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lative power, or in other words, a discussion of the doctrine of the omnipotence of parliament, or of the legislature, when applied to our legislative bodies, under our written constitutions, and peculiar forms of government.
I would here remark, since that chapter was put to press, I have been furnished with a manuscript copy of the opinion of Mr. Justice Barculo, in the case of The People er rel. Fountain et al. v. The Board of Supervisors of Westchester County, which I understand, is to be published in the next volume of Barbour's Supreme Court Reports. The learned judge in that case, fully sustains, and forcibly illustrates the doctrine, that under our form of government, there are limits to legislative authority, irrespective of any constitutional restrictions upon leg
I would call the attention of the profession to that case, in connection with the subject considered in this seventh chapter. The two succeeding chapters, are devoted to the consideration of constitutional restrictions upon legislative power contained in the federal and state constitutions, and the construction which has been put upon such restrictive provisions. Those restrictions have been considered in three dif
1st. Those contained in the federal constitution, and which are applicable to the government created by that instrument. 2d. Those contained in the same instru. ment which are applicable to the state legislatures. 3d. Those contained in the constitutions of the respective states, and which are applicable only to the legislature of the particular state, by whom the constitution was adopted. The third subdivision, so far as I am aware, has not as yet, been the distinct theme of any American commentator on constitutional law. I have therefore devoted more time to the consideration and discussion of that subject, than to any other branch of constitutional law. In surveying, as I have done for the first time, this new field as a commentator, I have taken greater liberty in presenting my own views, and in reviewing those of others, than I otherwise should have done. Some of the questions
which have been discussed and reviewed by me, have never as yet, been the subject of judicial determination, and therefore cannot be regarded as settled. Viewing them in that aspect, I have deemed it not inappropriate to present my views, to the end, if the same questions shall hereafter, come up for adjudication, they may be thrown into the scale in common with the opinions of others. Whether they will stand the test of the judicial crucible, I pretend not to affirm, nor can I, with any degree of certainty, predict. In the consideration of constitutional restrictions upon legislative power, under the federal constitution, I have discussed the questions arising under the following heads to wit: The constitutionality of laws impairing the obligation of contracts; Expost facto laws; laws which take private property for public use; laws regulating commerce; laws affecting the right of trial by jury; laws imposing taxes; statutes of limitations which bar actions upon past disseisins, and laws relating to imports and duties. The same general heads have also been considered, whenever they have arisen under any of the provisions contained in the respective state constitutions. I have also considered and discussed, the absolute, and qualified restrictions upon legislative power contained in instruments of the latter class, as well, those which relate to the mode of exercising legislative authority in given cases, as those of an absolute character, affecting the right to an exercise of legislative functions in given instances. Under this head will also be found a consideration of the constitutionality of laws, which are retrospective, having a retroactive effect, laws divesting antecedently vested rights, judicial acts of legislation, also remedial acts curing defects in antecedent transactions, or in conveyances defectively executed. The remaining chapters are devoted to the consideration of the rules for the construction of statutes. There is no American work on this subject. I have not, except in a few instances, and that for a short time only, had access to the English work of Mr. Dwarris, on the same subject. Hence I have been unable
to make that my text book, or to refer to it as often as I otherwise should have done. I have however, made frequent extracts from it, as I have from time to time, found them in other works, and in judicial decisions. I have to acknowledge my indebtedness to that learned author, for all the reader will find contained in my tenth chapter, on the subject of the boun. daries of legislative and judicial construction. I have had to mark out, and pursue my own order of arrangement, and have endeavored to annotate and illustrate in most instances, American authorities, deeming them more advantageous to my readers, and as affording in themselves better and more satisfactory illustration of the statute law of the American states. The elementary rules of construction, are few and simple, yet notwithstanding they are so, the application of those rules to given cases, arising out of the complex provisions as well as variety of statutory enactments, is not without much intrinsic difficulty. I am aware, many minds regard the subject matter of this branch of my work, too trivial to demand consideration; too plain to need elucidation. Not unfrequently have I had the remark made to me, that this branch of my subject was unworthy a moment's consideration, as it was perfectly familiar to every tyro in the legal profession. Such remarks have fallen from those for whom I have great respect, and ought perhaps, to have deterred me from prosecuting my undertaking. I have however assumed, that it does not necessarily follow, because the elementary rules of any science, or of any body of laws are few, that they are not, notwithstanding, involved in much that is intricate, as well as difficult in their application. The common law affords a striking illustration of the truth of this remark, and so too do the laws pertaining to the natural sciences. The law of gravitation for instance, has but one single elementary rule, pervading the entire system of worlds, and extending through the whole range of matter, yet it would be a work of great intrinsic difficulty, to analyze and arrange, even that single rule, and apply it to every complex and variegated combi
nation of material substances, so as, at once to discover the precise extent, or degree of its application, its consequences and effects in a given case. Still more difficult would it be, to combine in any one single proposition, or even in a class of general propositions, an accurate and complete definition and illustration of this rule; so plain, simple, and manifest, as that any mind of ordinary capacity, could at once, from such definition, grasp all that pertains to that intricate, complicated, wonderful law of the natural world. The same may be said of those rules, which pertain to all other departments of human science. If a single rule is involved in much which is intricate, certain it is, that a multiplicity of rules, pervading an entire system of laws, cannot, and ought not, to be regarded as undeserving of a critical and minute investigation and analysis. How far I have succeeded in analyzing and illustrating the subject I have treated of, it does not become me to judge. I am deeply sensible this work must stand or fall solely upon its own intrinsic merits. It has no preconceived public sentiment in its favor. It is unheralded by the public press, and is probably unexpected by the great mass of the legal profession and its author to a great extent unknown to them.
It is submitted to the profession with much distrust as to its merits, and under a consciousness of its numerous defects.
E. FITCH SMITH. New York, Oct. 1, 1848.
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