in natural rights; the distinction between fundamental and nonfundamental laws found expression at once in a number of colonies (Connecticut, Massachussetts, Pennsylvania), and thus was carried into American public law the habit of laying down abstract principles, where English constitutional tradition had stated concrete rights. And while English legal thought acknowledged limitations on the royal prerogative, but regarded parliamentary omnipotence as axiomatic, the eighteenth-century controversies over the power of taxation produced the curious result that the colonists, while protesting their loyalty to the king, denied the power of Parliament to bind them, since they could not be represented in it, and free people could be bound only through their representatives. Thus the experiences of the colonies prepared the way for the advent of the American constitutional system. There was a theory of popular supremacy, a theory of natural rights, a theory of paramount laws, a theory of limited legislative power, but it does not follow follow that there was also a theory of inherent or implied limitations upon the power of the legislature. Where it was intended to secure a right against legislation it was specifically expressed, as had been the custom in the earlier colonial fundamental orders and bodies of liberties; very general declarations in favor of popular supremacy and reserved and natural rights were thrown in for good measure, and a check of a legal nature was hardly contemplated by these declarations. It is true that even with regard to the specific clauses there was no explicit method pointed out of giving them legal effect; but the judicial power to annul unconstitutional laws was foreshadowed and established itself quickly and firmly. The history of this phase of American constitutional law has been frequently set forth, and it is sufficient to say that by the beginning of the nineteenth century it was fully recognized, and that the power has never since been seriously shaken. But the present scope of the power was a matter of slower development, and it is controversial to what extent the courts recognized from the beginning general limitations as judicially enforceable. A brief review of the decisions will therefore be useful, and for the sake of simplicity this will be given in form of a chronological enumeration of cases in which general clauses as distinguished from specific guaranties were discussed. DEVELOPMENT OF THE JUDICIAL ENFORCEMENT OF CONSTITUTIONAL LIMITATIONS ON THE BASIS OF GENERAL CLAUSES An act forfeiting 1789. South Carolina, Ham v. McClaws, 1 Bay 93. imported slaves; retroactive effect said to be against common reason, but avoided by giving the act a non-retroac.ive construction. Act of 1712 Held to be 1789. South Carolina, Bowman v. Middleton, 1 Bay 252. changing the course of descent after the death of the owner. against common right and against Magna Charta, and therefore ipso facto void. 1800. U. S. Supreme Court, Cooper v. Telfair, 4 Dall. 14. Act of attainder and confiscation, passed by Georgia in 1782, sustained. Chase: "The general principles contained in the constitution are not to be regarded as rules to fetter and control, but as matter merely declaratory and directory." Paterson: "I consider it a sound proposition, that wherever the legislative power of a government is undefined, it includes the judicial and executive attributes." Cushing: "The right to confiscate and banish, in the case of an offending citizen, must belong to every government.” 1805. North Carolina, Trustees of University v. Foy, 1 Murphy 58. Act divesting lands previously given to State University, held unconstitutional. The constitutional clause protesting against deprivation of life, liberty and property would be idle, if the legislature can make the "law of the land." 1811. New York, Dash v. Van Kleek, 7 Johns 477. Act allowing a new defense to a right of action; retroactive effect upon a pending action avoided by construction; judges rather incline in favor of the legislative power. 1814. Massachusetts, Holden v. James, 11 Mass. 396. Act allowing a suit to be brought after the statute of limitations has run against the right of action; held void; no power to suspend laws in favor of an individual; reliance on civil liberty, natural justice and standing laws.4 1818. New Hamphire, Merrill v. Sherburne, 1 N. H. 204. Act granting new trial unconstitutional; relying on unprinted precedents. 1822. Connecticut, Goshen v. Stonington, 4 Conn. 209. Act curing an invalid marriage sustained; dictum that a direct invasion of a vested right would be a violation of the social compact and within the control of the judiciary. 