providing for all things at home immediately, and by no other instrument than the executive power. The other, and I think her nobler capacity, is what I call her imperial character, in which, as from the throne of heaven, she superintends all the several inferior legislatures, and guides and controls them all without annihilating any." Works, 4th ed. Vol. ii, p. 75.

While no limitation could restrain the omnipotent parliament, even when it saw fit to pass bills of attainder and other statutes providing for punishment without trial, it was a recognized principle that, as against the King and those who acted under his authority, the person and property of the subject were protected by "the law of the land," including of course a jury in a proper case. When therefore Henry VI granted to a London corporation of dyers the power to search for cloth, coupled with the power to forfeit it when it was found to be dyed with logwood, it was held that a charter granting such a right of forfeiture was against the law of the land, because no forfeiture can grow by letters patent. 2 Inst. 47, stated in London's Case, 8 Coke 125a. In the same way it was held in Bagg's Case, 11 Coke 100, that the law of the land afforded protection against any unjust or arbitrary action upon the part of a municipal corporation, because, in the words of Lord Coke, such corporations "derive their authority from the King." In that case it was held that unless a city or borough had express authority to do so by its charter or by prescription, it could not disfranchise from the corporation any freeman of such city or borough. In the absence of express authority it was the right of such freeman, under the provision of the Great Charter, to be convicted before removal by due process of law. Reference is also made by Coke to a case in which it was adjudged that a custom in a city was void because "against the law of the land." 2 Inst. 46. See McGehee, p. 24 sq.

§ 126. The guaranty in American law. Why does the guaranty of due process, which in English law extends

only to executive action, extend in American law to the three departments of power, executive, legislative and judicial? The answer must be found in the history of the process through which American constitutions, state and federal came into existence. When the tie of political dependence that bound the colonies to the mother country was severed, the English provinces in America rose to the full statute of sovereign states. "When the Revolution took place the people of each state became themselves sovereign." And as soon as they "took into their own hands the powers of sovereignty, the prerogatives and regalities which before belonged either to the crown or the Parliament became immediately and rightfully vested in the state." Martin v. Lessee of Waddell, 16 Pet. 410 sq. On the 10th of May, 1776, the Continental Congress recommended to the several conventions and assemblies of the colonies the establishment of independent governments "for the maintenance of internal peace and the defense of their lives, liberties, and properties. Before the end of the year in which the recommendation was made, by far the greater part of the colonies had adopted written constitutions in which were restated in a dogmatic form all of the seminal principles of the English constitutional system. Thus ended that marvelous process of growth through which the English colonies in America were rapidly developed into a group of independent commonwealths in which each individual member was, in its organic structure, a substantial reproduction of the English kingdom. With the adoption of the written constitutions of 1776, the typical English state in America reached its full growth.

In coming into existence the typical American state gave birth to the idea of constitutional limitations on all state powers, executive, legislative, and judicial, a purely American invention without a precedent in history. Such limitations, of which the European world knew nothing, grew naturally out of the process through which American legislatures were organized. From the very begin

ning the powers of the colonial assemblies were more or less limited through the terms of the characters by which such assemblies were either created or recognized. Even in colonial times "questions sometimes arose whether the statutes made by these assemblies were in excess of the powers conferred by the charter; and if the statutes were found in excess, they were held invalid by the courts this is to say, in the first instance, by the colonial courts, or, if the matter was carried to England, by the Privy Council." The colonial charter embodied a system of government established by a superior authority creating a subordinate law-making body that could do everything except violate the terms and transcend the powers of the instrument to which it owed its existence. So long as the colony remained under the English crown the superior authority which could amend or remake the system of government was the English crown or Parliament. When the tie binding the colonies to the mother country was severed, that authority passed over, not to the state legislature, which remained limited, as it always has been, but to the people of the independent commonwealth, whose will speaks through what is now the state constitution, acting upon every department of state power, executive, legislative and judicial, just as the will of the crown or Parliament had spoken through the charters of 1628 and 1691. As Mr. Justice Matthews has well said in Hurtado v. California, 110 U. S. 516, "In this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Carta were incorporated into bills of rights. They were limitations upon all the powers of government, legislative as well as executive and judicial. It necessarily happened, therefore, that as these broad and general maxims of liberty and justice held in our system a different place and performed a different function from their position and office in English constitutional history and law, they would

receive and justify a corresponding and more comprehensive interpretation. Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but, in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guarantee not particular forms of procedure, but the very substance of individual rights to life, liberty and property. Restraints that could be fastened upon executive authority with precision and detail, might prove obstructive and injurious when imposed on the just necessary discretion of legislative power, and, while in every instance, laws, that violated express and specific injunctions and prohibitions, might without embarrassment, be judicially declared to be void, yet, any general principle or maxim founded on the essential nature of law, as a just and reasonable expression of the public will and of government, as instituted by popular consent and for the general good, can only be applied to cases coming clearly within the scope of its spirit and purpose, and not to legislative provisions merely establishing forms and modes of attainment. Such regulations, to adopt a sentence of Burke's 'may alter the mode of application but have no power over the substance of original justice.' Tract on the Property Laws, 6 Burke's Works, ed. Little and Brown, 323.”

While, as a general rule, the colonies, after being transformed into independent states, adopted new constitutions, the charter granted to Connecticut in 1662 was continued as her organic law until 1818; and that granted to Rhode Island in 1663 was continued as her organic law until 1842. And it is certainly worthy of note, as heretofore pointed out, that one of the first cases, if not the very first, in which a legislative enactment was declared unconstitutional and void, on the ground of conflict with the constitution of a state, was decided under the charter last named. But what is far more important is the fact that this novel and supreme power of declaring an act of the

legislature void was assumed by the state courts, as a creation of judge-made law, without a line or word of authority on the subject in the state constitutions. The state judges simply reasoned out the right on abstract principles. As an illustration, reference may be made to the words of Wythe, J., who, in the case of Com. v. Caton, 4 Call, 5, said: Nay, more, if the whole legislature, an event to be deprecated, should attempt to overleap the bounds prescribed to them by the people, I, in administering the public justice of the country, will meet the united powers, at my seat in this tribunal; and, pointing to the constitution, will say to them, here is the limit of your authority; and hither shall you go, but no farther." When the new system of limitations, thus developed in the states, was lifted into a higher sphere through its application to the legislative power vested in the unique federal republic created by the constitution of 1787, the inevitable outcome was the Supreme Court of the United States, the only court in history that has ever assumed the right to pass on the validity of a national law. As there is no line or word in the federal constitution intimating directly the existence of such a right, it was there reasoned out, as in the states, as a matter of judge-made law. Not until thirteen years after the organization of the Supreme Court was the first attempt made, in the case of Marbury v. Madison, 1 Cranch 137 (1803), to put the stamp of nullity upon a national law; and not until twenty years after its organization was the first attempt made, in the case of Fletcher v. Peck, 6 Cranch, 87, (1810), to put the stamp of nullity upon a state law-in both instances by reason of repugnancy to the Federal constitution. Thus, by means of judicial logic, and not by the authority of an express constitutional provision, was the Supreme Court of the United States able to maintain its right to put the stamp of nullity upon a law, state or federal.

The limitation imposed upon the powers of a state forbidding it to deprive any person of life, liberty or prop