in regard to sewage, has been held in that State to be void for inequality and unreasonableness.*

We have already seen that a statute of a local or municipal character is as fatal to the validity of all contracts based on a violation of it, as if the act be one of a general character. And it has been intimated that a corporation ordinance was equally efficacious.+

In regard to the enforcement or sanction of by-laws, the rule is that they can only be enforced by a pecuniary penalty, unless there is some express act giving power to inflict other punishment.

As to the passage of municipal ordinances, the following decision is to be observed. It is a general rule of practice in legislative bodies which consist of two branches, that all business before them, and finished at the end of a session, is discontinued; and that if taken up at all at a session following, it must be taken up de novo. It has been held in New York, that the analogy of this rule applies to acts of a municipal corporation of a legislative character; and consequently an ordinance granting to a city-railroad company leave to use the streets for that purpose, which passed the Board of Assistant Aldermen of the city of New York in 1852, but was not passed by the Board of Aldermen till 1853, after a new Board had been elected, has been decided to be void.§

* City of Boston vs. Shaw, 1 Met. 130.

+ Ex parte Dyster in re Moline, 1 Merivale, 155; Bell vs. Quin, 2 Sandford, 146; Beman vs. Tugnot, 5 Sandf. 154, ante, p. 86.

Gee vs. Wilden, 2 Lvtw. 1320; Bosworth vs. Budgen, 7 Mod. 459; 2 Str. 1112; Leathley vs. Webster, Sayer, 251; Gray on Corporations, 8; Hills vs. Hunt, 15 Com. B. 1, 6 J. Scott, 1, 25.

§ Wetmore vs. Story, Abbott's Practice Cases, vol. iii. p. 263.

Some points of local municipal interest may here be noticed. In New

In reference of the admissibility of the books of a municipal corporation as evidence, the Supreme Court of the State of New York has said, "that the corporation of the city of New York more nearly resembles the legislature of an independent state, acting under a constitution prescribing its powers, than an ordinary private corporation. The acts of this corporation concern the rights of the inhabitants of the city; it exercises a delegated power, not for its own emolument, but for the interests of its constituents; and while it keeps within the limits of its authority, the constituents are bound by the acts of the corporation. When the citizen wishes to show those acts, he must resort to the authentic record of them; which is the original minutes of the corporation."*

York, as to the power of the corporation as to the construction of piers and bridges, see Marshall vs. Guion, 4 Denio, 581.

In the same State it has been held that an arrest cannot be made on Sunday for a violation of a corporation ordinance. Wood vs. City of Brooklyn, 14 Barb. 425.

See Trustees of Clintonville vs. Keeting, 4 Denio, 341, for a decision on the validity of a trustee's ordinance imposing a fine for selling ardent spirits.

For a long and interesting case on the subject of the powers of municipal corporations, see the Attorney General of the State of New York vs. The Mayor, &c., of New York, 3 Duer, 119.

* Denning vs. Roome, 6 Wend., 651, note 800; 3 Phillips on Evidence, p. 1150.

CHAPTER X.

LIMITATIONS IMPOSED UPON LEGISLATIVE POWER BY THE CONSTITUTIONS OF THE SEVERAL STATES OF THE UNION.

The general character of constitutional provisions regarded as limitations upon legislative power-Principal restrictions imposed by the State constitutions-Guarantee of private property-Trial by jury-Protection of law -Searches and seizures-Taxation-Police regulations-Titles of billsAmendments-Repeal-Constitutional majorities-Religious tests-Religious societies-Creation of judges-Incorporations-Trust funds-Divorces-Suits against the State.

WE have thus far examined the subject of written law with reference to the general principles of the jurisprudence which we have derived from the English stock, and which govern wherever that system obtains. We now proceed to consider a branch of the great topic which is confined exclusively to this country-I mean CONSTITUTIONAL LAW.

