So, says. Mr. Justice Strong,. in the same State, "I am unwilling to admit that there is any despotic power in any of our political institutions. It is, I conceive, beyond the power of the legislature to tax one man, or the inhabitants of one locality, exclusively for the benefit of another."* 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 vindication, he could not avoid considering it a violation of the social compact, and within the control of the judiciary. He asked the question, "If a law were made without any cause, to deprive a person of his property, or to subject him to imprisonment, who would not question its legality, or who would carry it into effect?"+ 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. tion from punishment for all offenses, or from all liability for torts."* And in the same State it has been said that, "altogether aside from any express provision of the constitution, a statute taking property without necessity of a public character, or without compensation in some form, would doubtless be regarded as entirely without the just limits of legislative power." And so it has been decided in North Carolina.t "I cannot subscribe to the omnipotence of a State legislature," says Chase, J., in the Supreme Court of the U. S.,S" or that it is absolute and without control, although its authority should not be expressly restrained 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 legislative power, as to authorize manifest injustice by positive law, or to take away that security for personal liberty or private property, for the protection whereof the government was established. An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered 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 court of justice in this country, would be warranted in assuming that the power to violate and disregard them, a power so repugnant to the com * Hatch vs. Vermont Central R. R. Co., 25 Vermont, p. 49, 61. † Hatch vs. Vermont Central R. R. Co., 25 Vermont, 49. Railroad Co. vs. Davis, 2 Dev. & Bal. 451. § Calder vs. Bull, 3 Dall. 386. mon principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be inferred from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security without very strong and direct expressions of such an intention."* It will be observed that all these cases more or less directly affirm the doctrine that there are certain restrictions on 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 conclusion 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 matter of positive and written law. The division of power was a leading idea in the American mind at the time of the Revolution, and all our State constitutions bear its impress. Without, I believe, a single exception, they divide the attributes of government into three great branches, the executive, the legislative, and the judicial. But, though the State constitutions generally attempt to declare, with more or less accuracy, the powers of * Wilkinson vs. Leland, 2 Peters, 627. the executive branch of the government, they appear to make little effort to describe with precision the character and functions of either the legislative or judicial department; and they confine themselves, in almost every instance,* to the mere declaration that the lawmaking 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 characteristics of a judicial proceeding. In a recent case in New York,t it has been said, "Written constitutions 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 subjects 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 creation 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, "The powers of * In New Hampshire, Constitution, Part II., an effort has been made to define the legislative power, but I think with no very marked success. + Rodman vs. Munson, 13 Barb. 63. Art. III. 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 properly belonging to either of the others, except in the cases herein expressly directed and permitted." So in Massachusetts,* "In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws, and not of men." 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 other." So in Virginia,‡ "The legislative, executive, and judicial powers should be separate and distinct." In Alabama, the constitution declares,§ "The power of the government of the State shall be divided into three distinct departments, and each of them confided to a separate body of magistracy, 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. + Declaration of Rights, Art.6. |