mental principle flows from the very nature of our free republican governments, that no man should be compelled to do what the laws do not require, nor to refrain from acts which the laws permit. There are acts which the Federal or State legislature cannot do, without exceeding their authority. There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law, or to take away that security for personal liberty or private property for the protection whereof the government was established. An act of the legislature (for I cannot call it a law), contrary to the great first principle of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments, established on express compact and on republican principles, must be determined by the nature of the power on which it is founded. The legislature may enjoin, permit, forbid and punish; they may declare new crimes, and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong, but they cannot change innocence into guilt, or punish innocence as a crime; or violate the right of an antecedent lawful private contract, or the right of private property. To maintain that our Federal or State legislature possesses such powers, if they had not been expressly restrained, would in my opinion be a political heresy, altogether inadmissible in our free republican governments." But notwithstanding the opinions of these eminently respectable judges, the current of authority, as well as substantial constitutional reasoning, is decidedly opposed to the doctrine. It may now be considered as an established principle of American law that the courts, in the performance of their duty to confine the legislative department within the constitutional limits of its power, cannot nullify and avoid a law, simply because it conflicts with the

judicial notions of natural right or morality, or abstract justice."

1

1 "The question whether the act under consideration is a valid exercise of legislative power is to be determined solely by reference to constitutional restraints and prohibitions. The legislative power has no other limitation. If an act should stand when brought to the test of the constitution, the question of its validity is at an end, and neither the executive nor judicial department of the government can refuse to recognize or enforce it. The theory, that laws may be declared void when deemed to be opposed to natural justice and equity, although they do not violate any constitutional provision, has some support in the dicta of learned judges, but has not been approved, so far as we know, by any authoritative adjudication, and is repudiated by numerous authorities. Indeed, under the broad and liberal interpretation now given to constitutional guaranties, there can be no violation of fundamental rights, which will not fall within the express or implied prohibition and restraints of the constitution and it is unnecessary to seek for principles outside of the constitution, under which legislation may be condemned." Bertholf v. O'Reilly, 74 N. Y. 509. "Defendant insists that we should pronounce the law now in question to be void, on the ground that it is opposed to natural right and the fundamental principles of civil liberty. We are by no means prepared to accede to the doctrine involved in this claim, that under a written constitution like ours, in which the three great departments of government, the executive, legislative and judicial, are confided to distinct bodies of magistracy, the powers of each of which are expressly confined to its own proper department, and in which the powers of each are unlimited, in its appropriate sphere, except so far as they are abridged by the constitution itself, it is competent for the judicial department to deprive the legislature of powers which they are not restricted from exercising by that instrument. It would seem to be sufficient to prevent us from thus interposing, that the power exercised by the legislature is properly legislative in its character, which is unquestionably the case with respect to the law we have been considering, and that the consideration contains no restrictions upon its exercise in regard to the subject of it." State v. Wheeler, 25 Conn. 290. See, also, Butler v. Palmer, 1 Hill, 324; Cochran v. Van Surley, 20 Wend. 380; Grant v. Courten, 24 Barb. 232; Benson v. Mayor, 24 Barb. 248, 252; Wynehamer v. People, 13 N. Y. 390; Town of Guilford v. Supervisors, 13 N. Y. 143; Sharpless v. Mayor, 21 Pa. St. 147; Bennett v. Boggs, 1 Bald. 74; Doe v. Douglass, 8 Blackf. 10; State v. Clottu, 33 Ind. 409; Stein v. Mayor, 24 Ala. 614; Dorman v. State, 34 Ala. 232; Boston v. Cummings, 16 Ga. 102; Hamilton v. St. Louis Co., 15 Mo. 23; Powell v. Com., 114 Pa. St. 265; Reeves v. Corning, 51 Fed. 774; Sinking Fund Cases, 99 U. S. 700, 718. "Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government can

