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TRE A TISE

ON THE

CONSTITUTIONAL LIMITATIONS

WHICH REST UPON

THE LEGISLATIVE POWER OF THE STATES

OF THE AMERICAN UNION.

BY

THOMAS M/COOLEY,

OSE OF THE JUSTICES OF THE SUPREME CorkT OF MICHIGAN, AND JAY PROFESSOR

OF LAW IN THE UNIVERSITY OF MICHIGAN.

BOSTON:
LITTLE, BROW, AND COMPANY.

1868.

Entered according to Act of Congress, in the year 1868, by

LITTLE, BROWN, AND COMPANY, in the Clerk's Office of the District Court of the District of Massachusetts.

350658

UNIVERSITY PRESS: WELCH, Bigelow, & Co.,

CAMBRIDGE

PRE FACE.

If the following work shall furnish to the practitioner and the student in the law such a presentation of elementary constitutional principles as shall serve, with the aid of its references to judicial decisions, legal treatises, and historical events, as a convenient guide in the examination of questions respecting the constitutional limitations which rest upon the power of the several State legislatu res, the purpose of its preparation will be fully accomplished. The need of some work bringing together those principles in a manner that would enable them to be examined as a comprehensive system, and their relative bearing and influence considered, has, it is believed, been quite generally felt; and, in view of the rapid multiplication of judicial decisions upon points of constitutional law, was daily becoming more urgent. The valuable treatises of Mr. Smith and Mr. Sedgwick were very complete and satisfactory on the points which they undertook to cover by their discussions ; but the plan which each of them marked out for his labors excluded from examination many of the topics here presented, while others were but incidentally alluded to by them, and still others have acquired their importance in a considerable degree from subsequent events or decisions. Valuable as those treatises are, therefore, they do not so completely cover the ground of State constitutional law as to make a work specially devoted to that subject unimportant, and the present work is submitted to the profession, rather as supplementary to their labors than as a substitute for them.

In these pages the author has faithfully endeavored to state the law as it has been settled by the authorities, rather than to present his own views. At the same time he will not attempt to deny —

in full sympathy with all those restraints which the caution of the fathers has imposed upon the exercise of the powers of government, and with greater faith in the checks and balances of our republican system, and in correct conclusions by the general public sentiment, than in a judicious, prudent, and just exercise of unbridled authority by any one man or body of men, whether sitting as a legislature or as a court. In this sympathy and faith he has written of jury trial and the other safeguards to personal liberty, of liberty of the press, and of vested rights; and he has also endeavored to point out that there are on all sides definite limitations which circumscribe the legislative authority, aside from the specific restrictions which the people impose by their constitutions. But while he has not been predisposed to discover in any part of our system the rightful existence of any power created by the Constitution, and by that instrument made unlimited save in its own discretion, neither, on the other hand, has he designed to advance new doctrines, or to do more than to state clearly and with reasonable conciseness the principles to be deduced from the judicial decisions. Those decisions he has made reference to and in many cases quoted from; not, however, deeming it important to cumber his pages with many references to the English reports on those points on which the American authorities were sufficiently numerous and uniform to be fairly regarded as having settled the law for this country. And trusting that fair criticism may discover in his work sufficient of practical utility to justify its publication, he submits it to the judgment of an enlightened and generous profession.

ANN ARBOR, MICHIGAN,

September, 1868.

In quoting from the constitutions of such of the Southern States as came under the operation of the Congressional Reconstruction Acts, the author has referred to the instruments in force before the Rebellion, as modified by conventions held in 1864, 1865, and 1866. While this work has been passing through the press, several of these States have adopted constitutions under the Reconstruction Acts, and have been admitted to representation in Congress. Maryland has also adopted a new constitution. The changes, however, which have been made by these constitutions, in particulars important to the present work, are not numerous, nor often important.

The new constitutions of Arkansas and Florida forbid special legislative acts authorizing the sale of lands of infants and other persons under disability.

In the clauses from the constitutions of Florida and North Carolina quoted in the note on page 352, the word freeman is changed to person by the new instruments.

Regarding liberty of speech and of the press, no changes are made by the new constitutions of Alabama, Florida, Georgia, and Louisiana, and only a change of the word liberty to privilege in that of Maryland. The following are the clauses on this subject in the other new constitutions: –

“ The liberty of the press shall forever remain inviolate. The free communication of thoughts and opinions is one of the invaluable rights of man, and all persons may freely speak, write, and publish their sentiments on all subjects, being responsible for the abuse of such right. In all criminal prosecutions for libel the truth may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted.” – Const. of Arkansas, Art. 1, § 2.

“The freedom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained; but every individual shall be held responsible for the abuse of the same.” – Const. of North Carolina, Art. 1, § 20.

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