power exercised by the legislature in passing said resolve, is it of a legislative or judicial character?" In answering this inquiry he held: The terms used in the first section, as to three departments of government, were general, and the phraseology of the second section, prohibiting the interference of the departments, was also general. Hence, as in the instance then before the court, a question arose; what exercise of power by those belonging to one department is to be considered as an invasion of the province of either of the other departments? In reply to this, it might be said at once, that if the legislature undertake to exercise judicial power, they invade the province of the judiciary, because the constitution and the laws had placed all the judicial power in other hands. But the question returns; did the legislature exercise a judicial power in granting to the appellants the right of appeal? In form they did not; but if it was such in substance and effect, it would clearly be a violation of the spirit if not of the very language of the constitution. Whatever might be considered the nature and character of the decree, since the appeal was claimed, it was very clear, that at the time the legislature passed the resolve, it was in full force and virtue, and had been for almost five years. The rights of heirs or creditors in the subject matter of that decree vested when it was passed, and so remained undisturbed until the resolve professed to grant the appellants leave to disturb them. The ordinary and legal consequence of an appeal was to vacate at once the judgment or decree appealed from; had that effect been produced in the present instance? Or was the decree of the judge of probate in full force then, and the administrator liable to have a second decree passed against him by the court on the same account? Such a decree passed by the court would not operate to relieve the administrator from the effect of the existing decree, unless the resolve and the appeal claimed

in virtue of it, had completely vacated that decree; and if it was not vacated thereby why was it not a bar to all proceedings in court when relied upon as such? In fact, this appeal could not be sustained on any other principles than that of its having produced the usual effect of an ordinary appeal; that was, having vacated the decree below. Could the legislature, by a mere resolve, set aside a judgment or decree of a judicial court, and render it null and void? This was an exercise of power common in courts of law, a power not questioned, but it was one purely judicial in its nature and its consequences. It was one of the striking and peculiar features of judicial power, that it was displayed in the decision of controversies between contending parties, the settlement of their rights, and redress of their wrongs. But it was urged that the resolve was not liable to objection on constitutional ground; that the resolve went no further than to authorize a re-examination of the cause, to empower one judicial court to review the proceedings of another judicial court, by way of appeal, and thus do complete and final justice to all concerned. It was true, the resolve did not, in terms, purport to transfer property directly from one man to another by mere legislative authority; but it professed to grant to one party in a cause which had been, according to existing laws, finally decided, especial authority to compel the other party, contrary to the general law of the land, to submit his cause to another court for trial, the consequence of which might be the total loss of all those rights, and all that property, which the judgment complained of had entitled him to hold and enjoy; that is to say, it professed to accomplish, in an indirect and circuitous manner, that which the existing laws forbid, and which, by a direct and legal course could not be obtained; and to perform an act respecting a cause between party and party; an act, therefore, of a judicial character, in the simple form

of legislation. Such a law could not be reasonable within the meaning of that term, as used in the constitution in the grant of legislative power. There was some harmony between the principles of morality and those of the constitution and the common law. It was the province of the legislature to make and establish laws; and it was the province and duty of judges to expound and apply them. There was no occasion for this species of particular legislative interposition. The cause of justice did not require it, if the general law which gave authority to the judicial courts to grant reviews in special cases, was not sufficiently comprehensive in its terms or provisions, let this discretionary jurisdiction be enlarged, so as to embrace all those cases where a new trial ought to be had; but all the citizens should be placed on the same level; and discuss the merits of their application before those tribunals, where facts can be investigated and principles uniformly applied; in that forum where, if a review should be granted, the cause would undergo its final investigation and decision. The genius of our government, and the nature of our civil institutions, were such as to render it most proper that all questions between litigating parties should be discussed and decided in a judicial court; there was the place to settle questions of law, and though they had often been presented to the legislature for their determination, in the form of applications for new trials, nothing but a familiarity with this mode of proceeding prevented perceiving at once its impropriety and violation of the spirit of constitutional provisions.

§ 361. In another case in the same state, the question arose whether the legislature of the state had authority by the constitution to grant a review of a suit between private citizens.(a) In that case it was argued, that

(a) The Inhabitants of Durham v. Lewiston, 4 Greenl. R. 140.

there was no limit to the power of the state legislature except what was imposed by the constitution of the state, and of the United States. Whatever authority it possessed was transcendental. Notwithstanding the theoretic division of powers, a practical line of demarcation was to be settled. The constitution did not attempt to define the judicial authority, but left it to be ordained and distributed by the legislature, and to be parcelled out in such portions as it might see fit, in its general discretionary superintendence over the municipal concerns of the community. The residuum of such power remained by the necessary constitution of the state in the legislature. Having no court of chancery jurisdiction, the legislature necessarily possessed some chancery powers and these powers extended to granting relief in all cases of accident, mistake, and hardship. That this case was clearly distinguishable from that of Lewis v. Webb, which was a case of appeal. Almost the whole jurisdiction of the court was appellate, and the statutes regulating appeals required them to be pursued within limited periods, after which the rights inevitably lapsed, and could not be revived consistent with the rights of the adverse party, which had become vested by commission. Hence, in that case, an act of the legislature to grant an appeal from a final judgment, might amount to an act to vacate such judgment, but reviews stood on a different footing. In reply to this argument, the court said: "One object of the counsel had been to distinguish this case from that of Lewis v. Webb, in respect to the constitutional authority of the legislature to pass the resolve in question, and give it its intended operation. The soundness of that decision was not questioned; but as the two cases in some respects were different, they had attentively listened to the arguments, that they might become satisfied whether there was any difference of such a character as to leave the present case unaf

fected by that decision; and after mature consideration, they were all satisfied there was no such distinction ;" and on this ground they held the act unconstitutional.

§ 362. In the state of Vermont, K. had taken out letters of administration on the estate, B. represented to be insolvent, commissioners had been appointed by the court of probate to receive, examine and adjust the claims of creditors, who adjudged a claim of $596 20 in favor of B. which was returned to the court, and it was allowed and ordered recorded. K. omitted to appeal in the time allowed by law. Subsequently the legislature his petition passed a special act allowing him to appeal from the report of the commissioners. The constitutionality of this act came under review in the case of Bates v. Kimball, above cited, and it was held to be unconstitutional. Aiken, J., in deciding this question, took the position, that to determine whether the act be constitutional or not, it became necessary to ascertain the character of the subject matter to be affected by it, as well as the consequences or effect of the act itself. When the estate of a deceased person was represented insolvent, commissioners were to be appointed to receive, examine, and adjust all claims of the creditors to such estate. They were the only board known to the law having original cognizance of demands thus situated. Their determination when approved by the probate courts became a matter of record. The demand, thenceforth, was a debt of record; and was final between the parties, except in cases where an appeal was taken. A judgment not appealed from, within the time allowed by law for taking the appeal, was thenceforth of the same effect as though no appeal were by law allowed, and was a final judgment. Such was the plaintiff's cause of action, upon which the present suit was brought. By the act in question, the defendant was authorized to enter an appeal from the decision of the commissioners,