place the law previously in force, though the purpose may be manifest to do away with it by the legislation required.1 So, however plainly the constitution may recognize the right to appropriate private property for the general benefit, the appropriation cannot be made until the law has pointed out the cases, and given the means by which compensation may be assured.2 A different illustration is afforded by the new amendments to the federal Constitution. The fifteenth amendment provides that "the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude." To this extent it is self-executing, and of its own force it abolishes all distinctions in suffrage based on the particulars enumerated. But when it further provides that "Congress shall have power to enforce this article by appropriate legislation," it indicates the possibility that the rule may not be found sufficiently comprehensive or particular to protect fully this right to equal suffrage, and that legislation may be found necessary for that purpose.3 Other provisions are completely self-executing, and manifestly contemplate no legislation whatever to give them full force and operation.1

A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; 5

v. Lott, 24 La. Ann. 214; Mississippi Mills v. Cook, 56 Miss. 40; Coatesville Gas Co. v. Chester Co., 97 Pa. St. 476.

1 Moore, J., in Supervisors of Doddridge v. Stout, 9 W. Va. 703, 705; Cahoon v. Commonwealth, 20 Gratt. 733; Lehigh Iron Co. v. Lower Macungie, 81 Pa. St. 482; Erie Co. v. Erie, 113 Pa. St. 360.

2 Lamb v. Lane, 4 Ohio St. 167. See School Board v. Patten, 62 Mo. 444; Myers v. English, 9 Cal. 341; Gillinwater v. Mississippi, &c. R. R. Co., 13 Ill. 1; Cairo, &c. R. R. Co. v. Trout, 32 Ark. 17. A provision that all printing shall be done by the lowest bidder under regulations supplied by law is not self-executing. Brown v. Seay, 5 Sou. Rep. 216 (Ala.).

United States v. Reese, 92 U. S. 214. Any constitutional provision is self executing to this extent, that everything done in violation of it is void. Brien v. Williamson, 8 Miss. 14. A provision that "the legislature shall have no power to authorize lotteries for any purpose, and shall pass laws to prohibit the sale of lot

tery tickets in this State," was held to be of itself a prohibition of lotteries. Bass v. Nashville, Meigs, 421; Yerger v. Rains, 4 Humph. 259. In State v. Woodward, 89 Ind. 110, it was held that a like provision took away any pre-existing authority to carry them on, but that it needed legislation to make them criminal. All negative or prohibitive provisions in a constitution are self-executing. Law v. People, 87 Ill. 385.

4 See People v. Bradley, 60 Ill. 390; People v. McRoberts, 62 Ill. 38; Mitchell v. Illinois, &c. Coal Co., 68 Ill. 286; Beecher v. Baldy, 7 Mich. 488; People v. Rumsey, 64 Ill. 41; State v. Holladay, 64 Mo. 526; Miller v. Max, 55 Ala. 322; Hills v. Chicago, 60 Ill. 86; Kine v. Defenbaugh, 64 Ill. 291; People v. Hoge, 55 Cal. 612; Rowan v. Runnels, 5 How. 134; Friedman v. Mathes, 8 Heisk. 488; Johnson v. Parkersburgh, 16 W. Va. 402; 8. c. 37 Am. Rep. 779; De Turk v. Com., 18 Atl. Rep. 757 (Pa.).

5 Friedman v. Mathes, 8 Heisk. 488;

and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law. Thus, a constitution may very clearly require county and town government; but if it fails to indicate its range, and to provide proper machinery, it is not in this particular self-executing, and legislation is essential.1 Rights in such a case may lie dormant until statutes shall provide for them, though in so far as any distinct provision is made which by itself is capable of enforcement, it is law, and all supplementary legislation must be in harmony with it.

