the crime and certified by
the executive demanding him, as authentic, have been
presented. J

* In the Matter of William Fetter, 8 Zabriskie, p. 315, where several

cases on the subject, are collected. On the subject of this clause, see also,

JEx Pavte Smith, before Mr. Justice M'Lean, cited in 1 Kent Com. 8th 'edit.

vol. i. p. 642. Also, In Be Kaine, 14 Howard, 103 ; State vs. Buzine, 4

* Harrington, 572 ; State vs. Schlemn, 4 Harrington, 677.

t In the Matter of Edward Heyward, 1 Sandford, 701 ; in the Matter
of William Fetter, 3 Zabriskie, p. 815.

X In the Matter of Clark, 9 Wend., 212.

606 . FUGITIVES FROM SERVICE.

It has been decided in New Jersey, that if a fugi-
tive from justice, for whose delivery requisition is
made under the Constitution of the United States, be
in actual confinement on criminal or civil process in the
State to which he has fled, he cannot be given up till
the justice of that State be satisfied. The Constitu-
tion refers to fugitives at large only*

Fugitives from Service. Art, iv., sect. 2, § 3. — ^This
clause, which has been twice acted on by Congress, —
once in the enactment of the fugitive slave law of
1^93, and once in that of the year 1860, — owing to the
organization of political parties in this country, has
been a fertile source of discussion, of a class into which
this work is not intended to enter. I confine myself to
stating the most authoritative exposition of the subject
which has as yet been made. There can be no serious
legal question that it is the duty of all parts of the
Union to receive their interpretation of the Federal
charter from the Supreme Court of the United States,
and to give to the provisions of the instrument, as
expounded by that tribunal, in the legitimate exercise
of the functions assigned to it by the Constitution,
their full and fair effect. It has been decided then, by
the Supreme Court, in regard to the fugitive slave law
of 1793, 1. That under and in virtue of the Constitution
of the United States, the owner of a slave is clothed with
entire authority, in every State in the Union, to seize
and recapture his fugitive slave, wherever he can do
it without illegal violence or a breach of the peace.
2,. That the Federal government is clothed with appro-
priate authority and functions to enforce the delivery
of a fugitive slave on claim of the owner, and has

* In the Matter of Troutman, 4 Zabriskie, 684.

RELIGIOUS FREEDOM. 607

properly exercised its authority in the act of 12th
February, 1T93. 3. That any State law or regulation
which interrupts, impedes, limits, embarrasses, delays,
or postpones the right of the owner to the immediate
possession of the slave and the immediate command of
his service, is void.*

Since this decision was made upon the law of 1793,
another law on the subject has been passed in the year
1850, giving the master more stringent remedies for
the recapture of his fugitive slave. No question in
regard to it has as yet been decided by the Supreme
Court of the United States, though its constitutionality
has been generally supposed to be disposed of by the
judgment above cited.f In the State of Wisconsin,
however, its constitutionality has been denied, in an
elaborate judgment, on the ground that the article of
the Constitution on which the law is based is merely
f«, clause of compact between the States, by which the
free States are bound to provide proper legislation
for the return of fugitive slaves, but conferring no
power on the Federal government. J

Religious Freedom. Amendments, art. i. — ^The Con-
stitution contains no more important clause than
that prohibiting all laws prescribing religious tests,

* Prigg vs. The Commonwealth of Pennsylvania, 16 Pet., 640 ; Moore
vs. The People of the State of Illinois, 14 How. U. S., 13.

In New York, on the subject of this clause, see Jack m. Martin, 12
Wend. 311 ; S. 0. 14 Wend. 507 ; in Massachusetts, Commonwealth m.
Tracy, 5 Metcalf, 536 ; and Kent C(m. vol. i. p. 641, 8th edition.

t So it was declared by the Supreme Court of Massachusetts, in the
Case of Sims, Lam B^orUr, vol. iv., N. S., p. 17, per Shaw, C. J. The con-
stitutionality of fhe act of 1850 was also assumed in the case of the United
States vs. StoweD, an indictment for obstructing the marshal in the service
of process under the act, 2 Curtis, 153.

X Duer, Cons. Juri^vdmice, p. 371.

608 • FREEDOM OF SPEECH.

estalblishing religion, or iaterfering witk its free exer-
cise ; and fortunately, thus far, tke wise spirit of our
people has come up to the sagacity and foresight of
our ancestors. If in our future history our political
toleration shall keep pace with our moderation, and
forbearance in religious matters, we may hope to
escape the evils that have thus far proved so formid-
able, indeed so fatal, to all free governments. It may
be remarked, however, that the recent organization, of
a distinct territorial government about to claim admis-
sion as a State, exclusively occupied by settlers who
declare polygamy to be one of their fundamental insti^
tutions, presents the problems connected with this
matter in a new aspect, and wUl imdoubtedly put
ova principle of absolute toleration to a very severe
test.

Freedom of Speech cmd of the Press. Amendments,
art. i. — ^The only important questions that have beenf
raised on this clause, grew out of the act of 14th July,
1798, c. 91, commonly called the Sedition Act, mak-
ing it penal to publish false, scandalous, and malicious
writings against the government of the United States.
The act was extremely unpopular, and was one of the
causes of the. downfall of the Federal party. The con-
stitutional question, has never been settled ; and it may
be again agitated, in a different state of the public
mind.*

Sea/rchywwrants and Seizures. Amendments, Art.
iv. — The controversy in regard to general warrants,

* See the Virginia Report and Resolutions of the Virginia Legislature,
in December, 1798, and January, 1800 ; Resolution of the Legislature of
MaBsachusetts and Kentucky in 1799 ; 2 Tucker's Black. Com., app,, note
a. p. 11 to 80.

ONLY ONE TRIAL FOE CRIMES. . 609

wMcli, in 1763, were pronounced in England to be
illegal and void for uncertainty,* was very familiar to
tlie mind of tlie framers of our governmeiit ; and their
consideration of the subject led to the insertion of
this and the analogous clauses in the 'State and
Federal Constitutions. The only serious controversy
that has arisen in regard to them, grew out of the
Alien. Act of 1798, ch. 75, which authorized the Presi-
dent of the United States, to order all dangerous
aliens oujt of the republic, and in case of their refusal
to comply with the' order to depart, to imprison
them.f The alien act shared the fate of the sedition
act in its unpopularity, but the question of its consti-
tutionality is still open. It has been held under this
clause, that a search-warrant to be legal must state
the time, place, and nature of the offense charged,
with reasonable certainty.^

Oinki one Trial for Offenses. Amendments, art.
V. — "The jeopardy spoken of in this clause," said
Washington,; J., " can be interpreted to mean nothing
short of the acquittal or conviction of the prisoner,
and the judgment of the court thereupon," By this
provision a party is absolutely protected from being
tried ' a second time, after he has been once con-
victed or acquitted. Mr. J. Story has said, on the first
circuit, " Upon the most mature deliberatien, I am of
opinion that, the court (the 0. C. U. S.) does not
possess the power to grant a new trial, in a case of a
good indictment, a,fter trial by ai competent and regu-
lar jury, whether there be a verdict of acquittal or

* Money m. Leaeh, 3 Burr. 1743 ; Bell m Clapp, 10 J. R. 263 ; Sililly
»«. Smith, 11 J. R. 500. ■

t See 1 Tucker's Bl. Com., app. 301 to 304.
I Ex Pa/rte Burford, 8 Cranch, 448.
•^9

610 DUE PROCESS OF LAW.

conviction."* The rule does not apply, however,,
to cases where the jury disagree and are discharged, or
where judgmelit is arrested, or a new trial granted
in favor of the prisoner. There must be a good
trial. So, insanity of one of the jurors is a good
cause for discharging the jury without the consent of .
the prisoner or of his counsel. Such discharge is in
the discretion of the court, and cannot form tlie sub-
ject of a plea in bar to the further trial of the prisoner.

Dueprocess of Lam). Amendments, art. v. — It seems
to be now well settled that these words are equiva-
lent to tlie phrase "law of the land;" which we
have elsewhere examined, and the value of which,
under our State constitutions, as one of the most im-
portant fundamental guarantees of individual rights,
we have already endeavored to state and to explain.f
And so it has been expressly determined.

In Rhode Island, on the first circuit, Mr. Justice
Curtis has decided under the constitution of that
State, that the phrase " law of the land," is equivalent
to " due process of law," and that in it is necessarily
implied and included the right to answer to and to con-
test the charge, and the consequent right to be dis-
charged from it, unless it be proved ; and where a law
of- the State of Rhode Island, passed in 1852, designed

* United States vs. Gilbert, 2 Sumner, 60 ; Davis, J., dissented. United
States »s. Haskell & Pranjois, 4 Wash. 0. 0. R. 402, 410 ; United States m.
Pefez, 9 Wheat. 579 ; Commonwealth m. Cook, 6 S. and Rawle, 577 ; 1
Dever. 276; United States vs. Gilbert, 2 Sumner, 60; United States vs.
Daniel, 6 Wheat. 642 ; The People vs. Goodwin, 18 J. R. 187 ; The People
vs. Comstock, 8 Wend. 649 ; The People vs. Stone, 5 Wend. 89.

In Massachusetts the court has power to grant a new trial on the
motion of one convicted of a capital offense, sufficient cause being shown
for it. Commonwealth vs. Green, 17 Mass. 515.

+ Story on Cons. § 1789.

THE LAW OF THE LAND. 611

to prevent the sale of intoxicating liquors, required
the accused before he could answer to or contest the
charge, to give security in the sum, of two hundred
dollars, with sureties to pay all fees and costs adjudged
against him, it was held that this provision conflicted
with the constitution and rendered: the law void*

In 1853 the State of Ehode Island passed another act,
entitled " An Act for the more effectual suppression of
drinking houses and tippling shops," authorizing a
seizure of the property ; but because it did not provide
for notice to the owner, by due legal means, of the
nature and cause of the accusation, nor for a trial of
the question whether the liquors seized were held for
sale in violation of law, the act was declared to violate
the constitution of the State; and this decision was
adhered to and acted upon in the United States Circuit
Court, by Mr. Justice Curtis, on the 'ground that it
belongs to the highest judicial tribunal of a State to
interpret its constitution, and to determine how far and
in what respects any act of the legislatui;e is in con-
flict therewith, and therefore inoperative.f A full and
careful examination of the decisions of our courts
upon the various temperance laws of the different
States, would be of extreme interest, as exhibiting the
operation of our system of constitutional law, and par-
ticularly of this most important clause.

But there are exceptions to the universal application
of the rule, giving to persons in all cases the benefit
of this construction of the constitutional guarantee
of the law of the land. The Supreme Court has

* Greene vs. Briggs, 1 Curtis, 311.

t Greene w. James, 2 Curtis, 189 ; Webster m. Cooper, 14 Howard,
488.

612 COMPENSATION FOR PRIVATE PROPERTY.

said that tliougli the words due process of law
generally imply and include actor^ reus^ judex, reg-
ular allegations, opportunity to answer, and a trial
according to some settled course of judicial pro-
ceedings,— this is not universally true. To ascertain
whether any proceeding is due process of law, the
Constitution itself is first to be examined to see
whether any of its provisions be disregarded, and if
not, then we must look to the settled usages and
modes of proceeding existing in the common and
statute law of England at the time of the emigration
of our ancestors ; and following this train of reason-
ing, it has been decided that a distress- warrant against
a defaulting collector of the revenue, is not inconsistent
with the provision which prohibits a citizen from
being deprived of his property without due process of
law, upon the ground that the ancient common law of
England recognized a summary remedy for the recov-
ery of debts due the government.*

Compensation for Private Property. Amendments,
art. V. — In regard to the" State constitutions, we have
already considered this important subject elsewhere.
This clause in the Federal charter, like all the other
amendments to the instrument, has been adjudged by
the Supreme Court to apply only to the government of
the United States, and to have no operation on the
State governments.f

Trial hy Jury. Amendments, art. vi. and vii. — The

* Murray's Lessee m. Hoboken Land and Improvement Co., where tfee
subject is elaborately examined by Curtis, J., 18 Howard, 272. <

t Barron w. Mayor, &e. of Baltimore, 7 Peters, 260. "The amendments,''
says Marshall, C. J., "contain no expression indicating an intention to
apply them to the State government;" see, also, as to this clause. Green w.
Biddle, 8 Wheat. 89. Mitchell vs. Harmony, 13 Howard, 116, discusses
the question as to the extent of the power of a military commander to take
private property in time of war.

TRIAL BY JURY. 613

right of trial by jury under the Constitution of the
United States is secured by three provisions, to be
found in the second section of the third article, and the
sixth and seventh amendments. The two former of
these relate to criminal cases ; the latter, to civil causes.
" One of the strongest objections originally taken to
the Constitution of the United States," says the Su-
preme Court of the United States,* " was the want of
an express provision securing the right of trial by jury
in civil cases." This gave rise to the seventh amend-
ment.

The provision has been frequently applied. So,
where a law of Ohio decla,red that an occupying claim-
ant of land should not be turhed out o:^ possession
till he should be paid for lasting and valuable improve-
ments, and directed the court in a suit at law to
appoint commissioners to value the improvements, it
was held that this came within the provisions of the
seventh amendment, and that the law was unconstitu-
tional and void.f

* Parsons vs. Bedford, 3 Peters, 446.

f Bask of Hamilton vs. Dudley's Lessee, 2 Peters, 493. This case is
also of much interest, on the subject of repeal, and vested rights. In 1795
the Territorial government of Ohio created an Orphan's Court, and author-
ized the administrator of a decedent to sell the real estate, when there was
not a sufficient personal estate to pay the debt. In May, 1804, an admin-
istrator obtained an order to sell under this sta,tute. In June, 1805, the
act of 1795 was repealed. In Augiist, 1805, an order was entered enlarg-
ing the administrator's power to sell, and entered nunc pro tuna, as of May,
and a sale took place ; but it was held bad. It was urged that the interest
of the administrators in the real estate was a vested interest, and that the
repeal of the law could not divest it. But the court said that the repeal
divested no vested estate, that it was only " the exeroiseof a legislative power
such as every legislature possesses. The mode of ' subjecting the property
of a debtor to the demands of a creditor must always depend upon the
wisdom of the legislature." P. 523.

614 TRIAL BY JURY.

It has been held, too, by the Supreme Gourt of the
United States, that this clause embraces all suits not of
equity or admiralty jurisdiction, and that it applies to.
the proceedings practiced in Louisiana on the trial of
■causes by a jury, though peculiar and not according
to the course of the common law.*

Indeed, as I have had occasion to notice in speaking
•of the operation of the analogous clause under the
State constitutions, the provision has been generally
very liberally construed. So, it has been intimated
■that a court of equity cannot order the complainant
and his sureties on an injunction-bond, to pay the
damages sustained by reason of the injunction, on the
ground that an action on a bond is in its nature a suit
at common law.f So, again, it has been decided that
to subject the right of trial by jury to any condition,
is incompatible with the nature of the constitutional
guarantee. Consequently, where a law designed to
prevent the sale of intoxicating liquors, required the
party accused to give security for the payment of the
penalty and costs awarded by the act for its violation,
as a condition of having a jury trial, it has been
decided, by Mr. Justice Curtis, on the Rhode^ Island
Circuit, that this provision conflicted with the consti-

* Parsons vs. Bedford, 3 Peters, 447. In the State of Louisiana, the
principles of the common law are not recognized ; neither do the principles
of the civil law of Rome furnish the basis of their jurisprudence. They
have a system peculiar to themselves, adopted by their statutes, which em-
bodies much of the civil law, some of the principles of the common law,
and in a few instances, the statutory provisions of other States. This sys-
tem may be called the civil law of ^Louisiana, and is peculiar to that State.
Mr. J. M'Lean's dissenting opinion in Parsons »s. Bedford, S Peters, 450.

t Merryfield ««. Jones, 2 Curtis, p. 306. See on this point, Hiriart vs.
Ballon, 9 Peters, 156 ; Gwin vs. Breedlove, 2 How., 29 ; Gwin vs. Barton,
6 Howard, 7; Bein vs. Heath, 12 Howard, 168.

TRIAL BY JURY. 615

tutibii of that State, which, declares that the right of
trial by jury shall be inviolate, and rendered the
whole act unconstitutional and void.*

The general rule of the courts of the United States
is, that on the trial of causes the court may give their
opinion on the evidence to the jury, being careful to •
distinguish between matters of law and matters of
fact. In regard to the former, the opinion of the court
is conclusive ; but a mere opinion on the facts has only
such influence as the jury may thinlc it entitled to.f
But, as has been heretofore observed,;]: there is a diver-
sity of practice in the different States on this subject ;
and it has been intimated that in those States where
the rule is to confine the. charge strictly to questions
■of law, it will be well for the judges of the Federal
tribunals to conform to it, for the general reason that
it is desirable that the practice in the courts of the
United States shpuld resemble as near as practicable
that of the States in which they are sitting.§

In criminal cases, it has been earnestly insisted that
the jury are the judges of the law, as well as of the
fact, and that the opinion of the court on questions of
law, how conclusive soever in civil causes, has no
binding force on the jury in criminal cases. But this
doctrine has been denied on very high authority ; and
in the first circuit of the United States, as well as in
the States of New York; Indiana, New Hampshire,

* Greene vs. Briggs, 1 Curtis, 311.

t M'Lanahan vs. Universal Ins. Co., 1 Peters, 182; Games bs. Stiles,
U Peters, 822. ^ ' '

J Ante, p. 550.

§ Mitchell i!3. Harmony, 13 Howard, 131. See, in this case, in Mr. J.
Daniel's dissenting opinion, an ingenious and elaborate defense of the
practice, which he says is that of most of the Southern States, of confining
the charge to matters of law.

616' EXCESSIVE BAIL.

arid Massachusetts, it seems settled fhat juries in crim-
inal trials have not the right to decide any question
of law ; and that if they render a general verdict, their
duty and their oath require them to apply to the facts,
as they may find them, the law given to them by "^the
court*

Mocessive Bail and Ciruel Pumshments. Amend-
ments, art. viii. — It has been decided in regard to this
as the other amendments, that the clause only oper-
ates as a limitation on the general government, and
does not apply to the States of the Union .f

Tlie Ohligation of Oontraets.-^~We have thus far been
occupied with considering the effect of those clauses in
the Constitution of the United States which act as
restrictions on legislative power and as guarantees of
private rights. Of these clauses, however, we have
still to examine that which in its practical operation
has as yet proved far the most important, viz. : The
provision in the tenth section of the first article, which
declares that no /State shall pass any law impairing
the obligation of contracts*

* United States vs. Battiste, 2 Sumner, 240 ; United States w. Morris,
1 Curtis, 60 ; People m. Price, 1 Barb. S. 0. R., 566 ; Townsend vs. The
State, 2BIackf. 152; Pierce vs. The State, 13 N. H. R., 536. Common-
wealth vs. Porter, 10 Met., 263 ; and in Ohio, see Montgomery vs. The
State, 11 Ohio, 427. In England, see Parraiter ««. Ooupland, 6 M. & W.,
105. Levi vs. Milne, 4 Bing., 195.

The trial by jury was at one time used in New York as a mode of col-
lecting taxes. The eighty-third letter of the Federalist says it is now, " in
most cases," out of use for this purpose.

t Barker vs. The People, 8 Cowen, 686 ; James vs. Commonwealth, 12
Serg. & R., 220 ; Barron vs. Mayor of Baltimore, 7 Peters' R., 243.

* Ante, p. 584.

The importance of this clause certainly does not appear to have been
realized at an early period in our history. The subject of the Obligation of
Contracts is very summarily disposed of, in connection with bills of at-
taincler and ex post facto laws, by the Federalist in the 44th letter. Laws-

THE OBLIGATION OF CONTRACTS. 617

At the outset of the discussion we may remark, that
some of the States have imposed a similar restriction
upon themselves ;* while in regard to the Federal power
there is no express provision protecting the sanctity
of contracts. Where it was asserted that an act of
Congress granting an exclusive privilege in the shape
of a patent was void on the ground that the patentee
had had an exclusive privilege granted him by the
State, and that on the expiration of the State grant
the right to his invention became by an implied con-
tract vested in the people of the State, the Circuit
Court in Pennsylvania denied the proposition, saying,
" If, even, the premises were true, still there is nothing
in the Constitution of the United States which forbids
Congress to pass laws violating the obligation - of con-

in violation of private contracts are referred to in the 7th letter, and are spo-
ken of somewhat cursorily as among the causes which might lead to wars
among the States. Mr. Rawle's work on the (constitution, published in
1820, chap. X. p. 131, contains Only a few paragraphs in regard to the
matter.

" The tradition is," says Mr. Hunter, arguendo in Sturges vs. Crownin-
shield, 4 Wheat. 150, " that Mr. Justice Wilson, who was a member of the
Convention and a Scottish lawyer, and learned in the civil law, was the
author of the phrase."

* Louisiana. — No ex-post-faeto law, nor any law impairing the obliga-
tion of contracts, shall be passed, nor vesied rights be divested unless for
purposes of public utility and for adequate compensation previously made.
—Cons. tit. vi. § 105.

Tennessee. — ^No retrospective law or law impairing the obligation of
contracts shall' be made. Cons. art. i. § 20.

Missouri. — No ex-post-facto law, nor law impairing the obligation of
contracts or retrospective in its operation, can be passed. Cons. art. xi.
§ 17. '

The constitution of New Jersey, art. iv. sec. 7, contains a peculiar and
very important provision, to which I shall again call attention when I
come to speak of vested rights. " The legislature shall not pass any bill of
attainder, ex-post-facto law, or law impairing the obligation oi contracts,
or deriving upwrVy of arty .remedy for enforcing a contract which existed
when the contract was made." Art 4, sec. vii., § 3. • ,

618 THE OBLIGATION OF CONTEACTS.

tracts, although, such a power is denied to the States
individually."*

The consideration of this important clause seems
naturally to divide itself into two heads :

Mrst. What a/re the Coni/racts to which the Constitu-
tions r^ers ?

Second. What acts of State legislation are considered
to impair their obligation ?

I shall examine somewhat in detail the leading cases
on the subject, and then endeavor to state the general
result of the decisions, remarking, however, before the
discussion is commenced, that it has been decided by
the Supreme Court, under a Virginia act of 1 7 8 8, that
the present Constitution did not commence its opera-
tion until the first Wednesday of March, 1789, and that
the provision as to the obligation of contracts does not
extend to a State law enacted before that time and
operating upon rights of property .vested before that
period.f

What is a- Contract within the meaning of the Con-
stitution ? — The Supreme Court has said that the con-
tracts designed to be protected by the tenth section of
the first article are " contracts by which perfect rights —
certain definite, fixed, private rights of property — are
vested," as distinguished from rights growing out of
measures or engagements adopted or undertaken by
the body politic or State government for the benefit
of all, and which from the necessity of the case and
according to universal understanding are to be varied
or discontinued as the public good shall require.^ And

* Evans vs. Eaton, Peters C. 0. U. S. R. S37.

t Owings M. Speed, 5 Wheat. 420.

X Butler el al. vs. Pennsylvania, 10 Howard, p. 416.

THE OBLIGATIOlf OF CONTRACTS. 619

, the terms of the clause include as well .executory as
executed contracts*

The clause in the Constitution referring to all con-
tracts without exception, and it being settled that this
includes executory as well as executed contracts, no
difficulty seems to have presented itself in relation to
the true construction of the clause in regard to agree-
ments of a private character. All private contracts, in
the ordinary legal application of that phrase^ are under-
stood to be embraced by it. If an agreement is such
that if executory it can be enforced in a court of jus-
tice, or that if executed a remedy can be sought for its
violation or infringement, then it is a contract to be
protected within the flieaning of the constitutional
claiise. The precise extent and value of the protection,
we shall consider when we consider the next head, as
to what impairs the obligation of contracts.

