will declare laws to be unconftitutional which are not, as it is, that the legislature will exceed their conftitutional authority. It is poflible that the legislature and the judiciary, will make fuch encroachments on each other, on the conftitution, and on the rights of the people, but it cannot be called probable. A little reflection will make it evident, that no queftion will ever arife in very clear cafes where the point is really doubtful a queftion may arife.There may be fome inftances where good men may very honefly dif for respecting the construction of the conftitution, becaufe from the imperfection of language, the expreffions may be ambiguous. It is therefore only with refpect to fuch questionable points, that we are to confider who ought to be vested with the power of ultimate decifion, and not in those extreme cafes which may easily be stated, but probably never will happen. A few confiderations will determine where this power ought to be placed.

The legislature must be confidered as the fupreme branch of the government. Previously to their paffing any act, they muft confider and determine whether it be compatible with the conftitution. Peing the fupreme power, and bound to judge with refpect to the queftion, in the first instance their decifion must be final and conclufive. It involves the most manifeft abfurdity, and is degrading to the legiflature, to admit the idea, that the judiciary may rejudge the fame queftion which they have decided; and if they are of a different opinion, reverfe the law, and pronounce it to be a nullity. It is an elevation of the judiciary over the heads of the legislature; it vefts them with fupreme power, and enables them to repeal all the laws, and defeat all the measures of the government, Whenever a law is paffed by the legiflature, the firft bufincfs of the courts will be to decide whether it be conflitutional and valid. The loweft courts must permit the queftion to be ferioufly and deliberately agita ted before them, refpecting the validity of the law, and then they maft folemnly decide, whether an act paffed by the fupreme legisla ture be conftitutional and obligatory on the people. Indeed the neceflary confequence is, that no law paffed by the legislature, can be deemed binding, till it has received the fanction of the fupreme judiciary, and has been declared to be conftitutional. The lower

courts

courts may decide differently, and the obligation to obey a law may be uncertain, till fome individual brings the question before the fupreme tribunal for ultimate decifion. Where this tribunal is composed of one branch of the legislature, perhaps no danger could arife, because they must have previoully in their legislative capacity, have decided the law to be conftitutional: but where the judiciary are independent of the people and the legislature, and hold their offices by an appointment of the fupreme executive, it is a total proftration of the government, to veft them with a power of deciding that legislative acts are null. The legislature will lofe all regard and veneration in the eyes of the people, when the loweft tribunals of judicature are permitted to exercife the power of queftioning the validity, and deciding on the conftitutionality of its acts-A principle fo dangerous to the rights of the people, and fo derogatory to the dignity of the legillature, cannot be founded in

truth and reason.

All these inconveniencies are avoided by placing the ultimate right of decifion in the fupreme power of the land. The legiflature have the fole power of making laws. The judiciary, have the fole power of expounding them, but they have no power to repeal them. The legiflature are not under the controul or fiperintendence of the judiciary-if they pafs laws which are unconfi. tutional, they are refponfible to the people-who may in the courfe of elections difimifs them from office, and appoint fuch perfons as will repeal fuch unconstitutional acts. On this power of the peɔple over the legislature, depends their fecurity against all encroachments, and not on the vigilance of the judiciary department.

:

Such are the outlines of our code of laws in addition to which we have a fyftem of equitable rules, to moderate and foften the rigor, and fupply the defects of the laws. No government can stand on a firm basis, unless the laws are uniform in their principles, and univerfal in their operation. But from thefe general rules, there may be fome inftances, where individuals may in particular cafes, be unable to obtain compleat juftice, and there will be fome cafes to which general rules will not extend. This points out the neceffity of courts of equity, who have power to relieve against the

indirect

indirect unjust operation of general laws, and to furnish relief in all cafes, where the ordinary courfe of law does not extend.

To purfue our enquiries with facility and perfpicuity, it is neceffary to exhibit a general plan of the work.

Government is inftituted to maintain the rights, and redress the wrongs of individuals. We fhall therefore in the first place delineate the form of the government, confifting of the legislative, executive and judicative powers. In the fecond place we shall confider the rights of perfons, which will be divided into absolute, and rela tive; abfolute, belonging to them as individuals, and relative as connected with their fellow-creatures.

