An historical view of the government of Maryland : from its colonization to the present day, Part 50

Author: McMahon, John V. L. (John Van Lear), 1800-1871
Publication date: 1831
Publisher: Baltimore : F. Lucas, Jr., Cushing & Sons, and W.&J. Neal
Number of Pages: 1120


USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 50


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(1) The sources and efficacy of the restrictions upon its legisla- tive power.


The legislative power of the General Assembly, whilst it con- forms to the objects of human government, may be said to be ab- solute and uncontrolled over all persons and all objects within the limits of the State, where it is not restricted or excluded by the Bill of Rights and Constitution of Maryland, or by the Consti- tution of the United States. This is not a solecism. There is a material difference between a power embracing all that is not de- nied, and one extending only to what is expressly granted. The government of the United States is of the latter description : and therefore its various departments can exercise only the powers expressly granted, and such others as are necessarily incident to the full enjoyment and exercise of the express powers. The State government, on the other hand, possesses plenary powers, limited only by its nature and express restrictions. This distinction springs from the different nature and objects of these governments. The latter was called up out of a state of nature, and established


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over the people of Maryland, for the general purposes of hunss government: the former was erected over distinct and independent States, to concentrate their energies for their general welfare and defence, and to modify or control their several governments only so far as it was necessary for this end. Hence our State Consti- tution and Bill of Rights, as relating to a government of general powers, have not undertaken to define the cases to which the le- gislative power shall extend, bu thave only designated certain cases to which it shall not extend, and provided for its exercise. The power is derived from these instruments under a general grant : and hence, when it was observed by the late General Court, " that the legislature could not rightfully exercise any power but what is derived from these," they explain this observation by the further remark, " that although, in their opinion, the authority of the General Assembly was limited, yet as the powers of legislation were not particularly or specifically defined, but conferred under a general grant, they are subject only to such limitations as ato contained in our form of government, and the constitution of the United States." (1)


Yet the legislation, under every government, ought of course to be regulated and limited by the nature of that government, and the objects for which it was formed. These prescribe the proper sphere in which it ought to move, and mark out the orbits of its various powers and duties : and whenever it departs from them, the subjects of a government thus perverted, may rightfully return to first principles, and remodel or shake it off. The true object of all government is the protection and security, of the person and property of the subject. In a state of nature, every individual is open to the attacks of all, and has but his own energies to resist them : and hence men have combined into communities, so as to ensure to each, for his defence and the protection of his proper- ty, the power of all his associates. This is the " rationale" of hu- man governments ; although in many it is wholly disregarded; and in others, much obscured by fraud, force, or accident. Their object being, therefore, to knit together the force of the whole society for the protection of the particular rights of each member,


. (1) 1st Harr. and Johns. 242 and 246, Whittington vs. Polk.


Chap. X.]


GENERAL ASSEMBLY. 493


in subservience to the general interest, it clearly indicates a limit to their powers, and a restraining reason in their exercise. They are all at bottom social compacts, which the parties to them are not competent to invest with all power, and by which they have not in fact surrendered all natural rights.


It requires but little reflection upon the extent of natural rights, to convince that they are not uncontrolled. They are all in subjection to the natural and revealed law of God; and the social rights, which are formed out of them, and constitute what is called " government," must of necessity be in like subordina- tion. . A government, with the fullest powers, cannot therefore lawfully order an act to be done, which is contrary to the essen- tial principles of the natural or revealed law of God: because they, who established it, could confer no such power. It is also evident, that every man must be presumed to have entered into society for the protection of his person and property; and that he carries with him, even from the state of nature, the right to defend these, where the laws of society cannot interpose in time to shield them from lawless violence. If therefore an act of Assem- bly should expressly deny to the subject, the right to defend the person against the assaults of the murderer or the brutal violator of chastity, or the property from the grasp of the highway rob- ber, it would be a manifest departure from the first principles of government. So also, as society is formed to preserve the rights of property, it can properly impair or control these, only so far as it is requisite for the public welfare or defence or necessities; and even this power should be exercised, with a due regard to the obligation of each member to contribute rateably for these purposes. The express doctrine of some of the state constitu- tions, "that private property shall be taken only for public uses, and then only upon compensation," does but declare an inherent principle of society. Acts of legislation, which would arbitrari- ly take away the property of an unoffending citizen, and give it to another for his private uses, or even apply it to public uses without making or providing for compensation, are therefore in direct conflict with the nature and ends of government. These instances will suffice to illustrate the general character of the na- tural rights and obligations, which follow men from a state of


