corrective, became oppressive in application, and repugnant to the Fourth and Fifth Amendments of the Constitution.

Accordingly, in Boyd v. United States, which arose upon an information filed by the District Attorney of the United States for the Southern District of New York, against thirty-five cases of plate glass seized by the Collector as forfeited to the United States pursuant to Section 12th of the Act of 1874, and under and by virtue of an order of the Court made under Section 5th of the same Act, the Supreme Court held, that this last section was unconstitutional and void as applied to suits for penalties, or to establish a forfeiture of the party's goods, because repugnant to the Fourth and Fifth Amendments to the Constitution. And the Court, in construing the statute, said that it does not require actual entry upon premises, and search for and seizure of papers, to constitute an unreasonable search and seizure within the meaning of the Constitution; a compulsory production of a party's private books and papers, to be used against himself or his property in a criminal or penal proceeding, or for a forfeiture, is within the spirit and meaning of the Amendment. And further, that it is equivalent to a compulsory production of papers, to make the non-production of them a confession of theallegations which it is pretended they will prove.

Protection to the exercise of the right of suffrage by Federal legislation furnished another occasion for impeaching the validity of an Act of Congress in the case of U. S. v. Reese,2 which arose upon the construction of the third and fourth sections of the Acts of May 31, 1870,3 relating to the power of Congress to legislate upon the subject of voting at State elections, as "appropropriate legislation" under the 15th Amendment. 16 Stat. at Large, 140.

116 U. S. 616.

92 Ibid. 214.

These sections, being broad enough to cover wrongful acts without, as well as within the constitutional jurisdiction, and not admitting of limitation by judicial construction, were held to be invalid, because not confined in their operation to unlawful discriminations "on account of race, color, or previous condition of servitude," as specified in the Amendment.

In the same category of legislation stands the case of U. S. v. Harris,1 which was one relating to the application of section 5519 of Tit. lxx., R. S., embracing "Crimes against the Elective Franchise and Civil Rights of Citizens." There, certain persons were indicted in the State of Tennessee, for conspiring to deprive citizens of their rights to the due and equal protection of the laws. The statute is a penal one and addressed not to wrongs inflicted by the laws of a State, but to wrongs committed by private persons upon other persons within some State or Territory. Accordingly, it was held, reaffirming the decision in U. S. v. Reese, that so long as a State has been guilty of no violation of the provisions of these Amendments, they impose no duty and confer no power upon Congress to act. That the above provisions do not apply to the acts of private persons towards each other, and that even as to State officers, Congress can only legislate for their punishment when administering some law violative of these Amendments.

It is fortunate therefore, that there is a department of government whose sleepless eye and watchful care is quick to detect, and resolute to correct, these legislative A case is no sooner brought to its cognizance, than the first question raised is one involving the exist ence of a law to meet it, and a jurisdiction competent

errors.

1 106 U. S. 629; reaffirmed in 120 Ibid. 678.

to adjudicate the controversy. If the law be wanting, there is no occasion to consider the jurisdiction, or if the former be lacking in its essential agreement with the paramount law of the land, its illegitimacy will be judicially declared. It is in this silent, yet effective way that the Judiciary have become the palladium of our civil liberties. And whether a supervisory authority over legislation has been granted, or not, by specific words of endowment, the Constitutional power to pronounce a decree of nullity against the labors of a coordinate department of government, has, from the earliest days of the Republic, been accorded to Courts as a fitting accompaniment to the administration of Justice. There was a logical necessity for that since the duty of declaring the law as applicable to any given case could not, under the Constitution, be properly discharged, without having annexed to it the power to determine whether that law was loyal in itself, or whether, though written and promulgated, it still possessed no facultative life.

See also Baldwin v. Franks, 120 U. S. 678, where it was held that this same section was unconstitutional, as a provision for the punishment of a conspiracy within a State to deprive an alien of rights guaranteed to him therein by a treaty with the United States.

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CHAPTER VIII.

IMPEACHMENT.

THE union of judicial and legislative functions in the same Assembly is unknown under our Constitutions, except in the solitary instance of the impeachment of public officers. Unless, perhaps, the trial of election cases, or the disciplining of its own members, may be said to involve the discharge of judicial functions on the part of a legislative House. With these exceptions, impeachment is the only occasion on which a Legisla ture may legally exercise the functions of a Court, and proceed to try an individual by due process of law. As elsewhere shown, the British Parliament has always combined the functions of both a Legislature and a Court, in this respect following the customs of the AngloSaxon National Assembly which, among other duties, performed those of a judicial tribunal, meting out justice between man and man. A similar combination of functions occurred in the early town meetings and assemblies of this country.

In the colonial days of New England, the Legislature, then designated as the General Court, was the Court of last resort. It claimed this prerogative, and was jealous to exercise it on all convenient occasions. Moreover, in reviewing the action of the executive courts, it was bound by no precedents, but was a law unto itself, and being a purely political body, its ideas of justice and equity were as elastic as the varying opinions of its members. Governor Hutchinson, of Massachusetts, saw

the iniquity of such a course, and addressed both Houses upon the subject in 1772, in a remonstrance against its continuance,1

Necessarily, the assumption of such an authority admitted of no limits to its application, and it is not surprising to find that appeals taken by colonial suitors to the Privy Council in England, were treated and punished as contempts of Court by colonial assemblies. This was in a day when ignorant politicians, appointed by the British Crown, occupied the Bench in the various colonies. To contemn the judicial capacity of such persons was as natural as it afterwards became to challenge their opinions, and the assumptions of judicature, by colonial Legislatures, were only the logical result of extending the powers of the primary assemblies of the people, so as to cover all the necessities of their municipal organization.

This omnipotence of primary assemblies and Legislatures was an affirmance of the natural rights of society over all its members, in whatever aspect of civil relation those members might be made the subject of public inquiry. The idea of a primary Assembly in which original sovereignty was localized, justified the exercise of any and all powers, whether legislative, judicial, or executive. For, wherever society is either in a rudimentary state, or incompletely organized in respect to departments of government, the exercise of such combinations of functions by the same Assembly may naturally be expected to exist. Such centralization of powers is suited to two opposite conditions only of political society, viz., to a patriarchal state, or to a small compact and democratic City-State like those of Greece. But as soon as it became necessary to establish a repre

Mass. State Papers, 1765-75, pp. 314.

B. Adams, Eman. of Mass., p. 299–301.