unless by the law of the land or the judgment of his peers," farther protection is given to property, by adding a prohibition against "the taking private property for public use without just compensation," and also another against "the depriving any one of life, liberty or property, without due process of law;" i. e. by mere arbitrary legislation, under whatever pretext of private or of public good.

Believing that we are to rely upon these and similar provisions as the best safeguards of our rights, as well as the safest authorities for judicial direction, I cannot bring myself to approve of the power of courts to annul any law solemnly passed, either on an assumed ground of its being contrary to natural equity, or from a broad, loose and vague interpretation of a constitutional provision, beyond its natural and obvious sense. There is no provision of the old state constitution, that, in my understanding of it, so limits the power of the legislature over the property of its citizens, as to enable a court to set aside these statutes, or titles acquired under them, on the ground of unconstitutional enactment."

§ 135. This question was discussed by the Supreme Court of the United States in the case of Calder v. Bull, (a) when the learned judges of that court were not agreed in their opinions on this point.

On the one hand, Mr. Justice Chase avowed, that he could not submit to the omnipotence of the state legislature, or that it was absolute or without control, although its authority should not be expressly restrained by the constitution or fundamental law of the state. He held that the people of the United States erected their constitution and form of government to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from

(a) 3 Dallas R. 386.

violence. The purposes for which men enter into society determines the nature and terms of the social compact; as they are the foundation of legislative powers, they will decide what are the proper objects of it. The nature and extent of legislative power will limit the exercise of it.

This fundamental principle flows from the very nature of our free republican government, that no man shall be compelled to do what the law does not require, nor to refrain from acts which the law permits. There are acts which the state legislature cannot do without exceeding their authority. There are certain vital principles in our free republican government which will determine and overrule any apparent and flagrant abuse of legislative power; such, for instance, as authorized manifest injustice, or took away that security for personal liberty or private property, for the protection of which government was established. An act of the legislature, contrary to the great principles of the social compact could not be converted into a rightful exercise of legislative authority. The obligations of a government, established on express compact, and upon republican principles, must be determined by the nature of the powers on which it is founded. A law that punishes a citizen for an innocent action, or for an act which when done was in violation of no existing law, or one that impairs, or destroys lawful private contracts of citizens, or which makes a man judge in his own cause, or that takes the property of A and gives it to B, it is against all reason and justice for a people to intrust the legislature with such powers, therefore it cannot be presumed that they have done it. The genius-the nature, and the spirit of our state governments, amounts to a prohibition of such acts of legislation, and the general principles of law and reason forbid them. The legislature may enjoy, forbid,

and punish, they may declare new crimes, establish rules of conduct for all their citizens in future cases, they may command what is right, forbid what is wrong, but they cannot change innocence into guilt, or punish innocence as a crime, or violate the rights of lawful antecedent contract, or the right of private property; to maintain that our state or federal legislatures possess such a power, if they had not been expressly restrained, would be a political heresy, altogether inadmissible in a free republican government.

Mr. Justice Patterson held, that if a government, composed of legislative, executive, and judicial departments, were established by a constitution which imposed no limits on the legislative power, the consequence would inevitably be, that whatever the legislative power chose to enact, would be lawfully enacted, and the judicial power could not interfere to pronounce it void. That it was true that some speculative spirit had held that a legislative act against natural justice must in itself be void, but that he could not think that under such a government any court of justice would possess the power to declare it so.

Mr. Justice Iredell was of the same opinion, and cited the strong case put by Sir William Blackstone, of an act of parliament which should authorize a man to try his own cause as judge, that even in that case there is no court that has the power to defeat the intent of the legislature when couched in such evident and express words as to leave no doubt whether it was the intention of the legislature, or no. In order to guard against so great an evil, it had been the policy of the American states, which had individually formed their state constitutions since the revolution, and of the people of the United States when they formed the federal constitution, to define with precision the object of legislative power, and to restrain its exercise into marked and settled boundaries. That

if the legislature of the Union, or the legislature of any member of the Union should pass a law within the general scope of their constitutional powers, the court could not pronounce it void merely because it was, in their judgment, contrary to the principles of natural justice. The ideas of natural justice were regulated by no fixed standard; the ablest and purest men have differed upon the subject.

All that the court could properly say in such an event would be, that the legislature (possessed of an equal right of opinion) had passed a law, which in the opinion of the judges was inconsistent with the abstract principles of natural justice. If the legislature pursue the authority delegated to them their acts are valid; if they transcend the bounds of that authority, their acts are invalid. In the former case, they exercise the discretion vested in them by the people, to whom they are responsible for the faithful discharge of their trust; but in the other case they violated the fundamental law which must be our guide whenever we are called upon as judges to determine the validity of legislative acts.

§ 136. It is with great deference suggested, unless we are to assume that at the time of the adoption of the federal and state constitutions, it was the universal law of the civilized world, recognized as such, that the legislative power was omnipotent, unlimited and supreme; and from hence infer, that it must be presumed the people entered into the national and state compacts in reference to such universal rule, or in reference to the doctrine as it was then understood to be settled by the common law of England, and that they then understood that the legislature would be without limitation and beyond control, under a government founded in express written compact, and that there would be no restriction unless it was embodied in the fundamental law,

does not the argument of Mr. Justice Iredell assume

what should be first otherwise established, that under our form of government, absolute power, except in so far as it was expressly restricted, was delegated by the people to the legislature, irrespective of the object and design of the social compact. For, unless it be assumed that the design and object of the social compact was to do that which is against reason and natural justice, it can hardly be presumed such an act is legitimately within the scope of the authority delegated to the legislative department. It would be assuming too much to suppose, that the people intended to delegate any power to be exercised irrespective of the original purpose of the social compact, or in a way which would be subversive of its object and design. The reasonable presumption would seem to be, that the authority delegated must from necessity, arising from the nature of that design, be limited in its exercise to such acts, and such only, as are calculated to effectuate the original purpose of the people when the government was founded. Whenever the legislature transcends the bounds of this original authority, or so far disregards the sacred trust committed to it, as to pass an act subversive of natural right, ought not such an act to be regarded as exceeding the authority delegated? and if so, must not the want of authority render such an act invalid, divest it of the attributes of an imperative authority? and would not the spirit and genius of our institutions under the press of such circumstances call for and justify the application of a more speedy remedy than the one open to them through the medium of the ballot boxes.

In Fletcher v. Peck, 6 Cranch, 87, Marshall, Chief Justice, adverted to this interesting and important question; although in that case it did not become necessary to pass upon it, as the act then under consideration was declared void on the ground of its conflict with the constitution of the United States. It divested estates vested