a law shall be reasonable, as it respects the whole community.

§ 172. This argument assumes that such laws are an infringement upon the rule that laws should not be retrospective. It seeks to make them exceptions, recognized by the people, and resting solely on the basis of such tacit acquiescence in them. Our previous position is a sufficient refutation of this specious argument. He adds, however, in connection with the above remarks, a proposition perfectly coincident with our views upon this question. He says: "One settled distinction, however, in regard to retrospective laws, appears to have been universally recognized by courts of justice, that the legislature may enact retrospective laws affecting the remedy, but not the rights of parties, as they are usually called. It may indeed be difficult, in many cases, to determine whether a law affects the one or the other, because every remedy is, in a certain sense, a right. But when the court shall have once arrived at the conclusion that a law does, unequivocally, belong to the one or the other, of these descriptions, they feel no hesitation in the opinion that they ought to pronounce." In Dash v. Van Kleek,(a) it is laid down as a principle of universal jurisprudence, that law, civil and criminal, must be prospective and cannot have a retroactive effect, and an act of the legislature was not to be construed to operate retrospectively, so as to take away a vested right.

§ 173. The exception to the rule that laws should not have a retrospect, is thus laid down by the civil law writer we have above referred to: "However, it is not to be doubted, but that laws may, in some sense, and in some particular considerations, have a retrospect. If a law be introduced to explain or interpret an old one, etiam secundam posuimus legem, eadem valere sancientes

(a) 7 J. R. 477.

et in hanc quoque secundam nostram constitutionem similiter adjecimus, oportere ejus legislationem, et ad seniora referri tempora, exceptis illis causis, quas aut judicialis, sententia, aut transactio terminavit.(a) If it be enacted de rebus adhuc pendentibus—if it be declarative of common law-if it should be introductive of an exception or a release, as, for example, if the legal interest of money should be lowered by a new law, it is plain, that a former act (namely, the obligation of rendering a larger interest,) is dissolved by this law and a new one contracted.(b)

§ 174. We have only to say in conclusion, that our remarks on this somewhat intricate question are submitted with much distrust and diffidence, as the results of our own reflections. We have not given them to the profession with an expectation that they will receive the concurrence of other minds; nor do we desire to have it understood, that they are in any respect authoritative; being assured that they will be coincided in only so far as they are fortified by the reasoning and arguments we have been able to adduce, upon a question of conceded intrinsic difficulty and doubt.

(a) Nov. 19, pr.

(6) Taylor's Civil Law, 169.

CHAPTER VIII.

OF CONSTITUTIONAL RESTRICTION UPON LEGISLATIVE POWER.

§ 175. In a preceding chapter we considered the nature and extent of legislative power, independent of any restriction contained in the written fundamental law of a state. First, under the form of government in England, where the fundamental law has never been reduced to the form of a written constitution; and secondly, under the forms of government of the states of this Union.

§ 176. The subject next in order demanding consideration is, what is the nature and the extent of restraints upon the exercise of legislative power under our own written constitutions? They are of a two-fold character: first, those imposed by the constitution of the United States government; and secondly, those imposed upon the legislature of each state under the respective state constitutions. In regard to the restrictions upon the legislative powers contained in the federal constitution, it should be observed, that those restrictions have a two-fold application, some being directed solely to the powers of the congress of the United States, while others are intended to act upon the legislative power of the respective states.

§ 177. I shall, in the first place, advert to those which apply only to the congress of the United States. It may be laid down as a general rule, that the limitations on power contained in the United States constitution, when expressed in general terms; they are naturally and necessarily applicable to the government created by that instrument, and have no application to the legislative

power of the state governments. This rule was settled by the Supreme Court of the United States in the case of Barron v. The Mayor and City Council of Baltimore.(a) In this case it was held, that the provisions in the 5th amendment of the constitution of the United States, which declared that "private property shall not be taken for public use without just compensation," was intended solely as a limitation on the exercise of power by the government of the United States, and was not applicable to the legislatures of the states.(b) The reason for this opinion was, that the constitution was ordained and established by the people of the United States of America for themselves, for their own government, and not for the government of the individual states. That each state established a constitution for itself, and in that constitution provided such limitations and restrictions on the power of its particular government as its judgment dictated. That the people of the United States framed such a government for the United States, as they supposed best adapted to their situation, and best calculated to promote their interests. The powers conferred on their government were to be exercised by itself, and the limitations on power, if expressed in general terms, were naturally and necessarily applicable to that government created by that instrument. They are limitations upon the powers granted in the instrument itself, and not of distinct governments framed by different persons, under different instruments, and for different purposes.

§ 178. In accordance with this principle, it has also been held, that the seventh amendment of the constitution of the United States, which declares that, "in actions at common law, where the value in controversy shall exceed twenty dollars the right of trial by jury shall be

(a) 7 Peters' Rep. 243.

(b) See also Livingston v. Mayor of New York, 8 Wen. 85.

preserved," does not apply to the state governments, but restricts only the government and officers of the United States, and proceedings in the federal courts. (a) So too the same construction has been given to the sixth amendment of the federal constitution, which secures to the accused a trial by a jury in all criminal prosecutions.(b) It has also, upon the same principle, been held, that the provision in the constitution of the United States, "That cruel and inhuman punishment shall not be inflicted," does not extend to the state governments, but was intended only for the legislature and judiciary of the United States. (c) The same has also been held in relation to the fourth amendment of that constitution, securing persons, houses, &c., against unreasonable searches and seizures, and requiring a particular description in warrant of the place to be searched or things to be seized.(d)

§ 179. It is proper before proceeding to the consideration of the limitations upon the powers of the national legislature, that we should also allude to a palpable distinction between the powers of congress, and those possessed by the legislatures of the respective states. On the one hand, the legislature of the respective states, independent of any constitutional restriction, are undoubtedly vested with all the legislative powers possessed by the people themselves in their individual capacity, and may exercise the same in any manner consistent with the great principles of natural justice, and as amply as the same could be exercised by those from whom this

(a) Livingston v. The Mayor, &c., of New York, 8 Wend. 100. Colt v. Eves, 12 Conn. R. 243.

(b) Murphy v. The People, 2 Cowen, 815. Jackson v. Wood, 2 Cowen,

819.

(c) James v. The Commonwealth, 12 Serg. & Rawle, 220. Barker v. The People, 3 Cow. R. 687.

(d) Reed v. Rice, 2 J. J. Marsh. 45.