*16] acts of parliament as are appointed* to be publicly read in churches and other assemblies. It may lastly be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament. Yet, whatever way is made use of, it is incumbent on the promulgators to do it in the most public and perspicuous manner; not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them upon high pillars, the more effectually to ensnare the people. There is still a more unreasonable method than this, which is called making of laws ex post facto; when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust.(e) All laws should be therefore made to commence in futuro, and be notified before their commencement; which is implied in the term "prescribed." But when this rule is in the usual manner notified, or prescribed, it is then the subject's business to be thoroughly acquainted therewith; for if ignorance, of what he might know were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity.10

() Such laws among the Romans were denominated privilegia, or private laws, of which Cicero (de leg. 3, 19, and in his oration, pro domo, 17) thus speaks: "Vetant leges sacratæ, vetant duodecim tabulæ, leges privatis hominibus *An ex post facto law may be either of a public or of a private nature; and when we speak generally of an ex post facto law, we perhaps always mean a law which compre hends the whole community.

irrogari; id enim est privilegium. Nemo unquam tulit, nihil est crudelius, nihil perniciosius, nihil quod minus hæc civitas ferre possit."

The Roman privilegia seem to correspond to our bills of attainder, and bills of pains and penalties, which, though in their nature they are ex post facto laws, yet are never called SO. CHRISTIAN.

10 Many instances formerly occurred of acts of parliament taking effect prior to the passing thereof, by legal relation from the first day of the session. See I, Lev. 91, 4 T. R. 660; but this is remedied by 33 Geo. III. c. 13; and frequently it is provided that the act shall commence at a future-named day.

In New York, every law, unless a different time is prescribed therein, takes effect on the twentieth day after the day of its final passage. 1 R. S. 157.

The statutes of the United States take effect from their date. 1 Kent's Com. 426; 1 Gallis. 62; 7 Wheat. 164. The constitution of the United States prevents Congress from passing any ex post facto law. Article 1, sec. 2, 3. So, article 1, sect. 10, 1, prevents any State from passing any ex post facto law, or law impairing the obligation of contracts. By ex post facto laws is only meant laws relating to criminal, not civil, matters. 7 Johns. R. 477; 3 Dallas, 386. See, however, 2 Peters 681,-Mr. Justice Johnson's opinion.

According to the rule of the English law, acts of parliament took effect by relation to the first day of the session of parliament at which they were passed, unless some other day was specially named in the body of the act. The entire session of parliament was regarded by a fiction as one day. In the case of the King vs. Thurston, this doctrine of carrying a statute back by relation to the first day of the session was admitted in the King's Bench, although the consequence of it was to render an act murder which would not have been so without such relation. (1 Lev. 91.) By the stat. 33 Geo. III. c. 13, it was declared that statutes are to have effect only from the time they receive the royal assent; and the former rule was abolished, to use the words of the statute, by reason of "its great and manifest injustice."

In the United States, an act of Congress takes effect from the time of its passage. So wide-spread is the territory the inhabitants of which may be affected by the provisions of such act, that it is impossible they can have notice of the existence of the law until some time after it has been passed.

The Code Napoleon declared that laws were binding from the moment their promulgation could be known; and that the promulgation should be considered as known in the department of the Imperial residence one day after that promulgation, and in each of the other departments of the French empire after the expiration of the same space of time, augmented by as many days as there were distances of twenty leagues between the seat of government and the place. The New York Revised Statutes have also declared that every law, unless a different time be prescribed therein, shall take effect throughout the State on and not before the twentieth day after the day of its final passage.

By the constitution of the United States, art. 1, s. 8 and 10, Congress and the States are forbidden to pass ex post facto laws. An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. Every

But farther: municipal law is "a rule of civil conduct prescribed by the supreme power in a state." For legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other.

*This will naturally lead us into a short inquiry concerning the nature [*47 of society and civil government; and the natural, inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws.

The only true and natural foundations of society are the wants and the fears of individuals. Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society either natural or civil; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted: and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families. These formed the first natural society, among themselves; which, every day extending its limits, laid the first though imperfect rudiments of civil or political society: and when it grew too large to subsist with convenience in that pastoral state, wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent: and various tribes, which had formerly separated, reunited again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. But though society had not its formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the sense of their weakness and imperfection that keeps mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement of civil society. And this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, *in the very act of associating together: namely, that the whole should protect [*48 all its parts, and that every part should pay obedience to the will of the whole, or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection should be certainly extended to any."

law that makes an act done before the passing of the law, and which was innocent when done, criminal, or which aggravates a crime and makes it greater than it was when it was committed, or which changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed, or which alters the legal rules of evidence and makes less or different testimony than the law required at the time of the commission of the offence sufficient in order to convict the offender, falls within this definition. E post facto laws relate to penal and criminal proceedings, which impose punishments or forfeitures, and not to civil proceedings, which affect private rights retrospectively. Retrospective laws and State laws divesting vested rights, unless ex post Festo, or impairing the obligation of contracts, do not fall within the prohibition contained in the constitution of the United States, however repugnant they may be to the principles of sound legislation. Of retrospective laws Lord Bacon says, "Cujus generis leges, raro et magna cum cautione sunt adhibendæ : neque enim placet Janus in legibus." -Tract. de Just. Univ., aphorism xlvii. 1 Kent Com. 405. Calder vs. Bull, 3 Dall. 386. Fletcher vs. Peck, 6 Cranch, 135. Satterlee vs. Matthewson, 2 Peters, 413. Watson vs. Mercer, 8 Peters, 88.-SHARSWOOD.

