try to determine what is within the constitutional authority of the legislature; because, whenever a right comes in question, the courts pass definitively on the right. But clearly every other branch of the government is just as much bound to interpret for itself the constitution, as the judicial. Indeed there doubtless are cases in which the judicial department would feel obliged to place reliance upon, and give effect to, the interpretation by another branch of the government.1 And the only reason why our judges are deemed, in the high sense, the expounders of the constitution, is that, in most cases of litigated right, there is no appeal from their decision. Concerning the enactment of laws, the courts do not undertake to follow the legislature in every step of its procedure to see whether it has complied with all constitutional forms: here the legislature itself judges.2 But the doctrine is laid down, that they may look beyond the printed statute-books into the engrossed bills and journals of the legislative assemblies, to learn whether an act received the constitutional majority.3

§ 52. What powers are withheld from our legislatures by

1 We are perhaps wanting in authority on this precise point; but in United States v. Lytle, 5 McLean, 9, 17, 18, the court refused to interfere with the interpretation of a statute by the executive department; observing, that the executive is bound to give effect to laws regulating its duties, in doing which it must necessarily interpret them. "And, where such construction has been acted on for a great number of years, under the sanctions of the lawmaking power, it becomes a serious question how far the judicial power can or should interfere. . . . . Where, under an executive construction of the law, a wrong is done to an individual, the courts will give him redress. But where no such wrong is done, it is supposed that acts of the executive within the general scope of its powers, and by virtue of law, cannot be reviewed; though, to some extent, the letter of the law may not have been followed." McLean, J.

Miller v. The State, 3 Ohio State, 475; The State v. Septon, 3 R. I. 119; Erie & N. East Railroad v. Casey, 2 Casey, 287.

3

Sedgwick on Statutes, 68, 69, referring to Purdy v. People, 4 Hill, N. Y. 384; De Bow v. People, 1 Denio, 9; Commercial Bank v. Sparrow, 2 Denio,

97.

our State and national constitutions will be considered somewhat, as the various topics of our criminal jurisprudence pass under separate review. Plainly the constitution of the United States is, where it speaks, authoritative over both State constitutions and State and national legislative acts.1 But we may observe, of this instrument, that some of its provisions restrain only the national legislature in respect to matters within its sphere, and do not bind the States, as the clause against "cruel and unusual punishments; "2 while others are limitations upon State powers, and still others restrain the States only after congress has acted upon the subject. The prohibition of ex post facto laws occurs twice, referring in the first instance to the national, and in the second to the State, legislative power. When a statute is void, as being in conflict with a constitutional inhibition, the courts should pronounce it so. These are only general points.

$52a. The congress has but limited power of legislation; being the power conferred on it by the constitution of the United States. The legislatures of the States, on the other hand, are usually understood to possess full legislative authority; restrained only by the terms of the United States constitution, and of the constitution of the particular State.

§ 52 b. Yet the division of powers in our State govern

1 U. S. Const. art. 6, cl. 2; Story Const. § 439, 1836, 1837, 1839, 1840. U. S. Const. Amendments, art. 8; Barker v. The People, 3 Cow. 686; James v. Commonwealth, 12 S. & R. 220; Story Const. § 1896, 1897. So of the article in the amendments providing that no person shall be held to answer for a crime except on presentment or indictment, &c. The State v. Keys, 8 Vt. 57.

Story Const. § 1353–1409.

United States v. New Bedford Bridge, 1 Woodb. & M. 401.

U. S. Const. art. 1, § 9, 10; Calder v. Bull, 3 Dall. 386, 389; Watson v. Mercer, 8 Pet. 88, 110; Bennett v. Boggs, Bald. 60, 74.

Ante, § 51; Fletcher v. Peck, 6 Cranch, 87; University v. Williams, 9 Gill & J. 365, 384; 1 Kent Com. 448.

ments is such, that ordinarily what belongs to one department cannot be performed by another department.1 And even the people cannot exercise an authority they have given to another body or individual, until they withdraw the authority. On this latter ground, the question has arisen, whether the legislature can establish an act to take effect on its being approved by the people. A municipal corporation may be created, or any other like thing may be done, in this way; but, when the statute is one of ordinary legislation, difficulties arise quite embarrassing. The question has been variously adjudicated; and we cannot properly deem, that any particular opinions on the subject are American law.2

§ 53. The question is sometimes discussed, whether there are not limits to the legislative power, besides those already mentioned; and the better opinion seems to be, that there are. Thus, no clause in the federal constitution prohibits the States from passing retrospective laws, unless they are also ex post facto; and the constitutions of some of the States

1 See Bishop Mar. & Div. § 786 et seq.

* Barto v. Himrod, 4 Seld. 483; Thorne v. Cramer, 15 Barb. 112; The State v. Parker, 26 Vt. 357; People v. Collins, 3 Mich. 343; The State v. Copeland, 3 R. I. 33; Parker v. Commonwealth, 6 Barr, 507; The State v. Field, 17 Misso. 529; Louisville v. Baird, 15 B. Monr. 246; Paterson v. Society, 4 Zab. 385; Maize v. The State, 4 Ind. 342.

