Admitting, then, that the legislature possesses the power of passing suspending laws, I proceed to examine a proposition in this article (p. 74,) that wherever it exists, the power, a fortiori, exists, of effecting the suspension of a law with regard to a single individual. Whether this be competent to the legislature or not, I deny that it can be deduced as a consequence from the preceding proposition.

This deduction is, I presume, based upon the proposition that an authority over the whole embraces a similar authority. over all the parts of which that whole is composed. This can be true, but to a very limited extent, in legislation. Different laws, or parts of laws, are the consideration and balance of others. The various parts of the system are dependent on each other. The legislature has the general power of laying taxes. Could it be argued from this that, a fortiori, it had the power of laying taxes upon a particular portion of the peo

from Puffendorf. Droit de la Nature, &c. Liv. 1, ch. 6, § 6. 'Si on recherche la raison perpétuelle et fondamentale pourquoi il est permis de se dédire de certains actes, d'autres non, il paroîtra qui c'est uniquement à cause que dans les derniers la Volonté est liée par quelque engagement extérieure qui l' empêche de revocquer ce à quoi elle a une fois consenti au lieu que dans les autres, sa liberté interne lui a été laissée toute entiére.'

Now with regard to every law which is framed as a rule of government for the people, under the protection of which they have acquired rights, according to the provisions of which they have formed their plans of life, it may most justly be said that the legislature is bound 'par quelque engagement exterieure, (See Fletcher v. Peck, 6 Cranch 132, et seq.) so far at least that it is in duty bound to regard those vested rights and those plans, if they have been reduced to the certainty of vested rights.

I do not intend to carry this argument so far as to say that suspending such a law would bring the case legally within the meaning of the provision in the constitution of the United States against laws in pairing the obligation of contracts. I only urge it, as showing the moral duty of the legislature to respect interests which have been acquired by virtue of its own acts. To illustrate by example the cases where the legislature may assume the direction over private vested rights, and where it may not; in other words, where it is bound by the 'exterior obligation' and where not, I would refer to the case of Rice v. Parkman, 16 Mass. R. 326;—where such a power was held to be properly exercised, and to those of Holden v. James, 11 M. R. 396 and Picquet, appellant, &c. 5 Pick. 65, where it was denied.

ple, leaving the rest unburdened? Has a corporation, under its right to make assessments, a right to impose them on only a portion of its members? These cases depend upon similar principles, and it either follows that the exemption of an individual from the operation of the general law is not a part of the suspending power, (and this I shall in another place endeavor to show,) or if it is, it cannot be maintained, that in legislation he who has authority over the whole has necessarily the same authority over all the parts.

It follows then, that the power of suspending a law in favor of an individual, leaving it in force as to all others (which may with more accuracy be termed the 'dispensing power,') (Picquet, app't. 5 Pick. 69,) does not necessarily result from the right to pass suspending laws. We must then look for the prohibition in some other part of the Constitution. It is by no means necessary that such prohibition should be conveyed in express terms. In Calder v. Bull, 3 Dallas 388, Chase J. says: 'I cannot subscribe to the omnipotence of a State legislature, or that it is absolute and without control, although its authority should not be expressly restrained by the constitutional or fundamental law of the State.' If any clause in the Constitution impliedly contains the prohibition, it is enough. It is not even requisite to show that the framers of the Constitution had their attention called to this specific exercise of power, if in reality it is contrary to the spirit of any part of that instrument.

In examining so important an instrument as the Constitution, we should weigh every part of it, from which aid may be obtained, to guide us in our search for truth. We are therefore bound to give to the preamble of the Bill of Rights a much graver consideration than to that of an ordinary statute. It contains an eloquent exposition of the principles of free government. I quote the following passage: 'It (the body politic) is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole peo

ple that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation and a faithful execution of them, that every man may at all times find his security, in them.' Keeping these principles in pur minds, let us examine those parts of the Constitution which bear upon the question.

The sixth article of the Bill of Rights is as follows: 'No man, nor corporation or association of men, have any other title to obtain advantages or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public, and this title being in nature neither hereditary nor transmissible to children or descendants, or relations by blood, the idea of a man born a magistrate, lawgiver, or judge, is absurd and unnatural.'

