lation of that instrument, will arrest their progress, by declaring them unconstitutional and void, before they reach their intended victims. This doctrine, though seriously resisted at first, is now the settled law of the land, and familiar to all. The reasoning in support of it is unanswerable. All power is inherent in the people. The Constitution is the form of government instituted by them in their sovereign capacity, in which first principles are laid down, and fundamental laws established. It is the supreme, permanent, and fixed will of the people, in their original, unlimited, and sovereign capacity. In it the inherent rights of the citizen are recognized, and the obligation and duty of the entire community to protect and preserve them inviolate, are specifically provided for. It is the power of attorney of the people to their servants and agents the government of the State. From the decrees of the Constitution there can be no appeal, for it emanates from the highest source of human power. An act of the legislature is the will of the people, in a derivative and subordinate capacity. The Constitution is the commission of the legislative body, and that body must act within the pale of its authority; and all of its acts contrary to, or in violation of, the constitutional charter, are absolutely void. The supremacy of the Constitution over ordinary laws is the great reason why the latter should give way when inconsistent with the former. The oath of fealty taken by every officer of the government, demands, at the hands of the judges, an adherence to the fundamental law.

Besides, the Constitution is a law to which every citizen is at party, but acts of the legislature are but the will of a majority of the community. To make them binding upon the minority, they must be in conformity with the principles of the Constitution; to the adoption and continuance of which every one *14 is presumed to have assented. If the legislature, in the exercise of an unlimited discretionary power, can overleap the barriers of the Constitution, and put at defiance the fundamental principles of the government, then our boasted freedom and independence is all a mere delusion, and instead of looking up to the fabric of our political institutions with reverence, as the means of establishing an immense empire, in which free

dom and the rights of man shall be understood and maintained, the government of the law only acknowledged, and the eternal principles of justice secured to all, we shall, in the language of a distinguished statesman, "be called upon to curse our revolution as a great fountain of discord, violence, and injustice." In the language of Chief Justice Gibson: "It is idle to say that the authority of each branch of the government is defined and limited in the Constitution, if there be not an independent power able and willing to enforce the limitations. Experience proves that the Constitution is thoughtlessly, but habitually, violated; and the sacrifice of individual rights is too remotely connected with the objects and contests of the masses to attract their attention. From its very position, it is apparent that the conservative power is lodged in the judiciary, which, in the exercise of its undoubted rights, is bound to meet every emergency; else causes would be decided not only by the legislature, but sometimes without hearing or evidence." 2

In the election, qualification, and organization, of the various officers which constitute the several departments of the government, our constitutions are also more complete than in the English system. Here, the people elect all of their officers. In England, most of the important offices are held independently of the people. But the great advantage of ours over the British Constitution, consists in the division of the government into separate, independent, and co-ordinate departments, and the consequent limitation of legislative power. As *15 a practical idea, this is purely American. It is the great feature which distinguishes ours from every other government. In all others the theory is, that the legislative authority is supreme and despotic, absolutely incapable of limitation; consequently, that an act passed with the usual solemnities, however oppressive and unjust it may be, is absolutely obligatory, and must be obeyed. This distributive feature of our government, as it is deemed the most important of any, is the only outwork

1 Runnels v. State, Walk. 147; Phebe v. Jay, Breese, 209; Marbury v. Madison, 1 Cranch, 137.

2 De Chastelleux v. Fairchild, 15 Penn. 18.

or barrier established by the Constitution against governmental abuse of power, which we propose to consider minutely.

The Constitution of Illinois sets out with this declaration : "The powers of the government shall be divided into three distinct departments, and each of them be confided to a separate body of magistracy; those which are legislative to one, those which are executive to another, and those which are judicial to the third." The principle thus established is carried out in detail by the organization of a general assembly, consisting of a senate and house of representatives, and investing it with the legislative power of the State; by the organization of an executive department, called the governor, in which the executive power of the State is lodged; and by the organization of supreme and inferior courts, to whom the judicial power of the State is delegated. The Constitution then limits the power of each of these great departments as heretofore shown, and declares, in the most explicit language, "that no person, or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted, and all acts in contravention of this section shall be VOID."