But much more serious embarrassments present
themselves in regard to rights or interests created by
or under legislation ; and many most interesting cases
have been decided, as to the rules to be applied in this
respect to legal enactments. I shall endeavor to state,
as briefly as I can with precision, the results thus far
arrived at.

Several years before the point was submitted to the
Federal tribunals, it was said by one of the most
eminent jurists of the country that " rights legally
vested in any corporation cannot be controlled or de-
stroyed by any subsequent statute, unless a power for
that purpose be reserved to the legislature in the act
of incorporation."f The question of legislative con-

* Fletcher ««. Peck, 6 Oranch, 137.

t Per Parsons, C. J.— Wales vs. Stetson,, decided in 1806, 2 Mass. 146.

620 LKGISLATIVE CONTRACTS..

tracts was first distinctly presented to the Supreme
Court of the United States in a case involving the.
power of a State to repeal an act containing a grant
of lands, and under which individual titles of bona-
jide purchasers had become vested.* The legisla-
ture of Georgia, on the 7th of January, 1795,
passed an act in relation to their unappropriated
territory; and on the 13th of January of the same
year, letters patent for a portion of this land were
issued, under and by virtue of the act, to Gwin and
others. From Gwin and others the lands in ques-
tion passed to one Greenleaf, by deed of the 22d of
August, 1795 ; and from Greenleaf, by sundry mesne
conveyances, to the defendant Peck ; and he, by con-
veyance of the 14th of May, 1803, conveyed it to the
plaintiff with a covenant, that the State of Georgia was,
at the time of the passage of the above act of Janukry,
1795, legally seized in fee of the soil ; that the legisla-
ture had good right to convey ; and further, that the
title to the premises so conveyed by the State of Geor-
gia, and finally vested in Peck, had been in no way
constitutionally or legally impaired by virtue of any
subsequent act of any subsequent legislature of the
State of Georgia. The declaration in the suit then
averred that the passage of the act of the 7th of
January, 1795, was obtained by undue influence and
corruption, and that the legislature of the State of
Georgia afterwards, on the 13th of February, 1796,
repealed the act of 1795, by an act declaring the
former act, and all grants under it, null and void,
and affirmed the whole territory in question to be
vested in the State. The plea to this count set up
that the grantees under the patent were citizens of

* Fletcher w. Peck, 6 Cranoh, 87,— A, D. 1810.

LEGISLATIVE CONTRACTS. 621

other States than Georgia, and that they had no notice
I of the corrupt practices charged. On demurrer to this
plea, the precise question presented was whether the
act of the State of Georgia of lYQG, repealing the act
of 1795, could have any effect on the title of a pur-
chaser, acquired under the prior act, for a valuable
consideration and without notice ; and it was decided
by the Supreme Court, on very elaborate consideration,
that as well upon general principles, common to all free
institutions, as on ' the particular provision which we
are considering, no such effect could be given to the
act of 1*796. They held that the law of 1Y95 was in
the nature of a contract ; that absolute rights had
vested under that contract ; that the repeal of the act
impaired the obligation of the contract ; and that, con-
sequently, the subsequent statute was unconstitutional
and void.*

* Fletcher vs. Peck,— A.D. 1810.— 6 Cranch, 136 to 138. These grants
are familiarly known as the Yazoo grants.

The doubts and difflculties that at first existed as to this clause of the
Constitution can be well seen in the opinion of Mr. Justice Johnson in this
case, 6 Cranch, 144, 145.

Several interesting questions were discussed in this case. As to the
general extent of legislative power, it was said that the validity of the
rescinding act of 1796 might well be doubted, even were Georgia a single
sovereign power. " To the legislature all legislative power is granted ; but
the question whether the act of 1796, transferring the property of an in-
dividual to the public, be in the nature of the legislative power, is well
worthy of serious reflection." On the constitutional question, Johnson, J.
dissented. He held that the obligation clause only applied to executory
. contracts, and put his concurrence vrith the court on the general doctrine.
IJe said — "I do not hesitate to declare that a State does' not possess the
jiower of revoking its own grants. But I do. it on a general principle, on
the reason and nature of things, — a principle which will impose laws even
upon the Deity.'"— Ihid. p. 143.

In regard to the question how fa? fraud could be alleged in an act of
legislation, the chief justice said— =" It may well be doubted how far the
validity of a law depends on the motives of its framers, and how far the

622 LEGISLATIVE CONTRACTS.

A case wsas shortly afterwards presented, of mucl^
interest in regard to the general question of the sacred-
ness of legislative grants, in connection with the early
history of Virginia * It appears, and indeed is judi-
cially declared in this case, that at an early period the
religious establishment of England, together with the
general rights and authorities growing out of the com-
mon law of the mother country, was adopted in the
colony of Virginia ; and by various statutes passed from
111Q to 1*788 the legislature of the State confirmed
and established the rights of the church to all its lands
and other property. In 1T98 a different public opinion
prevailed in the State ; and by two statutes passed in
that year and in 1801, the legislature repealed the
previous legislation on the subject as inconsistent with
the principles of religious freedom declared by the
Constitution, and asserted the right of the legislature
to all the property of the Episcopal church in the State.
The Supreme Court, however, held the grants con-
tained in the original acts to be irrevocable, and that
the acts of 1798 and 1801 were wholly inoperative.

particular inducements operating on members of the supreme sovereign
power of a State to the formation of a contract by that power, are examin-
able in a court of justice." See also Mr. J. Johnson's Opinion, p. 144. The
subject was discussed at length. But it was said that at all events fraud of
this kind could not be set up incidentally and collaterally ; that it would be
■ indecent in the extreme, upon a private contract between two individuals,
to enter into an inquiry respecting the corruption of the sovereign power of
a State.

I may observe, on this question of fraud, that in Connecticut the follow-
ing language has been used — " Fraud is not to be presumed ; and when
this court is called upon, in this collateral manner, to declare void an act of
the General Assembly, upon the ground that it was fraudulently obtained,
this fact should be clearly proved." — The Derby Turnpike Co. w. Parks, 10
Conn., 540.

* Terrett vs. Taylor, 9 Oranch, 43.

LEGISLATIVE CONTRACTS.

623

It 'may be remarked, however, that the decision in this
case, although obviously correct, is placed by the court
as much on the principles of natural justice, as on ex-
press provision ; nor is the statement of the Constitu-
tional point very clear or well defined. Indeed, it is
matter of interesting observation to notice how gra-
dually the legal mind of the country has approached the
solution of our great Constitutional questions, and with
what sagacious caution the judiciary have generally
declared their authority.

The precise question that we are now considering, —
i. e., how far a legislative act is to be treated as a con-
tract was soon after presented in a btoader shape. In
the year 1754, a clergyman of the name of Wheelock
established a charity school in Connecticut for the
instruction of Indians in Christianity. Desirous to
extend the institution, he solicited pecuniary aid in
England.' Funds were collected by private donations,
the founding of a college determined on, and New
Hampshire selected for its site. Finally a charter from
the crown was obtained, in the year 1Y69, for a body
corporate to be called, " The Trustees of Dartmouth Ool-
lege ;" the whole corporate powers, including that of
holding real and personal estate, being vested in twelve
trustees, clothed with authority to fill vacancies occur-
ring in thei^ body. The institution went into existence
under this charter as Dartmouth College, and so con-
tinued without interruption or interference till the
year 1816 ; when the legislature of New Hampshire
passed several acts " to amend the charter and enlarge
and improve the corporation," by which the trustees
were increased from twelve to twenty-one, the addi-
tional number being appointed by the executive of the
State, and a board of twenty-five overseers created of

624 LEGISLA.TIVE CONTRACTS.

whom twenty-one were also appointed by the execu-
tive.

Upon these acts being brought up before the Supreme
Court of the "United States, as conflicting with the con-
stitutional guarantee of contracts, it was strenuously
contended that the act of incorporation wSs a mere
grant of political power, creating a civil institution to
be employed in the administration of a part of the
government of New Hampshire, regarding instruction
as a subject of public concern, and that as such it was
entirely under the control of the State. It was further-
more insisted that the trustees, who complained of the
violation of the Constitution, had no vested beneficial
or pecuniary interest entitled to protection ; and, on
both these grounds, that the charter was not a contract
within the meaning of the Constitution. But the
Supreme' Court of the United States held that Dart-
mouth College was an eleemosynary and not a civil
institution participating in the administration of
government,— that it was a seminary of education
incorporated for the perpetual application of its prop-
erty to the objects of its crfeation. They further held
that the trustees represented the donors of the original
funds, were the assignees of their rights, stood in their
place, and were equally entitled to protection ; that
the charter was a contract made on a valuable con-
sideration for the security and disposition of property,
and as such came within not only the letter but the
spirit of the Constitution. The judgment of the
Supreme Court of New Hampshire which had affirmed
the validity of the legislature of the State was revei-sed,
and the statutes in question declared unconstitutional
and void.*

* Dartmouth OoU. w. Woodward, 4 Wheat. 619, decided in 1819. See

LEGISLATIVE CONTRACTS.

625

The case of Fletcher vs. Peck was a case of grants
of land. The Dartmouth. College case was that of the
franchises of an eleemosy-nary corporation. These two
decisions, therefore, taken together, determined in the
most favorable aspect for rights vested by legislative
action, that all private rights of property created by
virtue of a statute were protected by the Constitution ;
and this doctrine has been, ever since the decision of
the last-mentioned case, considered the settled law
of the Union.*

It has, indeed, been insisted that the legislature has
no power to grant, by special act, exclusive rights and
privileges ; but it is now well settled that the legisla-
ture may make exclusive grants of property or privil-
eges, as of bridge, ferry, and railroad franchises. Such
grants are not regarded as monopolies, in the odious
sense of the phrase, but as contracts within the mean-
ing of the Constitution. It has been urged in argu-
ment, that if this right be conceded, a legislature may
create gross and outrageous monopolies. But the

Mr. Chancellor Kent's remarks on this case, 1 Com. 418, lec. xix. Its
decision undoubtedly forms one of the great epochs in our legal and consti-
tutional annals.

* " Ever since the case of Dartmouth College vs. Woodward was decided
by the national court, recognizing the charters of private corporations as
contracts protected from invasion by the Constitution of the United States,
no other court in this country h^s disregarded the doctrine ; and we con-
sider it now as obligatory and settled beyond our reach either to deny or
disregard, even if any of us should doubt its original propriety. Therefore,
although it may be true that to create 'a private corporation without a re-
served legislative power over its charter is an act of improvident legislation,
yet the judiciary has no remedial power to apply." Washington Bridge Co.
vs. The State, 18 Conn. 65.

That a legislature can no more revoke its grants than a donor his gift
when delivered, is now to be considered perfectly well settled. Enfield Toll
Bridge Co. vs. The Conn. Eiver Co., 7 Conn. 44; The Derby Turnpike Co.
M. Park, 10 Conn. 541 ; The People vs. Piatt, 17 Johns. K. 215.
40

626 CHARTEKS STRICTLY CONSTRUED.

Supreme Court of New Hampsliire has said, while
affirming the general doctrine of the power, that it
will be in time to considep whether grants of this
character are within the constitutional exercise of the
legislative power, when a case is presented in which it
is apparent that a fraud has 'been practiced in obtain-
ing the grant, or the circumstances under which it was
made show that it was merely colorable and intended
to effect other purposes than those which appear on
the face of it*

The general principle is thus settled in regard to
corporate grants, or to contracts resulting from acts of
incorporation ; but a very important modification or
qualification was attached to the rule by a subsequent
decision of the Supreme Court of the United States.
They decided that all acts of incorporation, like other
public grants, are to be construed strictly, and that no
contract or agreement is to be inferred in them, as against
the government and in behalf of the corporation, but
what they expressly contain. So, where the legislature
of Massachusetts, in 1785, granted a charter for seventy
years to a bridge company, with the right of taking
tolls, across the Charles river, and in 1828 the State
incorporated another company with like authority to
build a toll bridge, in such close proximity to the firat
bridge as actually to take away its tolls and destroying
the value of its franchises, it was held that this last act
, was valid, on the ground that the original bridge-
charter contained no express grant of exclusive privil-
ege, and that the whole matter was within the legiti-

* Piscataqua Bridge »«. N. H. Bridge, 7 N. H., 85. This was a case of
a bill filed by a bridge company to restrain parties from proceeding to
create another bridge, and thus infringing on the exclusive rights of the
plaintiffs.

LEGISLATIVE CONTEACTS. 627

mate control of the legislature. This important doctrine
has been repeatedly affirmed, and, I think,, has com-
mended itself to the general good sense no less than
the sound legal judgment of the country*

Having thus exhibited the leading rules which de-
clare the definition of contracts within the meaning of
the Constitution, it will be well to examine some of the
special cases. .

A compact was entered into between the States of
Virginia and Kentucky, contained in an act of the
legislature of the former State, passed the 18th of
December, 1789, and ratified by the convention which
framed the Constitution of Kentucky, and incorporated
into that Constitution, to the effect that all private
rigMs and interests of lands within the district of
Kentucky derived from the laws of Virginia prior to
their separation, should remain valid cmd secure under
the laws of the proposed State, and should be determ-
ined by the laws then existing in the State of Virginia.
Two laws were passed by the State of Kentucky in
February, 1797, and January, 1812, concerning occu-
pants and claimants of land, matetially affecting private
rights and interests to land, by exempting occupants
without title from liability for waste, as well as for
rents and profits, and compelling the true owner to
pay for improvements put on the land by the occupant,
even during the pendency of the suit. No acts of a
similar character were in existence in Virginia at the^
time when the compact was made. The Supreme
Court held that, the compact between the two States

* The Proprietors of the Charles River Bridge m. The Proprietors of the
Warren Bridge, 11 Peters, 420. Story, J., dissented. See, to S. P., The
Richmond E. R. Co. & Louisa R. R., 13 Howard, 81. Ohio L. I Co w
Debolt, '16 Howard, 430.

628 LEGISLATIVE CONTRACTS.

came within the constitutional clause ; that the laws
in question rendered the rights and interests of owners
less valid and secure, and thus impaired the cpntraict ;
and that Kentucky being a party to the original com-
pact, which guaranteed those rights, could not consti-
tutionally pass the statutes in question.*

Where the legislature of Arkansas chartered a bank,
the whole of the capital of which belonged to the
State, and declared that the bills and notes of the
institution should be received in payment of debts due
to the State, it was held that the undertaking of the
State to receive the notes of the bank constituted a
contract between the State and the holders of these
notes, which the State was not at liberty to break ;
but that a repeal of the act put an end to the contract
as to all notes subsequently issued .f

The provision of an act incorporating a railroad, that
no other railroad shall be authorized to be made
between the same points for thirty years, constitutes a .
contract to that effect which no subsequent act can be
permitted to impair.J

In regard to the nature of contracts resulting from
acts of legislation, it appears to be settled by- the
Federal tribunals that it is competent for a State to

* Green vs. Biddle, 8 Wheaton, 1. Mr. Justice Johnson dissented.

The doctrine of Green vs. Biddle ■was approved and applied in Tennessee,
in 1880, to a case coming up under their State Constitution, which contains
a provision similar to that of the Constitution of the United States. Nelson
e«. Allen et al. 1 Yerger, 360.

t Woodruff m. Trappnall, 10 Howard, 191 ; see also, Paup m. Drew,
10 How. 218, on the subject of this charter.

I Boston and Lowell R. R. Corporation n. Salem and Lowell R. R. Co.,
2 Gray, 1.

EXEMPTION FEOM TAXATIOK 629

pass laws exempting property from taxation, wHcli
shall operate as contracts, and as sucb. be irrepealable.*
Tlie Delaware Indians^ having large claijns to the
southern part of Ifew Jersey while yet a colony, sur-
rendered them upon, an agreement made between them
and, the commissioners of the colony, by which in con-
sideration of the cession the colony agreed to purchase
a tract of lan^ for them to reside on ; and the As-
sembly, in an act passed on the 12th of August, 1758,
to carry this agreement into effect, declared that the
lands to be purchased for the Indians should be there-
after exempted from taxation,' Under the act' the
• agreement was executed and lands purchased for them,
which they held till about 1801, when they obtained
an act from the legislature of the State of New Jersey
authorizing them to sell. This act contained no reference
to the exemption from taxation. In 1803, the Indians
sold the lands to the plaintiff in this suit. In 1804,
the State of New Jersey repealed . the section of the
act of 1758 exempting the lands fi;om taxation; and
the question presented was on the constitutionality of
this repeal. » The court held, that the proceedings
between the colony of New Jersey and the Indians,
formed a contract ; a privilege, though for the benefit
of the Indians, being annexed to the land, not to their
persons, that the purchaser had succeeded with the
assent of the State to all the rights of the Indians; and
they, declared the act unconstitutional and void.f

In 1845, the State of Ohio passed a General Banking '
Law by which it was declared that every banking

* This subject of exemption from taxation we have already partially
considered, ante, p. 559.

t State of New Jersey us. Wilson, T Oranch, 165, — 1812.

630 • EXEMPTION FROM TAXATION.

company organized under the act should semi-annnally
set off six per cent, on its profits ; and that this should
be in lieu of all taxes to which the company or the
stockholders should be subject. In 1851, an act was
passed to tax bankSj which provided that bank stock
should be taxed at the same rate as other personal
property. It was contended for the State, that the act
of ,1S45 was a mere law prescribing a rule of taxation ;
that the relinquishm!ent of the taxing power could not
be niade the matter of a binding contract ; and that
the permanent exemption from taxation was a relin-
quishment of a portion of the sovereign power of the
State, which no legislature could make. But the
Supreme Court of the United States held that the act
of 1845 created a contract fixing the limit of- taxation
on the banks in question; that the position that a
State in exempting certain property from taxation
relinquished a part of its sovereign power, was an
unfounded assertion; that it was as competent for a
State to make a contract in regard to exemptions
from taxation as in regard to any other matter ; and
the act of 1851 was held unconstitutional and void.*

The same question, or one closely analogous, was
presented shortly afterwards in another shape, and it
was decided that, where the State of Ohio in 1845
chartered a bank, in the charter of which it was stip-

* State Bank of Qhio vs. Knoop, 16 Ohio, 369 ; Catron, J., Daniel, J.,
and Campbell, J., dissented. See aiso the case of the Ohio life Insurance
and Trust Co. es. Dubolt, 16 Howard, 416, on the same banking laws. The
opinions in these cases, as well of the court as of the dissenting members,
are of great interest in regard to the subject of State contracts, the
general nature of legislative power, exemptions from taxation, and the
extent to which State decisions control the Supreme Court of the United
States.

EXEMPTION FROM TAXATION.

631

ulated that tlie tax wliicli the bank should pay should
be computed on a certain principle, and should not
exceed a certain sum ; and in 1852 the legislature pas-
sed an act assessing taxes on the bank to a greater
amount and on a diflferent principle, — the law was in
conflict with the clause of the Constitution of the
United States relating to the obligation of contracts, and
void. And the fact that the people of the State had
in 1851 adopted a new constitution, in which it was
declared that taxes, on banks should be imposed
in the mode which the act of 1852 purported to
carry out, was held not to release the State from the
obligations imposed on it by the Constitution of the
United States.*

Again, where* the legislature of the State pf Mary-
land accepted from a banking corporation a bonus as
a consideration for the franchise granted, and pledged
the faith of the State not to impose any further tax or
burthen upon them during the continuance of their
charter, it was held, that this was a pledge agains^ ad-
ditional taxation ; that the exemption operated as well
in favor of the stockholders personally as of the
capital stocks of the banks ; and that a tax upon the
stockholders by reason of their stock impaired the
obligation of this contract ; and the tax was therefore
declared illegaLf

* Dodge vs. Woolsey, 18 How. 330 ; Woolsey vs. Dodge, 6 M'Lean, 142.

t Gordon vs. Appeal Tax Gourt, 3 Howard, 183.

The same result in regard to contracts for exemption from taxation, has
been declared in Connecticut, but doubted in New* Hampshire. Osborn
w. Humphrey, 7 Conn. 335 ; Brewstei;w. Hough, ION. H. 138; onte.p. 559.

In New Jersey also, it has been .decided that when an incorporated
company is by its charter exempt from taxation, the stock in the hands
of the stockholders cannot be taxed : it represents and is the title to the

632 EXEMPTION FEOM TAXATION.

But, in analogy; to the rules requiring a strict inter-
pretation to "be applied to all corporate grants, it is
held, that although a contract may be made exempt-
ing a party from taxation it must be very clear and
express. The taxing power of a State is never pre-
sumed to be relinquished unless the intention to re-
linquish is declared in clear and unequivocal terms.*
So, when a State enacted that the real property be-
longing to a hospital " should be, and remain free from
taxes," it was held, that there being nothing in the
exempting statute in the nature of a contract, it was
liable to repeal. " No duty," said the Supreme Court of
Pennsylvania, " is imposed on the institution as the
consideration of the grant : it is required to do noth-
ing ; it is left to pursue its own course as freely as be-
fore."t

property of the company, and therefore is included in the exemption of
the charter. The State vs. Branin, 3 Zabriskie, p. 486. In this case the
absolute power of the legislature over the subject of taxation, is strongly
declared.

See also on the subject of exemption from taxation of stockholders of
institntions themselves exempt, Johnsen vs. The Commonwealth, 7 Dana,
342; Tax Cases, 12 Gill & J. 117; Gordon's Exors. vs. The Mayor of
Bait. B £Jill, 236 ; Smith vs. Burley, 9 New Hampshire, 428. See the sub-
ject of statutory exemptions from taxation elaborately considered also in
Landon vs. Litchfield, 11 Conn. 251.

* Philadelphia & Wilmington R. R. Co. vs. Maryland, 10 Howard,
393 ; Providence Bank vs. Billings & Pittman, 4 Peters, 614.

t Hospital vs. Philadelphia Co., 24 Penn. 229.

An interesting question of a somewhat analogous nature, has been
raised in Massachusetts in regard to the application of the constitutional
provision to the grants of lands made in that State to towns for the sup-
port of the ministry. In 1797 the legislature passed a resolve authorizing
the sale of certain ministry lands in the town of Lanesborough, and the
distribution of the income between the Congregational and Episcopal so-
cieties, and providing for the appointment of trustees, but with a proviso
that it should be in the power of the legislature, on the future application of
any new denomination qf Christians in the town, to make a new appropria-

MEASURES OF PUBLIC POLICY. 633

In the cases just examined, we have seen that legisla-
tive acts are sometimes held to create a contract, and
treated accordingly. But we have already* stated
that in the term contracts are not included rights, or
rather interests, growing out of measures of public
policy. So, no contract is created by a statute fixing
the. emoluments of a public office ; and where a Penn-
sylvania act reduced the fm-dAem compensation of a
public officer during the term for which the office,
with its remuneration, had been fixed by a previous
statute, it was held that the original law created no
contract.f So, a grant by a legislature to a county, of
a sum forfeited, may be refunded. Such a grant
creates no contract, on the ground that it is made to a
public body, and for public not private purposes. J
So, the grant of a ferry franchise to a town, creates no
contract by which the town can claim a permanent

tion. In 1814, ttie proviso reserving power to the legislature was re-
pealed, and the actual appropriation confirmed. In 1837, the legislature on
the application of the Baptists passed a resolve, that a portion of the in-
come should be paid to that society. It was held, that under the special
circumstances of the case, the repeal of the proviso was neither a renun-
ciation nor a final execution of the power reserved to the legislature, and
did not preclude them from exercising the power reserved ; and th'at the
resolve of 1837 was valid. But the court said, " Whether this power, re-
served as a perpetual benefit in favor of denominations of Christians who
should afterwards spring up in that town, could be renounced by one legis-
lature so as to bind their successor's, if done after notice to all parties then
existing ; or whether the court would be bound to presume that an act done
by the legislature was done after due notice, — are questions of difficulty, on
which we give no opinion." Per Shaw, C. J., in Congr. Soo. in Lanes-
boro' vs. Curtis, 22 Pick. 332 ; See also Humphrey m. "Whitney, 3 Pick. 158.