While it is true that the courts have no authority to override the legislative judgment on the question of expediency or abstract justice in the enactment of a law, and if a case, arising under the statute, should come up before them for adjudication, they are obliged by their official oaths to enforce the statute notwithstanding it offends the commonest principles of justice, it is nevertheless true that a law which does not conform to the fundamental principles of free government and natural justice and morality, will prove ineffectual and will become a dead letter. No law can be enforced, particularly in a country governed directly by the popular will, which does not receive the moral and active support of a large majority of the people; and a law, which violates reason and offends against the prevalent conceptions of right and justice, will be deprived of the power necessary to secure its enforcement. The passage of such statutes, however beneficent may be the immediate object of them, will not only fail of attaining the particular end in view, but it tends on the one hand to create in those who are likely to violate them a contempt for the whole body of restrictive laws, and on the other hand, to inspire in those, from whom the necessary moral support is to be expected, a fear and distrust, sometimes hate, of legal restraint which is very destructive of their practical value. And such is particularly the case with police regulations. When confined within their proper limits, viz.: to compel every one to so use his own and so conduct himself as not to injure his neighbor or infringe upon his rights, police regulations should, and usually would, receive in a reasonably healthy community the enthusiastic support of the entire population. There have been, however, so many

not encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule." See, also, Fletcher v. Peck, 6 Cranch, 87, 128; Dartmouth College v. Woodward, 4 Wheat. 518, 625; Livingston v. Darlington, 101 U. S. 407.

unjustifiable limitations imposed upon private rights and personal liberty, sumptuary laws, and laws for the correction of personal vice, laws which have in view the moral and religious elevation of the individual against his will, and sometimes in opposition to the dictates of his conscience (all of which objects, however beneficent they may be, do not come within the sphere of the governmental activity), that the modern world looks with distrust upon any exercise of police power; and however justifiable, reasonable and necessary to the general welfare may be a particular police regulation, it often meets with a determined opposition, and oftener with a death-dealing apathy on the part of those who are usually law-abiding citizens and active supporters of the law. Goethe makes Mephistopheles give the cause of this opposition in the following expressive language:

"Ich weisz mich trefflich mit der Polizei

Doch mit dem Blutbann schlecht mich abzufinden,"

which, roughly translated, means, "I can get along very well with the police, but badly with the hereditary monopoly." (Blutbann.)1

But these are considerations, which can alone be addressed to the legislative department of the government. If an unwise law has been enacted, which does not infringe upon any constitutional limitation, the only remedy is an appeal to the people directly, or through their representatives, to repeal the law. The courts have no authority to interpose.

§ 3. Construction of constitutional limitations. But although these fundamental principles of natural right and

1 Reference is here made to those numerous monopolies, created in various industries for the benefit of certain powerful families and made hereditary, which proved beneficial to their possessors, while they were correspondingly oppressive to the poorer classes. This was one of the crying evils of the old French civilization which led up to the Revolution.

justice cannot, in themselves, furnish any legal restrictions upon the governmental exercise of police power, in the absence of express or implied constitutional limitations, yet they play an important part in determining the exact scope and extent of the constitutional limitations. Wherever by reasonable construction the constitutional limitation can be made to avoid an unrighteous exercise of police power, that construction will be upheld, notwithstanding the strict letter of the constitution does not prohibit the exercise of such a power. The unwritten law of this country is in the main against the exercise of police power, and the restrictions and burdens, imposed upon persons and private property by police regulations, are jealously watched and scrutinized. "The main guaranty of private rights against unjust legislation is found in that memorable clause in the bill of rights, that no man shall be deprived of life, liberty or property, without due process of law. This guaranty is not construed in any narrow or technical sense. The right to life may be invaded without its destruction. One may be deprived of his liberty in a constitutional sense without putting his person in confinement. Property may be taken without manual interference therewith, or its physical destruction. The right to life includes the right of the individual to his body in its completeness and without its dismemberment, the right to liberty, the right to exercise his faculties and to follow a lawful avocation for the support of life, the right of property, the right to acquire property and enjoy it in any way consistent with the equal rights of others and the just exactions and demands of the State." 1

In a late case 2 the Supreme Court expresses itself as follows: The Fourteenth Amendment is not confined to the protection of citizens." It says: It says: "Nor shall any State

1 Bertholf v. O'Reilly, 74 N. Y. 509 Yick Wo v. Hopkins, 118 U. S. 356.