laws only as make criminal, past acts, which were innocent at the time when they were committed,) which has always been considered a prerogative of the legislature, unless expressly restrained.

The writer before us says, that an ea post facto law is as strong an instance of the exercise of the judicial power as a suspending law. This I deny, and say moreover that the cases are not parallel. The passing of a law, such as I am now opposing, is a more glaring exercise of the judicial power than would be the passage of an ex post facto law. The latter only makes certain things done in times past criminal without regard to persons, and only punishes persons because they happen to have committed that act. An ex post facto law is not necessarily a judicial act at all. Thus, in the case of a general rebellion, if the legislature should declare that certain acts committed during that rebellion were criminal, and should award the punishment of death, this would be an ex post facto law, yet it would have no bearing upon specific persons, no bearing upon any who did not happen to have committed the act denounced. Such act might have been committed by hundreds, and not the name of a single individual be known to the legislature which passed upon their crime. But an act which takes a particular person from out of the protection of the law is very different. This is an attack individually, not upon a thing or act which a person may or may not have committed, but upon what is much more sacred, a person, and this, whether he has committed any reprehensible act or not. There is no escape by proving purity of life and honesty of purpose, innocence is no defence, for the shaft is directed not against the act, but against the His disability becomes personally affixed to him, and

man.

do what he will, go where he may

'Hæret lateri lethalis arundo.'

Having thus endeavored to answer the comment upon the 30th section of the Bill of Rights, I proceed to express my own views.

If the legislature possess the power contended for, the following results must take place.

It either grants the dispensation as a matter of course, or on account of what it deems the merit of any particular case. It will hardly be contended that such laws are to be passed of course upon mere application, or if it be so contended, it will be better to repeal the general law at once, for it is absurd that an act should stand upon the statute book, which is to become a dead letter as to every person who wishes to exempt himself or his adversary from its operation. In such a state of things, the legislature would become a mere register of the wishes of suitors, without any power but that of giving a sanction to their passions and their will. On the other hand, if the law is passed on account of the merits of a particular case, this is a discrimination of that case from the general mass, and a palpable exercise of the judicial power, if indeed the writer before us will admit that there can be any such thing. The party thus exposed goes to the jury under the disadvantage of having the avowed opinion of the legislature against him. And I ask, What jury would withstand an argument like this? Gentlemen of the jury, our claim is just. Had it not been so the legislature would never have passed this law, and surely you will not assume to be wiser than that august body.'

I shall occupy but little time with the 'pendant' to the 20th article of the Bill of Rights as originally reported. It is as follows: And there shall be no suspension for the private interest, advantage or emolument of any one man, or class of men.'

The argument of the writer before us, on the exclusion of this sentence, must lead to the result that the convention struck it out because they thought it a good principle of government to make laws for private advantage or emolument,—-a position which would be appalling, were it not absurd. I believe that this passage was struck out because it was surplusage. If the reasoning in this article is true, this must be

VOL. XIV.NO. XXVII.

9

considered as proved; if not, it will be of little consequence to ascertain the reason of the omission, since whatever it might be, it would be fatal to my position.

A great many instances are arrayed in the article before us, in which the dispensing power has been exercised. Many of them were passed at a time when, as Burke remarked, we were living without government, and 'found anarchy tolerable.' The foundations of society were thrown into confusion. People were willing to be governed by the equity of informal resolves. But under a settled government, these resolves will neither be so pure as in times of elevated and patriotic excitement, nor will the people be so ready to yield to informal legislation. They at all times want the best of every thing they can obtain. Dum silent leges inter arma,' they are content with what equity they can get, but this is no reason why they should be satisfied with the same in a community where peace, order and law reign undisturbed.

The conclusive answer, however, to these instances is, that there is no evidence and no probability that they were ever brought to the test of judicial examination, and as it is a matter of course that a law shall be acted upon as constitutional, until it has been declared otherwise, these instances are of very slight authority as precedents, and cannot fairly be brought into the argument.

I shall now endeavor in few words to redeem my promise to prove that the power against which 1 am contending, is not a part of the suspending power. The argument which I have to offer, was touched upon in the case of Holden v. James, but not adverted to in the article before us, in the reply to that case. As that case is the leading one on the subject, I shall use it when necessary by way of illustration.

It will be granted, that an act which is general in its provisions, which was in existence long before the disputes which have arisen upon it, and which is perfectly constitutional, is a standing law.

When an act is passed, exeinpting a particular person from

1835.]

Power to Suspend the Laws.

99

its operation, this law is still standing in full force on the statute books, and in the courts. It is not suspended. So far as regards the persons who are taken from its protection, it is annihilated; but this is no suspension, and I do not see how the legislature can be said to exercise a suspending power. If, then, this be not the exercise of the suspending power, let us see if (be it what it may) it is constitutional.

In the 10th section of the Bill of Rights, it is written: Each individual has a right to be protected, &c., according to standing laws. In the present instance we have a law standing, in its full vigor, which an individual is not protected by. The legislature expressly declares that it shall not protect him. He is excluded from the common rights of his fellow men. He is under a sentence of excommunication, like those who of old were for their crimes excluded from the countenance and protection of so iety.

Let us put this matter in another form. Suppose that when the limitation act in favor of executors and administrators was passed, there had been added a proviso that it should not affect any claims which Moses Holden might thereafter have against the executors and administrators of Hannah Ranger. Here the law would be prospective, and so far would be less unjust, as giving an opportunity to the parties to be on their guard, and to preserve evidence. Or suppose the act which was passed in Holden's favor had been framed somewhat differently in manner, though the same in substance, and had been entitled an act in addition to an act entitled an act for limiting the time within which suits may be proseecuted against executors and administrators,' &c. Can there be any doubt that upon the plainest principles of construction, such a proviso or additional act would be treated as a nullity on the ground of being utterly repugnant to the Constitution? Now what difference is there reality been the cases supposed, and the act in favor of Holden, which was actually passed. I can see none. can see no reason why such an act should not be liable to precisely the sam same construction.

哈

DETS

I have but few words to say on the power of the Supreme Court. It cannot be denied that this is the proper and only tribunal to declare an act of the legislature unconstitutional. I grant that it cannot make such declaration on the ground of mere difference of opinion on natural justice. But it has a paramount right to decide by its own opinion whether by a given law any of the articles of the Constitution have been violated, and it consequently is bound to disregard any law which in its opinion destroys that equality which is the first declaration in the Bill of Rights, if it think it exposes the subject to the dangers of denial of justice (Art. XI.), if it confer particular and exclusive privileges distinct from those of the cominunity (Art. VI.), if it violates the standing laws (Art. X.), or if it involves an exercise of their own judicial power (Art. XXX.) I have endeavored to show that a dispensing law, in question, violates all these provisions, though it would be sufficient to prove that it violated only one.

I fully agree with the position of the writer before us -(p. 77,) that a law is void, no matter what may be the form of the enactment, provided the subject matter makes it so. I believe that all dispensing laws are of this nature, and therefore void, as well as all others which infringe in any manner upon any one of the provisions of the Constitu tion. C.

ART. IX. THE JURIDICAL WRITINGS OF SIR JAMES

MACKINTOSH.

The History of England, by the Right Hon. SIR JAMES MACKINTOSH, M. P. (Lardner's Cabinet Cyclopædia.) 3 vols. Philadelphia; Carey & Lee.

THE distinguished place, held by Sir James Mackintosh among scholars and men of letters, serves to throw a pleasing