The principal of these rights refpect property, we shall therefore in the third place, define the feveral kinds of things, and their mode of conveyance. Mankind, when fecure in the enjoyment of thefe rights, are in a ftate of political happiness; but as their repeated violation calls on government, for a conftant exertion to redress them, it is neceffary to confider in the fourth place what acts amount to an infraction of them, fo as to be denominated wrongs, and the modes of redrefs. As the conduct of individuals, not only affects each other, but concerns the peace, and good order of government, we fhall in the fifth place confider thofe actions, which are denominated crimes, becaufe they difturb the peace, interrupt the good order, and endanger the existence of the community. To this will be added the mode of profecution, and the various kinds of punishments for each offence. From the general operation of univerfal laws, fome individuals under certain circumstances, may fuffer injuftice, as an indirect, collateral confequence of them, and it cannot be expected that pofitive laws will reach every poffible cafe, and redress every poffible injury. We fhall therefore in the fixth place, confider the powers of courts of equity, inflituted, and calculated, to fupply the defects, and remedy the inconvenien cies of general laws.

A

A SYSTEM of the LAWS

OF THE

STATE of CONNECTICUT.

BOOK FIRST.

Of the Powers of Government,

CHAPTER FIRST.

OF THE CONSTITUTION OF CONNECTICUT.

THE conflitution of this ftate, is a reprefentative republic.→

Some vifionary theorists, have pretended that we have no conftitution, because it has not been reduced to writing, and ratified by the people. It is therefore neceffary, to trace the conftitution of our government to its origin, for the purpose of fhewing its exiftence, that it has been accepted and approved of by the people, and is well known and precifely bounded.

Antecedent to the fettlement of America, the king of England made fundry grants of territory to individuals. Our ancestors purchafed the lands in the limits of Connecticut, of the grantees of the crown, and the Indian natives. Embarking in the enterprife without the royal aid, or encouragement, no form of government was prefcribed. Too remote from their native country to be governed by their laws, they were under a neceffity of framing a conftitution and laws for themselves. In this refpect, they were in a state of nature, and had the right, as well as the power of purfuing thofe liberal ideas of civil liberty, which had impelled them to undertake fuch an hazardous enterprize. Within the limits of this flate, two colonies, fettled about the fanie period. In the year 1635,

Neal, Hift. N. E.

a number of persons from Maffachusetts, invited by the fertility of the land adjoining Connecticut River, made a fettlement on its banks, and erected the town of Hartford, and the neighbouring towns. In the year 1637, a colony from England, made a fettlement at New-Haven. Sundry towns on Connecticut River, and the fettlement at New-Haven, were without the jurifdiction of Mafiachusetts, or any government. They were in a political point of view, in a flate of nature, and had a right to establish fuch form of government as they pleafed. Senfible of the advantages of fociety, and the necellity of government, they at each fettlement, agreed upon and fubfcribed certain articles, by which they volunta rily entered into a flate of fociety, formed the focial compact, and erected two governments, Connecticut and New-Haven, which continued feparate, till their union by the royal charter, in 1662. Thefe colonial governments, derived their authority from the voluntary affociation and agreement of the people, and we have here the most fingular, and the fairest example of the operation of that natural principle, which impels mankind to unite in fociety. Here the focial compact was made and entered into, in the most explicit manner. Here is the origin of a government upon natural principles.

But it being a common opinion, that new difcovered land belonged to the king, whofe fubjects had difcovered them, and that he alone had the right and the power to establish legal governments, and grant the title to the lands, the colonies of Connecticut and New-Haven, made application to Charles the fecond, king of Great-Britain for a charter. The king granted them a liberal and extenfive charter, dated, April 23d, 1662, that incorporated both colonies into one, by the name of Connecticut, that erected a form of government, upon the fame plan they had before voluntarily adopted, and that granted them a title to the territory within the limits of the colony. The application of the people for this charter, and their voluntary acceptance of it, gave efficacy to the government it conflitated, and not the royal fignature. This is the only charter that ever was granted by an English monarch to the people of Cou necticut, and is now by flatute the bafis of our conftitution. It

Douglafs's Hift. of Connecticut.

continued