Chapter 2

This brief sketch of the true province of legislation is enough to evince its vast importance. How great is the influence of the lawyers as a class upon legislation! Let any man look upon all that has been done in this department, and trace it to its sources. He will acknowledge that legislation, good or bad, springs from the Bar. There is in this country no class of lawyers confined to the mere business of the profession--no mere attorneys--no mere special pleaders--no mere solicitors in Chancery--no mere conveyancers. However more accurate and profound may be the learning of men, whose studies are thus limited to one particular branch, it is not to be regretted either on account of its influence on the science or the profession. The American lawyer, considering the compass of his varied duties, and the probable call which will be made on him especially to enter the halls of legislation, must be a Jurist. From the ranks of the Bar, more frequently than from any other profession, are men called to fill the highest public stations in the service of the country, at home and abroad. The American lawyer must thus extend his researches into all parts of the science, which has for its object human government and law: he must study it in its grand outlines as well as in the filling up of details. He is as frequently called upon to inquire what the law ought to be as what it is. While a broad and marked line separates, and always ought to separate the departments of Legislation and Jurisprudence, it is a benefit to both that the same class of men should be engaged in both. Practice will thus be liberalized by theory, and theory restrained and corrected by practice. The mere abstractionist or _doctrinaire_ would aim at the formation of a code of great simplicity: the practitioner sees in it the parent of uncertainty and injustice. Legal propositions cannot be framed with the certainty of mathematical theories. The most carefully studied language still leaves room for interpretation and construction. Time itself, which works such mighty changes in all things, produces a state of circumstances not in the mind of the lawgiver. The existing system, it may be, is an unwieldy, inconvenient structure, heavy and grotesque from the mixed character of its architecture outwardly, inwardly its space too much occupied and its inmates embarrassed by passages and circuities. The abstractionist would at once demolish it, and replace it by a light, commodious and airy dwelling, more symmetrical and chaste in its appearance, better fitted for the comfort and usefulness of its inhabitants. The practitioner, who has become familiar with it, who observes and admires that silent legislation of the people, which shows itself not on the pages of the statute book, and receives its recognition in courts of justice only after it has ceased to need even that to give it form and vitality, and who understands, therefore, how, with little inconvenience, it is made to accommodate itself to every change of condition, sits down to a careful calculation of the cost and risk of such wholesale change. History and practical experience, alike, suggest to him, that the structure is a castle as well as a dwelling, a place for security as well as comfort; that its foundations have been laid deeply on the solid rock--its masonry more firmly knit together by the time it has endured. Yet he will not deny that what can be done consistently with security ought to be done. It is worse than in vain to oppose all amendment. It will break down every artificial barrier that may be reared against it, if it be not quietly and wisely directed in those channels which it seeks at the least expense to security and stability. Surely it is not conceding too much to this spirit to admit, that laws should be composed in accurate but perspicuous language, without redundancy of words or involution of sentences; that the policy of public measures should not be wrapt up in the folds of State mystery; and that all legislation should be based upon the principle of leaving the greatest liberty of private judgment and action, consistent with public peace and private security. A blind attachment to principles of jurisprudence or rules of law because they are ancient, when the advancement of the useful arts, the new combinations of trade and business, and the influence of more rapid and general intercourse demand their repeal or modification, is as much to be deprecated as rash innovation and unceasing experiment. Indeed it scarcely ever fails to defeat its own end, and though it may retard for a while, renders the course of reform more destructive than it otherwise would have been. True conservatism is gradualism--the movement onward by slow, cautious, and firm steps--but still movement, and that onward. The world, neither physically, intellectually, nor morally, was made to stand still. As in her daily revolutions on her own axis as well as her annual orbit round the sun, she never returns precisely to the same point in space which she has ever before occupied, it would seem to be the lesson which the Great Author of all Being would most deeply impress upon mind as he has written it upon matter; "by ceaseless motion all that is subsists."

What has thus been very cursorily presented will evince that it is the province of legislation, by slow and cautious steps, to amend the laws, to render them more equal in their operation upon all classes, not favoring the rich more than the poor, nor one class of either more than another, providing an easy, cheap, and expeditious administration of justice by tribunals, whose learning and impartiality shall be so secured as to possess the confidence of the community, and by general rules for the regulation of conduct and the distribution of estates most conformed to the analogies of that system, which is familiar to the people in their common law.