* University v. Williams, 9 Gill & J. 365, 408; Ward v. Barnard, 1 Aikens, 121, 127; Lyman v. Mower, 2 Vt. 517, 518; Merrill v. Sherburne, 1 N. H. 199, 213; Goshen v. Stonington, 4 Conn. 209, 225; Vanhorn v. Dorrance, 2 Dall. 304; Williams v. Robinson, 6 Cush. 333, 335; Taylor v. Porter, 4 Hill, N. Y. 140, 149; Bloodgood v. Mohawk and Hudson Railroad, 18 Wend. 9, 56; Varick v. Smith, 5 Paige, 137, 159; Wilkinson v. Leland, 2 Pet. 627, 656; Bowman v. Middleton, 1 Bay, 252; Cochran v. Van Surlay, 20 Wend. 365, 373, by Chancellor Walworth; Calder v. Bull, 3 ̊ Dall. 386, by Chase, J.; Medford v. Learned, 16 Mass. 215, 217; Bates v. Kimball, 2 D. Chip. 77, 89; Commonwealth v. Worcester, 3 Pick. 462, 472; Ex parte Martin, 13 Ark. 198, 206.

• Watson v. Mercer, 8 Pet. 88, 110; Bennett v. Boggs, Bald. 60; Satterlee v. Matthewson, 2 Pet. 380, 414; Charles River Bridge v. Warren Bridge, 11 Pet. 420.

do not contain this prohibition; but it is generally understood that the legislatures of these States have no authority to bind the subjects by such laws; as to take away property vested in one man, and give it to another.1 "To the legislature," said Marshall, C. J., "all legislative power is granted; but the question, whether the act of transferring the property of an individual to the public be in the nature of the legislative power, is well worthy of serious reflection." 2 So it has been laid down generally, that "statutes passed against the plain and obvious principles of common right and common reason are absolutely null and void, as far as they are calculated to operale against those principles." 3

1

Bishop Mar. & Div. § 776, 784; Story Const. § 1399; and the cases cited in the first note to this section.

* Fletcher v. Peck, 6 Cranch, 87, 135, 136.

3

power

Ham v. McClaws, 1 Bay, 93, 98; Barksdale v Morrison, Harper, 101. The doctrine of the text, together with some of the reasons on which it is founded, was clearly stated by Burke, in his speech in the impeachment of Warren Hastings: "He have arbitrary power! My lords, the East India Company have not arbitrary power to give him; the king has no arbitrary power to give him; your lordships have not; nor the Commons; nor the whole legislature. We have no arbitrary power to give, because arbitrary a thing which neither any man can hold nor any man can give. No man can lawfully govern himself according to his own will, much less can one person be governed by the will of another. We are all born in subjection, all born equally, high and low, governors and governed, in subjection to one great, immutable, preëxistent law, prior to all our devises, and prior to all our contrivances, paramount to all our ideas, and all our sensations, antecedent to our very existence, by which we are knit and connected in the eternal frame of the universe, out of which we cannot stir. This great law does not arise from our conventions or compacts; on the contrary, it gives to our conventions and compacts all the force and sanction they can have; — it does not arise from our vain institutions. Every good gift is of God; all power is of God; and He, who has given the power, and from whom alone it originates, will never suffer the exercise of it to be practised upon any less solid foundation than the power itself. If, then, all dominion of man over man is the effect of the Divine disposition, it is bound by the eternal laws of Him that gave it, with which no human authority can dispense; neither he that exercises it, nor even those who are subject to it; and, if they were mad enough to make an express compact that should release their

§ 53 a. If man were independent of the higher Power; if he had created himself; if he preserved himself, governed himself; if there were no world beyond his own, and existence with him closed with the decay of the body,- still he must have his being according to some law, a violation of which law would end him. And what is true of an individual must be true also of the race, and of all combinations of men. Neither any individual one, nor the whole together, should therefore yield to a direction which would end either the race or human association. But the case with us is even stronger than is thus put. We exist not by our own volition; we decide not for ourselves our destinies here, only in part; we are bound to other worlds by the tie of a common brotherhood, having a common Father with all the universe; and we must, therefore, conform to laws above our own. Those laws require us not to abstain from making such regulations among ourselves as necessity demands; but there is a point beyond which we cannot go. And to say, that no such point exists, but whatever a legislative body may see fit to declare law binds the subject, is as absurd as it is impious. Differences of opinion there will be as to where the ultimate point lies; but this fact changes not the doctrine itself.

§ 54. This doctrine commends itself also by a considerable weight of English1 and American judicial authority. On the

magistrate from his duty, and should declare their lives, liberties, and properties dependent upon, not rules and laws, but his mere capricious will, that covenant would be void." 7 Burke's Works, Bost. Ed. of 1827, p. 110. This is also a doctrine of the civil law. "The rules of the law of nature," says Domat," are those which God himself hath established, and which he communicates to mankind by the light of reason. These are the laws which have in them a justice that cannot be changed, which is the same at all times and in all places; and whether they are set down in writing or not, no human authority can abolish them, or make any alteration in them." Domat, Cush. Ed. p. 109.

1

1 Day v. Savadge, Hob. 85, 87; Bonham's case, 8 Co. 114, 118, where it is said: "It appears in our books, that in many cases the common law will control acts of parliament, and sometimes adjudge them to be utterly void; for

4