The late chief justice of the United States, in his survey of the events leading to the Declaration of Independence, on which he looked with almost a contemporary eye, when speaking of the first State governments organized in 1776, says that "the untried principle was everywhere adopted of limiting the constituted authorities by the creation of a written constitution prescribing bounds not to be transcended

by the legislature itself."* It is in this point of view that I have now to examine the subject of our constitutional law.

The provisions of the constitutions of the several States of the Union, as well as those of the Federal charter itself, may be divided into two great heads: those which relate to political power and organization; and those which are intended to serve as securities for private rights, and which are specially framed as checks on legislative action. Of the constitutional provisions which distribute, arrange, and determine political power, this work is not intended to treat. It is confined to the consideration of those clauses which, for the purpose of protecting private and personal rights are inserted as limitations upon legislative

action.

This great head of Constitutional Law is peculiar to American jurisprudence. It is full of importance

* Marshall's Life of Washington, vol. ii., p. 871. He makes an exception as to the novelty of the idea, in favor of "Connecticut and Rhode Island, whose systems had ever been in a high degree democratic."

I have already (ante, p. 214) had occasion to notice what are called the principles of the English Constitution, and have stated the fact that they do not in any wise interfere with the theoretical supremacy of the British Parliament. Mr. Justice Story has said, "According to the theory of the British Constitution, their Parliament is omnipotent. To annul corporate rights might give a shock to public opinion which that government has chosen to avoid; but its power is not questioned." Dartmouth College vs. Woodward, 4 Wheat., 518. "The absolute power of the legislature," says Mr. Hallam, speaking of the resumption of the Irish grants in 1699, "in strictness is as arbitrary in England as in Persia." Hallam's Const. Hist., vol. iii., p. 193, ch. xv.

In regard to Canada, I may notice that an act was passed in 1840, entitled an act to re-unite the provinces of Upper and Lower Canada, and for the government of Canada, 23d July, 1840-3 and 4 Vict., c. xxxv.— which operates as a sort of constitution for the united provinces. The act declares that from and after the re-union of the two provinces, there shall

to every citizen of the Republic; to the lawyer it is a matter of commanding interest; nor will it ever be possible to understand the character or to write the history of our people, without a complete knowledge of this fertile and complex subject.*

It is not possible that the eminently sagacious men who framed our systems of administration supposed that they would remain forever inviolate; and it is one of the most curious circumstances connected with their formation, that in laying down these barriers against legislative invasions of private right they wholly omitted to provide any positive guarantee or specific protection for them. No sanction or penalty is attached. A prohibition or command not to do certain things is laid on the legislature, but not a word is said as to the mode in which the fact of violation is to be established, or how the prohibition is to be enforced.

be in the province a Legislative Council and Assembly, and that within the province Her Majesty shall have power, by and with the advice and consent of the Council and Assembly, to make laws for the province,—such laws not being repugnant to this act or such parts of an act of the 81 Geo. III., as are not repealed, or to any act of Parliament made or to be made and not hereby repealed, which does or shall by express enactment or by necessary intendment extend to the provinces of Upper and Lower Canada, or to either of them, or to the province of Canada. The act, however, mainly relates to the arrangement and distribution of political power, including the subject of the church, taxation, and the judiciary and does not seem to contain, except incidentally, any such guaranties of private rights as are to be found in our State constitutions. It is interesting, however, as containing the germ of the great principle of constitutional limitation upon legislative power.

The term Constitution, like many others in our law, appears to claim a Latin original, and to have been primarily used for the will of the sovereign declaring, decreeing, and expounding the law. "Quodcumque, igitur, Imperator per epistolam et subscriptionem statuit, vel cognoscens decrevit, vel de plano interlocutus est, vel edicto præcepit, legem esse constat. Hæc sunt quas vulgo Constitutiones appellamus.”—Dig. de Constitutionibus Prinicpum, 1. 1, § 1; Vicat. Vocab. Utriumq. Juris in voc.