Great as is the influence which the profession of the law can and does exercise upon the legislation of a country, the actual administration of law is entirely in their hands. To a large extent by private counsel, by the publication of works of research and learning, by arguments in courts of justice to assist those who are to determine what is the law, and to apply it to the facts, as well as in the actual exercise of judicature, this whole important province of government, which comes home so nearly to every man's fireside, is intrusted necessarily to lawyers.

In this country we live under the protection of written constitutions; not only so, but written constitutions, which have assumed to place limits upon the power of majorities, acting at least through their ordinary representatives. The construction of these constitutions, or constitutional law as it is termed, forms a very important branch of American jurisprudence. There have been, and are, in other countries, charters, written or unwritten--organic or fundamental laws--but without this distinguishing feature. The fundamental laws, thus established in point of fact, emanate from the government, and have no sanction beyond the oath of those intrusted with the administration of them, the force of public opinion, and the responsibility of the representative to his constituent. Our constitutions emanate not from the government, but the State, the society, the creator of the government; and are, therefore, in the strictest sense of the words, _leges legum_. The radical principle of our system is, that the act of the legislative body, beyond or contrary to the power confided to it by the Constitution, is a nullity, and absolutely void. The courts must so pronounce, and the executive must execute their judgments with the whole force of the State. Upon such a subject it is best to use the very language--the _ipsissima verba_--of John Marshall, as, at the same time, expressing the doctrine with the greatest force and perspicuity, and presenting, in the mere statement, the most convincing argument of its importance. "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is, in reality, effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure." (Marbury _v._ Madison, 1 Cranch, 177.) More weighty words than these have never, speaking of human things, fallen from the lips of man: weighty in themselves from their own simple but eloquent conclusiveness--weightier still from their unspeakable importance, the immeasurable influence they have had, and, it is to be hoped, will ever continue to have, upon the destinies of the United States of America. The judiciary department, though originating nothing, but acting only when invoked by parties in the prosecution of their rights, is thus necessarily an important political branch of the government. That department spreads the broad and impregnable shield of its protection over the life, limbs, liberty, and property of the citizen, when invaded even by the will of the majority. Our Bills of Rights are, therefore, not mere enunciations of abstract principles, but solemn enactments by the people themselves, guarded by a sufficient sanction. They have not, perhaps, as yet, carried far enough their provisions for the security of property from the unjust action of government. The obligation of contracts has been declared sacred; the right of eminent domain restricted by the provision for compensation. Yet, even as to contracts, the legislature may still exercise dangerous powers over the remedy, short of taking it away entirely, and over the rules of evidence. As to eminent domain, they possess an undefined right to determine the time and manner of ascertaining the compensation. Our constitutions are frequently undergoing revision; and too much care cannot be exercised to strengthen our securities in this quarter. Personal liberty, trial by jury, the elective and other political franchises, liberty of conscience, of speech and of the press, are able to protect themselves in a great measure from their own democratic affinities. It is true, that there really is no difference between wresting from a man the few dollars, the products or savings of his industry for any period of time, and depriving him of his liberty, or chaining him to a log, to work for another during the same period. Property eminently stands in need of every parchment barrier, which has been or can be thrown around it. An eminent Judge in our own State once threw out the opinion that there existed in the Constitution no disaffirmance of the power of the legislature to take the property of an individual for _private uses_ with or without compensation. "The clause," he argued, "by which it is declared that no man's property shall be taken or applied to _public_ use, without compensation made, is a disabling, not an enabling one, and the right would have existed in full force without it." (Harvey _v._ Thomas, 10 Watts, 63.) Fortunately, the decision of the court in that case did not require a resort to that reasoning, and but little examination was sufficient to satisfy the mind that this _obiter dictum_ was unsustained by either principle or authority. A power in the legislature to take the property of A. and give it to B. directly, would be of the very essence of despotism. When it is declared in the Bill of Rights that no man shall be deprived of his life, liberty, or property, unless by the judgment of his peers, or the law of the land, this phrase, "law of the land," does not mean merely an act of the legislature. If it did, every restriction upon the legislative department would be practically abrogated. By an authority as old as Lord Coke, in commenting upon these same words in _Magna Charta_, they are to be rendered "without due process of law: that is, by indictment or presentment of good and lawful men, when such deeds be done in due manner, or by writ original of the common law, without being brought into answer but by due process of the common law." (2 Inst. 50.) The American laws are numerous and uniform to the point (see 1 American Law Mag. 315); and the same eminent Judge, to whom reference has been made in a later case, declared his adhesion to the sound and true doctrine in the most emphatic language, without noticing his own previous _dictum_ to the contrary. "It was deemed necessary," said he, "to insert a special provision in the Constitution to enable them (the legislature) to take private property even for public use, and on compensation made; but it was not deemed necessary to disable them specially in regard to taking the property of an individual, with or without compensation, in order to give it to another, not only because the general provision in the Bill of Rights was deemed sufficiently explicit for that, but because it was expected that no legislature would be so regardless of right as to attempt it. Were this reasonable expectation to be disappointed, it would become our plain and imperative duty to obey the immediate and paramount will of the people, expressed by their voices in the adoption of the Constitution, rather than the repugnant will of their delegates acting under a restricted but transcended authority." (Norman _v._ Heist, 5 W. & S. 171.)