1825. Vermont, Ward v. Barnard, 1 Aikens 121. A special act of the legislature releasing an imprisoned debtor held void. So far as an act of the legislature is retrospective, or ex post facto, it is not a prescribed rule of conduct. An act conferring upon any one citizen privileges to the prejudice of another and which is not applicable to others in like circumstances, does not enter into the idea of municipal law, having no relation to the community in general. 1826. Kent's Commentaries I, 455: "A retrospective statute affecting and changing vested rights is very generally considered in this country as 4 See two articles, 13 American Jurist, 72; 14 Ibid., 83, 1835, commenting on this decision. founded on unconstitutional principles and consequently inoperative and void." 1829. United States Supreme Court, Wilkinson v. Leland, 2 Pet. 627. Act of Rhode Island confirming an executor's sale sustained. Webster as counsel relies on inherent principles of liberty and on the principle of the separation of powers as inherent in a republican government, no matter whether there is a written constitution or not (Rhode Island had at the time only the old colonial charter without express limitations). Giving property of A to B must be done judicially and not legislatively, though it may perhaps be done by the legislature. He concludes that the former practice has been to the contrary. Judge Story agrees to the general principle, but the act in question does not violate it. 1830. Federal District Court, Bennet v. Boggs, 1 Baldwin 60, 74. Judge Baldwin: "We are not the guardians of the rights of the people of a state unless they are secured by some constitutional provision which comes within our cognizance." 1830. Tennessee, Marr v. Enloe, 1 Yerg. 452. The taxing power cannot be delegated to the justices of the county courts, holding permanent offices and wholly irresponsible to the people. The court also relies upon an article of the constitution requiring equal taxation of all lands, which the legislation in question sought to evade. 1831-36. Tennessee. A number of special acts declared unconstitutional as usurpation of the judicial power by the legislature, or as violating the "law of the land," which must be a general and equal law. The cases are reviewed in Jones v. Parry, 10 Yerg. 59. A discussion of "the law of the land" is found in 2 Yerg. 599. 1831. 1833. Kentucky, Gaines v. Buford, 1 Dana 481. Act forfeiting lands for failure to improve them held void. P. 501: "The idea of a sovereign power is incompatible with the existence and permanent foundation of civil liberty as an inviolable right; but the decision relates to a vested right of property. 1834. New York, Matter of Albany Street, 11 Wend. 148. Taking by eminent domain more of a lot than is needed for public use held unconstitutional. It is a violation of natural right, and if it is not in violation of the letter of the constitution it is in violation of its spirit and cannot be supported. 1838. New York, Cochran v. Van Surley, 20 Wend. 365. Act directing sale of infant's real estate sustained. Walworth says that to transfer property from one to another would be void as being against the spirit of our constitution and not within the powers delegated to the legislature by the people. Verplanck says that he can find no authority for a court to vacate or repeal a statute on that ground alone; he would require an express constitutional sanction, but finds in the fact that the constitution of New York of 1821 added to the "law-of-the-land" clause a "due-process" clause, a protection against mere arbitrary legislation under whatever pretext of private or public good; at the same time deprecates a broad, loose, and vague in terpretation of a constitutional provision; very significant dicta, particularly the reliance upon the due-process clause. 1838. Alabama, Ex parte Dorsey, 7 Porter 293. Act requiring of an attorney an oath that he has not engaged in a duel held void, partly on the ground of the violation of procedural guaranties, since the offense must be ascertained by due course of law, but also relying upon extremely strong article (30) of the Bill of Rights retaining rights non-enumerated for the people, and excepting the Bill of Rights out of the general powers of government, and declaring all contrary laws to be null and void. This is the first decision declaring a statute invalid without vested rights being involved. 