created for the purpose of exercising it must be regarded as an exclusive grant, covering the whole power, subject only to the limitations which the constitutions impose, and to the incidental exceptions before referred to. While, therefore, the American legislatures may exercise the legislative powers which the Parliament of Great Britain wields, except as restrictions are imposed, they are at the same time excluded from other functions which may be, and sometimes habitually are, exercised by the Parlia

ment.

"The people in framing the constitution," says Denio, Ch. J., "committed to the legislature the whole law-making power of the State, which they did not expressly or impliedly withhold. Plenary power in the legislature, for all purposes of civil government, is the rule. A prohibition to exercise a particular power is an exception. In inquiring, therefore, whether a given statute is constitutional, it is for those who question its validity to show that it is forbidden. I do not mean that the power must be expressly inhibited, for there are but few positive restraints upon the legislative power contained in the instrument. The first article lays down the ancient limitations which have always been considered essential in a constitutional government, whether monarchical or popular; and there are scattered through the instrument a few other provisions in restraint of legislative authority. But the affirmative prescriptions and the general arrangements of the constitution are far more fruitful of restraints upon the legislature. Every positive direction contains an implication against everything contrary to it, or which would frustrate or disappoint the purpose of that provision. The frame of the government, the grant of legislative power itself, the organization of the executive authority, the erection of the principal courts of justice, create implied limitations upon the law-making authority as strong as though a negative was expressed in each instance; but independently of these restraints, express or implied, every subject within the scope of civil government is liable to be dealt with by the legislature."1

"It has never been questioned, so far as I know," says Redfield, Ch. J., "that the American legislatures have the same unlimited power in regard to legislation which resides in the British Parliament, except where they are restrained by written constitutions.

1 People v. Draper, 15 N. Y. 543.

That must be conceded, I think, to be a fundamental principle in the political organization of the American States. We cannot well comprehend how, upon principle, it should be otherwise. The people must, of course, possess all legislative power originally. They have committed this in the most general and unlimited manner to the several State legislatures, saving only such restrictions as are imposed by the Constitution of the United States, or of the particular State in question.'

"I entertain no doubt," says Comstock, J., "that aside from the special limitations of the Constitution, the legislature cannot exercise powers which are in their nature essentially judicial or executive. These are, by the Constitution, distributed to other departments of the government. It is only the 'legislative power' which is vested in the senate and assembly. But where the constitution is silent, and there is no clear usurpation of the powers distributed to other departments, I think there would be great difficulty and great danger in attempting to define the limits of this power. Chief Justice Marshall said: How far the power of giving the law may involve every other power, in cases where the constitution is silent, never has been, and perhaps never can be, definitely stated.'2 That very eminent judge felt the difficulty; but the danger was less apparent then than it is now, when theories, alleged to be founded in natural reason or inalienable rights, but subversive of the just and necessary powers of government, attract the belief of considerable classes of men, and when too much reverence for government and law is certainly among the least of the perils to which our institutions are exposed. I am reluctant to enter upon this field of inquiry, satisfied, as I am, that no rule can be laid down in terms which may not contain the germ of great mischief to society, by giving to private opinion and speculation a license to oppose themselves to the just and legitimate powers of government." 3

Numerous other opinions might be cited to the same effect with

1 Thorpe v. Rutland & Burlington Railroad Co. 27 Vt. 142. See also Leggett v. Hunter, 19 N. Y. 445; Cochran v. Van Surlay, 20 Wend. 365; People v. Morrell, 21 Wend. 563; Sears v. Cottrell, 5 Mich. 251; Mason v. Wait, 4 Scam. 134; People v. Supervisors of Orange, 27 Barb. 593; Taylor v. Porter, 4 Hill, 144, per Bronson, J.

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those from which we have here quoted; but as we shall have occasion to refer to them elsewhere, in considering the circumstances under which a statute may be declared unconstitutional, we shall refrain from further references in this place. Nor shall we enter upon a discussion of the question suggested by Chief Justice Marshall as above quoted; since, however interesting it may be as an abstract question, it is made practically unimportant by the careful separation of duties between the several departments of the government which has been made by each of the State constitutions. Had no such separation been made, the disposal of executive and judicial duties must have devolved upon the department vested with the general authority to make laws;2 but assuming them to be apportioned already, we are only at liberty to liken the power of the State legislature to that of the Parliament, when it assumes to exercise legislative functions; and such authority as is in its nature either executive or judicial is beyond its constitutional powers, with the few exceptions to which we have already referred.

It will be important therefore to consider those cases where legislation has been questioned as encroaching upon judicial authority; and to this end it may be useful, at the outset, to endeavor to define legislative and judicial power respectively, that we may the better be enabled to point out the proper line of distinction when questions arise in their practical application to actual cases.

The legislative power is the authority, under the Constitution, to make laws, and to alter and repeal them. Laws, in the sense in which the word is here employed, are rules of civil conduct, or statutes, which the legislative will has prescribed. "The laws of a State," observes Mr. Justice Story, " are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long-established local customs having

The power to distribute the judicial power, except so far as that has been done by the constitution, rests with the legislature; but when the constitution has conferred it upon certain specified courts, this must be understood to embrace the whole judicial power, and the legislature cannot vest any portion of it elsewhere. State v. Maynard, 14 Ill. 420; Gibson v. Emerson, 2 Eng. 173; Chandler v. Nash, 5 Mich. 409.

Calder v. Bull, 2 Root, 350, and 3 Dall. 386; Ross v. Whitman, 6 Cal. 361; Smith v. Judge, 17 Cal. 547; per Patterson, J. in Cooper v. Telfair, 4 Dall. 19; Martin v. Hunter's Lessee, 1 Wheat. 304.

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the force of laws." 1 "The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes, the law."2 And it is said that that which distinguishes a judicial from a legislative act is, that the one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a predetermination of what the law shall be for the regulation of all future cases falling under its provisions. And in another case it is said: "The legislative power extends only to the making of laws, and in its exercise it is limited and restrained by the paramount authority of the Federal and State constitutions. It cannot directly reach the property or vested rights of the citizen by providing for their forfeiture or transfer to another, without trial and judgment in the courts; for to do so would be the exercise of a power which belongs to another branch of the government, and is forbidden to the legislative." "That is not legislation which adjudicates in a particular case, prescribes the rule contrary to the general law, and orders it to be enforced. Such power assimilates itself more closely to despotic rule than any other attribute of government.5"

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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. "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 judicial,'

1 Swift v. Tyson, 16 Pet. 18.

Per Marshall, Ch. J. in Wayman v. Southard, 10 Wheat. 46; Per Gibson, Ch. J. in Greenough v. Greenough, 11 Penn. St. 494.

Bates v. Kimball, 2 Chip. 77.

4 Newland v. Marsh, 19 Ill. 382.

Ervine's Appeal, 16 Penn. St. 266. See also Greenough v. Greenough, 11 Penn. St. 494; Dechastellux v. Fairchild, 15 Penn. St. 18.

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. Inghram, 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.

'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. therefore, to compare the the land before established,

To do the first, claims of parties with the law of 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 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'; 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.

1 1 Bl. Com. 44.

2 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.