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nature into society, to control human governments or supply their deficiencies. (2)


But whilst the justice of such restrictions, and the obligation to respect them, are admitted, their application presents another and more difficult question. Limitations of power properly so called, carry with them a sanction and mode of enforcing their observance, known to, or established by the government itself ;. and are distinct from those principles of right, which can be re- stored only by its subversion. Are these restrictions of natural law, or these reservations of natural rights, as such, limitations of this character? The full discussion of this question would lead us too far from the original purposes of this work; and would at last be of little practical utility. Were we even for a moment to admit the supposition, that the Assembly would wilfully vio- late such obligations; the express provisions of our government have so fenced about the rights of the citizen, and have clothed them with such securities against encroachments, that usurpa- tion upon them can rarely, if ever, be practised. It is a well esta- blished doctrine of the constitution, that in construing and apply- ing acts of legislation, no violation of natural justice shall ever be presumed to have been in the contemplation of the legisla- ture, and that every intendment shall be made against it. Strik- ing illustrations of this doctrine may be collected, from the case of Dash vs. Van Kleeck, decided by the Supreme Court of New York, in which the retrospective efficacy of statutes was most thoroughly investigated and ably discussed; (3) and the case of Ogden vs. Blackledge, decided by the Supreme Court of the United States. (4) These, and the many similar cases in our courts, although relating to questions somewhat different, will warrant the general remark, "that statutes ought never to receive


(2) See the very forcible remarks of Judge Chase, upon this subject, in 3d Dallas, 383 ; those of Judge Patterson, in Vanhorne's Lessee vs. Dor- rance, 2d Dallas, 310, and also 2d Rutherforth's Institutes of Natural Law, 47; by which the doctrines of the text are fully sustained. Legislators, who are so fond of interfering with private rights, may employ themselves usefully in reading the 21st chapter of the 1st Book of Kings.


(3) 7th Johnson's New York Reps. 477, and particularly the remarks of Chief Justice Kent, in page 502.


(4) 2d Cranch, 272. See also 1st Bay's South Carolina Reps. 179. 3d Dallas, 336, Calder vs. Bull. 3d Cranch, 399, U. States vs. Heth.


495


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Chap. X.]


a construction, which will work a violation of natural duty or re- served natural rights, or will conflict with the obvious ends of government, if susceptible of any other reasonable construction, or if they can otherwise have a reasonable operation." This is a rule of construction of common law origin, familiar to the En- glish courts, and prescribing the extent to which they can go in controlling acts of parliament: for notwithstanding the dicta of such distinguished judges as Coke, Hobart, and Holt, the power of those courts over such acts can go no further. (5)


The application of this rule, so as to take away the unreason- able operation of statutes, has been generally the limit of judi- cial interference, in this country, with legislation ordaining what is contrary to reason and natural justice where there are no ex- press constitutional restrictions : and by high authority, it has been declared to be the utter barrier of judicial power in such cases. "If (says the late Judge Iredell,) the legislature of the Union, or the legislature of any member of the Union, shall pass a law within the general scope of their constitutional power, the court cannot pronounce it void, merely because it is in their judgment contrary to the principles of natural justice. The ideas of natu- ral justice are regulated by no fixed standard: the ablest and purest men have differed upon the subject; and all that the court could properly say, in such an event, would be, that the legisla- ture, possessed of an equal right of opinion, had passed an act which, in the opinion of the judges, was inconsistent with the ab- stract principles of natural justice." Yet the contrary doctrine ap- pears to have been held by Judge Chase in the same case; and in some of the states, has been sanctioned and acted upon by the courts. (6) In one of the more recent of these cases in the Supreme Court of New York, where, in justification of an alleged trespass, the defendant pleaded a license to enter under one of the canal acts and for purposes connected with the canal improvements, it was


. (5) Ist Blackstone's Comm. 91 ; and Christian's note, 2d Dallas, 308.