The writer in the Jurist contends (in substance) that the first part of this article is merely inducement to the last, and that it ought not to be extended any further. But a liberal and wise declaration, which seems to be dictated by nature herself, and which affects all important interests, should not be construed so narrowly. The first clause is a perfect declaration, as pertinent without the last clause as with it. It is a declaration that must be responded to by every man of common sense and honesty. The last clause is a direct

1

1 Since this article was written, the case of Hewett v. Charrier has been decided (not yet reported,) by the S. J. C. of Mass. The case was where a physician, practising without a license or diploma, sued for his fees on a quantum meruit. It was argued (inter alia) for the pltf. that the St. 1818, ch. 113, § 1, which deprives a physician so practising, of the benefit of law for the recovery of his fees, is a violation of this section of the Bill of Rights, on the ground that it confers particular and exclusive privileges; but the Court thought that the application of those words must be confined to the cases mentioned in the subsequent part of the article. I defer to the decision of the Court. But as matter of reasoning and conviction, I cannot see how in any case a law conferring particular and exclusive privileges can be valid, while this declaration remains inscribed among the rights of the people of Massachusetts.

corollary from it, but that also would be as pertinent without the first as with it. The former cannot be considered as a mere preamble to the latter, but as containing an independent declaration of the will of the people, and the latter is ONE of the consequences to be deduced from it.

Viewed in this light, the sixth article expressly asserts that no man has any title to particular and exclusive privileges unless, &c. But, says the writer in the Jurist, the privilege conferred by suspending a law in favor of an individual, though particular, is not exclusive. It is open to all others who in like circumstances wish to receive it. Now it is submitted that the exclusiveness of a privilege does not depend upon a theoretical possibility of its being obtained by other persons. While it remains particular, it is necessarily exclusive, and so it will remain unless it is either thrown open to every man in the community, or unless there is a fixed and equal rule by which all men in like circumstances may obtain it. In the 11th article of the Bill of Rights it is said, 'Every subject of the commonwealth ought to obtain justice completely and without any denial.' This cannot be done where the grant or denial depends upon no fixed rule. The test of constitutionality is, whether the suitor can surely obtain it, not whether he possibly may. The privilege of obtaining a dispensing law is certainly not enjoyed in common, and as certainly there is no such fixed rule. Its attainment depends upon the mere will of a legislature not bound by any such rule, but which may grant to one man what it refuses to another, and may say to the disappointed suitor

'Stet pro ratione voluntas.'

The first sentence of the Bill of Rights declares that ' all men are born free and equal,' and this equality is one of those inalienable rights which immediately afterwards are declared to belong to them. This would be sufficient to restrain any attempt.to make the people unequal, and does it not follow with the light of truth, even if the sixth section were omitted, that

a law which gives particular and exclusive privileges is de

placed in the very foreApply to the declaration

structive of that equality which is ground of the rights of the people. in the first section, the wise principles which have been cited from the preamble, and can there be any doubt that a particular and exclusive law is destructive of equality. Does not such an act which an individual may or may not obtain, the pas sage of which depends upon no fixed rules, destroy the certainty of the laws? Is it any longer possible for every man to find his security in them?

In the 10th article of the Bill of Rights it is declared that 'Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to 'standing laws.' Before commenting upon this passage, I would remark that the writer before us, again insists that, like the first part of the sixth section, this is merely introductory to the principles contained in the remainder of the section. Such construction is altogether too narrow and illiberal. In this instance at least the subsequent part is mere induction, which the people choose themselves to draw from general principles which they have laid down, leaving them in cases not mentioned to be construed according to natural equity. Were this declaration to be confined to the particular cases set forth under it, it would follow that except in those cases 'Each individual has not a right to be protected according to standing laws.' The argument is founded on the old law maxim, Expressio unius cst exclusio alterius,' and the above inference must result from its adoption. I leave the point to the judgment of the reader.

In endeavoring to arrive at the meaning of the words 'standing laws,' I shall adopt the extracts from Locke upon which the writer before us greatly relies. I concur in the conclusion which he draws from them, which is as follows. 'From these extracts it appears that Locke, from whom the phrase was borrowed, used the term "standing laws" as synonymous with promulgated," "declared," "settled," "re