The separation of the functions of government, in the mother country, has, however, been the result of a long struggle, waged for centuries, with various fortunes, between its different.component parts. So little was the importance of the distribution at first understood, that, originally, the English Legislature habitually exercised judicial powers. Cases of first impression, matters presenting serious doubt or difficulty, were adjourned by the courts into Parliament, there to be resolved and decided.* So says Bracton: Si aliqua nova et inconsueta emerserint, et quæ nunquam prius evenerint, et obscurum et difficile sit eorum judi cium, tunc ponantur judicia in respectum usque ad magnam curiam, ut ibi per consilium curiæ terminentur. But this jurisdiction has long since disappeared, and the only remains of the exercise of judicial power by Parliament consist in its capacity to pass bills of attainder, and of pains and penalties. These, says Mr. Dwarris, "are instances of the transcendent power of the Legislature to punish offences otherwise than according to pre-ordained law, by a discretionary severity in lieu of an invariable standard. They furnish an instance of the Legislature quitting its proper province and superseding the judicial functions, and that, in order to punish the transgression of laws which they have neglected to propound. In punishing criminals by bill, the king, lords, and commons are accusers and judges, charging, convicting, and condemning uno flatu.

* Bracton, Lib. i, ch. 2; Coke, 2 Inst. 408; Dwarris, 695; and ante, p. 18.

The second chapter of Petyts' Jus Parliamentarium, a curious work, to which I shall hereafter again refer, is entitled, "Several authorities to prove that, by the ancient laws and customs of England, when any case of difficulty did happen to arise in Westminster Hall, the judges adjourned such cases propter difficultatem, usque ad proximum Parlia mentum." Indeed, we learn from one of the most sagacious, as well as one of the most profound among the students of the early institutions of the mother country, that the primary functions of the representative bodies of the middle ages were to a minister or execute their law. Their legislative powers were introduced in a secondary stage. Sir Francis Palgrave says, It must be recollected, how ever, that the sphere of action anciently belonging to popular representation, was not that to which we are now accustomed. Legislation was an accidental incident; their

*

primary intent was the administration of the
law. The mode, by which the change of
functions of the select bodies was effected, can
be traced with sufficient distinctness. They
were the judges, as well as the witnesses, both
of law and fact; for the law itself, unwritten
and unrecorded, living in custom and usage,
and not gathered from volumes or parchments,
was a fact to be ascertained like any other,
from the testimony of the judges or repre-
sentatives of the community. Language,
therefore, which is very inaccurate, if consid-
ered with reference to the jurisprudence of
modern England, may be applied with pro-
priety to the Noemda or the Echevins; and
hence the acquisition of their legislative pow
ers. Called in first for the purpose of deliver-
ing the law, they easily accepted the duty of
suggesting any amendments which it required;
a task for which they were well fitted, both
by station and by knowledge."-Palgrave's
English Commonwealth, vol. i, ch. 3, p. 127.
+ Page 254.

This is the only familiar instance of the Legislature quitting its proper province and superseding the judicial functions." *

In this country, this vicious exception has been cut up by the root; our State Legislatures are prohibited, by the Consti tution of the United States, from using the terrible weapon of attainder; and all our Constitutions, State and federal, declare the distinction to be observed between the three great powers of government, without, however, as we shall see hereafter, making any very precise or careful definition of the nature or extent of these powers.

It is, then, as a general rule, equally true of England and of the United States, that while the law-making power is exclusively confided to one branch of the Government, that department neither construes nor enforces its own acts. The enactment of laws belongs to the Legislature, their construction and application to the judiciary, the enforcement to the executive. The first point, then, that solicits our attention is to ascertain if practicable, with precision, the boundaries that separate the legislative from the judicial functions.

In our system there are two certain and unquestioned checks on legislative power, the application of both of which is placed in the hands of the judiciary. The first limitation of legislative power arises from the power of construction vested in the courts, and is applied to written law of every kind of which the language is ambiguous or contradictory. The second limitation, and one peculiar to this country, consists of the constitutional restrictions imposed on the Legislature by the people, and the enforcement of which, as we shall hereafter see, is confided to the judiciary.

The subject, therefore, naturally resolves itself into two

heads:

First. The judicial power over acts of the Legislature, independently of any constitutional restraints on legislative action.

Second. The judicial power as used to apply and enforce constitutional restrictions.

First. The judicial power over acts of the Legislature, inde

* Dwarris, Part i, p. 254, and Part ii, p. 712.

pendently of any constitutional restraints on legislative action.— In examining this subject, it is necessary, first, to consider whether the power of the judiciary, in any case, goes beyond that of construction or interpretation, and the enforcement of constitutional restraints; whether, in any instance of heedless, improper, unjust, or immoral legislation, where no doubt exists either as to the meaning of the enactment, or the intention of the Legislature, where no question either of constitutional law or interpretation arises, whether the courts can, then, on any other ground, interpose to arrest or nullify the action of the Legislature.