* Ante, p. 618.

t Butler et al. vs. Pennsylvania, 10 Howard, 416.

X The State of Maryland w. Bait. & Ohio R. E., 3 Howard, 551. See
also. The People vs. Morris, 13 Wend., 325 ; The Commonwealth «a. Bacon,
6 Serg. & Rawle, 322 ; The Commonwealth vs. Mann, 5 Watts & Sergeant,
418 ; Barker w. The City of Pittsburgh, 4 Barr, Penn. R. 51.

634 MUNICIPAL ORDINANCES.

right to the ferry ; and the legislature may, in its
pleasure, discontinue the ferry ; and this, both on the
ground that the ferry franchise related only to public
interests, and also that the town was a mere organiza-
tion for public purposes, and that the grant was rather
in the nature of legislation than of compact.*

The same doctrine has been applied to municipal
ordinances ; and it has been decided that the corpora-
tions of cities cannot make permanent and irrepealable
contracts in regard to matters of -public interest ; or, as
the proposition is sometimes, put in other words, that
they cannot strip themselves of any portion of their,
legislative power. So, it has been held by the Supreme
Court of the United States, in regard to an ordinance
for grading streets ;f and so jn New York, in regard to
ordinances regulating the interment of the dead. J In
the latter case, it was determined that ordinances
declaring it unlawful to inter in cities, and which by
their necessary operation annulled or revoked the
Covenants, and permissions contained in prior grants of
land ceded for cemetery purposes, were valid. It was
held that this was so, although the contract was thus
annulled by the very body that made it. It was said,
" There is, indeed, a seeming inconsistency ; but the
defendants, the city, had no power to limit the legisla-

* East Hartford vs. Hartford Bridge Co., 10 Howard, 684. See also.
Mills vs. St; Clare Company, 8 Howard, 669, 681.

t Qoszler m. The Corporation of Georgetown, 6 Wheat, 593.

t Presb. Church vs. City of N. Y., 6 Oowen, 642 ; Coates & Stuyvisant
m. The Mayor of N. Y., 7 Cow., 68. So decided, also, by Nelson, J., in
The Mayor vs. Brittain (not reported), in regard to a street-cleaning con-
tract. I am indebted for this last case to the kindness of M. V. B. Wilroy-
BOD, Esq., assistant counsel to the corporation.

MAEEIAGE AND DIVORCE. 635

tlve discretion "by covenant, and they are not estopped
from giving this aiiswer."*

The most serious question that yet exists in regard
;to the true meaning of the phrase contract under this
clause, relates to the subject of naarriage. It has been
insisted that the constitutional clause only related to
pecuniary contracts ; and in regard to marriage, it has
been urged that the agreement is not strictly a con-
tract, but a civil relation, entirely subject to the control
of municipal law. On this point, different and con-
flicting decisions have been made. In Missouri, ad-
hering to an intimation very early made dbit&r by
the Supreme Court of the United States,f it has been
decided that marriage is a contract within the mean-

* Presb. Church vs. City of N. Y., 5 Cowen, p. 542.

In England, it has been said that a deed, or coTenant, cannot operate
in direct opposition to an act of Parliament; which negatives the ideas of the
party being prevented by estoppel from setting up the act. — Fair Title vs.
Gilbert, 2 T; K., ITl.

In connection with this, I may here notice the question whether an
agreement to do a thing lawful at the time is annulled by a statute declaring
the act unlawful. In an early case, 1683, it was held, that if the thing to
be done was lawful at the time when the defendant entered into the coven-
ant, though afterwards prohibited by act of Parliament, yet the covenant
was binding. — Brason m. Dean, 3 Mod. 33.

But a different and more rational doctrine was soon after laid down ;
and it was declared that the distinction between the cases when a statute
repeals a covenant and when it does not, is this : — when a man covenants
not to do a. thing which was lawful for him to do, and an act of Parliament
comes aJter and compels him to do it,— ;then the act repeals the covenant ;
so, if a man covenant to do a thing which is lawful, and an act of Parliament
comes and hinders him from doing it, the covenant is repealed ; but if a
man covenants not to do a thing which then was unlawful, and an act comes
and makes it lawful to do it,— sUch act of Parliament does not repeal the
covenant.— Brewster m. Eitchin, 1 Ld. Ray. 317 ; S. 0..1.Salk.,.198. The
same rule has been declared in New York, and applied to municipal cor-
porations, as above. — Presb. Church m. City of N. Y., 5 Cowen, 542.

1 Dartmouth College m. Woodward, 4 Wheaton, 518.

636 MARRIAGE AND DIVORCE.

ing of the Constitution, and protected by the clause in
question ; and an act of the General Assembly grant-
ing a divorce, was held unconstitutional and void*

On 'the other hand, in Maine, the Supreme Court,
has held that the clause in regard to the obligation, of
contracts, does not relate or apply to marriages.f
They said, however, at the same time, that under the
clause in regard to the division of power into executive,
legislative, and judicial, th'e legislature had no power
to grant divorces in cases where the Supreme Court

* The State, to the use of Gentry, vs. Fry, 4 Miss., 120. The divorce
was also pronounced unconstitutional on the ground, that the grant of
a divorce was a judicial and not a legislative act. See this case, also, for
an elaborate discussion of the subject of the distribution of powers be-
tween the legislature and the judiciary and the executive. The case of
Bryson «s. Campbell, 12 Miss,, 498, was decided in 1849, on the .authority
of Gentry's case, which was said to be ,the settled law of the State.

Several other points decided in this case may be noticed here. Retro-
spective laws are said neither to accord with sound legislation, nor with the
fundamental principles of the social compact. Yet the Constitution of the
United States has not made any provision against their passage, and many
of the State Constitutions contain no guard against them. All such retro-
spective laws may be passed, and when passed are binding and obligatory
on the judiciary. The Constitution, however, of this State has provided
against these laws in express terms; and, therefore, all such as have a
retrospective action, either upon contracts or other acts, are by this pro-
vision void. — p. 185. '

It is conceded that the legislature is not bound to assign a cause for the
passage of any law. — p. 156. ,

The right of the judiciary to decide a law to be unconstitutional, follows
inevitably from its duty to declare what the law is. — ^p. 178.

In New York, in the following cases, it has been intimated that the con-
tract of marriage, and its incidents, as the wife's right of dower, are within
the provisions of the Constitution as to the obligation of contracts. — Kelly
va. Harrison, 2 J. Cases, 29 ; Jackson vs. Edwards, 22 Wend., 498 ; Law-
rence vs. Miller, ,2 Coms., 246. See, also, Moore va. The Mayor, 4 Seld., 110,
as to dowef, and Westervelt va. Gregg, 2 Eernan, 202, as to the husband's
right to the wife's choses in action. Ante, p. 641.

t Opinion of Justices, 16 Maine, 479.

MARRIAGE AM) DIVORCE. 637

had jurisdiction ; but that the power to grant divorces
existed where that tribunal had no jurisdiction.

In Connecticut, too, legislative divorces have been
sustained ; and it has been said that they were neither
invalid as within the constitutional clause, nor repug-
nant to the State Constitution as an assumption of
judicial power by the legislature ; but much stress was
laid on the appalling consequences of declaring all the
legislative. divorces of the State void; and the result
appears to have been arrived at more on that ground
than on ahy other * It has also been said, in N^w
York, that marriage was not a contract, in the strict
common-law sense of that term.f

In Florida, the marriage contract is considered
within the protection of the constitution.^ But in
Kentucky it is treated as an institution created by the
public law, and subject to the public will.§ And this,
according to Mr. Chancellor Kent, is the true con-
struction.!

The act of New York, of 1848, entitled, "An Act for
the more effectual protection of the property, of

* Starr m. Pease, 8 Conn., 548. See the opinion of Peters, J., in part
dissenting.

t White vs. White, 5 Barb., 474.

X Ponder vs. Graham, 4 Florida, 23.

§ Maguire vs. Maguire, 7 Dana, 184.

1 Kent Comm., vol. i. p. 417, note. I cite the 8th edition.

In New Hampshire, it has been decided that a grant of a divorce is a
judicial proceeding ; that the legislature may provide by general laws,
having no retrospective effect, for the dissolution of existing marriages ; but
that an act altering the law of the contract, and empowering the courts to
grant divorces for causes which, when they occurred, furnished no ground
for the dissolution of the marriage, is a retrospective Jaw, within, the pro-
vision of the constitution of that State, and as such void.— Clark vs.
Clark, 10 N. H., 381. See, in this case, the comments of Parker, C. J., on
the Dartmouth College Case.

MARRIAGE AND DIVOROE,

married ■women," of which, the object was to make a
complete change of the relations' of husband and wife
as/regards property, declares that the real and personal
property, and the rents, issues, and profits thereof, of
any female now married, shall not be subject to the
disposal of her husband, but shall be her sole and
separate property, except so far as the same may be
liable for the debts of the husband heretofore con-
tracted. It has been held that this law, so far as it
was intended to affect existing rights of property in
married persons, was, in regard to marriages celebrated
before its passage, unconstitutional and void ; on the
ground that, as regards property, the contract of mar-
riage must stand' on the same footing as other contracts ;
that the law, as it existed at the time of the making of
the contract, formed part of the contract.*

In the same State, however, it has been held that
dower is not the result of a contract, but a positive
institution of the State ; and a law extinguishing the
wife's right to dower during the husband's lifetime,
does not infringe the provision of the Fedei^al Constitu-
tion in regard to contracts,f

I may close this branch of iny subject by stating
that it has been intimated that the constitutional pro-
vision applies to cases of contract strictly; and that
where the obligatibn, though of a pepuniary nature,
results from a duty imposed on the party by statute,
it is wholly under legislative control.^

We proceed to the second head of inquiry in regard-

* Holmes vs. Holmes, 4 Barbour, 296, per Baroulo, J.
t Moore »«. The Mayor, &c., 4 Selden, 110.

X Per Gridley, J., 17 Barb., 116, in regard to the laws regulating manu-
facturing corporations in New York.

WHAT IMPAIRS A CONTRACT. 639

to tte clause of the Constitution now under discussion.
What acts of State legislation are considered to iwipair
the obligation of a coni/ract ? In reference to tMs, at
the outset, we may remark that, so far as regards the
legislation of the several States, the courts of "the
United States have no right to interfere by virtue of
the restraining power of the Federal Constitution,
except in the two cases of ex post facto laws, and laws
impairing the obligation, of contracts. The States may
pass retrospective laws, however unjust ; pass acts of a
judicial nature, however clearly overstepping the line
of legislative power ; thef^ may pass acts divesting
vested rights ; they may violate express provisions of
their own Constitutions ; — acts of these classes, however
objectionable, are not within the scope of the restric-
tions- of the Federal Constitution, and give no right of
appeal from the decisions of the State tribunals.§

§ Calder va. Bull, 3 Dall, 380 ; Satterlee vs. Matthewson, 2 Petei^, 413 ;
the Charles River Bridge Case, 11, Peters, 588. See comments of Mr
Senator Verplank, in Cochran w. Surlay, 20 Wend., 379, on Fletcher vs.
Peck and Satterlee vs. Matthewson. Watson va. Mercer, 8 Peters, 110 ;
Bait, and S. R. R. es. Nesbit, 10 Howard, 401 ; East Hartford vs. Hartford
Bridge Co., 10 Howard, 639,

It may be well to give somewhat at length one of these cases. In 1786,
a deed was executed of lands in Pennsylvania, which, by reason of .a
defective acknowledgment under the then law, was insufBcient to pass the
title. In 1826, a stati:\te of the State was passed to cure the defect, so as to
make the deed as effectual as if properly acknowledged ; and ejectment was
then brought by parties claiming under it. It was objected, that the act of
1826 violated the obligation of a contract; but the Supreme Court said that
it did not, either iJ its terms or in its principles ; and they held the plain-
tiff's recovery below final and conclusive, — declaring, also, that the court
had no right to pronounce an act of a State legislature void as contrary to
the Constitution of the United States, from the mere fact that it divests
antecedent vested rights of property ; and that the Constitution prohibited
no retrospective legislation, excepting the passage of ex post facto laws —
which term is only applied to penal and criminal laws, — and laws violating
the obligation of contracts.— Watson vs. Mercer, 8 Peters, 88.

640 WHAT IMPAIRS A OONTEACT.

Questions of this nature can only be presented in
the Supreme Court of the United States in cases arising
in the circuit courts, within the jurisdiction given to
them under the Constitution of the United , States,
and where, consequently, the circuit courts exercise all
the powers of the State tribunals. In regard to the
present subject of investigation, therefore, the inquiry
is, "What legislation is held to mvpcm ccmi/racts ? And
in regard to this, it is well here to remark that it has
been said, by a very eminent judge of the Supreme
Court of the United States, that " after a careful
examination of the questifons adjudged by this court,
they seem not to have decided in any case that the
contract is impaired, within the meaning of the Con-
stitution, where the action of the State has not been
on the contract."*

The clause of the Constitution embraces, as we have
seen, private agreements, or agreements infer pa/rtes;
and .public agreements, as they may be called, result-
ing from acts of legislation. In regard to public agree-
ments growing out of statutes creating charters, and
similar enactments, the questions arising in regard to
what acts impair them have not been numerous, as
the case generally turns on the true construction
of the act containing the alleged contract. But in
regard to private agreements, the subject of our present
inquiry has presented many very perplexing subjects
of investigation.

Of these, one of the most important relates to the
control which may be exercised over private contracts,
in the shape of State insolvent or bankrupt laws,

* In Charles River Bridge m. Warren Bridge, 11 Peters, 681, per Mr.
Justice M'Lean.

BANKRUPT LAWS. 641

whetlier acting on tlie person or property of tlie debtor ;
•wliether • applyibg to subsequent or pre-existing en-
gagemfints ; wbetber affecting only citizens of the State
passing the law, or having an extra-territorial operation.
These topics, partly growing out of the clause which we
are now considering, partly out of the 8th section of
the 4th Article, giving Congress power to pass bank-
rupt laws, have been repeatedly and elaborately con-
sidered. Nor are they yet exhausted ; for the division
of judicial ©pinion in the Federal tribunal in some of
the cases, has left the precise point decided a matter
of controversy ; and I think, therefore, that I shall
best attain , the objects of this treatise by a reference
to the decisions, and a brief statement of the points
generally understood to have been adjudged.*

It appears, then, to have been decided by the Supreme
Court of the United States, that the power of Congress
to pass a bankrupt law is not exclusive ; that the exer-
cise of that power by the States, as to future contracts,
does not impair their obligation ; that a contract made .
and to be performed in one State is not, as against a
citizen of that State, discharged by a certificate -ob-
tained under the laws of another State, though such
laws were passed before the inception of the contract ;
that a discharge under the laws of the State where
the contract was made, but not to be performed, could
not be pleaded in bar in the Circuit Court of the
United States a,gainst a creditor, a citizen of another
State at the time of the origin of the contract and^ of

* The cases in the Supreme Court of the United.States are^Sturges vs.
Crowninshield, 4 Wheat., 200 ; M'Millen m. M'tfeill, 4 Wheat., 209 ;
Farmers. & Mechanics' Bank of Penn. vs. Smith, 6 "Wheat. 131; Ogdenus.
Saunders, 12 Wheat., 21Sj Boyle is. Zacharie, 6 Peters, 635; Cook vs.
Moffat, 5 Howard, 295 ; Bronson vs. Kinzie, 1 Howard, 311.
41

642 BANKRUPT LAWS.

the discliarge ; that the same is true when the action
is brought in the courts of a State other than that of
the origin of the contract; that a creditor of one
State, who voluntarily makes himself a party to insol-
vent proceedings in another State, is bound by the
result!

The Supreme Court has not decided that a contract
which is in terms to be performed within the State where
the discharge is granted, may not be barred by such dis-
charge, as against a citizen of another State seeking
to enforce the contract in the State where the con-
tract was to be performed and where the discharge
"vfas obtained. Nor has it decided the question
where the contract was made with a citizen of the
State where the discharge is granted, and of which
both creditor and debtor were citizens at the time of
the proceedings in insolvency, though the contract
itself was entered into in another State.*

* 1 take this clear and succinct statement from a recent case in Mas-
sachusetts where the whole subject has been considered. Marsh «s. Put-
na,m, 3 Gray, 663, per Thomas, J. The other cases in Massachusetts are :
Braynard vs. Marshall, 8 Pick. 194 ; Betts «s. B&gley, 12 Pick. B72 ; Agew
w. Piatt, IB Pick. 417; Sayoye is. Marsh, 10 Met. 694; Fiske vs. Foster, 10 Met.
697; Woodbridge vs. Allen, 12 Met. 470; Ilsley vs. Meriam, 7 Cush. 242;
Clark vs. Hatch, 7 Cush. 466 ; Scribner vs. Fisher, 2 Gray, 43. These cases
are all reviewed by the Supreme Court in Marsh vs. Putnam, 3 Gray, 651 ;
where held, that a certificate of discharge under the insolvent laws of the
State of Massachusetts is a bar to an action on a contract between two
citizens of the same State, though made and to be performed in another
State.

In Betts vs. Bagley, 12 Pick. 579, the Supreme Court of Massachu-
setts said, " We consider the case of Ogden is. Saunders as authority for the
proposition that a State insolvent law, when no general law, parsed by the
Congress of the United States establishing a uniform system of bankruptcy
is in force, is not per se and by force of the clause in the Constitution of
the United States vesting in Congress the power of passing such law, un-
constitutional and invalid ; but that the law of a State providing for \he

THE OBLIGATIOIT AUD THE EEMEDT.

643

The most embarrassing cases that have arisen, how-
ever, under this branch of our inquiry, are those grow-
ing out of a nice distinction taken early by very high
authority between the obligation of a contract, and
the reme&y for its infringement or non-performance.
Gut of this has grown much discussion as to the
extent to which the' legislative action of the States
may alter the remedy without impairing the obliga-
tion of a contract. In a case already cited,* Mr. Chief
Justice Marshall used this language, "The distinction*
between the obligatio|i of a contract and the remedy
given by the legislature to enforce that obligation has
been taken at the bar, and exists in the nature of
things. Without impairing th« obligation of the con-
tract, the remedy may certainly be modified as the
wisdom of the nation shall direct. Confinement of
the debtor' may be a punishnlent for not performing
his contract, or may be allowed as a means of inducing
him to perform it. But the State may refuse to inflict
this punishment, or may withhold this means, and
leave the contract in full force. Imprisonment is no
part of the contract, and simply to release the prisoner

does not impair its obligation."f This very general

discharge of an insolTent debtor upon the surrender of his prpperty, so far
as it operates upon contracts made after such law within suoh State by-
citizens therepf then resident therein, and which by their terms are to be
performed and executed within.the limits of such State, is valid and binding
upon such citizens, and that a discharge obtained by a citizen of such State
under such a law; is a valid discharge."

* Sturges vs. Crowninshield, 4 Wheal. 200.

t About the same time the Supreme Court of the United States held,
that an act incorporating a bank and giving to the corporation a summary
process, in the nature of an attachm,ent against its debtors who by express
written consent made their notes negotiable at the bank, did not conflict
with the provisions relating to trial by jury on the laTf of the land; but
they also held, that the provision did not create a chartered right in the

644 THE OBLIGATIOlf AND THE EEMEDY.

language has "been repeatedly regretted, and often
criticised. And certainly it does not appear to have
heen necessary for the decision of, the cause*

The subject was again considered by the same trib-
unal. ^ In a case' already cited, where certain Jaws of
Kentucky were complained of as infringing the con-
stitutional provision because, contrary to a coppact
with the State of Virginia, they rendered the rights
of claimants to lands less secure by depriving them of
the fruits of their property, and charging them with
the value of improvements, it was said, "The ob-
jection to a law on the ground of its impairing the
obligation of a contract can never depend on the extent
of the change which the law effects in it. The court
proceeded to declare, that "legislation which should
deny to the owner of land a remedy to recover the pos-
session of it, or to recover the profits, or clogging his
recovery of the possession or profits by conditions and
restrictions tending to diminish their value, impaired
his right to and interest in the property ;" and in the
principal case they held the statutes in question uncon-
stitutional and void.f

The subject of the extent to which the remedy
can be altered without impairing the obligation,
soon came up more distinctly for consideration.

bank, — that it related to the remedy and not the right, and as such was sub-
ject to legislative control. Bank of Columbia m. Okely, 4 Wheaton, 245;
See also Young vs. The Bank of Alexandria, 4 Cranch, 384.

* Kent terms this language of Marshall, C. J. general, latitudinary, and
hazardous, and says, "It seems to me that to lessen or take away from the
extent and efficiency of the remedy to enforce the contract legally existing
when the contract was made, impairs its value and obligation." Com. vol i.
p. 456 ; tide also ante, pp. 138, 192, 200.

t Green vs. Biddle, 8 Wheat, p. 84 and 76.

" I say with great confidence, that a law taking away all remedy from
existing contracts would be manifestly a law impairing the obligation of
contracts." Pei- Trimble, J., 12 "Wheat, p. 327.

THE OBLIGATION AMD THE REMEDY. 645

In March 1814, Haile teing a prisoner in Rhode
Island for debt, gave bond to the jail limits to con-
tinue a true prisoner until lawfully discharged. In
June 1814, he presented a petition to the legislature
of Rhode Island for relief, and for the benefit of an
act passed in Rhode Island in June, 1756, but then no
longer in force, for the relief of insolvent debtors. In
1816 the prayer of his petition was granted, and there-
after a discharge from his debts and from imprison-
ment was granted him by the proper court. Suit
being brought on the bond, the legislative proceedings
and the discharge were pleaded, and a demurrer inter-
posed, on which the question went up' to the Supreme
Court of the United States. The court premised by
saying, that the legislature of Rhode Island had befen
in the constant habit of entertaining petitions of a
similar character to that of Haile ; and held the dis-
charge valid, saying, " The discharge so far as it related
to the imprisonment of the defendant affected the re-
medy in pm't onhf, and was in the due and ordinary
exercise of the powers vested in the legislature of
Rhode Island, and was a lawful discharge and no es-
cape, and of course no breach of the condition of the
bond in question."* The court also cited the language
above used, in Sturges ve. Crowninshield, and said,
" Can it be doubted that the legislatures of the States, .
so far as relates to their own process, have a right to
abolish imprisonment for debt altogether, and that
such law might extend to present as well as to future
imprisonment ?"f ^

* Washington, J., dissented, in a clear and able opinion. Mason vs
Haile, 12 Wheat. 879.

t It may be observed of this case, as of the interesting one of Wilkinson
w. Leland, 2 Peters, 627, that they were both decided under the very curi-

646 THE OBUGATION AND THE REMEDY.

The general and sweeping character of tlie language
of these cases, and the singular omission to state any
restrictions or to fix any- general, practical line of
demarkation in regard to the power of the State legis-
latures, was perhaps the cause, among others, that
many laws were passed by the States striking at the
remedy of contracts in a very serious way; and that the
State Courts have frequently showed a disposition to
sustain legislation of this character.

