deprive a person of his property, or to subject him to imprisonment, who would not question its legality, or who would carry it into effect?"* So in Vermont, it has been said "that the exemption of a particular person from from a general liability by law attaching to all other persons similarly situated, would be void, probably as an act of special legislation, upon general principles of reason and justice, like a particular act allowing one citizen perpetual exemption from punishment for all offences, or from all liability for torts." And in the same State it has been said that, "altogether aside from any express provision of the Constitution, a statute taking property without necessity of a public character, or without compensation in some form, would doubtless be regarded as entirely without the just limits of legislative power." + And so it has been decided in North Carolina. [ "I cannot subscribe to the omnipotence of a State Legislature," says Chase, J., in the Supreme Court of the United States, “or that it is absolute and without control, although its authority should not be expressly restrained by the Constitution or fundamental law of the States. * * * There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power, as to authorize manifest injustice by positive law, or to take away that sccurity for personal liberty or private property, for the protection whereof the government was established. An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority." In the Supreme Court, Mr. Justice Story has held this language: "The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. At least, no court of justice in this country, would be warranted in assuming that the power to violate and disregard them, a power so repugnant to the com Goshen v. Stonington, 4 Conn. 209. Hatch v. Vermont Central R. R. Co. 25 Hatch v. Vermont Central R. R. Co. 25 Vermont, 49. Vermont, pp. 49, 61. Railroad Co. v. Davis, 2 Dev. & Bat. 451. mon principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be inferred from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security without very strong and direct expressions of such an intention." * It will be observed that all these cases more or less directly affirm the doctrine that there are certain restrictions on legisla tive action, not to be found in the State Constitutions nor in that of the United States; that these restrictions grow out of certain great principles of right and justice; and that when these principles are infringed, it is the duty of the judiciary to arrest the acts of the law-making power. The question is one full of the gravest interest. Before attempting, however, to test the reasoning of these cases, or to bring our minds to a correct conclusion in regard to the serious point which they present, it is necessary first to consider the precise manner in which the demarkation between the legislative and judicial functions in this country is made. This is not with us, as in England, the result of long usage, judicial decisions, or parliamentary practice. Here it is matter of positive and written law. The division of power was a leading idea in the American mind at the time of the Revolution, and all our State Constitutions bear its impress. Without, I believe, a single exception, they divide the attributes of government into three great branches, the executive, the legislative, and the judicial. But, though the State Constitutions generally attempt to declare, with more or less accuracy, the powers of the executive branch of the government, they appear to make little effort to describe with precision the character and func tions of either the legislative or judicial department; and they confine themselves, in almost every instance,† to the mere declaration that the law-making and judicial powers shall be kept separate and distinct; without endeavoring to define what is the true nature, object, or scope of law, or what the correct * Wilkinson v. Leland, 2 Peters, 627. In New Hampshire, Constitution, Part II, an effort has been made to define the leg. islative power, but I think with no very marked success. * characteristics of a judicial proceeding. In a recent case in New York,* it has been said, "Written Constitutions not only declare of what the government shall consist, into what departments it shall be separated, * * but they also prescribe the exact confines within which these functions shall be executed, to what subjects they may or may not extend, and the degree of power, absolute or limited, which each separate department may exert." But this claims for our Constitutions. much more exactness than they possess. We find their language of a very vague and general character, going, in fact, little beyond the mere creation of the three great departments by name. So the Constitution of the United States declares, Art. III, § 1, "The judicial power of the United States shall be vested," &c. So the Constitution of the State of New York (1821) declares, Art. I, "The legislative power shall be vested in a Senate and an Assembly;" Art. III, "The executive power shall be vested in a Governor." The Constitution of Maine provides, +"The powers of this government shall be divided. into three distinct departments, the legislative, executive, and judicial. No person or persons belonging to one of these de partments shall exercise any of the powers properly belonging to either of the others, except in the cases herein expressly directed and permitted." So in Massachusetts, "In the gov ernment of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws, and not of men." So in Maryland, "The legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other, and no person