This discussion necessarily involves the question of the absolute or supreme authority of the Legislature, in cases where it is not fettered by constitutional impediments; and is one of much interest. It has been frequently examined in various points of view, and by writers of great authority; some contending for the absolute supremacy of the Legislature, others for the superior authority of the courts as competent to declare and enforce the doctrines of natural justice. Much analogous decision has also been had as to the true source of government, the nature of its origin, and the mode in which its functions should be exercised-the rights of man in a state of nature, and the power of society to abridge those rights. For those who are curious in abstract speculations of this kind, the works of Locke, Hooker, Domat, Grotius, Burlamaqui, Puffendorf,* Woodeson, Hall, Paley, and other writers of this class, may be consulted with interest.

Mr. Locke thus defines the limits of the legislative power: "These are the bounds which the trust that is put in them by the society and the law of God and nature, have set to the legislative power of any commonwealth, in all forms of govern

ment:

"First. They are to govern by promulgated, established laws, not to be varied in established cases, but to have one rule for rich and poor, for the favored at court and the countrymen at plough.

Copious citations from these authors will be found in the 7th chapter of Mr.
Smith's work on Statutes.

"Second. These laws, also, ought to be designed ultimately for the good of the people.

"Third. They must not raise taxes on the property of the people without the consent of the people, given by themselves or their deputies.

"Fourth. The Legislature neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have."*

But discussions of this kind throw little light on the question now before us. The great writers of the two last centuries, of the class to which Mr. Locke belongs, were bold and adventurous pioneers in paths in which we now securely and familiarly tread. The truths that they elaborately argued, are our axioms; and the profound disquisitions which have rendered their names immortal, tend but little to solve the novel and complex questions which our age has called into being. The precise question for our consideration is whether, under those governments which, like the English and American, profess to divide the powers of the great machine of govern ment, to give the legislative functions to one and judicial to another, whether under these systems the judiciary can arrest the operations of the legislative branch, on the sole ground that they are repugnant to natural justice or morality. The subject of the retroactive effect of statutes will be separately discussed. And, first, let us see how the doctrine stands in the mother country.

It has been there contended, that there are certain fundamental principles of right and justice which even parliamentary power cannot with impunity infringe or disregard; and that if the Legislature contemns them and passes acts in violation of them, it is the duty of the judiciary to declare such acts null and void. This principle was laid down in England, and at an early period, by persons of high authority. Day sued Savadge, in trespass; the defendant justified, as collector of the city of London, and alleged that the goods were subject to be dis trained for wharfage, and that he had thus taken them. The

*Locke on Civil Government, ed. of 1769, vol. ii, p. 273, Book ii, cap. xi; Of the

Extent of the Legislative Power.

plaintiff replied, that he was a freeman of the city of London; and that, as such freeman, he was by custom of the city, exempt from the payment of taxes; the defendant rejoined, denying the custom, and averring that whenever a custom of the city of London came in issue, it was a custom to refer it to the mayor, &c., to certify as to the alleged custom; and prayed a writ to issue to obtain such certificate. The plaintiff insisted that the case should be heard by a jury, on the ground that the custom alleged for the trial by certificate, was against law and common reason; and on demurrer, judgment was given for the plaintiff, on this among other grounds; that it was against right and justice and against natural equity, to allow the mayor, &c., their certificate, when they are to try and judge their own cause; and this language was used: "By that that hath been said, it appears that though, in pleading, it were confessed that the custom of certificate of the customs of London is confirmed by Parliament, yet it made no change in this case, both because it is none of the customs intended, and because even an act of Parliament made against naturall equitie― as, to make a man judge in his own case—is void in itself; for jura naturæ sunt immutabilia, and they are leges legum." So again, where a physician was arrested for a fine imposed by the College of Doctors, Lord Coke said, "The censors cannot be judges, ministers, and parties; judges to give sentence or judgment, ministers to make summons, and parties to have the moiety of the forfeiture; quia aliquis non debet esse judex in propria causa; imo, iniquum est aliquem sua rei esse judicem. And it appears, by our books, that in many cases the common law will control acts of Parliament, and sometimes adjudge them to be utterly void; for when an act of Parliament is against common right and reason, or repug. nant or impossible to be performed, the common law controls it and adjudges such act to be void." And Lord Holt, to the dismay, says Mr. Dwarris, "of all mere lawyers, manfully expressed his opinion, that the observation of Lord Coke was not extravagant, but was a very reasonable and true saying."+

Day v. Savage, Hobart, 85; Dr. Bonham's Case, Rep. part viii, p. 118.

City of London v. Wood, 12 Mod. 669; Dwarris, p. 480. Lord Ellesmere, in his ob