Previous to 1838, in the State of Massachusetts,
creditors had hy law a right to secure their claims by
attachments. An act was passed on the 23d of April,
1838, to go into effect on the 1st of August of that
year, organizing what was, in fact, a State bankrupt
system providing for the appointment of an assignee,
an equal distribution of assets, and a discharge of the
debtor. The act declared that all the property of
the debtor should be vested in the .assignees, although
then attached on mesne-process, but saved all rights
which had accrued to any person by virtue of the prior
system. Where a debt was due before the passage of
this act, of 23d April, 1838, and an attachment issued
at the suit of an individual creditor on the 1th. of
August, 1838, or after it went into effect, it was held
that the attachment and lien of the attaching creditor
.could not be sustained as against the assignees unde^r
the act of 183^, on the ground that the act only im-
paired the remedy, and did not affect the contract.
And the court said, " A creditor cannot be said to be
deprived of all remedy, which, if true, would be tan-

ous, original charter of Rhode Island, by which no division of the powers
of government were created, and under which the legislature seems to have
exercised a despotic sort of authority.

THE OBLIGATION AND THE -KEMEDY.

64T

tamount to the discliarge of his claim ; "but his contract
remains in full force, and the limited remedy which is
left to enforce the payment would be more or less
valuable according to circumstances."*

The laxity of legislative practice and of judicial
decisions, finally brought up the whole subject again
before the Supreme Court of the United States ; and
their original . language was very seriously modified.
Certain laws of Illinois passed in 1841, declared that
the equitable estate of the mortgagor in premises mort-
gaged before the passage of the act, should not be
extinguished for twelve mouths after a sale and .a
decree in chancery, and prohibited any sale unless two
thirds of the amount at which the property had been

•

* Bigelow m Pritchard, 21 Pick., 174, decided in 1838. This lan-
guage declares that a snibita/ntial limitation or diminution of the remedy,
does no^ impair the obligatiop of the (contract ; and it' appears very dift-
cult to sustain its reasoWng, either on any construction of the phraseology
of the constitutional clause, or on principle; nor does it seem in accord-
ance with the later decisions. I may remark that the court in this case
added, "A creditor has no vested right in the mere remedy, unless he may
have exercised that right, ly tie commencement of legal process under it
before the law making an alteration concerning it shall have gone into
operation." I shall call attention elsewhere, to this important qualifica-
tion.

We have elsewhere seen that in the same State, an act of the legislature
enlargihg the limits of a prison-yard, was held a good defence to an action
on a prison-bond executed before the passage of the statute. Walter lis.
Bacon, 8 Mass., 468.

I may here notice some other cases belonging to the lax school of inter-
pretation.' In Woodfin vs. Hooper^ 4 Humph. Tenn. Ri, 13, it was held
that the right to imprison the debtor as part of the remedy formed no por-
tion of the contract. In Chadwick vs. Moore, 8 Watts & Serg.,, 49, a State
statute suspending sales on executions for a year unless two thirds of the
appraised value was realized, was held not unconstitutional See also, on
the same side, Evans vs. Montgomery, 4 Watts & Serg., 218, and Patin vs.
Prejean, 7 Louis. Rep., 301 ; NeWton vs. Tibbats, 2 Eng. R., 150 ; Bronson
vs. Newberry, 2 Doug. Michigan, 38; Rockwell vs. Hubbell, 2 Doug.
Michigan, 197.

648 THE OBLIGATION" AND THE REMEDY.

valued by appraisers should be bid therefor. These
acts being brought up for adjudication before the
Supreme Court of the United States, were declared to
be void within this clause of the Constitution of the
United States. The court held the twelve" months
delay and the restriction, on the sale both clearly to
impair the contract, as far as regarded mortgages exe-
cuted previous to the passage of the law.* I give au
extract from the able opinion of Mr. Chief Justice
Taney, on. account of the importance of the subject ;
but I cannot refrain from saying that, it appears to
me, if the reasoning were pushed to its legitimate and
lo^eal results, contracts would have a much more
efficient protection than they have yet received.

If tte laws, of the State passed afterwards had done nothing more
than change the remedy upon contracts of this description, they would
be liable to no constitutional objection. For, undoubtedly, a State
naay regulate at pleasure the modes of proceeding in its courts in rela-
tion to its past contracts as well as future. It may, for example,
shorten the period of time within which claims shall be barred by the
statute of limitations. It may, if it thinks proper, direct that the
necessary implements of agriculture, or *he tools of the mechanic, or
articles of necessity in household furniture, shall, like wearing apparel,
not be liable to execution on judgments. Regulations of this descrip-
tion have always been considered, in every civilized community, as
pioperly belonging to the remedy, to be exercised or not by every
sovereignty, according to its own views of policy and huma,nity. It
must reside in every State, to enable it to secure its citizens from unjust
and harassing litigation, and to protect them in those pursuits which
are necessary to the existence and well-being of every community.'
And, although a new remedy may be deemed less convenient than the
old one, aod may in some degree render the recovery of debts moi-e
tardy and difficult, yet it will not follow that the law is unconstitu-
tional.

* Mr. Justice M'Lean dissented.

THK OBLIGATIOlir AND THE REMEDY. 649

Whatever belongs merely to the remedy, may be altered according
to the will of the State ; provided the alteration does not impair the
obligation of the contract. But if that effect is produced, it is imma-
terial whether it is done by acting on the remedy, or directly on the
contract itself. In either case, it is prohibited by the Constitution.

It is difficult, perhaps, to draw a line that would be applicable, in
all cases, between legitimate alterations of the remedy and provisions
which, in the form of remedy, impair the right. But it is manifest
that the obligation of the contract, and the rights of a party under it,
may in effect be destroyed by denying a remedy altogether ; or may
be seriously impaired by burdening the proceedings with new condi-
tions and restrictions, so as to make the remedy hardly worth pursu-
ing. And no one, we presume, would say that there is any substantial
difference between a retrospective law declaring a particular contract
or class of contracts io be abrogated and void, and one which took
away all remedy to enforce them, or encumbered it with conditions
that rendered it useless or impracticable to pursue it.

This brings us to examine the statutes of Illinois which have given
rise to this controversy. As concerns the law of February 19, 1841,
it appears to the court not to act merely on the remedy, but directly
upon the contract itself, and to engraft upon it new conditions injurious
and unjust to the mortgagee. It declares that, although the mort-
gaged premises should be sold under the decree of the Court of Chan-
cery, yet that the equitable estate of the mortgagor shall not be extin-
guished, but shall continue for twelve months after the sale ; and it
moreover gives a new and like estate, which before had no existence,
to the 'judgment-creditor, tO continue for fifteen months. If such
rights may be added to the original contract by subsequent legi^ation,
it would be difficult to say at what point they must stop, An equita-
ble interest in the premises may, in like mannei-, be conferred upon
others ; and the right to redeem may be so prolonged as to deprive
the mortgagee of the benefit of his security, by rendering the property
unsalable for anything like its value. This law gives the mortgagor
and the judgment-creditor an equitable estate in the premises, which
neither of them would have been ^entitled to under the original con-
tract ; and these new interests are directly and materially in conflict
with those which the mortgagee acquired when the mortgage was
made. Any such modification of a contract by subsequent legislation,
against the consent of one of the parties, unquestionably impairs its
obligations, and is prohibited by the Constitution.

The second point certified arises under the law of February 21,

650 TEE OBLIGATION AND THE KEMEDY.

1841. The observations already made in relation to the other act
apply with equal force to this. It is true, that this law apparently
acts upon the remedy and not directly upon the contract. Yet its
effect is to deprive the party of his pre-existing right to foreclose the
mortgage by a sale of the premises, and to impose upon him conditions
which would frequently render any sale altogether impossible. And
this law is still more objectionable, because it is not a general one,
presciibing the mode of selling mortgaged premises in all cases, but is
confined to judgments rendered and contracts made prior to the 1st
of May, 1841. The act was passed on the 2Vth of February, in that
year ; and it operates mainly on past contracts, and not on the future.
If the contracts intended to be affected by it had been specifically enu-
merated in the lavv, and these conditions applied to them, while other
contracts of the same description were to be enforced in the ordinary
course of legal proceedings, no one would doubt that such a law was
unconstitutional. Here a particular class' of contracts is selected, and
encumbered with these new eonditioiis; and it can make no difference
in principle, whether they are described by the names of the parties, or
by the time at which they were made.

In the case before us, the conflict of these laws with the obliga-
tions of the contract is made the more evident by an express covenant
contained in the instrument itself, whereby the mortgagee, in default
of payment, was authorized to enter on the premises and sell them at
public auction ; and to retain out of the money thus raised the amount
due, and to pay the overplus, if any, to the mortgagor. It is impos-
sible to read this covenant and compare it with the laws now under
consideration, without seeing that both of these acts materially inter-
fere with the express agreement of the parties contained in this cove-
nant. Yet the right here secured to the mortgagee is substantially
nothing more than the rightlo sell, free and discharged of the equita-
ble interest of Kinzie and wife, in order to obtain his money. Now,
at the time this deed was executed, the right to sell free and discharged
of the equitable estate of mortgagor in the State, existed without the
aid of this express covenant, and the only difference between the right
annexed bylaw and that given by the covenant, consists in this— that in
the former case the right of sale must be exercised under the direction of
the Court of Chancery, upon such terms as it shall prescribe, and the
sale made by an agent of the court ; in the latter, the sale is made by
the party himself. But, even under this covenant, the sale made by
the party is so far subject to the supervision of the court, that it will
be set aside and a new one ordered, if reasonable notice is not given,

THE OBLIGATION AND THE EEMEDT. 651

or the proceedings be regarded, in any respect, as contrary to. equity
and justice.- There is, therefore, in truth, but little material difference
between the rights of the mortgagee, wiih or without this covenant.
The distinction consists rather in the form of the remedy than in the
substantial right ; and' as it is evident that the laws in question invade
the right secured by this covenant, there can be no sound reason for a
different conclusion where similar rights are incorporated by law into
the contract, and form a part of it at the time it is made.

. Mortgages made since the passage of these laws miist undoubtedly
be governed by them ; for every State has the power to prescribe the
legal and equitable obligations of a contract to be made and executed
within its jurisdiction. It may exempt any property it ^thinks proper
from sale, for the payment of a debt ; and may impose such conditions
and restrictions upon the creditor as its judgment and policy may dic-
tate. And all future contracts would ^be subject to such provisions,
and they would be obligatory upon the parties in the courts of the
United States as well as those of the State. We speak, of course, of
contracts made and to be executed in the State. It is a case of that
description that is now before us, and we do not think it proper to go
beyond it.*

And again,f tie same ,principle was applied to tlie same
laws, and they were declared unconstitutional so far as
tliey affected mortgages given before their passage. J

But this rule is only understood to protect contracts
made before the passage 'of thp law. Contracts made
after the passage of the statute are controlled, by
it, on the ground that the laws in existence when

* Bronson vs. Kinzie, 1 Howard, 315, decided in 1843.

I may be permitted to express my regret that in this case, as in Sturges
vs. Crowninshield, and the Dartmouth^ College Case, the Supreme Court,
felt themselves at liberty to go beyoridthe case before them, and to express
an opinion in regard to other questions, of great moment bui not necessarily
in judgment. The rule which confines judicial decisioiis to the very matter
before the tribunal is important in all cases ; but in regard to constitutional
questions, its magnitude cannot easily be overstated.

t M'Oracken vs. Hayward, 2 Howard, 608.

t Mr. Justice Catron dissented; see also, burran m. State of Arkansas, 15
Howard, 304, 318, where the same doctrine is laid down in an able opinion
by Mr. Justice Curtis.

652 THE OBLIGATION AITD THE EEMEDT.

the contract is made, are necessarily referred to, and
form part of the contract, and fix the rights and obli-
gations growing out rf jt*

These decisions exercised a marked and immediate
influence on the legislation of the country and on the
action of the State tribunals ; and it may perhaps be
said, with, however, many serious exceptions, that the
tendency of the later decisions is to treat the sub-
stantial remedy provided by the laws in existence at
the time of the formation of the contract, as a material
part of the contract ; and that any legislation which
materially impairs the vigor or efficiency of that
remedy, in juSt so far impairs the contract.

Notwithstanding the great weight of authoiity on the
other side of the question, I am free to confess my entire
inability to distinguish between the obligation and the
remedy of a contract. Obligation, I suppose, means
binding force, the force or constraint which binds the
party to perform his agreement. What, then, is in
legal acceptation, the binding force of a contract ? It
certainly is not the mere, naked promise. It is not the
moral duty. It is not honor, nor fashion, that binds
the contracting party to keep his engagement. What
is it then, but the remedy — the coercive remedy —
which the law gives against the person or property of
the defaulting party. It seems to me, that looking at
a contract legally and practically as an instrument by
which rights of property are created, and on which
they repose, obligation and remedy are strictly con-
vertible terms. Take away the whole remedy, and

* Moore w. Fowler, -Hempstead's Arkansas C. 0. Reports, 637. The
law had been before held valid, even as to contracts made before it. U. S.
vs. Conway, ibid, 313,

THE OBLIGATION AND THE REMEDY. 653

and it is admitted tlie contract is gone. How, then,
if a material part of tlie remedy be taken away, can
it be said that the obligation is not impaired ? A
confusion would seem to have arisen from not suffi-
ciently taking into consideration the fuU sense .of the
term vmpfiired. It is said that the remedy forms no
part of the contract, and that the creditor makes his
bargain, knowing that he is at the mercy of future
legislation ; but as I understand it, all the cases distin-
guishing between the operation of State insolvent laws
and State stop laws, passed before the making of the
contract^ and those made after, proceed on the very
ground that the legislation in i^rce at the time of the
contract enters into and forms part of it; It is said
again, that in' all countries, and at all tin;es, the remedy
has been under the control of the sovereign authority.
This is merely begging the question, or rather arguing
from false analogies. The very question with us, is
whether, under our system, we have not declared a
different rule. No one seeks to deny that the remedy
should be to a certain extent under legislative control.
Tribunals may be changed, procedure altered ; these
modifications do in nowise impair the remedy or preju-
dice th^ holder of a contract. But it seems to me the
only logical rule to hold, that any legislation which
materially diminishes the remedy given by the law to
the creditor at the time his contract is made, just so
far impai/fs the obligation of the contract. We nau&t,
however, take our law from the adjudged cases.

In Pennsylvania and Missouri, the doctrine of Bron-
son vs. Kinzie.have been followed, and State stop laws
of the same kind have been declared invalid ;* and in

* Lancaster Savings Institution rs. Peigart, cited 4 Kent Com. 434, note
a. ; Baumgardner w. Circuit Court, 4 Missouri R. 50.

654 THE OBLIGATION ANB THE EEMEDT

Indiana it lias been generally decided that the sale of
property on execution under a judgment on a contract,
is governed by the laws in force when the contract was
made*

In 1830 the legislature of Mississippi passed an act
entitled, An act to establish a planter's, bank in the
State of Mississippi, by which, among other things, the
bank was authorized to receive, retain, and enjoy its
property of every kind, and to grant, demise, alien,
and dispose of the same. In 1840 the State of Missis-
sippi passed a law d^laring that it should not be
lawful for any bank in the State to transferby endorse-
ment or otherwise, any.note or bill receivable, and if
an action was brought on any note or bill so trans-
ferred, the same should be aba,ted The Supreme
Court of the United States held that the obligation in
the contract between the State and the bank was, that
the ba.nk should have power to assign and transfer its
property ; that the contract between the bank and the
signers of its notes, was that they should be paid in the
hands of an assignee ; that the law of 1840, by abat-
ing the suit, and thus destroying alt remedy on the
note in suit, impaired the obligation of both contracts ;
and it was held void.f ^

^ * Harrison vs. Stipp, 8 Blackf. E. 455. i

' t Planters' Bank i>s. Sharp, 6 How. 301. This case contains the follow-
ing brief and comprehensive summary of the decisions of the courts on this
clause, by Mr. Justice Woodbury : —

" Where a new law has taken the property of a corporation for high-
ways, under the right of eminent domain, which reaches all property,
private or corporaie, on a public necessity, and on making full compensa-
tion for it, and under an implied stipulation to be allowed to do it in all
pubEc grants and charters, no injury is committed not atoned for ; nothing
is done not allowed by pre-existing laws or rights, and consequently no
part of the obligation of the contract is impaired. See case of the "West
River Bridge, and authorities there cited, in 6 Howard, 807.

THE OBLIGATION AND THE REMEDY. 655,

Wliere a railroad charter passed in 1828, provided
for a mode of determining the value of land wanted
for the road, by the inquisition of a jury, the fee to
vest in the company oii, payment or tender of the sum
assessed, in 1836 an inquisition was had and the dam-
ages assessed; but in 1841, before payment or tender
made, the legislature interposed and ordered a new

" So, where the legislature afterward taxthe property of such corpora-
tions, in common with other property of like kindin the State, it is under
an implied stipulation to that efifect, and violates no part of the contract
contained-in the charter. . Armstrong vs. Treasurer of Athens County, 16
Peters, 281. See Providence Bank m. Billings, 4 Peters; 614 ; 11 Peters,
567 ; 4 Wheat. 699 ; 12 Muss. Rep. 252 ; 4 Gill and Johns. 132; 4 Burn,
and East, 2 ; 5 Barn, and Aid. 157 ; 2 Railway Cases, 23.

" So, where no clause existed in the charter for a bridge against author^
izing other bridges near at suitable places, it is no violation of the terms or
obligation of the contract to authorize , another. Charles River Bridge vs.
The Warren Bridge etal, 11 'Peters, 420.

" Nor is itj if a law make deeds by femes covert good when Txyna fde,
though not acknowledged in a .particular forin; because it confirms rather'
than impairs their deeds, and carries out the qriginal intent of the parties.
Watson vs. Mercer, 8 Peters, 88.

" Or if a State grant lands, but makes no stipulation not to legislate fur-
ther upon the subject, and proceeds to prescribe a mo'de or form of settling
titles, this does not impair the force of thejgrant, or take away any right
under it. Jackson vs. Lamphire, 3 Peters, 280.

" Nor does it, if a State merely changes the remedies in form but does not
abolish them entirely, or merely changes the mode of recording deeds, o^
shortens the statute of limitations.- 3 Peters, 280 ; Hawkins Vs, Barney's
Lessee, 5 ib. 457.

"It has been held also, not only that the, legislature may regulate anew
what i5 merely the remedy, but some State courts have decided that it may
make banking corporations subject to certain penalties for not performing
their duties, such as paying |iheir notes OU' demand in specie, and that
does not violate any contract. Brown vs. Penobscot Bank, 8 Mass. Eiep.
445 ; 2 Hill, 242 ; 5 Howard, 342. It is supposed to help enforce, and not
impair, what the charter requires. But on this, being a very different
question, we give no opinion.

"But look a moment at the other class of decisions. Let a charter or
grant be entirely expunged, as in the case of the Yazoo claims in Georgia,

656 THE OBLIGATIOM' AND THE EEMEDT.

inquisition to be taken, — -it was helpl tliat tliis did not
impair the contract contained in the original charter,
that the company had acquired no vested right by
cojltract yrith the State, and that consequently none

was impaired*

An interesting question has been recently presented
in New Jersey, in which a sound and vigorous inter-
pretation has been given to the clause. The Somer-
villes Water-Power Company, incorporated by the
State of New Jersey, borrowed money on an issue of
their negotiable bonds secured by a mortgage of the

and no one can doubt that the obligation of the contract is impaired.
Fletcher vs. Peck, 6 Cranch, 87.

" So, if the State expressly engage in a grant that certain lands shall
never be taxed, and a law afterwards passes to tax them. State of New
Jersey vs. Wilson, 7 Cranch, 164. Or that corporate property and fran-
chises shall be exempt, and they are taxed. Gordon w. Appeal Tax Court,
3 Howard, 133.

" So, if lands have been granted for one purpose, and an attempt is made
by law to appropriate them to another, or to revoke the.grant. Terrett vs.
Taylor, 9 Cranch, 43 ; Town, of Pawlett vs. Clark, 9 Cranch, 292.

"Or if a charter, deemed private rather than public, has been altered as
to its government and control. Dartmouth College vs. Woodward, 4
Wheat. 518.

" Or if owners of land granted without conditions or restrictions, have
been by the legislature deprived of their usual r.emedy for mesne profits, or
compelled to pay for certain kinds of improvements for which they were not
otherwise liable. Green vs. Biddle, 8 Wheat. 1.

" Orif after a mortgage, new laws are passed prohibiting a sale to foreclose
it unless two thirds of its appraised value is offered, and enacting further that
the equitable title shall not be extinguished until twelve months after the
sale. Bronson vs. Kinzie, 1 Howard, 311 ; M'Cracken «s. Hayward, 2 ib.
'608 ;" Planters' Bank vs. Sharp et al. 6 ib. 331.

* Baltimore and Susqttehanna Eailroad Co. vs. Nesbit, 10 Howard, 395.

See, in Pennsylvania, the Erie and North East R. R. vs. Casey, 26 Penn.
287, a case of great interest, growing out of the repeal of a railroad charter.
The repealing act was held constitutional, and various points in regard to
the true construction of the clause in regard to the obligation of contracts,
the repeal of charters, and the nature and effect Of a preamble, will be found
discussed.

THE OBLIGATION AND THE REMEDY. 657

real estate of the company, conditioned that on default
of payment the lenders should have the right to
re-enter and sell, A bill in equity having been filed
against the company, and receivers appointed, a stat-
ute was passed by th^ State of New Jersey, in the year
1856, authorizing the receivers to sell the real estate of
the company free and dear from all incumbrances^
including the mortgages in question ; and under the act
a sale took place. A bill was thereupon filed by one of
the mortgage creditors, to set aside this receiver's sale,
to foreclose in his own behalf, and praying that the
act of 1856 might be decreed unconstitutional and
void. Mr. Justice Grier, on the New Jersey Circuit,
has declared that the act authorizing the sale impairs
the obligation of the contract in so far as it alters the
estate of the mortgagee in the premises, and moreover
violates the State constitution of New Jersey, which,
as we have elsewhere seen,* prohibits any change of
remedy existing at the time of the making of the
contract.f

* AnU, p. 617.

t John M. Martin vs. The Somerville Water-Power Company and others.
I find the case reported in the New York Evening Post for April 4th, 1867.
In his opinion in this case, Mr. Justice Grier says, " Previous to the 29th of
June, 1 844, the State of New Jersey was governed by the old colonial constitu-
tion, adopted on the 2d of July, 1776. This contained no bill of rights, nor
any clear limitation of the powers of the legislature. The history of New
Jersey legislation exhibits a long list of private acts and anomalous legisla-
tion on the aflEairs of individuals, assuming control over wills, deeds, parti-
tions, trusts, and other subjects usually coming under the jurisdiction of
courts of law or 'equity ; consequently, the decisions of the courts of New
Jersey of questions arising under the old constitution, cannot be cited
as precedents applicable to the present one, which carefully defines and
limits the powers entrusted to the legislature, the executive, and the
judiciary." The remark is important, and tends to throw light upon the
42

658 THE OBLIGATION AND THE KEMEDY.

Some of the recent State decisions, however, exhibit
a tendency again to relax the rule. It has been held in
New York, that where the law has conferred an extra-
ordinary remedy upon a particular class of creditors, a
statute taking away such remedy, but leaving the
ordinary means for the collection of the debt in full
force, is not, though operating upon existing contracts,
within the constitutional provision ; and it was accord-
ingly decided, that an act (1836, c. 369, § 2), repealing
the provisions of a prior statute allowing a landlord
to claim rent out of the proceeds of property seized in
execution on. the demised premises, was valid in its
application to cases existing when the act was passed *
So, it has been h^eld in the same State, following the
intimation made ohiter in Bronson vs. Kinzie, that a
law exempting certain property from sale and execu-
tion, applies to judgments and executions on debts
contracted before as well as after its passage.f These
decisions present questions which are, however, still to
be distinctly passed on by the Federal tribunal.

