enforced. Such power assimilates itself more closely to despotic rule than any other attribute of government.” 1

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On the other hand, to adjudicate upon, and protect, the rights and interests of individual citizens, and to that end to construe and apply the laws, is the peculiar province of the judicial department.2 "No particular definition of judicial power," says Woodbury, J., "is given in the constitution [of New Hampshire], and, considering the general nature of the instrument, none was to be expected. Critical statements of the meanings in which all important words were employed would have swollen into volumes; and when those words possessed a customary signification, a definition of them would have been useless. But 'powers [* 92] judicial,' judiciary powers,' and 'judicatures' are all phrases used in the constitution; and though not particularly defined, are still so used to designate with clearness that department of government which it was intended should interpret and administer the laws. On general principles, therefore, those inquiries, deliberations, orders, and decrees, which are peculiar to such a department, must in their nature be judicial acts. Nor can they be both judicial and legislative; because a marked difference exists between the employment of judicial and legislative tribunals. The former decide upon the legality of claims and conduct, and the latter make rules upon which, in connection with the constitution, those decisions should be founded. It is the province of judges to determine what is the law upon existing cases. In fine, the law is applied by the one, and made by the other. To do the first, therefore, to compare the claims of parties with the law of the land before established, is in its nature a judicial act. But to do the last -to pass new rules for the regulation of new controversies is in its nature a legislative

1 Ervine's Appeal, 16 Penn. St. 266. See also Greenough v. Greenough, 11 Penn. St. 494; Dechastellux v. Fairchild, 15 Penn. St. 18; Trustees, &c., v. Bailey, 10 Fla. 238.

2 Cincinnati, &c., Railroad Co. v. Commissioners of Clinton Co., 1 Ohio, N. s. 81. See also King v. Dedham Bank, 15 Mass. 454; Gordon v. Ingraham, 1 Grant's Cases, 152; People v. Supervisors of New York, 16 N. Y. 432; Beebe v. State, 6 Ind. 515; Greenough v. Greenough, 11 Penn. St. 494; Taylor v. Place, 4 R. I. 324. In State v. Adams, 44 Mo. 570, a legislative act which declared certain college officers to have vacated their offices by failure to take an oath prescribed by a previous act, and which proceeded to appoint successors, was held void as an exercise of judicial power.

6

act; and if these rules interfere with the past, or the present, and do not look wholly to the future, they violate the definition of a law as a rule of civil conduct; '1 because no rule of conduct can with consistency operate upon what occurred before the rule itself was promulgated.

"It is the province of judicial power, also, to decide private disputes between or concerning persons; but of legislative power to regulate public concerns, and to make laws for the benefit and welfare of the State. Nor does the passage of private statutes conflict with these principles; because such statutes, when lawful, are enacted on petition, or by the consent of all concerned; or else they forbear to interfere with past transactions and vested rights." 2

With these definitions and explanations, we shall now proceed to consider some of the cases in which the courts have attempted to draw the line of distinction between the proper functions of the legislative and judicial departments, in cases where it has been claimed that the legislature have exceeded their power by invading the domain of judicial authority.

*Declaratory Statutes.

[* 93]

Legislation is either introductory of new rules, or it is declaratory of existing rules. "A declaratory statute is one which is passed in order to put an end to a doubt as to what is the common law, or the meaning of another statute, and which declares what it is and ever has been."3 Such a statute, therefore, is always in a certain sense retrospective; because it assumes to determine what the law was before it was passed; and as a declaratory statute is important only in those cases where doubts have already arisen, the statute, when passed, may be found to declare the law to be different from what it has already been adjudged to be by the courts. Thus Mr. Fox's Libel Act declared that, by the law of England, juries were judges of the law in prosecutions for libel; it

1 1 Bl. Comm. 44.

* Merrill v. Sherburne, 1 N. H. 204. See Jones v. Perry, 10 Yerg. 69; Taylor v. Porter, 4 Hill, 144; Ogden v. Blackledge, 2 Cranch, 272; Dash v. Van Kleek, 7 Johns. 498; Wilkinson v. Leland, 2 Pet. 657; Leland v. Wilkinson, 10 Pet. 297.

Bouv. Law Dict. "Statute."

did not purport to introduce a new rule, but to declare a rule. already and always in force. Yet previous to the passage of this act the courts had repeatedly held that the jury in these cases were only to pass upon the fact of publication and the truth of the innuendoes; and whether the publication was libellous or not was a question of law which addressed itself exclusively to the court. It would appear, therefore, that the legislature declared the law to be what the courts had declared it was not. So in the State of New York, after the courts had held that insurance companies were taxable to a certain extent under an existing statute, the legislature passed another act, declaring that such companies were only taxable at a certain other rate; and it was thereby declared that such was the intention and true construction of the original statute.1 In these cases it will be perceived that the courts, in the due exercise of their authority as interpreters of the laws, have declared what the rule established by the common law or by statute is, and that the legislature has then interposed, put its own. construction upon the existing law, and in effect declared the judicial interpretation to be unfounded and unwarrantable. The courts in these cases have clearly kept within the proper limits of their jurisdiction, and if they have erred, the error has been one of judgment only, and has not extended to usurpation of power. Was the legislature also within the limits of its authority when it passed the declaratory statute?