(6) Calder vs. Bull, 3d Dallas, 399-on the other hand, see Judge Chase's opinion, in same case ; that of Judge Patterson, in the case of Vanhorne's Lessee vs. Dorrance, 2d Dallas, 304. 20th Johnson's New York Reps. 106. Ist Bay's South Carolina Reps. 98 and 254. 2d Bay, 38, and particularly the remarks of Waties, J. in 2d Bay, 58.


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' objected to the efficacy of the act, that it made no provision for compensation, and the objection was sustained by the court. In delivering its opinion, Spencer, C. J., puts out of view the restric- tions of the Constitution of the United States relative to taking private property for public uses, as applying only to the national government; and those of the recent Constitution of New York, as not then operative. "But these, (he remarks,) are both de- claratory of a great and fundamental principle of government; and any law violating that principle must be deemed a nullity, as it is against natural right and justice." (7) The decision in this case was removed to the Court of Errors, and there reversed: yet · even the opinion of this court, as delivered by the Chancellor, does not deny, but rather affirms the general principle asserted below. It was considered by it, that the omision of the act in ques- tion to make compensation was supplied by antecedent acts; and that even if it were not, it would be carrying the principle too far "to hold a public officer a trespasser, who enters upon private pro- perty by virtue of a legislative authority specially given for a pub- lic purpose." Yet it is expressly declared by that court, that there is in such cases an equitable and constitutional title to compensa- tion, which imposes an absolute duty on the legislature to make provision for it, where they authorize an interference with private property; and they say further, "that perhaps in such cases, the exercise of the power might be judicially restrained, until an op- portunity was given to the party injured, to seek compensa- tion." (S)


For precedents to sanction such an exercise of judicial power, we would look in vain to the country from which we have deriv- ed most of our legal doctrines. Much has been said of the Eng- lish Constitution : and from the application of the term, we might sometimes infer, that under the English government, as under our republican governments, there are certain fundamental prin- ciples and institutions, and reserved powers, over which parlia- ment has no control, or which are at least above the reach of ordinary legislation. Yet in this point of view, England has no


(7) 20th Johnson's New York Reps. 106.


(8) Same, 744.



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Chap. X.]


GENERAL ASSEMBLY. 497


constitution. Certain established principles of government, and long enjoyed and therefore prescriptive privileges, may be styled " The Constitutional rights of the English people:" yet there are none so sacred, as not to be within the reach and at the mercy of every Parliament of Great Britain. But in our country, the so- cial compact and its restrictions, are not merely the speculations of philosophy, or the fictions of law. They are living, and ever active, in all our state constitutions. In these are embodied, the . standards of public and private rights, and the elements of pub- lic power. From them all authority is derived, and by them must its exercise be justified. To apply to them the language of our Court of Appeals, in reference to our own State government, "they are the immediate work of the people in their sovereign capacity, and contain standing evidences of their permanent will. They portion out supreme power, and assign it to diffe- rent departments, prescribing to each the authority it may ex- ercise, and specifying that from the exercise of which it must abstain. The public functionaries move then in a subordinate capacity, and must conform to the fundamental laws or prescripts of the creating power. When they transcend defined limits, their acts are unauthorized, and must necessarily be viewed as nullities." (9) In conformity with these principles, public acts, which transcend the express limits of our constitution and bill of rights, are void, and will be so pronounced by our courts. These instruments are acknowledged standards, to which the courts may bring every exercise of power; and in the application of them, where is the distinction between acts which conflict with their express declarations, and those which are at war with their whole nature and ends? The latter are continually brought into view and considered by the courts, in construing and applying the Constitution and Bill of Rights: and why may they not also be applied to acts manifestly violating the fundamental and un- changeable principles of natural law ? Where natural rights have been recognized by our laws, or the decisions of our courts, they are surely entitled to all the immunities of such rights. The objection as to their uncertainty then ceases; and the courts, in protecting


(9) 1st Gill and Johnson, 472.


