of the party. Mr. Justice Sedgwick placed his decision on the ground that it did not appear, nor had any laws been shown for that purpose, that before the framing of the constitution a man charged with a mere neglect of militia duty, was entitled to a trial by jury, but the fact it was believed, was directly to the contrary. Hence, the defendant was not deprived of a trial by jury in a case where before the constitution, it had been otherwise used and practised.*

§ 396. It has also been held in the same state that trials of questions of settlement of paupers might be required to be had by the court without the intervention of a jury without any conflict with this clause. (a) The decision in this instance, was also placed on the ground that it came within the exception to that general provision of causes which were used and practised otherwise before the adoption of the constitution. That from the first settlement of the country, all questions relative to the settlement or removal of paupers had been heard and determined by the courts of the general sessions of the peace, without the intervention of a jury.

§ 397. We have now discussed all the questions on the subject of legislative power which the limits of this work will admit of, and must bring this branch of our subject to a close. There is one other question which, although not arising under this head, demands a moment's consideration, as it stands connected with the subject of legislative power. That is the question as to the manner, and by whom, an abuse of legislative authority is to be controlled. We shall, therefore, close this part of our commentaries, by adverting in this place to the question of the power of courts to declare a statute

(a) The Inhabitants of Shirley v. Lunenburgh, 11 Mass. R. 379.

void, on the ground of it being repugnant to, or in conflict with, the constitution.

§ 398. In a preceding chapter we considered the controlling force of statutes, and the power of courts to declare them void, independent of any question as to conflict with the provisions of any written constitution. We therein considered the extent of authority claimed for the parliament of England, and the views which had been taken of this question by legal writers; wherein it was seen, that it had been claimed, that parliament could do any thing that was not naturally impossible, and that some writers had not scrupled to call its power by the bold figure of the omnipotence of parliament, and that which it did, no power or authority on earth could undo. We live under a government unlike that of England, from whence we have derived many of our laws, and whose system of jurisprudence has been extensively copied by most of the American states; yet, the jurisprudence of England sheds no light on the great and important question which is the subject of our present inquiry. It is difficult to define what the constitution of England is; for, it is not reduced to writing, nor characterized by the certainty and precision of a written and permanent fundamental law; it bends to every govermental exigency; it varies and is blown about by every political breeze, or legislative humor and caprice.(a) It is on this ground that the doctrine of the omnipotence of parliament rests. It has with great propriety been said, "In England there is no written constitution, no fundamental law, nothing visible, nothing real, nothing certain, by which a statute can be tested."(b) The basis of the English constitution, the capital princi

(a) Van Horne's Lessees v. Dorrance, 2 Dallas's R. 308. (b) Ibid.

ple on which all others depend, is, that the legislative power belongs to parliament alone. That is to say, the power of establishing laws, of abrogating, changing, or explaining them.(a)

§ 399. In America the case is widely different. Every state in the Union has its constitution reduced to written exactitude and precision. The constitution is the form of government delineated by the mighty hand of the people, in which certain just principles of fundamental law are established. The constitution is certain and fixed, it contains the paramount will of the people, and is the supreme law of the land, paramount to the power of the legislature, and can only be revoked or altered by the same power that framed it. The life-giving principle and the death-giving stroke must proceed from the same hand. The constitution is the wish and will of the people themselves in their original, sovereign, and unlimited capacity, while statute law is the work of the legislature, in their derivative and subordinate capacity. The one, the work of the creator, the other, of the creature. The constitution fixes the limits to the legislative exercise of authority, and describes the orbit within which it must move.(b)

§ 400. The question of the power of courts to declare a law void, on the ground of its conflict with the fundamental law, arose at a very early period of our history, it was considered with becoming deference, and decided by a far sighted and an independent judiciary. As early as 1791 the circuit court of the United States, for the district of New York, in Hayburn's case, declared an act of congress, assigning certain ministerial duties, to the circuit courts of the United States, to be unconstitu

(a) Steph. Eng. Comm. vol. ii. 531.

(b) Van Horne's Lessees v. Dorrance, 2 Dallas's R. 808.

tional. (a) In Pennsylvania and North Carolina, the circuit courts of the United States within those districts also held the same act not binding upon them, because the legislature had no power to assign to them duties not judicial.(6) In 1797, Judge Patterson assented to the duty of the court, and the paramount authority of the constitution. He said, "The constitution of a state is stable and permanent, not to be worked upon by the temper of the times, not to rise and fall with the tide of events, notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immovable as a mountain amid the strife of storms, or as a rock in the ocean amid the raging waves. That it was a clear position, if a legislative act opposes a constitutional principle, the former must give way and be rejected on the score of repugnance. It was the duty of the court in such a case to adhere to the constitution, and to declare the act of the legislature null and void."(c)

§ 401. In 1803, this question again came under consideration in the Supreme Court of the United States, when Marshall, J., said, "The question whether an act repugnant to the constitution can become the law of the land, is a question deeply interesting to the United States. That the people have an original right to establish for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom

(a) 1 Kent's Com. 450.

(b) Case of Hayburn's, 2 Dallas's R. 410.

(c) Van Horne's Lessees v. Dorrance, 2 Dallas's R. 309.

act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. Between

these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall choose to alter it.(a)

§ 402. "In the United States, the principle in the English government, that the parliament is omnipotent, does not prevail; though, if there be no constitutional objection to a statute, it is with us as absolute and uncontrollable as laws flowing from the sovereign power, under any other government. (b) But in this, and in all other countries, where there is a written constitution, designating the powers and duties of the legislature, as

(a) Marbury v. James Madison, 2 Dallas's R. 175. (b) 1 Kent's Com. 426.