We have thus far considered cases where the effect
of the act in question was directly upon the final
remedy. But the preliminary procedure also forms
part, and a very important part, of the remedy ; and
it seems to be settled that statutes of limitation pertain
to the remedy, and not to the essence of the contract;
and, in regard to this also, that it is within the power

cases of Mason vs. Haile, 12 Wheat, p. 876 ; Ante, p. 645 ; and WilkinsGn
vs. Leland, 2 Peters, ante, p. 645, decided under the old constitution or
charter of Rhode Island, which was equally lax in its definition and distri-
bution of the powers of government.

* Stocking vt. Hunt, 3 Denio, 274.

t In Quackenbush vs. Banks, 1 Denio, 128, affirmed by a divided court,
1 Coins., 129, a contrary result was arrived at; but the point has been
finally decided in Morse vs. Goold, 1 Kernan, 281.

STATUTES OF LIMITATION.

659

of the State legislatures to regulate the remedy and
modes of proceeding, in relation to past as well as to
future contracts. This power is subject only to the
restriction that it cannot be exercised so as to take
away all remedy upon the contract, or to impose upon
it new burdens and restrictions which materially impair
the value and benefit of the contract. And, accord-
ingly, it has been held to be within the undoubted
competency of the State legislatures to shorten the
period of limitation of actions, to change existing rules
of evidence, and to prescribe new rules of evidence
and judicial procedure, — alt to affect both past and
future rights of action. Such acts are held to be invalid
only when they deprive the party of all remedy, by
changing the period of limitation, or destroying the
validity of the proof on which his claim rested, so as
to render it impossible to establish his right.*
The Supreme Court of Massachusetts has said, —

If the legislature of any State were to undertake to mate a law
preventing the legal remedy upon a contract lawfully made, and bind-
ing on the party to it, there is no question that such legislature would,
by such act, exceed its legitimate powers. Such an act must neces-
sarily impair the obligation of the contract within the meaning of the
Constitution ; and the courts of law would be found, therefore, to con-
sider it as a void act of legislation, and as having no force or authority.
But to extend this principle to acts for the limitation of suits at law
which, when enacted with a due discretion, and a reasonable time
allowed for the commencement of suits on existing demands, are whole-
some and useful regulations, would be extravagant. It must be left to
the discretion of the legislature to fix the proper limitations. In the

* Bronson vs. Kinzie, 1 How. 311 ; M'Cracken vs. Hayward, 2 How.
608 ; Jackson vs. Lamphire, 3 Peters, 290 ; Briscoe vs. Anketell, 28 MisB.,
361. See, also, to what is said as to statutes of limitation and usury in
Sturges vs. Crowninshield, 4 Wheat., 206.

660 STATUTES OF LIMITATION.

case under consideration, the term of a year is not, in our opinion, un-
reasonably short. But a true construction of the statute in question
will not extend it to passing actions on bonds where, the escape having
taken place before the passing of the act, a right of action had vested
in the creditor.*

The following case exhibits, in a strong light, the
power which our legislatures wield by this concession
to them of an almost unlimited authority over statutes
of limitation. "Where the State of Mississippi passed
a law, declaring that all judgments which had been
obtained in any other State, prior to the passage of the
law, sliould be barred, imless suit was brought upon the
judgment within two years after the passage of the stat-
ute,— the act was held within the power of the State,
even in a case where the person against whom the judg-
ment was given became a citizen of the State upon the
day on which he was sued ; and although the Supreme
, Court, in deciding the case, admitted that the statute of
Mississippi invited to the State and protected abscond-
ing debtors from other States, by refusing the creditor
a remedy in his judgment, which was in full force in
the State when the debtor absconded.f

In regard to recording acts, an interesting question
has arisen. By a law passed in 1813 (April 12, 1813,
1 K. L. 369), the State of New York enacted that all
deeds made after February, 1799, of lands in certain
counties specified, should be recorded, and that every
such deed should be adjudged fraudulent and void as

* Call vs. Hagger et al, 8 Mass. 429. See, also, Holyoke vs. Haskins, 6
Pick. 26; Smith vs. Morrison, 22 Pick. 431.

t Bank of State of Alabama vs. Dalton, 9 Howard, 527. It is worthy
of observation, however, that the clause in regard to obligation of contracts
does not appear to have been discussed.

RECORDING ACTS. 661

against any subsequent hona-flde purchaser or mort-
gagee, unless it should be recorded before the record-
ing of the deed or conveyance under which such
subsequent purchaser or mortgagee should claim. In
& case arising under this act, Mr. Chancellor Walworth
held that it could not be construed retrospectively;
that if it were, it would destroy or materially impair a
vested right under a previous contract, and be inop-
erative and void. On appeal, the decree was affirmed.
Mr, Senator Verplanck, in delivering the decision of
the Court of Errors, went further, and said that, even
if prospective, the act was void as to all previously
executed deeds, as impairing the obligation of con-
tracts ; that the effect of the statute would be to enact
that valid contracts should be held invalid, unless a
further legal sanction were added ; and that thus the
contract was impaired.*

But this does not seem to be the opinion of the
Supreme Court of the United States. In March, lYOY,
the legislature of New York passed an act to settle
disputes concerning titles to land in the county of
Onondaga, in that State, by which it was enacted that
commissioners should be appointed to hear and der
termine all disputes in regard to land titles in that
eounty ; that their decision or award should be final
and conclusive, unless the parties^ deeming themselves
;aggrieved should file a dissent within two years, and
within three years bring suit in J;he ordinary courts of
the State. A controversy arose as to lands in this
county, granted under letters patent by the State of New
York, in 1790, to John Cornelius, — one party claim-

* Varick vs. Briggs, 6 Paige, 832 ; Varick's Exrs. vs. Briggs, 22 Wend.
S46.

662 RECORDING ACTS.

ing under a deed from the original patentee, dated the
Itth of January, 1T84, and recorded on the 25th of
April, 1*795 ; the other party claiming under a deed
dated the 23d June, 1T84, and recorded the 3d of
April, 1Y95. The commissioners, in December, 1799,
decided in favor of the second deed, which, as it
appears, was subsequent in point of date, but prior in
point of record. No dissent was filed ; and suit was
brought by the heir of the grantee in the first deed,
in May, 1825. It was contended for the plaintiff, that
the patent from the State created a contract with the
grantee, his heirs and assigns, that they should enjoy
the land therein granted free from any legislative regu-
lations to be made in violation of the State constitu-
tion ; that the act in question did violate some of the
provisions of that constitution; that it consequently
violated the obligation of a contract; and that the
award of the commissioners was a nullity. But the
Supreme Court of the United States held otherwise.
They said that the patent contained no covenant to do,
or not to do, any farther act in relation to the land,
and they could not create one by implication; they
jaid that the State had not, by the act, impaired the
force of the grant ; that it did not attempt to take the
land from the assigns of the original patentee and give
it to one not claiming under him, nor did the award
produce that effect ; and they proceeded to hold this

language, —

Presuming that the laws of New York authorized a soldier
to convey his bounty land before recovering a patent, and that,
at the date of the deeds, there was no law compelling the granter&
to record them, they would take priority from their date. This
is the legal result of the deeds; but there is no contract on the
part of the State that the priority of title shall depend solely on

CHANGE OF CONSTITUTIONS. 663

the principles of the common law, or that the State shall pass no law
imposing on a grantee the performance of acts which were not neces-
sary to the legal operation of his deed at the time.it was delivered. It
is within the undoubted power of State legislatures to pass recording
acts, by which the elder grantee shall be postponed to a younger if the
prior deed is not recorded within the limited time; and the power is
the same, whether the deed is dated before or after the passage of the
recording act. Though the effect of such a law is to render the prior
deed fraudulent and void against a subsequent purchaser, it is not a
law impairing the obligation of contracts. Such, too, is the power to
pass acts of limitations, and their effect. Seasons of sound policy have
led to the general adoption of laws of both descriptions, and their
validity cannot be questioned. The time and manner of their opera-
tion, the exceptions to them, and the acts from which the time limited
shall begin to run, will generally depend on the sound discretion of the
legislature, according to the nature of the title, the situation of the
country, and the emergency which leads to their enactment. Cases "
may occur where the provisions of a law on those subjects maybe so
unreasonable as to amount to a denial of a right and call for the inter-
position of the court ; but the present is not one.*

It results from the general nature of the Federal
government, and its supremacy over the States within
its legitimate sphere, that a contract can no more be
impaired by the change of a State constitution than by
a State law. In 1845, the State of Ohio had chartered
a bank, and stipulated the amount of taxes payable.
In 1851, the people of that State adopted a new con-
stitution, declaring a new mode by which taxes therein
be levied on banks ; and, in 1852, the legislature passed
an act, in conformity to that constitution, levying taxes
on the bank to a greater amount than as stipulated in
the act of 1845, and on a different principle. It was
held, that the act of 1852 was void as impairing the
obligation of contracts; that it derived no validity

* Jackson m. Lamphire, 3 Peters' B.,' p. 289.

664 EMINENT DOMAIN,

from the fact of being ia conformity with the State
constitution of 1851*

We are still to consider the effect of the constitu-
tional clause with reference to the right of eminent
domain. The important question, whether the clause
in regard to the inviolability of contracts places State
charters beyond the reach of the exercise of the sove-
reign control over all property with reference to public
convenience and necessity, first came before the Su-
preme Court in a case where a bridge, held by an
incorporated company under a charter from the State -
of Vermont, was occupied and taken as part of a
public road, under a law of that State: the court
held that the act was not unconstitutional ; that the
charter was a contract, but, like all other property,
hela by tenure from the State, and, also like all other
property, held subject to the right of eminent domain ;
and that no distinction could be drawn between the
franchises of a corporation and property held by an
individualf The doctrine has been since affirmed;

* Dodge vs. Woolsey, 18 Howard, 331 ; and, also. State Bank of Ohio
vs. Knoop, 16 Howard, 869. See the former case, also, for one of the
most recent cases expounding the rights and duties of the Supreme Court
of the United States, as an ultimate tribunal to determine whether laws
enacted by Congress, or by State legislatures, and the decisions of State
courts, are in conflict with the Constitution of the United States.

t West River Bridge Co. i>a. Dix et al, 6 How. p. 607, by Daniels, J.
See, in this case, Mr. Justice Woodbury's opinion. It contains the suggestion
of some important — if practicable — qualifications in regard to the exercise
of the power of eminent domain. He says, p. 541, in regard to the com-
parative protection of private rights here and in England, "Notwithstand-
ing the theoretical omnipotence of Parliament, private rights and contracts
have been, in these particulars about compensation and necessity for public
use, as much respected in England as here." Vide ante, p. 524, in note.

The definition of the power of eminent domain given by the court,
substantially agrees with that which I have suggested ante, pp. 500 and 504.
"In every political sovereign community there inheres necessarily the

EMINENT DOMAIN. 665

and, in a recent case, it was again decided that the grant
of a franchise is of no higher order, and confers no more
sacred title, than a grant of land to an individual ; and,
when the public necessities require it, the one as well
as the other may be taken for public purposes on
making suitable compensation ; nor does such an exer-
cise of the right of general domain interfere with the
inviolability of contracts.*

This important rule has been repeatedly laid down
also in the State courts. From the fact that a franchise
is property, it necessarily results that any contract in
a charter may be impaired provided compensation is
secured.f In Massachusetts, it has been decided that
an act of the legislature, in the exercise of the right of

* -

right and the daty of guarding its own existence, and of protecting and pro-
moting the interests and welfare of the community at large. This power ,
and this duty are to be exerted not only in the highest acts of soTereignty,
and in the external relations of governments ; they reach and comprehend,
likewise, the interior polity and relations of social life, which should be reg-
ulated with reference to the advantage of the whole society. This power,
denominated the eminent domain of the State, is, as its name imports, para-
mount to all private rights vested under the government ; and these last are,
by necessary implication, held in subordination to this power, and must
yield, in every instance, to its proper exercise." — Page 532.

The three cases — of the Dartmouth College, declaring State charters to
be contracts within the protection of the Constitution; of the Charles River
Bridge, declaring the principles of interpretation applicable to such acts ;
and, finally, of the West River Bridge, declaring corporate franchises to be
subject to the power of eminent domain — are all cases of extreme interest,
and cannot be too often consulted as fixing some of the most important
landmarks of legislative power and providing some of the most valuable
guarantees of private right.

* The Richmond R. R. Co. vs. The Louisa R. R. Co., 13 Howard, 82.. s^
t Piscataqua Bridge ns. N. H. Bridge, 7 N. H. 65. The principle of the
Piscataqua Bridge Case is affirmed in Barber m. Andover, 8 N. H. 398 ;
and in Backus «». Lebanon, 11 N. H. 19, the power of the State, by virtue
of its eminent domain, over corporations, even to the extent of taking their
franchises, was declared. The Enfield Toll Bridge Co. vs. The Hartford and
N. H. R. R. Co. 17 Conn. 40.

666 EETROSPECTIVE LEGISLATION.

eminent domain, appropriating to public use, on pay-
ment of a full equivalent, property or rights in the
nature of property granted by the State to individuals,
is not a law impairing the obligation of contracts
within the Constitution of the United States. And
it was intimated that the power would extend to take
the entire franchises of a corporation.*

Before quitting this branch of our subject, it may
be well to notice some cases of alleged infringement
of vested rights, where the constitutional objection
has been taken, but where it has not been sustained.

By the original statute law of Connecticut, to render
a marriage valid it was necessary that it should be
solemnized by a clergyman "ordained and settled in
the work of the ministry ;" and all marriages not so
soleffinized were void. Difficulties arising under the
.act, another statute was passed, in 1820, declaring that
all marriages which had theretofore been performed
and celebrated by a minister authorized to celebrate
marriages according to the forms and usages of any
religious society or denomination, should be deemed
good and valid to all intents and purposes whatever.
A marriage having been solemnized, in 1805, by a
clergyman ordained but not settled within the prior
law, its validity came up, on a question of pauper set-
tlement, in 1821 ; and it was held that the act of 1820
was valid, and that, though the marriage was void
when solemnized, the subsequent statute rendered it

* The Boston Water-Power Oo. vs. The Boston and Worcester R. R.
Co., 23 Pick. 361. The general doctrine of the Charles River Bridge Case,
that any ambiguity in the terms of the contract must operate against the
corporation and in favor of the public, and that the corporation can claim
nothing but what is clearly given by the act, is affirmed and applied in the
Richmond, &c., R. R. Co. m. The Louisa R. R. Co., 13 How. 81.

RETROSPECTIVE LEGISLATION. 667

good; Hosmer, J., said there was no pretense that
it was a law which impaired the obligation of con-
tracts, and that the legislature had the power to pass
retrospective laws to accomplish just and proper ends*

* He said, " The interposition of the legislature to pass retrospective laws
promotive of justice and the general good, is familiar. The judgments of
courts, when by accident a term has fallen through, have been established ;
the doings of a committee and conservator, not strictly legal, have been
confirmed ; and other laws have been passed, all affecting vested rights ;
but, being inoontrovertibly just, no disapprobation has ever been expressed.

" In result, I feel myself authorized to assert that the question, where no
constitutional objection exists^ whether the judiciary may declare a retro-
spective law operating on vested rights to be void, is undetermined ; that
men of profound' learning and exalted talents have greatly differed on the
subject ; and that it is an inquiry beset with difficulty.

"With those judges who assert the omnipotence of the legislature in all
cases where the constitution has not interposed an explicit restraint, I can-
not agree. Should there exist — what I know is not only an incredible sup-
position, but a most remote improbability — a case of the direct infraction of
vested rights too palpable to be questioned and too unjust to admit of vin-
dication, I could not avoid considering it as a violation of the social compact
and within the control of the judiciary. If, for example, a law were made,
without any cause, to deprive a person of his property, or to subject him to
imprisonment, who would not question its legality, and who would aid-
in carrying it into effect?

" On the other hand, I cannot harmonize with those who deny the power
of the legislature to make laws, in any case, which, with entire justice,
operate on antecedent legal rights. A retrospective law may be just and
reasonable ; and the right of the legislature to enact one of this description
I am not speculatist enough to question. I beUeve no person will deny that
the exercise of legislative authoriiy, merely, and without further conse-
quences, to confirm marriages not duly celebrated, is valid, although clearly
retrospective and manifestly operating on the rights of individuals. And
as every law intrinsically implies an opinion of the legislature that they had
authority to pass it, and that it is just and reasonable on all occasions that
may arise, it is proper to demand that the supposed unjust violation of legal
rights by statute should be established with great clearness and certainty.
If a judge of the Supreme Court of the United States was authorized in
th< f-ssertion (Oalder et vx. vs. Bull et ux. 3 Dallas, 386, 395) that he
would not decide any law to be void except in a very clear case, with equal
propriety may other judges adopt the same resolution in respect of laws

668 RETROSPECTIVE LEaiSLATIOK.

An execution was levied on land in the State of
Connecticut, in December, 1823. The law, as it then
stood, required land taken on execution to be appraised
by three freeholders of the town ; and if the parties
neglected, or could not agree, the appraisers were to
be appointed by any justice of the town. In the case
in question, the sheriff omitted to certify, in his return,
the fact that the justice who made the appointment
resided in the town ; and, as the return to the levy was
the only evidence of title, the levy was fatally defective
and void, and* the plaintiff acquired no title. These
facts appearing in the inferior court, pending the

which cannot be brought to the definite test of a written constitution, but
which, as violations of the social compact, are claimed to be unwarrantable.

" The act of May, 1820, was intended to quiet controversy and promote
the public tranquillity. Many marriages had been celebrated, as was be-
lieved, according to the prescriptions of the statute. On a close investiga-
tion of the subject, under the prompting scrutiny of interest, it was made
to appear that there had been an honest misconstruction of the law; that
many unions which were considered as matrimonial were really meretri-
. cious ; and that the settlement of children in great numbers was not in the
towns of which their fathers were inhabitants, but in different places. To
furnish a remedy co-extensive with the mischief, the legislature have passed
an act confirming the matrimonial engagements supposed to have been
formed, and giving to them validity, as if the existing law had precisely
been observed. The act intrinsically imports, that the legislature consid-
ered the law of May, 1820, to be conformable to justice and within the
sphere of their authority. It was no violation of the constitution ; it was
not a novelty ; such exercises of power having been frequent and the sub-
ject of universal acquiescence, and no injustice can arise from having given
legal efficacy to voluntary engagements and from accompanying them with
the consequences which they always impart. The judiciary, to declare the
law in question void, must first recognize the principle that every retro-
spective act, however just and wise, is of no validity ; and that, for the cor-
rection of every deviation of the legislature from absolute right, theirs is the
supremacy. Impressed with the opinion that this is beyond the confines of
judicial authority, I am satisfied with the decision at the circuit, and would
not advise a new trial." — Goshen vs. Stonington, 4 Conn. R. p. 226.

RETEOSPECTIVE LEGISLATION. 669

application to the court above for a new trial a law
was passed, in 1825, to ratify and establish executions
thus defectively executed or returned. It was objected
that the act was unconstitutional, because it impaired
the obligation of contracts ; but it was said that, between
the parties, there never was any contract relative to the
land ; that the levy of the execution was altogether m
invitvm, and that the objection pointed at an object
which had no existence ; and the statute was held
valid on the ground that, although retrospective, it was
a just and reasonable law*

Another case has presented itself, in the same State,
in relation to an act, passed in 1826, declaring that no
levy of an execution theretofore made should be

* The court said, "In Goshen vs. Stonington, 4 Conn. Rep. 209, it was
adjudged by this court that a retrospective law impairing vested rights, if
it be not clearly imjusi, is entitled to obedience ; and that to disregard an
act of the legislature, unless it be inequitable, oppressive, and in violation of
the social compact, is not within the confines of judicial authority. I dis-
cern nothing of this character in the law under consideration. It is the
ordinary exercise of legislative authority, in similar cases sometimes requi-
site to prevent grtat injustice and public inconvenience. In the case before
us, the error arose from slight and unobserved alterations at the late revision
of the law relative to the levy of executions. The wide-spread mischief to
officers who had faithfully performed their duty according to their best
knowledge, and the rights of numerous creditors whose debts were in jeop-
ardy, furnished strong political and equitable reasons for the interposition
of the legislature. On the other hand, to the mistaken levy of the execu-
tion the debtors had no reasonable objection; and creditors and purchasers,
always acting with full information derived from the records of land titles,
could not justly complain that; they were not permitted to wrench from
those who had levied their executions defectively the properly to which they
had, at least, an equitable title. The real question to be determined is
merely this : Whether every retrospective law acting on vested rights is
invalid. If it is not, there are few cases the equity of which more impe-
riously demands legislative interposition than those within the purview of
the late law." Mather vs. Chapman, 6 Conn. Rep. 58 ; S. P. Norton m.
Pettibone, 7 Conn. 319 ; and Booth vs. Booth, 7 Conn. 351.

670 VALUE OF THE CLAUSE.

deemed void by reason of defects which, in the then
state of the laws, were fatal. In a case where a levy
had been made, an action brought by the execution
creditor, trial had, and the levy held bad at the cir-
cuit before the confirmatory act passed, the Supreme
Court held that the act was valid and that it made the
levy good, — that though retrospective, it was valid
because just*

We have thus terminated our consideration of this
important clause of the -Constitution. Its value has cer-
tainly been very great ; but if we observe its practical
operation in connection with that other fundamental
guarantee of our rights, that private property shall
not be taken without compensation, some deductions
will perhaps have to be made from the commendations

* Hosmer, C. J., said, "Every act of the legislature intrinsically implies
an opinion that the legislative body had a right to enact it. And the judi-
ciary will discover sufficient promptitude if it determine a law to be invalid
that operates by retrospection unjustly on person or property. This princi-
ple steers a correct medium, admitting the sovereignty of the legislature to
do justice by an act unquestioned by the court of law, while it equally
repels the supposed uncontrollable omnipotence of the same body to require
the observance of an unjust law in subversion of fundamental rights and in
opposition to the social compact. The question is not free from dif-
ficulty; but unless the doctrine sanctioned by the court be embraced, this
extreme would be resorted to, that every retrospective law, however just or
wise, affecting the property of an individual, must be considered as of no
validity. And thus, in cases the most equitable and salutary, the judiciary
must deny the legislative right to pass a law oppressive to no one and pro-
motive of entire justice, and this upon the authority of general principles.
I am not speculatist enough to yield my sanction to this course of proceed-
ing. Beach es. Walker, 6 Oonn. 198.

" Under the power to maintain an army and navy, Congress may author-
ize infants to make a valid contract of enlistment ; and an indentured infant,
bound out by the managers of an alms-house as an apprentice, may enlist
with the consent of the master, even although the consent of the manager
is not obtained." Commonwealth vs. Murray, 4 Binn. 487 ; Commonwealth
vs. Barker, 6 Binn. 428.

VESTED RIGHTS. 671

which we bestow on our system of constitutional law.
In the one case, by a very rigid and technical inter-
pretation of the word to take^ and in the other by a
most subtle and refined distinction between the contract
and its remedy, it is difficult to deny that the pro-
tection intended to be given by both these provisions
has been seriously diminished.