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them against usurpations, do but declare what has been previously admitted, that they were not merged in the government. The right of self defence is one of this description. It has been constant- ly acknowledged and acted upon, not, in our apprehension, as a common law principle, but as an admitted natural right : and if it were expressly denied by an act of Assembly, it would be diffi- cult to maintain, that the courts could not protect it even against such a violation. The subject admits of many other illustrations which it is not necessary to pursue. It relates to questions not likely to occur in our experience : but it involves considerations, which our legislature should have constantly in view. The ob- jects of government, and the impartial dispensation of its bene- fits and burdens, are to it rules of action which, although laws may not enforce, yet duty enjoins.


The express restrictions upon the powers of the General Assem- bly flow, either from the Constitution of the United States, or from our State Constitution and Bill of Rights. Those arising from the former apply to State authorities generally; and we shall therefore defer their consideration, until we come to treat of the adoption and obligations of the Federal government. Before considering those incorporated in our form of State government, it may be proper to premise a few remarks upon their general nature and efficacy.


Our State Constitution and Bill of Rights, are the repository of the fundamental principles and institutions of our government: and if they had not expressly reserved the power of amending or altering them, it could not have been exercised under the go- vernment, but only by the people in their sovereign capacity. Such is the character of several of the State Constitutions, which of course can only be amended by special conventions consti- tuted by the people for that purpose. Our constitution has, how- ever, reserved this power, and prescribed a mode of exercising it, which was intended to obtain the results without producing the in- convenience of special conventions, and perhaps also to perpetu- uate the equality of county representation, and the relative politi- cal power of the two shores. It enacts, that no part of the Consti- tution or Declaration of rights shall be altered or abolished, ex- cept by a bill for that purpose passed by the General Assembly, and published at least three months before a new election of


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Chap. X.]


delegates, and confirmed by the General Assembly at the session next after such new election; so that the confirming bill must always be passed, if at all, by a new house of delegates, elected immediately after the proposed amendment is submitted to the consideration of the people, and at its first session. But when- ever such bills propose alterations or amendments in any part relat- ing particularly to the Eastern Shore, it is further necessary that they should be passed in the first instance, and afterwards confirmed, by the votes of two-thirds of all the members of each house of Assembly. (10) Such being the extent of these restrictions, it is scarcely necessary to remark, that all laws not thus passed and confirmed, which violate or conflict with them, are abso- lutely null and void so far as they do violate or conflict with them, and will be so declared by our courts. For many years after the adoption of the constitution, the power of the courts to declare such acts void was not placed beyond the reach of doubt : (11) but it was at length fully affirmed by the General Court, in 1802. (12) From that period until the present, it has remained unquestioned; and has been twice exercised by our highest court. (13) The necessity of such a power residing somewhere, must be manifest to all: for without it, constitution- al restrictions would have been nullities. Existing as a mere check, it could not have been so properly entrusted to any of our public authorities as to the judiciary, for its independent and 'impartial exercise. But it belongs to our courts, not as a power to control, but as a duty to be performed. To the authority of the constitution and bill of rights, as the fount of our govern- ment and institutions, and the supreme law of the land, they are . bound to defer; and they cannot in consistence with their official obligations, give efficacy to unconstitutional laws. (14)


(2) The. particular restrictions under the State government, rela- tive to the nature of this power.


It is now almost an axiom in the philosophy of governments,


(10) Const. art. 59.


(11) See 3d Harr. & McHenry, 103 and 169.


(12) Whittington vs. Polk, Ist Harr. & Johns. 242.