The provisions exempting homesteads from forced sale for the satisfaction of debts furnish many illustrations of self-executing provisions, and also of those which are not.self-executing. Where, as in California, the constitution declares that "the legislature shall protect by law from forced sale a certain portion of the homestead and other property of all heads of families," the dependence of the provision on subsequent legislative action is manifest. But where, as in some other States, the constitution defines the extent, in acres or amount, that shall be deemed to constitute a homestead, and expressly exempts from any forced sale what is thus defined, a rule is prescribed which is capable of enforcement. Perhaps even in such cases, legislation may be desirable, by way of providing convenient remedies for the protection of the right secured, or of regulating the claim of the right so that its exact limits may be known and understood; but all such legislation must be subordinate to the constitutional provision, and in furtherance of its purpose, and must not in any particular attempt to narrow or embarrass it. The provision of a constitution which defines a homestead and exempts it from forced sale is selfexecuting, at least to this extent, that, though it may admit of supplementary legislation in particulars where in itself it is not as complete as may be desirable, it will override and nullify whatever legislation, either prior or subsequent, would defeat or limit. the homestead which is thus defined and secured.

We have thus indicated some of the rules which we think are

State v. Weston, 4 Neb. 216; People v. Hoge, 55 Cal. 612; Ewing v. Orville M. Co., 56 Cal. 649; Hills v. Chicago, 64 Ill. 86. A provision imposing a duty upon an officer is self-executing. State v. Babcock, 19 Neb. 230. So, one providing for jury trial in all of a certain class of cases. Woodward Iron Co. v. Cabaniss, 6 Sou. Rep. 300 (Ala.). So one providing that compensation shall be given for property

'damaged" in the course of a public improvement. Householder v. Kansas City, 83 Mo. 488.

1 Wall, Ex parte, 48 Cal. 279; Attorney. General v. Common Council of Detroit, 29 Mich. 108. For exemption provisions, not self-executing, see Green v. Aker, 11 Ind. 223; Speidel v. Schlosser, 13 W. Va. 686.

to be observed in the construction of constitutions. It will be perceived that we have not thought it important to quote and to dwell upon those arbitrary rules to which so much attention is sometimes given, and which savor rather of the closet than of practical life. Our observation would lead us to the conclusion that they are more often resorted to as aids in ingenious attempts to make the constitution seem to say what it does not, than with a view to make that instrument express its real intent. All external aids, and especially all arbitrary rules, applied to instruments of this popular character, are of very uncertain value; and we do not regard it as out of place to repeat here what we have had occasion already to say in the course of this chapter, that they are to be made use of with hesitation, and only with much circumspection.1

1 See People v. Cowles, 13 N. Y. 350, per Johnson, J.; Temple v. Mead, 4 Vt. 535, 540, per Williams, J.; People v. Fancher, 50 N. Y. 291. "In construing so important an instrument as a constitution, especially those parts which affect the vital principle of a republican government, the elective franchise, or the manner of exercising it, we are not, on the one hand, to indulge ingenious speculations which may lead us wide from the true sense and spirit of the instrument, nor, on the other, to apply to it such narrow and constrained views as may exclude the real object and intent of those who framed it. We are to suppose that the authors of such an instrument had a thorough knowledge of the force and extent of the words they employ; that they had a beneficial end and purpose in view; and that, more especially in any apparent restriction upon the mode of exercising the right of suffrage, there was some existing or anticipated evil which it was their purpose to avoid. If an enlarged sense of any particular form of expression should be necessary to accomplish so great an object as a convenient exercise of the fundamental privilege or right, that of election,

such sense must be attributed. We are to suppose that those who were delegated to the great business of distributing the powers which emanated from the sov ereignty of the people, and to the establishment of the rules for the perpetual security of the rights of person and property, had the wisdom to adapt their language to future as well as existing emergencies, so that words competent to the then existing state of the community, and at the same time capable of being expanded to embrace more extensive relations, should not be restrained to their more obvious and immediate sense, if, consistently with the general object of the authors and the true principles of the compact, they can be extended to other relations and circumstances which an improved state of society may produce. Qui hæret in litera hæret in cortice is a familiar maxim of the law. The letter killeth, but the spirit maketh alive, is the more forcible expression of Scripture." Parker, Ch. J., in Henshaw v. Foster, 9 Pick. 312, 316. There are some very pertinent and forcible remarks by Mr. Justice Miller on this general subject in Woodson v. Murdock, 22 Wall. 351, 381.