exercising the functions of one of said departments shall assume or discharge the duties of any other." So in Virginia,¶ "The legislative, executive, and judicial powers should be separate and distinct." In Alabama, the Constitution declares,** "The power of the government of the State shall be Rodman v. Munson, 13 Barb. 63. + Art. III. Constitution, Part I, § 30. Declaration of Rights, Art. 6. divided into three distinct departments, and each of them confided to a separate body of magistracy, to wit: those which are legisla tive to one, those which are executive to another, and those which are judicial to another. No person or collection of persons be ing one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted." * A very little reflection is sufficient to satisfy us that the mere use of the terms executive, legislative, and judicial, is no satisfactory definition of the respective powers; and experience has already shown the difficulties attendant on this very gen eral language. What is the legislative power? What is a law? Is it a rule of universal application; is it a rule of prospective application? Can it be made in opposition to the principles of natu ral justice? Can a law be made to determine private rights? Can a law be enacted to decide private controversies? We shall find these questions, both on abstract inquiry and also in reference to the necessities of our complex political organization, not easy to answer; and yet, unless answered, how are we to say with accuracy in what the legislative functions consist, or where they stop? The French Code, by a formal and express provision, prohibits all retrospective legislation, and the princi ple is generally admitted to be sound; but no such universal restriction would answer with us, as our legislatures are constantly passing laws of a retrospective character. Such are the laws declaring certain acts of persons irregularly elected, valid; correcting assessment rolls irregularly made; and many others of like character. These laws have never been questioned; and the denial of the power would, in a new country, where forms are often overlooked, lead to very serious consequences.+ To this we shall again have occasion to refer, when we come to speak of retrospective statutes. So again, as to legislative acts affecting private property. By constitutional provisions gener *Of this Constitution, the Supreme Court of the United States has said "that, though somewhat peculiar, it is not substantially different from that of Virginia. The particular inhibition of its Constitution only contains, in terms, that which arises from the construc tion of the more general Constitutions of the other States." Watkins v. Holman, 16 Peters, pp. 25 and 60. Syracuse City Bank v. Davis, 16 Barb. S. C. R. 188; 1 Kent's Com. p. 455. ally adopted, private property can be taken for public uses, on certain terms. But can it be taken for private uses? Is an act depriving one man of his property for the benefit of another, a law? Does it come within the scope of the legislative, or of the judicial functions? Nor are these merely speculative or abstract questions. We shall find them presenting themselves in a large class of cases which I am about to examine. The difficulty, generally, appears to have arisen from a want of clear perception as to the true nature of a law; or, in other words, a want of accurate notions as to the boundary line which, under our system, divides the legislative and judicial powers. I now turn to a more detailed consideration of the cases in this country where these questions have been considered, and which, so far as they go, tend to give a practical definition to the term law, and to define the boundaries which separate the legislative from the judicial power. And first, of cases where the Legislature has sought to divest itself of its real powers. (a) Efforts have been made, in several cases, by the State Legislatures to relieve themselves of the (a) Submission of Laws to Popular Vote.-Statutes creating municipal incorporations, or imposing liabilities upon municipalities, or authorizing municipalities to incur debts and obligations, or to make improvements, may be referred to the popular vote of the districts immediately affected; in other words the people of such districts may decide whether they will accept the incorporation or will assume the burdens. This doctrine may be considered the settled law of the whole country, and the same principle has frequently been applied in the case of other and similar local measures. Bank of Rome v. Rome, 18 N. Y. 38; Starin v. Genoa, 23 N. Y. 439; Clarke v. Rochester, 28 N. Y. 605; Bank of Chenango v. Brown, 26 N. Y. 467; Corning v. Greene, 23 Barb. 33; Grant v. Courter, 24 Barb. 232; Robinson v. Bidwell, 22 Cal. 379; Hobart v. Supervisors, 17 Cal. 23; Williams v. Cammack, 27 Miss. 209; Alcorn v. Hamer, 38 Miss. 652; Call v. Chadbourne, 46 Me. 206; State v. Wilcox, 45 Mo. 458; State v. Scott, 17 Mo. 521; Smith v. McCarthy, 56 Penn. St. 359; Commonwealth v. Painter, 10 Penn. St. 214; San Antonio v. Jones, 28 Tex. 19; Louisville, &c. R. R. v. Davidson Co. 1 Sneed. 637; State v. O'Neil, 24 Wisc. 149; Cotton v. Lion County, 6 Flor. 610. A law establishing free schools in a particular district, and made to depend as to its going into effect on the vote of such district, was upheld in Bull v. Read, 13 Gratt. 78. The same doctrine has been held of any local law. Hobart v. Supervisors, 17 Cal. 23; People ex rel. Wilson v. Salomon, 51 Ill. 38. And even of a law affecting the whole State. Smith v. Janesville, 26 Wisc. 291. An act amending a city charter, and going into effect as a whole independently of assent, but requiring |