to the present session of the court: and it was thereby further commanded that the proceedings, both before the court of probate and this court, should be in all respects the same as though the defendant had entered his appeal within the time allowed by the law. This act, in the first instance, altered the decision of the commissioners from a final and absolute judgment upon the merits, to a judgment nisi; or, in other words, to a judg ment liable to be vacated by the act of the party in entering his appeal: and, secondly, through the authorized act of the party on entering his appeal, it altered it to a judgment vacated. That a judgment appealed from was a judgment vacated, was evident from the fact, that by the appeal the parties were thrown back upon the original cause of action, and were compelled to litigate anew, that which would otherwise be concluded by the judgment itself. Again, it could never be enforced as a judgment of the same court whence the appeal was taken, though the appeal be not carried up. If the appellee did not, on the neglect of the appellant to prosecute his appeal, procure an affirmance by the court to which the appeal was taken, he lost the benefit of his judgment forever, and must resort to a new suit for his remedy. That the subject matter of this act, was a final judgment of record between party and party, rendered by a board, and approved by a court of competent jurisdiction for that purpose; and that the effect and operation of the act was virtually to vacate that judgment. The real question, therefore, was, had the legislature power to vacate or annul an existing judgment between party and party? The doctrine that all power was originally in the government, and that the people by their charters and constitutions had abridged and limited those powers, was fit only for those countries where the ignorance of the people was the weapon by which the lawless power maintained her throne. The

axiom that the sovereignty was in the people, was a political truth on which every free and rational government was founded. Its development had regenerated the nations of this western hemisphere, and again re-illuminated the long benighted but classical land of Greece. When the people associated and entered into compact for the purpose of establishing government, that compact, whatever might be its provisions, or in whatever language it might be written, was the constitution of the state, revocable only by the people, or in the manner they prescribed. It was by this instrument that government was instituted; its departments created, and the powers to be exercised by each confined. The powers thus conferred by the constitution of this country, must be found expressed in the constitution, or be derived by a just and necessary implication from the expressions used. But power which was expressly delegated to one department, could never be devised to another by implication, because no necessity for such implication could justly be pretended. The necessity of a distinct and separate existence of three great departments of government, was well understood by the people at the time of the adoption of the constitution. Its importance to the security of public liberty and private right, had been proclaimed and enforced by some of the wisest and most eminent men of other countries, and of this; among whom were Montesquieu, Sir William Blackstone, Jefferson, and Madison. It had been sanctioned by the people of the United States by being adopted, in more or less explicit terms, into all their written constitutions. The constitution of Vermont had declared "That the legislative, executive, and judiciary departments shall be separate and distinct, so that neither shall exercise the powers belonging to the other." Whatever, therefore, it properly belonged to the judiciary to do, the legislature were expressly precluded from doing. The legis

lature had the power by general laws to establish the courts, to appoint and limit their respective jurisdiction; to prescribe the mode in which causes should be brought before them; to enlarge or restrict the power of granting appeals, reviews and new trials, and otherwise to regulate their proceedings, so that every person can find a certain remedy by having recourse to them for all injuries and wrongs, was readily admitted. But when they had done this, they had exercised every power relating to the administration of justice "necessary for the legislature of a free and independent state." This was the extent of the powers of this description vested in that body by the constitution, except indeed certain judicial powers expressly delegated to them touching the conduct and privileges of their own members. It was true the constitution had no where particularly defined what those powers were, which properly belong to the judiciary department; but from sections four and six we learned that by the judiciary department was meant courts of justice. These powers then must be such as were usually exercised by courts in the trial of causes, and the administration of justice; to ascertain them, we must necessarily resort to the common law and usage, in manifest reference to which the constitution was framed. The effect of this act was to vacate a judgment and direct another trial in matters determined by that judgment. It was immaterial whether that effect was produced by authorizing an extraordinary appeal in a case not within, and of course not "conformably to the law," or whether it was done by ordering a new trial before the same court, the mischief was the same. It was not by the mode of doing a thing, nor by the pretended capacity in which it was done, but by the nature of the act itself, that its propriety or impropriety was to be determined. The common law and usage referred us in view of these proceedings, to the judiciary depart

ment. The granting of a new trial, after the verdict and before judgment, was a part of the ordinary administration of justice in all common law courts, and was essential to the support and proper exercise of the right of trial by jury.

§ 363. In Staniford v. Barry, the same court affirmed the same doctrine, and held, that the validity of such an act had been discussed in the case of Bates v. Kimball, and that this question must be considered as settled by that decision. The court said, "It was there determined, that the judgment of commissioners, appointed to receive and examine claims on an estate represented insolvent, unless appealed from within the time prescribed by law, was a final judgment, which fixed the rights of the parties, and could not be vacated or set aside by an act of the legislature. That decision was a direct authority that the act, under which this appeal was taken, is unconstitutional and void, as being an exercise of power by the legislature properly belonging to the judiciary, and as being in the nature of a sentence, or decree, rather than a law, wholly retrospective in its operation, and taking away a vested right. The case referred to has been maturely considered, and was decided on principles and authorities which are conclusive on the question. It is unnecessary, therefore, to enter at large into the question at this time. We have only to add, that the principles adopted in the case cited, have become settled constitutional law, and are universally recognized and acted upon as such by all judicial tribunals in this country. They are found in the doctrines of learned civilians and the decisions of able judges, without a single decision or even opinion or dictum to the contrary. They not only grow out of the letter and spirit of the constitution, but are founded in the very nature of a free government, and are absolutely essential

to the preservation of civil liberty and permanent security of rights."

§ 364. In New Hampshire an act of the legislature awarding a new trial in an action which had been decided in a court of law, was held to be an exercise of judicial powers, as the legislature was not, by the constitution, a part of the judiciary, and could not perform any judiciary act. (a) The court in this case took the position, that no article in the constitution could be designated which, in specific terms, made the legislature a branch of the judiciary, consequently, if they were, it must depend upon inference, and that inference, it was admitted, could be drawn from nothing but the grant of powers to the general court, and from the 31st and 37th article of the bill of rights. By that grant they were invested "with full authority to make all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions and institutions, either with penalties or without, so as the same be not repugnant or contrary to this constitution." But nothing was said of decrees or judgments, or judicial power. The phraseology was altogether peculiar to legislative subjects. Though styled the "General Court of New Hampshire," they were considered in the first section to be "the supreme legislative power." The constitution then proceeds to state, not that the general court shall be a branch of the judiciary, but that "they shall forever have power and authority to erect and constitute judicatures;" not that they themselves shall hear any private controversies, but that the courts of record, so constituted, shall be holden in the name of the state, for hearing such causes.

§ 365. In Calder v. Bull(b) the Supreme Court of the

(a) Merill v. Sherbrun et al. 1 N. H. R. 206. (b) 3 Dallas R. 386.