In reference of the admissibility of the books of a municipal corporation as evidence, the Supreme Court of the State of New York has said, "that the corporation of the city of New York more nearly resembles the legislature of an independent state, acting under a constitution prescribing its powers, than an ordinary private corporation. The acts of this corporation concern the rights of the inhabitants of the city; it exercises a delegated power, not for its own emolument, but for the interests of its constituents; and while it keeps within the limits of its authority, the constituents are bound by the acts of the corporation. When the citizen wishes 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 vs. Guion, 4 Denio, 581.

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 Brooklyn, 14 Barb. 425.

See Trustees of Clintonville vs. Keeting, 4 Denio, 341, 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 municipal corporations, see the Attorney General of the State of New York vs. The Mayor, &c., of New York, 3 Duer, 119.

* Denning vs. Roome, 6 Wend., 651, note 800; 8 Phillips on Evidence, p. 1150.

CHAPTER X.

LIMITATIONS IMPOSED UPON LEGISLATIVE POWER BY THE CONSTITUTIONS OF THE SEVERAL STATES OF THE UNION.

The general character of constitutional provisions regarded as limitations upon legislative power-Principal restrictions imposed by the State constitutions-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-Religious societies-Creation of judges-Incorporations-Trust funds-Divorces-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 obtains. We now proceed to consider a branch of the great topic which is confined exclusively to this country-I mean CONSTITUTIONAL 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 contemporary eye, when speaking of the first State gov ernments organized in 1776, 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

by the legislature itself."* It is in this point of view that I have now to examine the subject of our constitutional 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 great head of Constitutional Law is peculiar to American jurisprudence.+ It is full of importance

* Marshall's Life of Washington, vol. ii., p. 371. He makes an exception as to the novelty of the idea, in favor of "Connecticut and Rhode Island, whose systems had ever been in a high degree democratic."

I have already (ante, p. 214) had occasion to notice what are called the principles of the English Constitution, 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 Constitution, their Parliament is omnipotent. To annul corporate rights might give a shock to public opinion which that government has chosen to avoid; but its power is not questioned." Dartmouth College vs. Woodward, 4 Wheat., 518. "The absolute power of the legislature," says Mr. Hallam, speaking of the resumption of the Irish grants in 1699, "in strictness is as arbitrary in England as in Persia." Hallam's Const. Hist., vol. iii., p. 193, 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, 23d July, 1840-3 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

to every citizen of the Republic; to the lawyer it is a matter of commanding interest; nor will it ever be possible to understand the character or 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 attached. 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 province a Legislative Council and Assembly, and that within the province Her Majesty shall have power, by and with the advice and consent of the Council and Assembly, to make laws for the province, such laws not being repugnant to this act or such parts of an act of the 31 Geo. III., 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 Canada, or to either of them, or to the province of Canada. The act, however, mainly relates to the arrangement and distribution of political power, including 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 sovereign declaring, decreeing, and expounding the law. "Quodcumque, igitur, Imperator per epistolam et subscriptionem statuit, vel cognoscens decrevit, vel de plano interlocutus est, vel edicto præcepit, legem esse constat. Hæc sunt quas vulgo Constitutiones appellamus.”—Dig. de Constitutionibus Prinicpum, l. 1, § 1; Vicat. Vocab. Utriumq. Juris in voc.

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 justified their confidence. No difficulty whatever has as yet resulted from the absence of any specific provision on the subject; the authority to determine the constitutionality 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 judiciary. 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 Pennsylvania; 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 discussion 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 government; and whatever may be the case in other countries, 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;† in South Carolina, in 1792; and in 1802, in Maryland.§

* Van Horne's Lessee vs. Dorrance, 2 Dallas, 304, a case in relation to the territorial controversy between Pennsylvania and Connecticut. Hayburne's Case.

Bowman vs. Middleton, 1 Bay, 252; Lindsay vs. The Charleston Commissioners, 2 Bay, 38.

& Whittington vs. Polk, 1 Harr. & Johns. 236.