In truth, the very protection sought to be afforded
to private- rights by our system of constitutional limi-
tations in some sense diminishes their security; the
interests that elsewhere are guarded by a general sense
of the importance of refraining from all interference
with individual rights, here seek the protection of pre-
cise texts of written law. It is not a protection of
principle, so much as of authority ; and the exercise of
authority always, and eminently with us, excites jealousy
and provokes resistance. But this aspect of the case
opens a wide field for discussion, involving the peculiar
character of our complex system of government, and
the wants and necessities of a new country.

Vested Mights.^ — Having thus surveyed the great
field of constitutional law, and considered the opera-
tion and effect of the most prominent clauses in
the fundamental law of the Federal and State govern-
ments, devised to operate as checks on legislative

* This phrase is one of most frequent occurrence. In a case in
Maine, it was said, "The act is unconstitutional and cannot be carried into
effect, because such operation would impair and destroy vested rights, and
deprive the owners of real estate and of their titles thereto, by changing the
principles and the nature of those facts by means of which those titles had
existed and been preserved to them in safety." Proprietors Ken Purchase
vs. Laboree, 2 Greenleaf, 295.

"It cannot be denied that the legislature possesses the power to take
away by statute what was given by statute, except vested rights." The Peo-
ple vs. Livingston, per Savage, 0. J., 6 Wend., 531.

672 VESTED RIGHTS.

power, and to act as guarantees of private property,
we are better prepared, before taking final leave of
our subject, to approacli this branch of it in detail,
and to form some general conclusions as to the rules
by whicb and the extent to which private rights
are secured under our form of government from gov-
ernmental invasion — in other words, to what extent
vested rights are protected. This subject, i. e. the
protection of vested rights, as they are called, has been
repeatedly referred to in the progress of this work,*
and the difficulty of laying down any precise rule in
regard to them pointed out.f Its importance, too, has

" Ante, pp. 177 and 193.

t In England, as a matter of practice, vested rights are very sedulously
protected ; as a matter of theory, their doctrine of Parliamentary suprem-
acy leaves little room for the judicial discussion of theln. The most promi-
nent case, perhaps, of Parliamentary examination of the question, occurs
in the great dehate on Fox's East India Bill. Mr. Burke said, —

" The rights of men, that is to say, the natural rights of mankind, are
indeed sacred things ; and if any public measure is proved mischievously
to affect them, the objection ought to be fatal to that measure, even if no
charter at all could be set up against it. If these natural rights are further
afiSrmed and declared by express covenants ; if they are clearly defined and
secured agaiijst chicane, against power and authority, by written instru-
ments and positive engagements, they are in a still better condition : they
partake not only of the sanctity of the object so secured, but of that solemn
public faith itself which secures an object of such importance.

"Indeed, this formal recognition by- the sovereign power, of an original
right in the subject, can never be subverted but by rooting up the
radical principles of government, and even of society itself. The charters
which we call by distinction great, are public instruments of this nature:
I mean the charters of King John and King Henry the Third. The things
secured by these instruments may, without any deceitful ambiguity, be
very fitly called the chartered rights of men.

" These charters have made the very name of a charter dear to the heart
of every Englishman. But, Sir, there may be, and there are, charters not
only different in nature, but formed on principles the very reverse of those
of the great charter. Of this kind is the charter of the East India Com-
pany. Magna chairta is a charter to restrain power, and to destroy monop-
oly. The East India charter is a charter to establish monopoly and to
create power. Political power and commercial monopoly are not the rights

VESTED EIGHTS. 673

been already repeatedly insisted on. Indeed, it is
manifest that in both the framework and the daily
operation of our government, this is the great practi-
cal object songht to be obtained. Some governments
may chiefly seek to guard against the turbulence of
the poorer classes ; some to repress the oligarchical
insolence of a privileged class ; some to prevent the union
of the powers of the Church and of the State ; some
to check the authority of the sovereign. These points
were certainly not overlooked by the founders of our
gavernment, — the heroes and leaders of a popular
revolution ; but it will hardly be denied that with us
as a practical question, the legislative power is the
most formidable, nor that our system chiefly aims to
guard the citizen against the legislature, — ^to pro-
tect him against the power of a majority taking the
shape of unjust law. And it is to be observed,
also, that the unjust action of government with us
is most likely to take the shape of attacks upon rights
of property. All government, indeed, resolves itself
into the protection of life, liberty, and property. Life
and liberty in our fortunate condition are, however,
little likely to be injuriously affected by the action of
the body politic. Property is very differently situ-
ated. It is therefore of the highest moment, if pos-
sible, to obtain a clear idea as to the nature and extent
of the protections which guard our rights of property

of men ; and the rights of them derived from charters, it is fallacious and
sophistical to call ' the chartered rights of men.'

"These chartered rights (to speak of such charters and of their effects
in terms of the greatest possible moderation) do at least suspend the natu-
ral rights of mankind at large, and in their very frame and constitution are
liable to fall into a direct violation of them." — Burhe's Speech on Fox's Hast
India Bill.

674 TAXATION.

from attack under color of law, — to determine, in other
words, what is a vested o^ight.

The fundamental guards and guarantees of this class
are to be found first in the great constitutional restric-
tions, whether of the Federal or State charters.

Private property is not to be taken without compen-
sation.

No law is to be passed impairing the obligation of
contracts.

Property is not to be taken without due process of
law ; and every individual right is placed under the
protection of the law of the land.

In those States where they exist, the clauses intended
to secure uniformity of taxation should be added. The
questions connected with taxation are, indeed, every
day becoming of more and more pressing importance.
The taxing authority is after all but one arm of that
tremendous power of eminent domain, at the foot of
which, so far as uncontrolled, every citizen lies pros-
trate; and the consequences of the earlier decisions
leaving this engine in the hands of unrestrained legis-
lative authority, seem to have awakened that conserv-
ative jealousy of power which never lies long dormant
in the breast of our people. Certain it is, that the
more recent constitutions and the more recent judicial
decisions, show a disposition not to abandon the tax-
ing power to the often ill-regulated and despotic will
of our fluctuating and hasty legislation.*

* In Missouri, while conceding the uncontrolled power of taxation to
the legislature, subject only to the restriction contained in the constitution
of that State, thatj"all property subject to taxation shall be taxed in pro-
portion to its value," and conceding also the right to delegate the power to
subordinate agencies, such as municipal corporations, they have denied
the power arbitrarily to tax the property of one citizen and give it to ano-
ther ; and on this ground have held that the legislature cannot authorize a

CONSTITUTIONAL SAFEGUARDS. 675

With this qualification, the great provisions referred
to, i. e. compensation for private property taken for
public uses, sanctity of contracts, and law of the land,
seem to furnish the principal guarantees of our lib-
erty and rights. The other provisions as to trial by
jury, titles of bills, searches and seizures, constitutional
majorities, and the like, which we have considered,
relate rather to modes and details than to principles.
The above provisions are those which are to be found
everywhere, and on which chiefly, so far as written
law goes, our rights depend.

These three constitutional checks, then, guard pri-
vate property from the invasions of the State, protect
contracts from violation under guise of law, and finally,
insure to every person impleaded, attacked, or charged,
the invaluable right of systematic procedure, evidence,
and judicial trial.

All these clauses have been expounded, and in some
cases, restricted by construction and explanation; and
the nature of those restrictions we have considered and
discussed. In addition to these, our attention has also

municipal corporation to tax for its own local purposes land lying beyond
the corporation limits. Wells i)s. City of Weston, 22 Miss., p. 385.

• As to the difficulty of drawing a line between a legitimate exercise of
the taxing power, and the arbitrary seizure of the property of an individ-
ual under the mask of this power, see Oheany !)s. Hooser, 9 Ben Monroe,
389.

See also on this point. City of Covington vs. Southgate, 15 Ben Monroe
Law and Equity R., 491, where held that though the legislature has the
power constitutionally to extend the limits of towns and cities, and include
adjacent agricultural lands without the consent of the owner, yet the town
or city cannot tax such property as town property and subject it to the
city burthens without the consent of the owner, until it shall be laid off into
lots and used as town property. This decision was made distmctly on the
ground that the act in question was an invasion of private property con-
trary to the principles of our constitutional law, under color of the power
of taxation.

676 LEGISLATIVE POWER.

been called to one other check on the vicious action' of
legislative bodies, not derived from express provision
but from the division of political power growing out
of the general structure of our system ; this is, that
the legislature can do no act which is not a law.

This idea is sometimes conveyed in the phrase (the
meaning of which we have elsewhere considered),*
that the legislature can do no judicial act ; and it is
almost identical with the constitutional declaration
which insures to all persons attached or charged, the
protection of the law of the land.

If, as we have seen, by the right to the law of the
land is meant the right to judicial procedure, investi-
gation, and determination, whenever life, liberty, or
property is attacked ; and if it be conceded, as it must
be, that our legislatures are by our fundamental law
prohibited from doing any judicial acts, — then it would
seem, as far as the present question is concerned, that
the rights of the citizen are as perfectly protected by
the guarantee of the law of the land, as they can be
by a peremptory distribution of power. In fact, the
special clause works a division of power. But these
are rather speculative questions ; and the great idea of
the protiection intended to be conferred by our division
of powers into executive, legislative, and judicial, is
perhaps best expressed by the proposition just stated,
that the work of the legislature is to be confined to
the passage of laws, as distinguished from judicial and
executive acts. And this brings us to the precise ques-
tion of vested rights ; for the prohibition, so far as it
exists, of retrospective acts, whether directf or in the
shape of repealing statutes,^ and the non-interference,

* Ante, pp. 163 and 167. t Page 198. f Page 135.

LEGISLATIVE POWER. 677

SO far as it is enforced, with vested rights, in cases
which do not come within the prohibition of the posi-
tive clauses in our constitutions. State or Federal, in
regard to private property and contracts, will be found
to be summed up in the idea that the legislature can
only make laws, or legislative enactments, as contra-
distinguished from judicial sentences and decrees.

If we renounce, as I think we must,* the idea that
the validity of a law can be determined by the judi-
ciary on abstract notions of justice and right ; if we
admit, as we must, that the denial of the right to make
retrospective laws cannot, as a universal proposition,
be maintained, — then outside of the cases depending on
positive constitutional inhibitions, no other restriction
can be imposed on legislative action except such as is
derived from the idea, perhaps, as we have said,
expressed with equal clearness in the guarantee of the
law of the land, that legislative power only is granted
to it, and that vested rights of property can only be
interfered with by it so far as is competent to be
done by the enactment of laws.\

This, however, is merely a circuitous statement of
the proposition that vested rights are sacred. Let us,
therefore, sum up the result of our researches, and

* Ante, ch. v., p. 180, and p. 187.

t The 47th letter of the Federalist discusses the subject of the division
of power between legislative, executive, and judicial, and shows that it has
never been strictly carried out in England, or in any of the States of the
Union, any more than in the Federal government itself.

The Supreme Court of New York has denied the right of the legislature
to determine the rights of parties to land, either by themselves or commis-
sioners. " If they attempted this, they clearly were assuming powers which
belonged to another branch of the government. If they converted them-
selves into a court of law, their acts in that capacity were unauthorized by
the Constitution, and of course not binding on the parties." Jackson m.
Frost, 5 Co wen, 346.

678 PEIVATE AND PUBLIC ACTS.

state as accurately as we can what direct interference
witli private rights and interests of property can and
cannot be accomplished by laws.

The difficulty of this subject fully equals its import-
ance : on the one hand, any interference with rights
acquired under existing laws is a positive evil and
injury ; while on the other, to deny to the legisla-
ture power to make such changes as the social or polit-
ical condition requires, would reduce us to' a state of
Chinese stagnation and immobility, and would be
absurdly inconsistent with the condition of our coun-
try and the character of our people. These inherent
difficulties have led to frequent contradiction ; and
there is perhaps no subject of equal importance on
which there are greater incongruities than on the
point, what rights are vested so as to be beyond the
reach of legislative action, and what are within its
proper and regular control.

It will be well to recall the attention of the reader
more particularly to the branches of this subject which
we have already incidentally discussed.

At the outset we are to keep in mind the distinction
between private acts and public acts, and the general
rule,* that in regard to the former, they only affect
those expressly named, and that they do not conclude
third parties or strangers. But our observations now
relate to public acts.f

* Ante, p. 34.

t In 1774, the interest of George Croghan in certain lands in the State
of New York was sold, under sheriff's sale, to Thomas Jones. In 1779
Thomas Jones was attainted. In 1788, a private act was passed authorizing
the surveyor general to sell the lands so purchased by Jones, and to pay the
money upon the sheriff's sales which had been arrested by the war. The
Supreme Court decided that nothing passed by the sheriff's sale to Jones,
on the ground that the provisions of the statute of frauds had not been com-

PEIVATE AND PUBLIC ACTS. 679

Before proceeding, however, we may also notice the
often-declared principle of the common law, that the
division of an empire creates no forfeiture of previ-
ously vested rights of property.*

With these preliminary suggestions, we may remind
the reader that we have already considered a large
class of cases in which it has been decided that the
legislature has no power to perform a judicial act.f
So, acts granting appeals after the time allowed by law,
and, in many other cases, deciding on questions of pri-
vate contested rights, have been held void.

"We have, also, already seen that in some cases the
legislature is competent, by the operation of a repeal-

plied with. It further decided, that the act of 1788, and sales under it, had
no effect upon the rights of the heirs of Oroghan. They said " It is a private
act, and liable to the rules of construction applicable to such statutes. In
England a general saving clause is now always added, at the close of every
private act, of the rights and interests of all persons except those whose
consent is obtained ; and before this practice of inserting the saving clause,
it was held that a private act did not bind strangers. 2 Black. Gom. 345 ;
4 Cruise Big. 518. In Boswell's Case, 26 and 26 Eliz., cited in Barrington's
Case, 8 Co. 138 a, it was resolved in the Court of Wards, that when an act of
Parliament maketh any conveyance good against the king or other per-
son certain, it should not take away the right of any other." Although there
be not any saving in the act and although the constitution of New York
then had no clause as to private property, it was said that if this -act had
declared the sale to be a bar to the claim of Croghan, a very seinous ques-
tion would have arisen on the validity of a statute taking away private prop-
erty without the consent of the owner, and without any public object or
any just compensation. Jackson ®«. Catlin, 2 J. R. 248 ; affirmed in error,
•8 J. R. 520.

In Jackson m. Cory, 8 J. R. 888, it is said, "that to take away private
property, even for public uses, without making just compensation, is against
the fundamental principles of free government. And this limitation is to be
found, as an express provision, in the Constitution of the United States."

* Hilour's Case, 7 Rep. 27 ; Kelly «s. Harrison, 2 Johns. Cases, 29 ;
Jackson m. Lunn, 8 Johns. Cases, 109 ; Terrett m. Taylor, 9 Oranch, 50.

t Ante, p. 169.

6B0 RETROSPECTIVE LAWS.

ing act, to put an end to pending proceedings, and to
take away rights under existing laws, as that of a
mortgage debtor to redeem, and to put an end to pend-
ing suits where a good right of action or a valid de-
mand existed ;* but that in others, both in England
and in this country, a disposition has been shown to
prevent this arbitrary interference with the rights of
parties, so far as existing rights of action were con-
cerned.f

We have also considered, J under the head of retro-
spective laws and the retroactive effect of laws,§ a
great class of decisions where, in some cases, it has
been held competent for the legislature to interfere
with vested rights of property, and where, in others,
it has been denied!.

* Ante, p. 131.

When the revised statutes of New York, of 1828, went into opera-
tion, the fifth section of the act repealing previous statutory provisions
conflicting with them, used this language: "The repeal of any statutory
provision by this act shall not affect any act done, or right accrued or es-
tablished," &c. ; and it was held that, where a junior creditor's right to
redeem was acquired after the revised statutes, that right must be presented
and prdsecuted under the provisions of the revised statutes, and not accord-
ing to the antecedent legislation, — on the ground that it related merely to the
remedy, over which the legislature had power. The People m. Livingston,
6 Wend. 527. See, in this case, the different phraseology of various repeal-
ing acts commented on. "It will not be denied, I presume," says Savage,
J., "that it is competent for the legislature to repeal any act upon which
a suit has been brought ; and, if the repeal is absolute, such suit is at an
end." The People m Livingston, 6 Wend. 530.

t Ante, p. 135.

X Ante, p. 198 and p. 406.

§ Ante, pp. 667 et seq.

\ At common law, improvements made and annexed to the freehold, by a
tenant for life or years, became a part of the estate of inheritance and went
to the reversioner. In 1843, an act was passed in Maine declaring that, in all
actions then pending or thereafter brought by reversioners against assignees
or grantees of tenants for life, such grantees or assignees could obtain com-

VESTED RIGHTS. 681

We have, also,* considered the effect of treaties on
rights of property and of action, and considered how
far they may have a retrospective effect.

I merely here refer to these cases, and proceed to
cite some others on the same general subject.

It has been repeatedly decided, that it is not com-
petent, by any act of legislation, to divest a vested
interest in real estate. Such acts are undoubtedly void,
for several reasons : they take away private property
without compensation ; they take away property with-
out any process of law; and they are not acts of a
legislative character. Thus, in New York, it has been
held, — where military bounty lands were vested, under
a particular act, in an officer or soldier, constituting
him a stock of descent, and passing the lands to his
heirs ex parte paterna, and, for default of them, then
ex parte materna^ that the legislature could not, by a
subsequent act, divest the title thus vested in one set
of heirs and pass it to another, as from the heirs ea?
pa/rte materna to those who were heirs ex parte pa-
terna but aliens, and as such incapable to take inde-
pendently of the second act.f So, where land was
vested in four heirs of a decedent, by virtue of the
treaty with Great Britain of 1'794, and, an act subse-

pensation for improvements put by the tenants for life upon the premises.
In a case where the tenant for life died in 1841, the Supreme Court held
that the rights of the reversioners was clearly vested ; that the improve-
ments made by the person in possession for life became incorporated into
the reversioner's estate on the decease of the tenant; and that the act could
not have any retrospective operation, as such interpretation would bring it
in direct conflict with the provisions of the State constitution in regard to
the enjoyment of property. Cons. art. iii. § 1, 2, art. vi. § 1, art. iv. § 1,
art. i. § 31 ; Austin vs. Stevens, 24 Maine, 525.

* Ante, p. 449.

t Jackson ex dem. M'Cloughry us. Lyon, 9 Cowen, 664.

682 VESTED RIGHTS.

quently passed giving it to one of sucli heirs, it was
treated as inoperative and void.* So, an act vesting
the title of the State in escheated lands in an alien
next of kin, after the widow of the decedent had ac-
quired a good title to the land by release from the
commissioners of the land-office under a general act,
is wholly inoperative and void.f

But even vested interests in real estate have been
deemed subject to legislative control, where the power
has been considered by the court as used for the benefit
of the parties interested. A retrospective statute, turn-
ing estates in joint tenancy into tenancies in common, has
been held, in Massachusetts, unobjectionable. There
seemed to the court no constitutional objection to the
power of the legislature to alter a tenure by substi-
tuting another tenure more beneficial to all the ten-
ants;— an absolute interest in one half being consid-
ered better than an uncertain interest in the whole.J

And what the legislature cannot do directly it can-
not effect indirectly, as by the operation of a statute
of limitations. By a Massachusetts statute, passed in
1817, no action by an heir, to recover real estate sold
by an administrator under a license from the Probate
Court, shall be sustained unless brought within five
years after the delivery of the deed. An action was
brought, in or about 1825, by an heir, to set aside a
sale made, previous to the passage of the act, under a
license, by an administrator ; and it appeared that the
letters were void for want of jurisdiction, and, that,

* Jackson vs., Wright, 4 John. R. 79.

t Englishbee w. Helmuth, 3 Conn. 296.

X Holbrook «s. Finney, 4 Mass. 566; Miller vs. Miller, 16 Mass. 59;
Burghardt vs. Turner, 12 Pick. 589. But the equity of this conversion
might depend entirely on the relative ages and constitutions of the parties.

EXEMPTIONS FROM TAXATION. 683

consequently, the sale conveyed no title. The act was
relifed on to bar the action; but the court said that' it
could only apply to sales made subsequently to its
passage ; " it could not be construed to extend to sales
made more than six years previous, without a violation
of vested rights."* And we have seen the same point
substantially decided in Pennsylvania-f So, too, we
have seen the same point determined by the courts
of Mississippi. J

So, it has been declared, that it is not in the power
of the legislature to create a debt from one person to
another, or from one corporation to another, without
the consent expressed- or implied of the party to be
charged. Thus, where a statute was passed requiring
one county of the State of Massachusetts to pay out of
its treasury money belonging to it, to another county,
the latter county having before the passage of the
statute in question, no legal right to the money, — it was
held to have no operation as law.§

Thus far it seems sufficiently clear, as a general rule,
that the legislature cannot interfere with existing
rights of property; but when we leave the subject of
vested interests in real estate or actual property in
possession, we find the subject surrounded with diffi-
culty.

We have seenf that there is no such thing as a
vested right to exemption from militia duty ; and ex-
emptions from taxation depend on the question whether

* Holyoke vs. Haskins, 5 Pick. 20 ; Same vs. Same, 9 Pick,
t Eakin va. Raub, 12 S. and Rawle, p. 889 ; ante, p. 479.
X Boyd vs. Barrenger, 23 Miss. 270; ante, p. 196.
§ Hampshire vs. Franklin, 16 Mass. 86.
II Ante, p. 559.

684 ACTS CONFIRMING INVALID MARRIAGES.

the act creating them is to be treated as a contract ;*
and rights of action of all descriptions, seem to a large
extent under the control of the legislature.

We have seen that acts have been held valid con-
firming invalid marriages,f and declaring valid invalid
ministerial proceedings, such as sheriffs' levies,;]: al-
though they directly destroyed rights previously exist-
ing, and even in litigation at the time of the passage
of the act.

The same principle has been applied in Massachu-
setts, and the general power of the legislature asserted
over all matters of general policy, without reference to
the rights of individuals.!

* Ante, pp. 558 and 630.

t Ante, p. 667. In this respect, we have English precedent on the
same side, though apparently not sustained by positive judicial decision.
The SO Geo. II. c. xxxiii., provided that the banns of matrimony should be
published in certain chapels, and that unless so published, the marriage
should be void, and the parties solemnizing it held guilty of felony.
In The King against The Inhabitants of Northfield, Douglas, 661, the King's
Bench applied this act, and declared that marriages of which the banns
were published in other chapels than those directed, were absolutely void.
But Lord Mansfield intimated that time " or the interposition of the legisla-
ture " might cure the marriages already solemnized in unauthorized chapels.
Thereupon, an act was passed, 21 Geo. III. c. xxxiii., declaring all such
marriages valid in law, and exempting the clergymen who had celebrated
them from the penalties of the 26 Geo. II. c. xxxiii.

X Ante, p. 668.

§ By a Massachusetts act of 1784, in adherence to a policy pursued
by several provincial statutes, the courts of sessions were authorized " to
fix and determine the boundaries of the jail-yards to the several jails apper-
taining." Under this act, the Court of Sessions for the county of Cumber-
land, fixed and determined the limits or bounds of the town of Portland,
exclusive of the islands, as the limits and boundaries of the jail-yard." But
the Supreme Court held, that this was an abuse of the power given by the
act ; that the practice under the former laws for half a century, was irresist-
ible evidence of the ture construction of the power of the Sessions ; that they
had no authority so to appropriate private property to public uses without
compensation ; and that they could not extend the limits of the jail-yard

ACTS CONFIRMING INVALID PKOOEEDINGS. 685

If the power of the legislature be conceded over
ministerial and administrative proceedings, the ques-
tion still remains how far they can act upon judicial
proceedings which have already taken place ; how far

beyond the land of the county, with the highways adjoining or leading to
the prison. Baxter vs. Taber, 4 Mass. 360.