"Man is by nature a social being. He is made to live in the society of other moral beings. He cannot be contented in a state of solitude. He would rather "dwell in the Vol. I.-3

33

For when civil society is once formed, government at the same time results of course, as necessary to preserve and to keep that society in order. Unless some superior be constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and redress their several wrongs. But, as all the members which compose this society were naturally equal, it may be asked, in whose hands are the reins of government to be intrusted? To this the general answer is easy; but the application of it to particular cases has occasioned one half of those mischiefs, which are apt to proceed from misguided political zeal. In general, all mankind will agree that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which is among the attributes of Him who is emphatically styled the Supreme Being; the three grand requisites, I mean, of wisdom, of goodness, and of power: wisdom, to discern the real interest of the community; goodness, to endeavour always to pursue that real interest; and strength, or power, to carry this knowledge and intention into action. These are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well constituted frame of government.

midst of alarm than reign" in a desert. The commentator is right when he says that man was formed for society, and, as is demonstrated by the writers on this subject, is neither capable of living alone, nor, indeed, has the courage to do it." But it is not consistent with this admission to say, as he afterwards does, that "the only true and natural foundations of society are the wants and fears of individuals." It may be fearlessly asserted that a state of solitude would be unnatural and unsuited to a man if he had no wants and no fears. He confounds in this passage society and government. It is true that the wants and fears of individuals in society tend to government; or, as he afterwards expresses it, government "results of course, as necessary to preserve and keep society in order." But it would be more philosophical to go one step further back to that principle in human nature which makes the wants and fears of men in society tend necessarily to government. That principle is, that, strong as the social feelings are, the individual or selfish (using the word in a sense not necessarily bad) are still stronger. Each man, in consequence, looks more to his own interest and happiness than those of others, and conflicts must take place,-universal discord and confusion, destructive of the social state and the ends for which it is ordained. There must be a controlling power somewhere lodged; and, wherever or whatever it is, that is Government.

It having been shown that government is a necessary relation of man from his natural constitution, it follows that government is right. The moral government of the Supreme Being over the universe of matter and mind has this same moral quality. It is therefore in a secondary sense that all government-and, of course, human government-may be said to be of divine ordination. In the creation of moral beings with social natures, this relation of government resulted as necessarily as the equality of the three angles of a triangle to two right angles. It is in this sense we are to receive the declaration that "the powers that be are ordained of God."-Rom. xiii. 1.

Writers have amused themselves with supposing an original compact in every society. The nearest approach to such a thing in history is to be found in the original settlement of the United States. The different colonies were constituted under charters from the crown of Great Britain; and the original adventurers, as well as those who succeeded, may without much violence be considered as having, either expressly or tacitly, become parties to a compact of society founded upon the terms set forth in those charters. Each colony was a separate state or nation. They all agreed in recog the King of Great Britain as their supreme executive magistrate, and the power of itish Parliament to extend over them in certain respects; but, in the main, then focal las were to be made by them through their Representative Assemblies. At the Revolution, they threw off their dependence upon the British crown and declared themselves "free_and independent States." The Declaration of Independence was the joint and several of the colonies, and its effect was to constitute each separate colony a free and inde ent State. So they themselves considered; for, as they had done before, the-ontinued to act by a Congress of States, each State, by its delegates, having one vote in the Congress; and when, subsequently, they entered into articles of confederation, it was declared expressly, "Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled."

The fundamental principle announced to the world in the Declaration of Independ

[*49

How the several forms of government we now see in the world at first actually began, is matter of great uncertainty, and has occasioned infinite disputes. It is not my business or intention to enter into any of them. However they began, or by *what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty, reside. And this authority is placed in those hands, wherein (according to the opinion of the founders of such respective states, either expressly given, or collected from their tacit approbation) the qualities requisite for supremacy, wisdom, goodness, and power, are the most likely to be found.

The political writers of antiquity will not allow more than three regular forms of government: the first, when the sovereign power is lodged in an aggregate assembly, consisting of all the free members of a community, which is called a democracy; the second, when it is lodged in a council, composed of select members, and then it is styled an aristocracy; the last, when it is intrusted in the hands of a single person, and then it takes the name of a monarchy. All other species of government, they say, are either corruptions of, or reducible to, these three.