It will be perceived, by a careful analysis of the whole instrument, and the above sections, that all legislative power is vested in the general assembly; that the whole judicial power which the people intended to grant, is vested in the courts, and

that every executive function of the government is vested *16 in the governor. This is to be understood subject to the

exceptions expressly enumerated in the Constitution which serve as an additional proof of the truth of the general rule. One of these exceptions is the impeachment of public officers. The House of Representatives may impeach, and the Senate try the offender. Thus the whole judicial power of the State is vested in the courts, with the exception of the trial of impeachments.

It will be further perceived, that the general assembly and governor, or either of them, cannot exercise any judicial functions; that neither the general assembly or the courts can

exercise any executive power; and that neither the governor or courts can properly exercise any legislative power. And if, in any case, they transgress the principle thus laid down, their act is a nullity. It will also be seen that the disqualification extends to the person and the department. The great principle thus established is, that no person or department shall act as legislator, judge, and executioner, at the same time. He shall not be permitted to enact, apply, and execute a law, by which the life, liberty, property, or reputation of the citizen may, in any manner, be affected. While these propositions are universally admitted, the difficulty in carrying them into practical operation, seems to be in defining with precision the exact limits of legislative, executive, and judicial power. With due deference to timid judges, who seem unable to surmount this difficulty, and therefore give loose rein to legislative power, it may be laid down as a self-evident proposition, that the power of the legislative department is limited to the making of laws, and not to the exposition or execution of them. Again, it is the province of the legislature to declare what the law shall be, and not what it is, or was. The exercise of their power, precedes the conduct intended to be affected by it. It would be contrary to the first principles of justice to deprive a citizen of his life, liberty, or property, by an ex post facto or retrospective law. Under such a system of legislation, no person could be secure in his rights; no one could ever know what his rights were, nor for what act of omission or commission on his part, they might be forfeited to the State. Such an administration of the government would be intolerable -as* unjust as the enactment of general laws, and at the *17. same time, Caligula-like, withholding a knowledge of their provisions from the people, upon whom they were designed to operate. To use the expressive language of Judge Coulter: "That is not legislation which adjudicates in a particular case, prescribes the rule contrary to the general law, and orders it to be enforced. Such power assimilates itself more closely to despotic rule than any other attribute of government." On the other hand, the judicial power of the State acts upon past

1 4 Harris, 206.

conduct, and declares what the law was at the time of the happening of the act complained of. It will thus be seen that the true distinction between judicial and legislative power is, that the former acts upon past conduct, while the latter prescribes the rule by which human action shall be governed in the future. If this plain line of demarcation between these two classes of governmental power, is strictly observed and rigidly enforced, the difficulty attending this controversy will be surmounted, and the rights of the citizen more fully secured.

Our constitutions all declare "That no freeman shall be imprisoned or disseised of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the JUDGMENT OF HIS PEERS, OR THE LAW OF THE LAND.' (a) This clause, on account of its bearing on the subject under consideration, as well as its great importance when properly understood, as a protection against legislative spoliation, also deserves a critical examination. It will be observed that the clause does not absolutely prohibit the legislature from depriving a freeman of his life, liberty, or property, but declares that it shall only be done in one of two ways: 1. "By the judgment of his peers;" which is universally admitted to mean a judgment rendered upon the verdict of a jury; or, 2. "By the law of the land,"- this, in England, where the same language was used in Magna Charta, was well understood to require a judgment; and embraced judgments,

by confession in criminal and civil causes, upon demur* 18 rer, by * default, and all other judgments which, by the

general laws of the realm, it was legal to render without a regular trial by jury: such as judgments for contempt, convictions under the military and naval laws of the kingdom, judgments in the ecclesiastical and other courts, proceeding according to the course of the civil law. Lord Coke said, that "to judge a man in a civil or criminal case, without affording

(a) The amendment to the Constitution of the United States that no person shall be "deprived of life, liberty, or property without due process of law," is not restrictive of State powers. Withers v. Buckley, 20 How. 84; Witherspoon v. Duncan, 4 Wal. 210; Abb. Nat. Dig. Const. Law, § 60.