Thereupon, in 1808, the legislature passed a law, and in 1809 one sup-
plementary to it, the two in snbstance declaring that the boundaries of jail-
yards theretofore fixed and determined by the Courts of Sessions, should be
valid and legal so far forth that no person found anywhere within them,
should be considered as having committed an escape. And this act was
held a valid exercise of the legislative power. The court said, The statute is
like the laws frequently made to confirm the acts ^nd doings of towns and
other corporations which have been void for some informality, and in reviv-
ing terms of courts which have failed from accident. Such acts have never
been questioned on constitutional ground. And the acts of 1808 and 1809,
were held to defeat actions brought for escapes before they were passed.
Waller vs. -Bacon, 8 Mass. 471. Patterson vs. Philbrook, 9 Mass. 151 ;
Locke us. Dane, 9 Mass. 360. The first of these cases is a short, per-euriam
opinion. The second was decided on the authority of the first, and the
third on the authority of the other tvro. The subject does not seem to
have received the attention that its importance merited.

A statute passed in Massachusetts, narrowing the gaol liberties after a
day named in the act, has been held not to be unconstitutional, as applied
to a bond given before the passage of the statute ; and the debtor having,
after the day fixed by the statute, made use of the liberties in their previous
extent, was held guilty of an escape. Reed vs. FuUum, 2 Pick. 158.

In Maine, under the acts of that State of 1836 and 1836, in actions on
jail bonds, given as security against the escape or discharge of debtors
charged in execution, the plaintiff was entitled to recover as damages the
amount of the execution costs, fees, and costs of commitment, with twenty-
five per cent, interest. And in 1838, while these acts were in force, such a
bond TV^as taken. In 1839 the legislature passed a law declaring that in
cases of this kind the plaintiff should only recover his actual damages sus-
tained. In a case in which the plaintiff relied on the prior legislation, it
was insisted that the act of 1839 was unconstitutional and void ; but the
court held that it merely controlled the remedy, as such was valid, and the
plaintiff was nonsuited. Mr. J. Shipley said, " The constitutional provision
in regard to the right of private property, does not prohibit the legislature
from passing such laws as act retrospectively not on the right of property
or obligation of the contract, but only upon the remedy which the laws

ACTS CONFIRMING INVALID PROCEEDINGS.

tliey can interfere with the regular operation of justice ;
how far particular laws can be passed where general
rules exist; how far defective proceedings can be
cured. On all these subjects many and conflicting
decisions, as we have seen, have been made. In some
cases, as we have seen, the supremacy of the legislature
has been asserted; in others, the strict division of.
powers has been enforced. Great contrariety is to be
observed ; but I think that on a careful observation of
the cases, and especially the later decisions turning on
the interpretation and application of the phrase, " the
law of the land," among which may be specially
noticed the determinations on the temperance laws, it
is obvious that there is a strong and increasing dispo-
sition on the part of the judiciary, strictly to enforce
the constitutional prohibitions, and to restrain the legis-
latures from those invasions of private rights to which
the haste of our law-jnaking operations frequently
tends.*

afford to protect or enforce them. The legislature must necessarily pos-
sess the power to determine in what manner the person or property of a
debtor shall be subjected to the demands of a creditor, and of making alter-
ations in such laws, as a change of circumstances or the public good may
require; and in doing this, one may be deprived of a right, which he has by
existing laws, to arrest the body or to attach or seize a certain description
of property, without infringing any constitutional provision. When a per-
son, by the existing laws, becomes entitled to recover a judgment, or to have
certain' real or personal estate applied to pay his debt, he is apt to regard
the privilege which the law affords him, as a vested right, not considering
that it has its foundation only in the remedy, which may be changed, and
the privilege thereby destroyed." Oriental Bank m. Preese, 18 Maine, 112 ;
see also. Potter vs. Sturdivant, 4 Greenleaf, 154.

* I may be permitted, in this note, to notice some of these cases. Some
of them have been already more briefly referred to : —

Jonathan Jenckes, a citizen of New Hampshire, died, seized of lands in
Rhode Island. The estate was insolvent. Letters were taken out in New
Hampshire, and a license granted by the judge of probate of that State, to
sell the land of the testator for the payment of debts. Under that order.

ACTS CONFIRMING INVALID PROCEEDINGS. 687

In some cases the legislature acts directly on tLe
subject-matter. But the question of the extent of
legislative power often arises in regard to statutes
which affect a right of property indirectly, by acting

the land in Rhode Island was sold in 1791. In 1792 an act was passed by
the legislature of Rhode Island, ratifying and confirming the title acquired
under the sale. In an action of ejectment brought by the heirs-at-law of
Jonathan Jenckes, against parties claiming under the sale and legislative
ratification, it appeared that the sale of lands in Rhode Island by virtue of
an order made by a New Hampshire judge of probate, was absolutely void,
and the title of the defendant depended on the validity of the confirming
statute of Rhode Island. The Supreme Court of the United States held the'
act good, and that the title passed by it, on the ground that the estate of the
heirs of Jenckes was a vested estate in fee, but that it was subject to the
payment of the debts of the decedent, and that the act divested ne vested
rights except in favor of existing Mens of paramount obligation ; that the
act was to be considered not as a judicial act, but as an exercise of legisla-
tion; that no attempt was made to impeach the sale for fraud ; and that as
to want of notice, it might well be presumed after the lapse of more than
thirty years. Wilkinson vs. Leland, 2 Peters, 627 ; see the case again, 10
Peters, 294. The court disposes of the question of judicial power very sum-
marily, sayingjthat the act purports to be a legislative resolution, and not a
decree. Itcouldhardly purport to be any thing but what it was. The ques-
tion was whether it operated like a decree. And in examining the case, it is
obvious that in arriving at its decision, the court was largely influenced by
the peculiar character of the then government of Rhode Island, which* had
had no written constitution of government, but was governed under the
Charter of Charles II., which did not attempt to divide the powers of
government, but gave to the General Assembly a very sweeping power
of making laws, under which a long series of acts was proved, showing a
frequent exercise of the same kind of authority.

In a case in Pennsylvania, it has been held that a judgment erroneously
entered on the first day of term in 1817, was cured by an act passed in
1822. The court said, this law had impaired no contract, disturbed no
veste'd right. Every confirming act is in its very nature retrospective.
Retrospective acts which only vary the remedies, divest no right, but
merely cure a defect in proceedings otherwise fair. The omission of
formalities which do not diminish existing obligations contrary to the
situation when entered into and when prosecuted, is consistent with every
principle of natural justice. Underwood vs. Lilly, 10 S. & R. 97.

In Massachusetts, the constitution in force in 1820, gave the legislature
full power and authority to make, ordain, and establish all manner of

688 ACTS CONFIRMING INVALID PROCEEDINGS.

on the proceedings in courts of justice, or as it is said
by acts affecting the remedy. In regard to this, the
legislature may affect existing rights in the first place,
by statutes of limitation restricting the time within

wholesome and reasonable orders, laws, statutes, directiots, and instruc-
tions (so as the same be not repugnant or contrary to the constitution) as
they shall judge to be for the good and welfare of the commonwealth, and
of the subjects thereof; and it was also declared that each individual of the
society has a right to be protected by it, in the enjoyment of his life, liberty,
and property, according to standing laws ; and by an act of 1783, the
courts of probate were empowered to sell the real estates of minor children.
In 1790 certain real estate was vested in the minor children of Asaph
Rice, in right of their deceased mother; and in 1792, a resolve was
passed by the General Court, or legislature, of the State, authorizing the
father to sell and convey the premises for the best price that could be got,
and invest the proceeds for the benefit of the children. Under this resolve
the property was sold, and the validity of the sale coming up for adjudica-
tion, it was contended that the resolution was void as an act of judicial
power. But it was held valid as not being a judicial act ; and while it was
conceded that under the general grant of legislative authority, the legisla-
ture could not deprive a citizen of his estate, or impair a valuable contract,
it was held that the resolve in question, being for the benefit of the minors,
was good. Rice vs. Parkman, 16 Mass. 326. The opinion in this case is
delivered by a very able judge, Parker, 0. J., but it appears open to
criticism. It is said, "that this was not a judicial act, that it was not
a case of controversy between party and party, nor is there any de-
cree or judgment affecting the title to property." That there was no
controversy nor any opportunity for controversy, as there would have
been in a regular judicial proceeding, is the very ground of complaint ;
and the precise allegation is, that the resolve is in its operation and effect a
decree or judgment affecting the title to property. It is admitted in the
defence, that the legislature could not deprive a citizen of his estate ; but
that is exactly what is done in this case. The property belongs to minor
heirs, the legislature directs it to be sold, or in other words, divests them of
their estates. It is alleged to be for their benefit. That may or may not be.
It may have been a fraud, and the proceeds embezzled. The true question
is whether a party can' be deprived of his property without having the
benefit of pleading, evidence, hearing, and trial. If the legislature takes
away property without any of these proceedings, it does what the judiciary
only can do after going through them, and in this sense must be said to
perform a judicial act.

In Massachusetts, by the constitution in force in 1814, it was declared

PROCEDURE. 689

which actions may be brought. ' Secondly, by acts in
regard to the evidence or procedure, by altering the

that " the power of suspending the laws or the execution of the laws, ought
never to be exercised but by the legislature, or by authority derived from it,
to be exercised in such particular cases only as the legislature shall expressly
provide for." This provision seems to have been suggested by the English
Bill of Rights and its provisions, in regard to the dispensing power. In
1813, on the petition of Holden, a resolution was passed by the legislature^
authorizing him to prosecute certain claims against the estate of Hannah.
Ranger, as if the same had been commenced within the time prescribed by
law, and declaring that the operation of any statutes of limitation of the
State, that might bar the claims of Holden, should be by this resolution
suspended. An action being brought by Holden against the administrator
of the estate, it appeared that the claims were in fact barred by the general
statute of limitations; but the resolution was relied on. The court, how-
ever, held that though the general power of suspending laws resided in the
legislature, they had not the power to suspend a general law in favor of an
individual, nor in an individual case ; and the plaintiff was accordingly
nonsuited. Holden vs. James, 11 Mass. 896.

A mortgage executed to Eames and Ryder, loan commissioners for the
county of Kings, in New York, having become due in 1843, notice was pub-
lished that the premises would be sold. The term of office of one of the com-
missioners (Ryder) expired in 1843, and the remaining commissioner (Eames)
proceeded to sell the premises. The law of the State was well settled on
grounds which we have elsewhere considered, under the head of " sum-
mary administrative proceedings " (ante, p. 351), that a sale by one of sev-
eral loan commissioners was wholly void, and that no title could be thus
acquired. Olmsted vs. Elder, 1 Seld. 144. On the 12th of May, 1844, an
act was passed entitled an "Act to confirm certain official acts of the com-
missioners for loaning the moneys of the United States of the county of
Kings," which declared that all the official acts of the commissioners for
loaning money in Kings Co., and all proceedings by the same, performed or
transacted solely by Eames, he being one of the said commissioners, or by
any other person being one of said commissioners, at any time after the
expiration of the term of office of any associate commissioner, and before
a successor to such associate commissioner had been duly qualified, should
be, and be held to be, of the same force as if such acts or proceedings had
been performed by such commissioners jointly ; and all deeds and other
papers executed by the said Eames, or by any one of such commissioners,
should be, and be held to be, of the same force and validity as if such deed
and other papers had been sealed and subscribed by both of said commis-
sioners. In an action brought by a party claiming against the foreclosure
and sale by Eames, the invalidity of the proceeding being established, it was
44

690 ' STATUTES OF LIMITATION.

remedy or prohibiting a defence. Of these in their
order.

As to statutes of limitation, the rule appears to be

insisted by the defendant, that it was confirmed and rendered valid by the
act of 1846 ; but all retrospective effect was denied to it. The court said,
" The act could not, and did not, act retrospectively, so as to take away any
existing rights. We hold our right of property under a higher power,
which cannot be overturned by the legislature." And the plaintiff had
judgment. Pell vs. Ulman, per S. B. Strong, J. (not reported.) I take the
decision from the printed case, obligingly furnished me by J. Townsend,-
Esq., counsel for the plaintiff. A question very analogous has arisen under
the act of 1850, to confirm proceedings in surrogates' courts, by which an
attempt has been made to confirm proceedings entirely void, because not
taken in conformity to the statutes conferring jurisdiction on the surrogate.

Dean vs. Dean, 2 Mass. 150, is a case turning on a legislative resolve
authorizing an appeal from a probate-court decree, after the time to appeal
had expired. The appeal was dismissed, but the power of the legislature
to pass the act was not denied nor, indeed, discussed.

Where a statute of Massachusetts provided that bank commissioners
should be authorized to examine the State banks, and if on examination they
appeared to the commissioners insolvent or in a hazardous condition, then
that on their report a justice of the Supreme Court should, without further
investigation, be required to issue an injunction restraining their operations,
it was held that this was not an exercise by the legislature of judicial power,
on the ground that it made the report prima facie evidence of the facts?
Commonwealth ve. Farmers and Mechanics' Bank, 21 Pick. 543.

An act authorizing the guardian of an infant to sell and convey at public
or private sale, under the direction and sanction of the judge of probate, is
a valid act, and not unconstitutional as an exercise of judicial power.
Mason m. Wait, 4 Scamnion, 134.

A provision that a municipal charter shall not take effect until approved
of by a majority of the inhabitants of the district incorporated, is not the
delegation of legislative power, it is the mere question of the acceptance of
a charter. City of Paterson vs. The Society, &c., 4 Zabriskie, p. 385.

A statute in Indiana, after enumerating certain specific causes for which
divorces may be granted by the courts, declares that they may be granted
for " any other cause for which the court shall deem it proper that a divorce
should be granted." (2 Rev. Stat, of Indiana, p. 235.) In a case arising
under this act, it was insisted that this provision was unconstitutional, be-
cause it conferred legislative power on the courts ; but the objection was
held void on the ground that it only authorized the exercise of the discre-
tionary power of the court. Ritter «s. Ritter, 5 Blackf. 81.

EVIDENCE. 691

tKat they cannot be made so to retrospect as absolutely
to cut off an existing right of action ; but within these
bounds, it is said that the legislature has full power
over the subject. By the Kevised Statutes of Massachu-
setts, it was provided that all actions upon judgments
should be commenced within six years next after the
cause of action shall accrue. The Eevised Statutes
were passed on the 4th of November, 1835, and went
into operation on the 1st of May, 1836. After the
1st of May, 1836, suit was brought on a judgment
recovered in 1817. The law was held not to be uncon-
stitutional as impairing the obligation of contracts,
since, as -it was enacted on the 1st of November, 1835,
and did not go into operation till the Ist of May,
1836, the creditor had an opportunity in the interval
to bring his action on any such judgment recovered
more than six years before the 1st of May, 1836 ; and
it was said " Whether the time allowed for creditors to
commence their actions was a reasonable time or not,
was a question within the exclusive power of the legis-
lature to determine."*

The same rule seems to hold good in regard to evi-
dence ; the legislature may alter the rules of testimony
in regard even to suits pending, however seriously the
change may affect the rights of parties ; but the power
must not be so exercised as to cut off a clear valid
right. The Supreme Court of Massachusetts has said,
" The legislature may prescribe rules of evidence by
which parties must support their acknowledged rights.
If at any time evidence was required by law which
would defeat a constitutional right, the same would not
be binding on the court8."f

* Smith m. Morrison, 22 Pick. 430.
t Kendall vs. Kingston, 5 Mass. 533.

692 REMEDIES.

In regard to remedies generally, the right of the legis-
lature has been repeatedly asserted, and in very sweep-
ing terms. So, in Massachusetts it has been said, " There
is no such thing as a vested right to a particular
remedy. The legislature may always alter the form of
administering right and justice, and may transfer juris-
diction from one tribunal to another."* It has been
said in the same State, to be very clear that a statute
authorizing representatives in a suit to come in and
to prosecute to judgment, is a valid act and may weU
apply to cases pending at the time it passed."f A
statutory provision allowing an executor to maintain
trespass quare clausum for an injury done to the land
in the lifetime of the testator, is not unconstitutional
as applied to a trespass committed before this pro-
vision went into operation, as it affects the remedy
only.J So, we haVe seen that there is no vested right
to the defence of usury.§

So, again, a Massachusetts statute, of 1838, regu-
lated proceedings by insolvents to obtain their dis-
charge. On the 6th of April, 1841, a party applied
for the benefit of the statute. An act was passed
in 1841, going into effect on the iTth of April,
declaring that no certificate of discharge should be
granted if the debtor, within six months before his
application, should have made an assignment with
preferences. On the 3d of April the debtor had
made such an assignment. It was insisted that the
insolvent was still entitled to his discharge under

* Springfield vs. Hampden Commissioners of Highway, 6 Pick. 501,—
a mandamus to Commissioners of Highways,
t Holyoke vs. Haskins, 9 Pick. 268.
X Wilbur vs. Gilmore, 21 Pick. 260.
§ Baugher vs. Nelson, 9 Gill, 299 ; ante, p. 412.

REMEDIES. 693

the act of 1838 ; but the court held otherwise, say-
ing, " It is clear that the appellant had no vested right
to a discharge at the time of filing his petition."*

So, even when a suit is definitively decided, it has
been held that a right of appeal can be given by a stat-
ute passed for that purpose. Suit was brought hj Sam-
peyrac,in the Circuit Court of Arkansas, to establish his
title to certain lands. An answer was put in, on behalf
of the United States, den^ng the claim, and setting up
that the plaintiff's grants were forged. In 1827, how-
ever, a decree was made in favor of the title. No appeal
was taken, and the time for appealing expired. In 1 8 30,
Congress passed an act authorizing the courts of Ark-
ansas to proceed, by bills filed or to be filed by the
United States, to review any decrees of the court
alleged to have been made on forged warrants or
grants. Under this act, a bill of review was filed by
the United States to set aside the decree in question ;
the case was brought before the Supreme Court of the
United States, and it was insisted that the act of 1830
deprived the claimant of a vested right ; but the court
held that, considering the act of 1830 as providing a
remedy only, it was entirely unexceptionable; that
it only organized a tribunal with judicial powers ;
that the retrospective operation of a law providing a
remedy formed no objection to it ; and it was said that,
" almost every law providing a new remedy affects and
operates upon causes of action existing at the time the
law is passed." And, it appearing that the plaintiff
was a fictitious person and the alleged grant a forgery,
the original decree w0,s reversed.f

* Mc parte Lane, 3 Met. 213.

t United States vs. Sampeyrac, 7 Peters, 222; S. C, Hempstead's
Arkansas C. C. R. 119." We have seen (ante, p. 196) that, in Pennsylvania,

694: REMEDIES.

It has been said by the chancellor of the State of
New York, that where naked trustees might be com-
pelled to transfer the legal title to cestui que trusts
under the decree of a court of equity, there could be
no doubt that the legislature had the power to transfer
the title *

In regard to this matter of remedies, it has been in
several cases held, that the right of the legislature to
interfere depended on the? point whether the end
sought to be attained by the legislature was a good
one. So, an act cutting off the defence of usury was
held valid, because usury was considered as an immoral
defepce.f So, the Supreme Court of Massachusetts has
said, there could be no vested right to do wrong. J So,
the act confirming invalid marriages was held to be
good, because the object aimed at by the legislature was
commendable.§ But this is a formidable if not a fal-
lacious line of reasoning. It assumes that a power
exists in the judiciary to decide on the morality, wis-
dom, or justice of acts of legislation, and to treat them
accordingly. This authority I have already had occa-
sion to deny.

If the cases which I have here grouped and to
which I have referred, be carefully considered, I think
it must be admitted that I have not at all exaggerated
the difficulty of defining vested rights ; that no gen-
eral rule can be laid down which will describe with

the power of the legislature to pass a statute giving a writ of error in a case
where none lay before the passage of the act, has been denied.

* Dutch Church in Garden Street vs. Mott, 7 Paige, 82 ; Morgan et al.
vs. Lesler, Wright's Ohio R. 144.

t Baugher vs. Nelson, 9 Gill, 299; ante, p. 412.

X Foster vs. The Essex Bank, 16 Mass. 245 ; ante, p. 484.

§ Goshen vs. Stonington, 4 Conn. 226 ; ante, p. 668.

VESTED' RIGHTS. 695

precision the extent to which legislative interference
with rights or interests in property, under our system,
is permitted or prohibited.

The construction of the great constitutional clauses
in regard to private property, the obligation of con-
tracts, and the right to process of law, is settled with
considerable accuracy ; but beyond this the subject is
infested with plain and painful contradiction. On the
one hand, we have the propositions, — that the legisla-
ture can only make laws ; that a judicial act, not being
a law, is beyond its competency; and that private
rights are entitled to the protection of the law of the
land. Taking, on the other hand, the conceded power
of the legislature over the procedure and remedy,^
their right to pass repealing acts, and in many cases
retrospective acts, and I think the result of the investi-
gation is, that in no branch of our subject clear lines of
demarkation are more imperatively required, nor in
any more difficult to establish. At present, all that
can be done is to bring each case to the test of pre-
vious decisions, and of principle, and as far as possible,
to endeavor to restrict the operation of laws to
future cases. Every sudden alteration of existing
rights, duties, or relations, by the operation of law, as
a general rule tends to insecurity and danger.

This idea is expressed to a certain extent, in Mas-
sachusetts, in a case already cited, where the court
said, "A creditor has no vested right in the mere
remedy, unless he may have exercised that right
by the commencement of legal process under it
before the law making an alteration concerning it
shall have gone into operation."* So, too, m Penn-

* Bigelow w. Pritchard, 21 Pick., 174.

696 VESTED EIGHTS.

sylvania, under an act for the sale of vacant lands,
passed April, l'792j it was held sufficient for a person
holding a land warrant, in a suit against an intruder
without title, to show that he, the warrantee, had
been prevented by reasonable apprehension of the
Indians from making a settlement on the warranted
lands. Thereupon the legislature, in 1814, passed a
law requiring the warrantee in such suits to prove that
he had personally gone on to the land. The Supreme
'Court of Pennsylvania held, that this explanatory act
-could not apply to suits before its passage ; that nothing
less than positive expressions would warrant the court
in giving a construction which would work manifest
injustice. " It must not be supposed that the legislature
meant to do injustice ; and what but injustice would
it be to subject a man to the loss of his action and the
costs of suit by a retrospective law, although at the
time when he commenced his suit, he was entitled by
the established law to recover ?"*

The same idea has been expressed still more clearly
and emphatically in the fundamental law of New
Jersey. The constitution of that State declares that,
"The legislature shall not pass any bill of attainder,
ex-post-facto law, or law impairing the obligation of
contracts, or depriving a pa/rty of any remedy for
enforcing a contract whicTi existed when the cont/ract
was madeP-\ This provision is evidently drawn to
obviate the difficulties and answer the objections grow-
ing out of the subtle distinction taken between the
obligation and the remedy. It very clearly declares
that the substantial remedial legislation existing at the

* Bedford m. Shiling, 4 S. & R., 401.

t Cons, of New Jersey, art. iv., sec. Tii., § 3.