[* 94]

*The decision of this question must depend upon the practical application which is sought to be made of the declaratory statute, and whether it is designed to have practically a retrospective operation, or only to establish a construction of the doubtful law for the determination of cases that may arise in the future. It is always competent to change an existing law by a declaratory statute; and where it is only to operate upon future cases, it is no objection to its validity that it assumes the law to have been in the past what it is now declared that it shall be in the future. But the legislative action cannot be made to retroact upon past controversies, and to reverse decisions which the courts, in the exercise of their undoubted authority, have made; for this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form, since

1

People v. Supervisors of New York, 16 N. Y. 424.

the legislature would in effect sit as a court of review to which parties might appeal when dissatisfied with the rulings of the courts.1

As the legislature cannot set aside the construction of the law already applied by the courts to actual cases, neither can it compel

1 In several different cases the courts of Pennsylvania had decided that a testator's mark to his name, at the foot of a testamentary paper, but without proof that the name was written by his express direction, was not the signature required by the statute, and the legislature, to use the language of Chief Justice Gibson, declared, in order to overrule it, that every last will and testament heretofore made, or hereafter to be made, except such as may have been fully adjudicated prior to the passage of this act, to which the testator's name is subscribed by his direction, or to which the testator has made his mark or cross, shall be deemed and taken to be valid. How this mandate to the courts to establish a particular interpretation of a particular statute, can be taken for any thing else than an exercise of judicial power in settling a question of interpretation, I know not. The judiciary had certainly recognized a legislative interpretation of a statute before it had itself acted, and consequently before a purchaser had been misled by its judgment; but he might have paid for a title on the unmistakable meaning of plain words; and for the legislature subsequently to distort or pervert it, and to enact that white meant black, or that black meant white, would in the same degree be an exercise of arbitrary and unconstitutional power." Greenough v. Greenough, 11 Penn. St. 494. The act in this case was held void so far as its operation was retrospective, but valid as to future cases. And see Reiser v. Tell Association, 39 Penn. St. 137. The constitution of Georgia entitled the head of a family to enter a homestead, and the courts decided that a single person, having no others dependent upon him, could not be regarded the head of a family, though keeping house with servants. Afterwards, the legislature passed an act, declaring that any single person living habitually as housekeeper to himself should be regarded as the head of a family. Held void as an exercise of judicial power. Calhoun v. McLendon, 42 Geo. 405. The fact that the courts had previously given a construction to the law may show more clearly a purpose in the legislature to exercise judicial authority, but it would not be essential to that end. As is well said in Haley v. Philadelphia, 68 Penn. St. 45: "It would be monstrous to maintain that when the words and intention of an act were so plain that no court had ever been appealed to for the purpose of declaring their meaning, it was therefore in the power of the legislature, by a retrospective law, to put a construction upon them contrary to the obvious letter and spirit. Reiser v. William Tell Fund Association, 39 Penn. St. 137, is an authority in point against such a doctrine. An expository act of assembly is destitute

of retroactive force, because it is an act of judicial power, and is in contravention of the ninth section of the ninth article of the constitution, which declares that no man can be deprived of his property unless by the judgment of his peers or the law of the land.'" See 8 Am. Rep. 155, 156. And on the force and effect of declaratory laws in general, see Salters v. Tobias, 3 Paige, 388; Postmaster-General v. Early, 12 Wheat. 148.

the courts for the future to adopt a particular construction of a law which the legislature permits to remain in force. "To declare what the law is, or has been, is a judicial power; to declare what the law shall be, is legislative. One of the fundamental principles

1

of all our governments is, that the legislative power [* 95] * shall be separate from the judicial." If the legislature would prescribe a different rule for the future from that which the courts enforce, it must be done by statute, and cannot be done by a mandate to the courts, which leaves the law unchanged, but seeks to compel the courts to construe and apply it, not according to the judicial, but according to the legislative judgment.2 But in any case the substance of the legislative action should be regarded rather than the form; and if it appears to be the intention to establish by declaratory statute a rule of conduct for the future, the courts should accept and act upon it, without too nicely inquiring whether the mode by which the new rule is established is or is not the best, most decorous and suitable that could have been adopted.

If the legislature cannot thus indirectly control the action of the courts, by requiring of them a construction of the law according to its own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling them to grant new trials, ordering the discharge of offenders,3 or directing what particular steps shall be taken in the progress of a judicial inquiry.1

1 Dash v. Van Kleek, 7 Johns. 498, per Thompson, J.; Ogden v. Blackledge, 2 Cranch, 272; Lambertson v. Hogan, 2 Penn. St. 25.

2 Governor v. Porter, 5 Humph. 165; People v. Supervisors, &c., 16 N. Y. 424; Reiser v. Tell Association, 39 Penn. St. 137; O'Conner v. Warner, 4 W. & S. 227; Lambertson v. Hogan, 2 Penn. St. 25.

In State v. Fleming, 7 Humph. 152, a legislative resolve that "no fine, forfeiture, or imprisonment, should be imposed or recovered under the act of 1837 [then in force], and that all causes pending in any of the courts for such offence should be dismissed," was held void as an invasion of judicial authority. The legislature cannot declare a forfeiture of a right to act as curators of a college. State v. Adams, 44 Mo. 570. But to take away by statute a statutory right of appeal is not an exercise of judicial authority. Ex parte McCardle, 7 Wall. 506. And it has been held that a statute allowing an appeal in a particular case was valid. Prout v. Berry, 2 Gill, 147; State v. Northern Central R. R. Co., 18 Md. 193. But see cases cited in next note.

4 Opinions of Judges on the Dorr Case, 3 R. I. 299. In the case of Picquet, Appellant, 5 Pick. 64, the Judge of Probate had ordered letters of administration to issue to an applicant therefor, on his giving bond in the penal sum of $50,000,