(13) Dashiell rs. The State, 6th Harr. & Johns. 270 ; and Crane rs. Me- ginnis, 1st Gill & Johns. 464.


(14) Ist Gill & Johns. 472 ; and 2d Bay's South Carolina Reps. 61.


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[Hist, View.


that the chief safeguard of liberty under them, consists in the separation of the three classes of powers, the Legislative, the. Executive, and the Judicial. This principle is recognized by most of our State governments, as one of vital importance : and rests upon reasons familiar to the American people. It is our purpose, in that part of this work which treats of the organization of the supreme executive power, to investigate the origin and objects of this principle in republican governments, and to inquire, if it demands not only a separate exercise of these powers, but also the distinct and independent organization of the departments by which they are severally administered. It will suffice here to remark, hat their distinct exercise is fully secured by our Bill of Rights, which declares " that the legislative, executive, and judi- + cial powers of government, ought to be for ever separate and dis .. tinct from each other." (15)


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This doctrine does not refer to the organization of these de- partments of power : nor is it a mere recommendation to them, to observe the purposes of their separate existence. It is a positive inhibition, referring directly to the exercise of these three classes of powers, and restraining, by all the efficacy of the constitution, those who administer any one class of, them from attempting to exercise the powers which belong to either of the others. Nay, more; it denies to the legislature, the right to confer upon the ad- ministrators of legislative, executive, or judicial power, any au- thority not belonging to the class of spowers, for the exercise of which they were created : and therefore, any act of Assembly, which exercises judicial or executive power, or confers upon the Judiciary, either legislative or executive power, or upon the Execu- tive, either judicial or legislative power, is absolutely void, and will be so declared by the courts. These doctrines are fully sus- tained by the recent decision of the Court of Appeals, in the cast of Crane rs. Meginnis, at June term, 1829: in which a section of an act of Assembly was, declared unconstitutional and void, because it was an exercise of judicial power. (16)


Hence the General Assembly (except in the cases permitted by the Constitution, which will appear at the close of this chapter,) can exercise no power but what is legislatire in its nature : and


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(15) Decl. of Rights, art. 6th.


(16) Ist Gill and Johnson, 464. See also, 5th Har. and Johns 301.


Chap. X.]


GENERAL ASSEMBLY,


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all its acts beyond the appropriate sphere of legislation, are null and void. Its power is simply to designate civil rights and reme- dies, and to propound rules of action to the citizen : whilst the enforcement of these belongs to the other departments of the government. Thus considered, it renders easy the application of this general restriction to particular cases, as they may arise. The distinction between legislative and executive power, is too obvious to require comment. That which separates legislative from judicial power, is often faintly defined, and is most likely to be overlooked. Yet there are two general principles, relative to the two great functions of the judiciary, by the application of which to any Act, the presence of judicial power is easily ascer- tained.


To enact laws, is the province of the Legislature : to construe, interpret, and apply them, is the office of the Judiciary. The former determines what the law shall be : the latter declares - what it is or has been. Therefore, all acts of Assembly, which attempt to alter or control the construction of antecedent laws, .are exercises of judicial power, and are wholly inoperative for such purposes. The Assembly may alter or repeal laws : but it cannot, by its interpretations, affect their antecedent operation: and hence, although such Acts may operate as new laws, from the time of their passage, upon all future cases, they cannot affect the construction of Acts as to cases which have already oc- curred. (17)


To the Legislature it belongs, to define civil rights and devise remedies for their protection, to prescribe rules of conduct to the citizen and punishments for their violation : to the Judiciary, to apply these remedies, and adjudge these punishments. From these distinctive features of their functions, we may collect the general principle " that wherever a right exists, for which the laws "have assigned a remedy to be sought through the courts of justice, any act of the Assembly, taking the remedy into its own hands, and prescribing the redress to be made, is an exercise of judicial power, and as such is unconstitutional and void." This principle will be found to be fully sustained by the case of Crane rs. Me- ginnis ; although in that case, the Court of Appeals did not un-




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