Yet, while the right of private property cannot be thus directly invaded, its security against the acts of the legislature is not as perfect as it might and ought to be made. The legislature must be allowed a large discretion in judging what is a public use: on that pretext much may be brought within its sweep unjustly, and the courts, in the absence of a constitutional rule, would be embarrassed in defining its limits. Experience has shown that much power to do wrong lurks under grants by no means essential to the public good. Besides what has been before referred to, the assumption of judicial functions by the Legislature and the broad field of Chancery jurisdiction over trust estates, which it has been held that they may exercise immediately, if they see fit, instead of vesting them in appropriate tribunals, are fraught with serious danger. The proneness of bodies so constituted to disembarrass themselves of the ordinary rules of evidence, to act upon _ex parte_ statements and testimony imperfectly authenticated, as well as the absence of all legal forms from their proceedings, and their numbers, among whom the responsibility of giving due attention to the case is divided, add to the peril. The power of legislating retrospectively has far too wide a scope; the constitutional inhibition of _ex post facto_ laws having been construed to apply to criminal or penal cases merely, restraining the legislature from making that an offence which was not so at the time of its commission, or increasing the punishment annexed to it. The course of legislation in this country amply demonstrates the wisdom, and even necessity, of extending the same prohibition to civil cases. There is no particular or partial inconvenience, which could outweigh the general benefits of a provision that no law, public or private, should operate retrospectively upon past acts; that the judgment of the tribunals upon every case should be according to the law as it was at the time of the transaction, which the parties were bound to know, and in accordance with which they are to be presumed to have acted.

