tended to operate upon bills in their progress through the General Assembly, it must be held to be directory only. It relates to bills, and not to acts. It would be most mischievous in practice to make the validity of every law depend upon the judgment of every judicial tribunal of the State, as to whether an act or a bill contained more than one subject, or whether this one subject was clearly expressed in the title of the act or bill. Such a question would be decided according to the mental precision and mental discipline of each justice of the peace and judge. No practical benefit could arise from such inquiries. We are therefore of opinion that in general the only safeguard against the violation of these rules of the houses is their regard for, and their oath to support, the constitution of the State. We say, in general, the only safeguard; for whether a manifestly gross and fraudulent violation of these rules might authorize the court to pronounce a law unconstitutional, it is unnecessary to determine. It is to be presumed no such case will ever occur." 1

If the prevailing doctrine of the courts were in accord with this decision, it might become important to consider whether the object of the clause in question, as here disclosed, was not of such a character as to make the provision mandatory even in a statute. But we shall not enter upon that subject here, as elsewhere we shall have occasion to refer to decisions made by the highest judicial tribunals in nearly all of the States, recognizing similar provisions as mandatory, and to be enforced by the courts. And we concur fully in what was said by Mr. Justice Emmot, in speaking of this very provision, that "it will be found upon full consideration to be difficult to treat any constitutional provision as merely directory and not imperative."2 And with what is said by Mr. Justice Lumpkin, as to the duty of the courts: "It has been suggested that the prohibition in the seventeenth section of the first article of the constitution, Nor shall any law or ordinance pass containing any matter different from what is expressed in the title

1 Pim v. Nicholson, 6 Ohio, N. s. 179. See also the case of Washington v. Murray, 4 Cal. 388, for similar views. In Hill v. Boyland, 40 Miss. 618, a provision requiring of all officers an oath to support the constitution, was held not to invalidate the acts of officials who had neglected to take such an oath. And in McPherson v. Leonard, 29 Md. 377, the provision that the style of all laws shall be, "Be it enacted by the General Assembly of Maryland," was held directory.

2

People v. Lawrence, 36 Barb. 186.

thereof,' is directory only to the legislative and executive or lawmaking departments of the government. But we do not so understand it. On the contrary, we consider it as much a

matter of judicial cognizance as any other provision in [* 83] that instrument. If the courts would refuse to execute a law suspending the writ of habeas corpus when the public safety did not require it, a law violatory of the freedom of the press, or trial by jury, neither would they enforce a statute which contained matter different from what was expressed in the title thereof."

1

We have thus indicated some of the rules which we think are to be observed in the construction of constitutions. It will be perceived that we have not thought it important to quote and to dwell upon those arbitrary rules to which so much attention is sometimes given, and which savor rather of the closet than of practical life. Our observation would lead us to the conclusion. that they are more often resorted to as aids in ingenious attempts. to make the constitution seem to say what it does not, than with a view to make that instrument express its real intent. All external aids, and especially all arbitrary rules, applied to instruments of this popular character, are of very uncertain value; and we do not regard it as out of place to repeat here what we have had occasion already to say in the course of this chapter, that they are to be made use of with hesitation, and only with much. circumspection.2

1 Protho v. Orr, 12 Geo. 36. See also Opinions of Judges, 6 Shep. 458; Indiana Central Railroad Co. v. Potts, 7 Ind. 683; People v. Starne, 35 Ill. 121; State v. Miller, 45 Mo. 495; Weaver v. Lapsley, 43 Ala. 224.