By the sovereign power, as was before observed, is meant the making of laws, for wherever that power resides, all others must conform to and be directed by it, whatever appearance the outward form and administration of the government may put on. For it is at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases; by constituting one, or a few, or many executive magistrates: and all the other powers of the state must obey the

ence was that governments derive their just powers from the consent of the governed, that it is the right of the people to alter or abolish their form of government and institute a new one, laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness. This may be treated as the established doctrine of this country. Nor is it inconsistent with any thing before advanced in these notes; for, while government is a moral relation necessarily resulting from the nature of men, and therefore of divine ordination, the particular form of government is evidently of human contrivance. The great majority of governments have been the result of force or fraud; yet even these may be considered as resting upon the tacit consent or acquiescence of the governed. If they have the physical power, they are competent to overthrow it; nor are other nations justified in interfering in such domestic conflicts. It is to be remarked that in the freest nations -even in the republics which compose the United States-the consent of the entire body of the people has never been expressly obtained. The people comprehend all the men, women, and children of every age and class. A certain number of the men have assumed to act in the name of all the community. The qualifications of electors or voters was in general settled by the colonial charters, and so continued until altered subsequently by the authority of the same body. It was settled, too, that the acts of the majority of such body of electors were binding on the whole number.

Very plainly, then, it is essential to the American doctrine to hold that every citizen shall have a right at any time to expatriate himself. It is well known that it is settled to the contrary in the English courts. Nemo potest exuere patriam. But how can the consent of the governed be in any sens implied if the citizen is coerced to remain a member of the hrough all the changes which its form of government may undergo, whether without his approbation? It is clear that in any such change he may remov himself and his property to another country if he chooses, and should be allowed a reasonable time in which to make his election. This course was adopted at the period f the American Revolution. all persons, whether natives or inhabitants, were consid entitled to make their choice either to remain subjects of the British crown or to ne citizens of one or other of the United States. This choice was necessarily to be within a reasonable time. In some cases, that time was pointed out by express acts of the legislature; and 'ne fact of abiding within the state after its assumed independence, or after some other specified period, was declared to be an election to become a citizen. That was the course in Massachusetts, New York, New Jersey, and Pennsylvania. In other States, no special laws were passed, but each case was left to be decided upon its own circunstances, according to the voluntary acts and conduct of the party.-SHARSWOOD.

m

legislative power in the discharge of their several functions, or else the constitu tion is at an end.12

12 The sovereignty or supreme power in every state resides ultimately in the body of the people. Blackstone supposes the jura summi imperii, or the right of sovereignty, to reside in those hands in which the exercise of the power of making laws is placed. Our simple and more reasonable idea is, that the government is a mere agency established by the people for the exercise of those powers which reside in them. The powers of government are not, in strictness, granted, but delegated, powers. As all delegated powers are, they are trust powers, and may be revoked. It results that no portion of sovereignty resides in government. A man makes no grant of his estate when he constitutes an attorney to manage it. The sovereignty-the jura summi imperi-resides in the body of the state or nation by whose consent, expressed or implied, a form of government was at one time established as the organ to make known its sovereign will. This sovereignty is indivisible, and can be lost only in one way,-by a voluntary or forced subjection to, or merger with, some other state or people.

That act of the people which constitutes the form of government we call the constitu tion. It may be a general unlimited delegation of all the power of the people to certain prescribed functionaries. This is the case with the English constitution. The king, Lords, and Commons are vested with unlimited power. They can change at any time the established form of the government, and have done so in many instances, as in the change of the succession to the throne, the powers and organization of the Lords and House of Commons. What is popularly termed the English constitution are certain principles according to which the government has been organized, and which, according to the most liberal view, forms an implied restriction upon the omnipotence of the king, Lords, and Commons. Yet it is certain that, if Parliament were to pass a law clearly inconsistent with those principles, no court in England would venture to pronounce it void. And if it could not be repealed by the force of the popular will, by the same power which made it, it would have to be submitted to as the law of the land, unless the people chose to resort to a revolution. Revolution means nothing more nor less than a peaceable or forcible change by a people of their constitution.

The constitutions of our American Republics have always been written. The charters which prescribed the forms of government were so. Those adopted by the several States at the period of the Revolution were all so. They not only organized the several departments, the legislative, executive, and judicial,—but by various Bills of Rights, as well as express restrictions, prescribed limitations to the power of the government. In other words, certain of the powers of sovereignty they refused to delegate, and as to others, provided that they should only be exercised in a prescribed manner. It results that the provisions of the constitution, emanating directly from the people, are the expression of their permanent will, and no act of the government inconsistent with it of any validity. The courts will pronounce such acts invalid, null, and void. "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operatior of each. So if a law be in opposition to the constitution, if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law, the court must determine which of the conflicting rules governs the case. This is of the essence of judicial duty. If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the constitution and see only the law, This doc trine must subvert the very foundation of all writter constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet in practice completely obligatory. It would declare that, if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omulpo tence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure." C. J. MARSHALL, in Marbury vs. Madison, 1 Cranch, 177.

In general, in our State constitutions the right of suffrage is almost universally extended to all free white male citizens, and the principle is to give effect to the will of the numerical majority of the voters. Yet the States are not pure, but representative, democracies. The legislative functions are vested in two sepirate bodies, differently constituted,- -a Senate and a House,-whose concurrence is required to the passage of laws,