CHAPTER V.

OF THE POWERS WHICH THE LEGISLATIVE DEPARTMENT MAY

EXERCISE.

IN considering the powers which may be exercised by the legis lative department of one of the American States, it is natural that we should recur to those possessed by the Parliament of Great Britain, after which, in a measure, the American legislatures have been modelled, and from which we derive our legislative usages and customs, or parliamentary common law, as well as the precedents by which the exercise of legislative power in this country has been governed. It is natural, also, that we should incline to measure the power of the legislative department in America by the power of the like department in Britain; and to concede without reflection that whatever the legislature of the country from which we derive our laws can do, may also be done by the department created for the exercise of legislative authority in this country. But to guard against being misled by a comparison between the two, we must bear in mind the important distinction already pointed out, that with the Parliament rests practically the sovereignty of the country, so that it may exercise all the powers of the government if it wills so to do; while on the other hand the legislatures of the American States are not the sovereign authority, and, though vested with the exercise of one branch of the sovereignty, they are nevertheless, in wielding it, hedged in on all sides by important limitations, some of which are imposed in express terms, and others by implications which are equally imperative.

"The power and jurisdiction of Parliament, says Sir Edward Coke, is so transcendent and absolute, that it cannot be confined, either for persons or causes, within any bounds. And of this high court it may truly be said: Si antiquitatem spectes, est vetustissima; si dignitatem, est honoratissima; si jurisdictionem, est capacissima.' It hath sovereign and uncontrolled authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil,

1 4 Inst. 36.

military, maritime, or criminal; this being the place where that absolute despotic power, which must in all governments reside somewhere, is intrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new-model the succession to the Crown, as was done in the reign of Henry VIII. and William III. It can alter the established religion of the land, as was done in a variety of instances, in the reigns of King Henry VIII. and his three children. It can change and create afresh. even the constitution of the kingdom and of Parliaments themselves, as was done by the Act of Union, and the several statutes for triennial and septennial elections. It can, in short, do everything that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament. True it is, that what the Parliament doth, no authority upon earth can undo; so that it is a matter most essential to the liberties of this kingdom that such members be delegated to this important trust as are most eminent for their probity, their fortitude, and their knowledge; for it was a known apothegm of the great Lord Treasurer, Burleigh, that England could never be ruined but by a Parliament;' and as Sir Matthew Hale observes: This being the highest and greatest court, over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should anyway fall upon it, the subjects of this kingdom are left without all manner of remedy.'"1

The strong language in which the complete jurisdiction of Parliament is here described is certainly inapplicable to any authority in the American States, unless it be to the people of the States when met in their primary capacity for the formation of their fundamental law; and even then there rest upon them the restraints of the Constitution of the United States, which bind them as absolutely as they do the governments which they create. It becomes

1 Bl. Com. 160; Austin on Jurisprudence, Lec. 6; Fischel on English Constitution, b. 7, ch. 7. The British legislature is above the constitution, and moulds and modifies it at discretion as public exigencies and the needs of the time may require. But in the American system such a thing as unlimited power is unknown. Loan Association v. Topeka, 20 Wall. 655, 663; Campbell's case, 2 Bland Ch. 209; s. c. 20 Am. Dec. 360. Every American legislature is the creature of the constitution, and strictly subordinate to it. It may participate in making changes

as the constitution itself may provide, but not otherwise, and constitutional principles which the British Parliament will deal with as shall seem needful are inflexible laws in America until the people, under the forms provided for constitutional amendments, see fit to change them.

Such radical changes, for example, as recently have been made in the Irish land laws, and such forced modification in contracts, would be im. possible in the United States without a change in both federal and State constitutions.