See People v. Cowles, 13 N. Y. 360, per Johnson, J.; Temple v. Mead, 4 Vt. 540, per Williams, J.; People v. Fancher, 50 N. Y. 291. "In construing so important an instrument as a constitution, especially those parts which affect the vital principle of republican government, the elective franchise, or the manner of exercising it, we are not, on the one hand, to indulge ingenious speculations which may lead us wide from the true sense and spirit of the instrument, nor, on the other, to apply to it such narrow and constrained views as may exclude the real object and intent of those who framed it. We are to suppose that the authors of such an instrument had a thorough knowledge of the force and extent of the words they employ; that they had a beneficial end and purpose in view; and that, more especially in any apparent restriction upon the mode of exercising the right of suffrage, there was some existing or anticipated evil which it was their purpose to avoid. If an enlarged sense of any particular form of expression should be necessary to accomplish so great an object as a convenient exercise of the fundamental privilege or right, — that of election, - such sense must be at

tributed. We are to suppose that those who were delegated to the great business of distributing the powers which emanated from the sovereignty of the people, and to the establishment of the rules for the perpetual security of the rights of person and property, had the wisdom to adapt their language to future as well as existing emergencies, so that words competent to the then existing state of the community, and at the same time capable of being expanded to embrace more extensive relations, should not be restrained to their more obvious and immediate sense, if, consistently with the general object of the authors and the true principles of the compact, they can be extended to other relations and circumstances which an improved state of society may produce. Qui hæret in litera hæret in cortice is a familiar maxim of the law. The letter killeth, but the spirit maketh alive, is the more forcible expression of Scripture." Parker, Ch. J., in Henshaw v. Foster, 9 Pick. 316.

[92]

*CHAPTER V.

[* 85]

OF THE POWERS WHICH THE LEGISLATIVE DEPARTMENT MAY EXERCISE.

IN considering the powers which may be exercised by the legislative department of one of the American States, it is natural that we should recur to those possessed by the Parliament of Great Britain, after which, in a measure, the American legislatures have been modelled, and from which we derive our legislative usages and customs, or parliamentary common law, as well as the precedents by which the exercise of legislative power in this country has been governed. It is natural, also, that we should incline to measure the power of the legislative department in America by the power of the like department in Britain; and to concede without reflection that whatever the legislature of the country from which we derive our laws can do, may also be done by the department created for the exercise of legislative authority in this country. But to guard against being misled by a comparison between the two, we must bear in mind the important distinction already pointed out, that with the Parliament rests practically the sovereignty of the country, so that it may exercise all the powers of the government if it wills so to do; while on the other hand the legislatures of the American States are not the sovereign authority, and, though vested with the exercise of one branch of the sovereignty, they are nevertheless, in wielding it, hedged in on all sides by important limitations, some of which are imposed in express terms, and others by implications which are equally imperative.

"The power and jurisdiction of Parliament, says Sir Edward Coke, is so transcendent and absolute, that it cannot be confined, either for persons or causes, within any bounds. And of this high court it may truly be said: Si antiquitatem spectes, est vetustissima; si dignitatem est honoratissima; si jurisdictionem, est capacissima.' It hath sovereign and uncontrolled

1 4 Inst. 36.

authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning

matters of all possible denominations, ecclesiastical or [* 86] temporal, * civil, military, maritime, or criminal; this being the place where that absolute despotic power, which must in all governments reside somewhere, is intrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new-model the succession to the Crown, as was done in the reign of Henry VIII. and William III. It can alter the established religion of the land; as was done in a variety of instances, in the reign of King Henry VIII. and his three children. It can change and create afresh even the constitution of the kingdom and of Parliaments themselves, as was done by the Act of Union, and the several statutes for triennial and septennial elections. It can, in short, do every thing that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament. True it is, that what the Parliament doth, no authority upon earth can undo; so that it is a matter most essential to the liberties of this kingdom that such members be delegated to this important trust as are most eminent for their probity, their fortitude, and their knowledge; for it was a known apothegm of the great Lord Treasurer Burleigh, that England could never be ruined but by a Parliament;' and as Sir Matthew Hale observes: This being the highest and greatest court, over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should fall upon it, the subjects of this kingdom are left without all manner of remedy.'" 1

6

The strong language in which the complete jurisdiction of Parliament is here described is certainly inapplicable to any authority in the American States, unless it be to the people of the States when met in their primary capacity for the formation of their fundamental law; and even then there rest upon them the restraints of the Constitution of the United States, which bind them as absolutely as they do the governments which they create. It becomes important, therefore, to ascertain in what respect the

1 1 Bl. Com. 160.