As well in the domain of public as of private law, the great fundamental principle for judge and counsellor ought to be, THAT AUTHORITY IS SACRED. There is no inconvenience so great, no private hardship so imperative, as to justify the application of a different rule to the resolution of a case, than the existing state of the law will warrant. "There is not a line from his pen," says Mr. Binney of Chief Justice Tilghman, "that trifles with the sacred deposit in his hands by claiming to fashion it according to a private opinion of what it ought to be. Judicial legislation he abhorred, I should rather say, _dreaded_, as an implication of his conscience. His first inquiry in every case was of the oracles of the law for their response; and when he obtained it, notwithstanding his clear perception of the justice of the cause, and his intense desire to reach it, if it was not the justice of the law, he dared not to administer it. He acted upon the sentiment of Lord Bacon, that it is the foulest injustice to remove landmarks, and that to corrupt the law is to poison the very fountains of justice. With a consciousness that to the errors of the science there are some limits, but none to the evils of a licentious invasion of it, he left it to our annual legislature to correct such defects in the system as time either created or exposed; and better foundation in the law can no man lay." It is not to be denied that there is some difficulty in stating with accuracy the limits of the rule _stare decisis_. One, or even more than one, recent precedent, especially when it relates to the application rather than to the establishment of a rule, is not of so binding a character that it must be followed, even though contrary to principles adjudged in older cases: but it is just as clear that when a decision has been long acquiesced in, when it has been applied in numerous cases, and become a landmark in the branch of the science to which it relates, when men have dealt and made contracts on the faith of it, whether it relates to the right of property itself, or to the evidence by which that right may be substantiated, though it may appear to us "flatly absurd and unjust," to overrule such a decision is an act of positive injustice, as well as a violation of law, and an usurpation by one branch of the government upon the powers of another. An example will illustrate this position. In the case of Walton _v._ Shelley (1 Term Rep. 296), in 1786, the King's Bench, Lord Mansfield, Chief Justice, decided that a person is not a competent witness to impeach a security which he has given, though he is not interested in the event of the suit, on the trial of which he is offered. In Jordaine _v._ Lashbrooke (7 Term Rep. 601), the same court, in 1798, under the presidency of Lord Kenyon, rightly overruled that decision. Now it so happens that Walton _v._ Shelley was recognized as authority and followed in Pennsylvania, in 1792, in Stille _v._ Lynch (2 Dall. 194), before it had been overruled in England: and though limited as it was understood to be in Bent _v._ Baker (3 Term Rep. 34), to negotiable paper (Pleasants _v._ Pemberton, 2 Dall. 196), it has never been varied from since that time, though it has frequently been admitted that Walton _v._ Shelley was properly overruled. It ought not now to be overruled in Pennsylvania. "After the decisions cited," says Judge Rogers, in Gest _v._ Espy (2 Watts, 268), "this cannot be considered an open question, nor do we think ourselves at liberty now to examine the foundations of the rule." Unfortunately our Supreme Court have not always put this sound and wise limitation upon their own power. In the case of Post _v._ Avery (5 W. & S. 509), they declared in regard to a rule of more than thirty years' standing, and confirmed by numerous cases, that they had "vainly hoped that the inconvenience of the rule would have attracted the attention of the legislature, _who alone are competent to abolish it_;" but as nothing was to be expected from that quarter, "they were driven by stress of necessity" to overrule a case expressly decided on the authority of the rule. (Hart _v._ Heilner, 3 Rawle, 407.) And two years afterwards, after having made the remarkable declaration that the legislature alone was competent to abolish the rule, they nevertheless pronounced it "exploded altogether." (McClelland _v._ Mahon, 1 Barr, 364.)

Lord Bacon says of retrospective laws: "_Cujus generis leges raro et magna cum cautione sunt adhibenda: neque enim placet Janus in legibus._" Without any saving clause may the epithet and denunciation be applied to judicial laws. They are always _retrospective_, but worse on many accounts than _retrospective statutes_. Against the latter we have at least the security of the constitutional provision that prohibits the passage of any law, which impairs the obligation of a contract, executory or executed; and it has been well held that this prohibition applies to such an alteration of the law of evidence in force at the time the contract was made, as would practically destroy the contract itself by destroying the only means of enforcing it. There is no such constitutional provision against judicial legislation. It sweeps away a man's rights, vested, as he had reason to think, upon the firmest foundation, without affording him the shadow of redress. Nor could there, in the nature of things, be any such devised. When a court overrules a previous decision, it does not simply repeal it; it must pronounce it never to have been law. There is no instance on record, in which a court has instituted the inquiry, upon what grounds the suitor had relied in investing his property or making his contract, and relieved him from the disastrous consequences, not of his, but of their mistake, or the mistake of their predecessors. The man who, on the faith of Steele _v._ The Ph[oe]nix Ins. Co. (3 Binn. 306), decided in 1811, and treated as so well settled in itself and all its logical consequences, that in 1832 (Hart _v._ Heilner, 3 Rawle, 407) the Supreme Court, declined to hear the counsel, who relied on its authority, invested his money in the purchase of a claim which could be proved only by the testimony of the assignor, found himself stripped of his property by a decision in 1845, the results of which were broader than even the legislature itself would have been competent to effect, or indeed the people themselves in their sovereign capacity, at least so long as the Constitution of the United States continues to be "the supreme law of the land, anything in the _constitution_ and laws of any State to the contrary notwithstanding."