1843. New York, Taylor v. Porter, 4 Hill 140. Act permitting property to be taken for a private road, on payment of compensation, held void, as exceeding the scope of true legislative power, as violating the “law of the land" and "due process." The practical effect of the decision was nullified by constitutional amendment. 1844. Arkansas, Riggs v. Martin, 5 Ark. 506. An act requiring a plaintiff to support his claim by oath in open court; held unconstitutional as a practical denial of justice, since it prevents an absent plaintiff from recovering. 1847. Pennsylvania, Parker v. Commonwealth, 6 Pa. 507. 1848. Delaware, Rice v. Foster, 4 Harr. 479. County local option law held void as unconstitutional delegation of legislative power to the people. Having thus arrived at the middle of the century, we find that while there have been far-reaching dicta spread over the entire period, the actual decisions annulling laws on the basis of non-specific clauses have been few, and have either involved a violation of vested rights of property or of principles of procedure or a delegation of legislative power. Civil liberty is mentioned once as a constitutional right, but no law restraining the exercise of civil rights prospectively has been declared unconstitutional. This issue is not presented until the following decade. 1852 TO 1858. LIQUOR PROHIBITION CASES. 1852. Illinois, Jones v. People, 14 Ill. 196. Prohibition law sustained; "a government that did not possess the power to protect itself against such and similar evils would scarcely be worth preserving." 1852. New Hamphire, Opinion of Justices, 25 N. H. 537. So long as liquor is property it would be unconstitutional to take away all remedies to recover its possession. 1853. Massachusetts, Com. v. Kendall, 12 Cush. 414. Prohibition law sustained; it violates no principle of the constitution; brief four-line opinion. 1854 Michigan, People v. Hawley, 3 Mich. 330. Prohibition law sus tained; objectors rely on vested rights and contracts; the objection is briefly disposed of. 1855. Vermont, Lincoln v. Smith, 27 Vt. 335. Prohibition law sustained, relies on the license cases decided by United States Supreme Court. 1855. Vermont, Lincoln v. Sithm, 27 Vt. 335. Prohibition law sustained, "certainly not contrary to the social compact"; conflicting views as to limitations of legislative power. 1855. Indiana, Beebe v. State, 6 Ind. 504. Prohibition law declared unconstitutional, chiefly because destroying vested rights of property; strong dicta on limitation of legislative power in general; court has power to inquire whether the traffic is harmful. This decision appears to be ignored in later Indiana cases. 1856. Michigan, People v. Gallagher, 4 Mich. 244. Prohibition law sustained; a very full discussion reviewing the decisions on the power to declare laws unconstitutional, chiefly dicta; a large discretionary power is indispensable; should it be in the courts rather than in the legislature? A dissenting opinion insists strongly on inherent limitations and on the protection of vested interests; the judicial department is a conservative body designed to stand between the legislature and the people. 1856. New York, New York v. Wynehamer, 13 N. Y. 378. An absolute prohibition law is unconstitutional so far as its acts on liquor owned at the time of the passage of the act; the power of prospective prohibition is recognized. 1856. Connecticut, State v. Wheeler, 25 Conn. 290. Prohibition law sustained; power purely legislative in character. 1856. Delaware, State v. Allmond, 2 Houst. 612. Prohibition law sustained; better presume the impossibility of an abuse of legislative power than predicate upon its assumption the right to review legislative action on any other than specific grounds. 1858. Rhode Island, State v. Paul, 5 R. I. 185. Prohibition law sustained; does not violate any specific provision (obligation of contracts, ex post facto); far within the legislative competence to enact. We thus find only two cases in which prohibition is declared unconstitutional, mainly or exclusively in reliance upon the protection due to vested rights; there is no constitutional recognition of a right of reasonable exercise of civil liberty, except perhaps in Indiana and in a dissenting opinion in Michigan. The general judicial acquiescence in an unprecedented exercise of legislative power is all the more noteworthy, as the legislation in question was for the time almost unenforceable and in most states short-lived. 1857. California, Billings v. Hall. 7 Cal. 1. A betterment act operating in favor of trespassers held unconstitutional as depriving of a vested right. |