WRITTEN LAW. 697

time a contract is made, enters into and forms part of
the agreement ; it is the assertion, Iby a populous and
flourishing community, that vested rights may be
safely protected to this extent; and it seems to me
every way worthy of commendation for its vigorous
justice and sound sense.

I here bring to a close this attempt to state the rules
which govern the interpretation and application of
written law. On a careful consideration of the whole
subject, its importance cannot fail to impress the mind.
"Absolute liberty, just and true liberty, equal and
impartial liberty, is the thing we stand in need of!"*
This is the fervid language of the great apostle of toler-
ation; and the longing should be as earnest and the
prayer as devout now as when the emphatic words were
uttered. But in our time,' liberty will not be secured
by violent effort or convulsive action. Liberty will
only be preserved by steady determination and sys-
tematic habit, by the practice of those virtues of
fortitude and self-command, most" difficult, whether
for nations or individuals.

Most eminently is this true of this country.
Liberty, here, can only exist in fellowship with
Law. Whatever the glories of our past history,
however grand our present, however brilliant our'
future, it is vain to suppose that American freedom
can be maintained except just so long as our people
shall exhibit the capacity justly and intelligently to
administer, and the disposition steadily and loyally to
obey, the government. of Weitten Law.

* Locke, Pref. to Letter on Toleration.

698 PHILLIMORE ON JURISPRUDENCE.

While this last sheet is going through the press, I have for the
first time seen " The Principles and Maxims of Jurisprudence," by John
George Phillimore, Q. 0., M. P., London, 1866; and I can only wish that I
had been able to avail myself of it at an earlier stage of my work. Mr.
Phillimore's thorough knowledge and enlightened appreciation of the sci-
entific order of the Roman law, and his liberal and courageous recognition of
the defects of English jurisprudence, have already been made well known
by his "Introduction to the Study and History of the Roman Law," Lon-
don, 1848 ; but the present work is calculated still more strongly to turn the-
professional mind of the present age to the comparative merits of the two
systems. The work is a skillful selection of some of the most terse and
profound maxims of the Roman law, with comments on them by the
author, showing by the light of the decided -cases of English and American
law, the extent to which the principles of the civil jurisprudence are recog-
nized or disregarded by^he Anglo-American tribunals. Mr. PhiUunore's
work is one eminently of a character to arouse the minds' of the legal students
and practitioners of our time to the true dignity of the science to which
their lives are devoted. In the present chaotic state of our own law,
particularly, nothing can be more desirable than to keep in as frequent
recollection as possible the simplicity, order, and equal justice of ^^the
great system of jurisprudence by which the Roman world was governed.

INDEX.

ADMINISTRATIVE PROCEEDINGS, Summary, 331, 641.
AGREEMENT, when annulled by statute, 635.
AGREEMENTS in violation of statutes, when void,'85, 396.
AMENDMENT OF LAWS, constitutiosal provisions as to, 571.
ANNULLATION of an agreement by statute, when, 635.
ANGLO-SAXON BURGHS, condition of, 462.
APPLICATION for passage of statutes, 65.
notice o^ when required, 66.

APPRENTICESHIP, indentures of, when held void, 244.
ARRETS, law of, in France, 210.
ASSESSMENTS for opening streets, 602, 503, 504, 531.
ASSISE or COMTITUTIONES, original name for laws, 26.
ATTAINDER, bills of, prohibited, 598.
ATTRIBUTES OP STATUTES, 65.
AUSTIN, JOHN, on Jurisprudence, cited, 222.
AUTHORITY and jurisdiction of statutes, 69.

BANKING SYSTEM of New York, 442.

BANKRUPT ACT, EngUsh, decision on, 244.

BANKRUPT LAWS, 641.

BENTHAM, JEREMY, cited, 293.

"BEYOND SEAS," how construed, 304.

BILLS, REJECTED, not again introduced at same session in Texas and

Tennessee, 123, 6T3.
BILLS OF RIGHTS, 179, 480.
BILL OF RIGHTS, Constitution is, 583.
BOWLING ALLEYS, act relating to, 463.
BY-LAWS. See " Municipal Ordinances," 469, 472.

700 INDEX. -

CANADA, act of Parliament relating to, 477.

CANALS, act for enlargement of, in New York, declared unconstitutional, 86.

CASUS OMISSUS in statutes, how, to be treated, 307.

CAUSE AND EFFECT, 417.

CENTRALIZATION in government, its effect, 459.

CHARTERS OF INCORPORATION strictly construed, 388, 424.

protected by Federal Constitution, 625.
CHRISTIANITY, how far'part of the common law, 17.
CLAUSES OP BILLS, 58.

COLONIAL RECORDS of Massachusetts, 43 et seq.
COLONIAL STATUTES, 29.
COMITY between mations, 72.

the States of the Union, 75, 77.
COMMENCEMENT of Statutes, 53.
COMMON LAW, statutes in derogation of, strictly construed, 313.

a body of customs, 5.

the, the basis of American jurisprudence, 8, 10, 12.

adopted so far as applicable here, 12, 13.

has no force here since the Revolution, 14, 15.

none of the Union (aed qucere), 17 and note.

statutes in derogation of, strictly construed, 313.
COMPENSATION for private property, 527.
COMPUTATION of time, 418.
CONSTRUCTION (see Interpretation), general rules of, 225. •

Lord Coke's rules, 235.
CONSENT cannot give jurisdiction, 422.

COmriTUTIO or ASSISA, original term for laws, 26, 27-477.
CONSTITUTIONAL LAW, 475.

origin of, in America, 18.

a source of jurisprudence, 21.

CONSTITUTIONAL limitations on legislation, 213.

CONSTITUTIONAL MAJORITIES, 573.

CONTRACTS in violation of statutes, when void, 85, 396.
obligation of, 616.

CONTEMPORARY EXPOSITION of statutes, 251.

of constitutions, 593.
CONVEYANCERS, English, influence of, 255.
COPYRIGHT in statutes, 188.
CORPORATIONS. See Charters, 424.

INDEX. 701

COSTS, how regulated in New York, 859.
statutes giving, how construed, 358.
COUNTIES, provision as to division of, in New York, 580.
COURTS MARTIAL, 551.

CUSTOM (see Oiog'e), an element of jurisprudence, 3.

force of, recognized by the civil law, 4.

operation of, described by Forti, 4, 5.

influence, in construction of statutes, 256.
CUSTOMS, Provincial of France, 5 and note.
CY PRES, doctrine of, 265.
CUMULATIVE remedies and penalties, 93, 401.

DECLARATORY STATUTES, 87.
DELEGATION of legislative power, 164, 166.
to municipal bodies, 463.

of power of eminent domain, 517.
DIRECTORY, when statutes held to be, 368.

when constitutions, 377, 570.
DIVORCES, legislative prohibitions of, 565.

how far they can be granted in the United States, 635,

in Missouri, 636.

in Connecticut, 637.

in other States, 637.
DOMAT, his rules of construction, 283.

DOWER, how far protected by the Federal Constitution, 636, 638.
DUE PROCESS OF LAW, 610.

See Law ofihe Land, 534.
DUTY OF THE JUDGE, 310.
DWARJIIS on Statutes cited, 26 (et passim).

ELECTION OP REMEDIES, 93.

See Oumulatwe Remedies, 401,
EMBARGO LAWS, construction of, 243..
EMINENT DOMAIN, power of, 500, 504, 664.

delegation of, 517.

with reference to obligation Of contracts, 664.

EQUITABLE CONSTRUCTION, 259, 291,

702 INDEX.

EQUITY, no relief in, against statutes, 104.
EQUITY of a statute, 296, 362.
EXCEPTIONS IN STATUTES, 62.

when to be negatived in pleading, 63, 117.
EXEMPTIONS FROM TAXATION, 559, 629, 631.
EXEMPTIONS, statutes conferring, how construed, 344.
EXPLANATION, statutes of, 358.
EX-P08T-FA0T0 LAWS, 191.

prohibited by Federal Constitution, 599.

EXTRINSIC PACTS not admitted to explain statutes, 241.
EXTRINSIC EVIDENCE not to be received to explain constitutions, 489,
593.

FERRY FRANCHISE in New York, 343.
FIRES in New York, statutes relating to, 365.
FOREIGN STATUTES, interpretation of, 425.

proof of, 427.
FORFEITURES, statutory, 97.
PORTI, FRANCESCO, cited, 6.
FRANCHISES, rules of construction as to, 339.
FRAUD, whether it can be alleged against a statute, 510, 621, 622.
FREEDOM OF SPEECH and of the Press, 608.
FRENCH JUDICIARY, power oi, over statutes, 210 and note.
FUGITIVES FROM JUSTICE, 604.

SERVICE, 606.

GAME LAWS, penalties under, when single, 98.
GENERAL WORDS, how qualified by particular words, 423.
GOOD FAITH, no excuse for violation of statute, 99.
ORANTS OP FRANCHISES, rules of construction as to, 339.
ORANTS OF LAND, 451.
Irish, 452.

ORANTS AND RESUMPTIONS in Ireland, 452.

INDEX. 703

HABEAS CORPUS, under Federal Constitution, 698.

HARDSHIP not to affect interpretation, 309.

HIGHER LAW, 562.

HODGE-PODGE ACTS, 567.

HOFFMAN, DAVID, cited, 581.

HUSBAND, interest in wife's choses in action, 541. •

IGNORANCE, no excuse for violation of law, 83, 99.

IMMUNITIES of citizens under Federal Constitution, 600.

IMPLICATION, repeal by, 125.

INCORPORATION, charters of (see Charters of), 338, 424.

INCIDENTS OF STATUTES, 65.

INDICTMENT in actions on statutes, 115.

INFANTS, statutes in regard to, 101.

INJUNCTIONS against public officers, 577.

municipal corporations, 577.
INTENTION of the legislature, to govern, 231.

to be found in the statute itself, 243, 382.
INTERNATIONAL COMITY, 72.
INTERSTATE COMITY, 75, 77.
INTERPRETATION (see Comimction), rule of civil law as to, 22, 148.

practice as to, early in England, 23, 144, 203.
' general rules of, 225.

Lord Coke's rules, 235.

Blackstone's rules, 236. ,

means of, within the statute, 237.
outside the statute, 239.

JUDGES in England, when made permanent, 209.

in the United States, tenure of office, 575.

not liable civilly, 44.

exception in Alabama, 441.
JUDICIAL PROCEEDINGS under Federal Constitution, 600.
JUDICIAL CONSTRUCTION of statutes, 253.

704 INDEX.

JUDICIAL and legislative functions, how defined in this country, 160.
JUDICIAL DECISIONS, English, how far authority here, 9.
JUDICIAL POWER, boundaries of, 142.
JUDICIAL PROCEEDINGS, Summary, 347.

JUDICIARY, power of, over legislation, independent of constitutional pro-
visions, 147, 180.

power of, over statutes, 205.

tenure of, when altered in England, 209.

tenure of, in this country, 575.
JURISDICTION OF STATUTES, 69.

of the States of the Union over offenses committed in other States,
when, 79.

cannot be given by consent, 422.
JURY, TRIAL by, 548.

under Federal Constitution, 612.

KING, not bound by statute of limitations unless named, 105, 396.

LANGUAGE, English, history of, 28.

LAST STATUTE, in point of time prevails, 81, 416.

LAW, general, influence of, 1, 2.

the moral, 1, 2.

of nations, 1, 2.

of nature, 1, 2.

of the Twelve Tables, 6, 22.

what is it? 163.

of the land, what it is, 584, 610,
See Due Process of Law.
LAWS, when they take effect, 83.

publication of, 189.
LEASES, agricultural, restrained in New York and Michigan, 579.
LEGACY TO WIFE, husband's interest in, 541.
LEGISLATIVE and JUDICIAL functions, how divided and defined in

this country, 160.
LEGISLATIVE exposition of statutes, 252, et seq.

POWER, boundaries of, 148, 164, 677.

INDEX. Y05

LEVIES, laws confirming invalid, 669, 684.

LETTER, statutes construed against, 299.

LIBERAL CONSTRUCTION, 290.

LIEBER, PROFESSOR, his rules of interpretation, 286.
cited, 226.

LIMITATIONS of actions upon statutes, 104.

king not bound by, unless named, 105.

United States, not bound by, unless named, 106.

States of the Union not bound by, unless named, 106.

as to suits for land in New York, 107.

statutes of, regarded with disfayor by judiciary, 108.

statutes of, how construed, 321.

as to obligation of contracts, 669, 691.
LIMITED PARTNERSHIPS, statutes regarding, 366.
LOCKE, JOHN, cited, 149, 697.

MAJORITIES, certain, required in certain cases, 67, 68.
MARRIAGE ACT, English, 241, 684.

MARRIAGES, how far contracts in the United States, 635.
laws confirming, invalid, 666, 684.

MARRIED WOMEN, restriction of Connecticut statute relating to, 197.
MASSACHUSETTS, colonial records of, 43.
MAY AND SHALL, construction of, 438.
MAXIMS. "Lex uno ore omnes aUoquitur," 71.

"Ignorantia legis neminem excusat," 83.

" Nullum tempus occurrit regi," 105.

"Jus publicum privatorum pactis mutare non potest," 109.

" Privatorum conventio juri publico non derogat," 109.

" Modus et conventio vincunt legem," 109.

" Consensus toUit errorem," 109.

"Est conveniens naturali equitati unumquodque dissolvi eo liga-
mine quo legatum est," 121.

"Omnis deflnitio injure civili periculosa est," 176.

" Nova constutio futuris formam debet imponere, non prseteritis, 1 88.

"Ejus est interpretari legem, cujus est condere," 203.

" Oontemporanea expositio est fortissima in lege, 251.

"Stare decisis," 253.

" Optimus legum interpres consuetude," 255.
"A communi observantia non est recedendum," 255.
45

706 INDEX.

MAXIMS — continued.

" Index animi sermo," 260.

" Non observata forma infertur adnullatio actus," 319.
" Causa proxima non remota gpectatur," 417.
" In toto generi per speciem derogatur," 423.

" Generalis clausula non porrigitur ad ea quse specialiter sint com-
prehensa," 423.
MILITIA DUTY, exemption from, 559..
MIXED STATUTES, 43.

MONOPOLIES, statutes creating, how construed, 338.
MONTH, meaning of, 420.
MONTESQUIEU'S definition of law, 3 and note.
MORAL LAW, 1, 2.
MUNICIPAL LAW, definition of, 1, 2.

elements of, 8, 21.
MUNICIPAL CORPORATIONS, 463.
Contracts made by, 634.
Injunctions against, 577.
MUNICIPAL ORDINANCES, contracts in violation, void, 86.
interpretation of, 459.

NEW JERSEY, constitution of, peculiarities in, 657.

clause as to obligation of contracts in, 696.
NEGATIVE STATUTES, 40.
J^ON OBSTANTE, cases of, 207 note.
NON USER, repeal by, 121.
NUISANCES, abolition of, for public safety, 465, 468.

OBLIGATION OF CONTRACTS, 616.

with reference to eminent domain, 664.
OBLIGATION AND REMEDY, distinction between, 643.
OMNIPOTENCE OF PARLIAMENT, 160, 153, 214, 476.
ORDINANCES MUNICIPAL. See Municipal Ordinances, 86, 459, 577.

INDEX. 707

PARI MATERIA, statutes in, 247.

PARLIAMENTARY SUPREMACY, 150, 153, 214, 476.

PARTICULAR WORDS, interpretation of, 260. -

PARTY, interpretation of, 262.

PASSAGE OF STATUTES, 65.

PATENTS OF LAND, rules in regard to, 451.

PENAL STATUTES, 41.

pleading in actions on, 112.

how construed, 824, 390.
PENALTIES, several, 98
PENALTY implies a prohibition, 41, 87.

actions for, under code of procedure in New York, within what time
brought, 107.
PERSONAL STATUTES, 42.

PHILLIMORE, Robert, on International Law, cited 289.
PHILLIMORE, John George, his worlds on Roman Law, 698.
PLEADING in actions on statutes, 111.
POLICE POWERS of the States, 507.
POLICY not to affect construction of statutes, 308.

acts of public, are not contracts, 633.
PREAMBLE OF STATUTE, effect of, 54, and 564 note.
PRIVATE PROPERTY not to be taken without compensation, 494.
PRIVATE ROAD, waiver of unconstitutional proceeding as to. 111.

law of the land as to, in New York, 538.
PRIVILEGES OP CITIZENS under Federal Constitution, 6.00.
PRIVATE STATUTES, 32, 678.

incidents of, 34.
PROCEDURE, statutes in regard to, .319, 689, 691.

PROOF OP STATUTES, 34, 78, 118.

under Constitution of United States, 78.
PROPORTIONAL TAXATION in Massachusetts, 558.
PROTECTION to private property in England, 623.

PROVISOS IN STATUTES, 62.

when to be negatived in pleading, 63, 117.
PUBLIC OFFICERS, created by statute, relief against, 102, 384, 466

PUBLIC STATUTES, 30.
incidents of, 34.

708 INDEX.

PUBLICATION OF LAWS, 139, 140.
PURVIEW of a statute, 57.

QUI TAM ACTIONS, 107.
QUORUM, what constitutes, 387.

RAILROADS IN NEW YORK, 470, 472, 473.

REASONABLENESS OP BY-LAWS, 472.

RECORDING ACTS as to obligation of contracts, 661.

REAL STATUTES, 42.

REJECTED BILL or resolution, cannot be brought up again at same s

sion in Texas or Tennessee, 123, 573.
RELIEF, against acts of public officers created by statute, 103.

none in equity against statute, 104.
RELIGIOUS FREEDOM, 607.
RELIGIOUS TOLERATION in Maine, 560.

in Massachusetts, 662.

in Connecticut, 565.
REMEDIAL STATUTES, 41, 359.

REMEDIES for violation of statutes, 91.
election of, 93.
See Gumulative Remedies, 401.
REPEAL OF STATUTES, 121.

constitutional provisions as to, 571.
REPEAL BY IMPLICATION, 123 et seq.

effect of, 129.

retroactive effects of repeal, 132, 193, 680.

of a repealing statute, 137.
REPEALING CLAUSE, 61.

in unconstitutional act, effect of, 580.
REPEALING STATUTES, 41.
REPORTS of judicial decisions, publication of, 139.
RESUMPTIONS of grants of land, 452.
RETROSPECTIVE STATUTES, 188, 406, 479, 484, 680, 696.

INDEX. 709

RETROACTIVE EFFECT of repealing statutes, 132, 192, 193.
RETROACTIVE STATUTES, 188.

when allowed, 198, 406, 479, 484, 680, 696.

of trustees, 449.
REVENUE LAWS, how construed, 384, 888.
REVISION OF LAWS, operation of, 429.

constitutional provisions as to, 571.
ROADS, reservation for, in Pennsylvania, 616.
ROBBERY, interpretation of, 262.

S.
SAVIGNY, cited, 71, 289.
SCHEDULES IN STATUTES, 64.
SEARCHES AND SEIZURES, 551.
SELL, interpretation of, 262.

SERVICES, not to be required without compensation in Indiana and Ten-
nessee, 560.
SEVERAL PENALTIES, 98.
SHALL AND MAY, 438.
STAMP ACTS, to be strictly construed, 358.
STATE, laws affecting the, 105, 395.

suits against the, 576.
STATE STATUTES, how construed in Federal tribunals, 430.
STATUTES, classification and division of, 27.

ancient and modern, 27. -

colonial, 29.

public and private, 30.
their incidents, 34, 36.

declaratory, 87.

affirmative, 38.

negative, 40.

remedial, 41.

penal, 41.

repealing, 41.

as divided by the civilians, 42. ^

parts of, 49.

title of, 50, 52.

Commencement of, 53.

preamble of, 54.

purview of, 57, 60.

clauses of, 58, 61.

TIO INDEX.

STATUTES— continued.

provisions in, 62, 117.

exceptions in, 62, 117.

schedules in, 64.

attributes and incidents of, 65.

passage of, 65.

majorities, what, and when required, 67, 68.

authority and jurisdiction of, 69.

regarding the Sunday, 85.

in regard to contracts violating them, 84 et seg.

time when they take effect, 81, 83,

remedies for violation of, 91.
election of, 93.

good faith no excuse for violation of, 99.

ignorance " " 99.

in regard to infants, 101.

relief against acts of public ofBcers invalid by, 102.

no relief in equity against, 104.

limitation of actions upon, 106.

king not bound by, unless named, 105.

United States not bound by, unless named, 106.

as to States of the Union, 106.

waiver of, 109.

pleading in actions on, 111.

indictments on, 116.

proof of, 34, 78, 118.

repeal of, 121.

by implication, 126.
effects of, 129.

repealing, repeal of, 137.

copyright in, 1S8.
STATUTE LAW, a source of jurisprudence, 3, 18.
STATUTES, English, how far law here, 14, 15, 16.
STATUTORY FORFEITURES, 97.
STORY, Mr. Justice, cited, 43.
STREETS, assessments for opening, 502, 504, 531.
STRICT CONSTRUCTION, 259, 291.

SUMMARY ADMINISTRATIVE PROCEEDINGS, 351, 641.
SUMMARY JUDICIAL PROCEEDINGS, 347.
SUMMARY PROCEEDINGS for landlords, 318.
SUNDAY, laws for the observance of, 86.
SUPERSEDE, interpretation of, 262.
SUPREMACY OF PARLIAMENT, 160, 158, 214, 466.

INDEX. 711

" TAKING," meaning of the phrase in regard to constitutional protection

of private property, 519.
TAXATION, statutes in regard to, 413.
^ by municipal bodies, 463, 502.

power of, 502, 554, 674.

restraints on, 554.

exemptions from, 559, 629, 630, 631.
TAX SALES, 256.

statutes relating to, how construed, 353, 641.
TECHNICAL "WORDS, interpretation of, 261.
TEMPERANCE LAWS, 540, 611, 686.'
TENURE OF JUDICIARY, when altered in England, 209.
TIME, computation of, 418.

when statutes take effect, 81, 83.
TITLE OF STATUTE, effect of, 50.

constitutional provisions as to, 52, 567.
TREATIES, interpretation of, 447.

retrospective operation of, 449.
TRIAL BY JURY, 542.

under Federal Constitution, 612.
TRIAL, new, 609.
TWELVE TABLES, law of the, 6, 22.

u. .

UNIFORMITY OF TAXATION, constitutional provisions as to, 655. '
USAGE (See Custom), an element of jurisprudence, 3.

influence of, in construction of statutes, 256.
USURY LAWS, regarded with disfavor, 219.
. how construed, 336.

retrospective act of, as to pleading, 410.
no vested right of pleading, 412, 692, 694.

VATTEL, his rules of construction, 266.

VESTED RIGHTS, what they are, 177, 193, 410, 484, 671.

VOID AND VOIDABLE, construction of, 302.

712 INDEX.

WAGERS, statutes regarding, 423.

WAIVER OF STATUTES, 109, 421.

WAIVER OF CONSTITUTIONAL PROVISIONS, 111.

WATER LINES, rules as to, 458.

WORDS, interpretation of, 260, 262.

banking principles, 435.

billiards, 435.

burglary, 435.
_ cattle, 435.

corporate name, 436.

curtilage, 436.

deny, 436.

dissent, 436.

final, 260, 262.

from, 436.

high seas, 437.

jurisprudence, 437.

justifiable cause, 437.

maliciously, 437.

may and shall, shall and may, shall or may, 438.

navigate, 440.

notice, 440.

party, 260, 262.

robbery, 260, 262.

sell, 260, 262.

steal, 441.

supersede, 260, 262.

YEAR, meaning of, 420.

KF 11-25 ^^ °'l

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