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tions are generally questions between the corporators and the State, with which private individuals are supposed to have no concern. In proceedings where the question whether a corporation exists or not arises collaterally, the courts will not permit its corporate character to be questioned, if it appear to be acting under color of law, and recognized by the State as such. Such a question should be raised by the State itself, by quo warranto or other direct proceeding. And the rule, we apprehend, would be no different, if the constitution itself prescribed the manner of incorporation. Even in such a case, proof that the corporation was acting as such, under legislative action, would be sufficient evidence of right, except as against the State ; and private parties could not enter upon any question of regularity. And the State itself may justly be precluded, on the principle of estoppel, from raising such an objection, where there has been long acquiescence and recognition 2
i State v. Carr, 5 N. H. 367; Pres- But in public affairs, where the peoident, &c. of Mendota v. Thompson, ple have organized themselves under 20 Ill. 200; Hamilton v. President, &c. color of law into the ordinary municof Carthage, 24 Il. 22. These were ipal bodies, and have gone on year prosecutions by municipal corpora- after year raising taxes, making imtions for recovery of penalties imposed provements, and exercising theis usual by by-laws, and where the plea of franchises, their rights are properly nul tiel corporation was interposed regarded as depending quite as much and overruled. See also Kayser v. on the acquiescence as on the reguBremen, 16 Mo. 88; Kettering v. larity of their origin, and no er post Jacksonville, 50 Ill. 39; Bird v. Per- facto inquiry can be permitted to undo kins, 33 Mich. 28.
their corporate existence. Whatever 2 In People v. Maynard, 15 Mich. may be the rights of individuals before 470, where the invalidity of an act such general acquiescence, the cororganizing a county, passed several porate standing of the community can years before, was suggested on con- no longer be open to question. See stitutional grounds, Campbell, J., says: Rumsey v. People, 19 N. Y. 41; and “ If this question had been raised im- Lanning v. Carpenter, 20 N. Y. 474, mediately, we are not prepared to say where the effect of the invalidity of an that it would have been altogether free original county organization is very from difficulty. But inasmuch as the well considered in its public and priarrangement there indicated had been vate bearings. There have been diacted upon for ten years before the rect legislative recognitions of the new recent legislation, and had been recog- division on several occasions. The nized as valid by all parties interested, exercise of jurisdiction being notoit cannot now be disturbed. Even in rious and open in all such cases, the private associations the acts of par- State as well as county and town taxes ties interested may often estop them being all levied under it, there is no from relying on legal objections, which principle which could justify any court, might have availed them if not waived. at this late day, in going back to inquire into the regularity of the law of Kimball v. Alcorn, 45 Miss. 151. But 1857." A similar doctrine has been such acquiescence could not make applied in support of the official char- them local officers and representatives acter of persons who, without author- of the people for new and enlarged ity of law, have been named for powers subsequently attempted to be municipal officers by State legislation, given by the legislature. People v. and whose action in such offices has Common Council of Detroit, 28 Mich, been acquiesced in by the citizens or 228. Nor in respect to powers not authorities of the municipality. See purely local. People v. Springwells, People v. Salomon, 54 Hl. 51 ; People 25 Mich. 153. And see People v. Alv. Lothrop, 24 Mich. 235. Compare bertson, 55 N. Y. 50.
PROTECTION TO PERSON AND PROPERTY UNDER THE CONSTITU
TION OF THE UNITED STATES.
As the government of the United States was one of enumerated powers, it was not deemed important by the framers of its Constitution that a bill of rights should be incorporated among its provisions. If, among the powers conferred, there was none which would authorize or empower the government to deprive the citizen of any of those fundamental rights which it is the object and the duty of government to protect and defend, and to insure which is the sole purpose of bills of rights, it was thought to be at least unimportant to insert negative clauses in that instrument, inhibiting the government from assuming any
such powers, since the mere failure to confer them would leave all such powers beyond the sphere of its constitutional authority. And, as Mr. Hamilton argued, it might seem even dangerous to
“For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given
is given by which restrictions may be imposed ? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge, with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a right to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.” 1
1 Federalist, No. 84.
It was also thought that bills of rights, however important * under a monarchical government, were of no [* 257] moment in a constitution of government framed by the people for themselves, and under which public affairs were to be managed by means of agencies selected by the popular choice, and subject to frequent change by popular action. “ It has been several times truly remarked, that bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right, assented to by Charles the First, in the beginning of his reign. Such also was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of Parliament, called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and, as they retain every thing, they have no need of particular reservations. · WE, THE PEOPLE OF THE UNITED STATES, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.' This is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.” 1
Reasoning like this was specious, but it was not satisfactory to many of the leading statesmen of that day, who believed that " the purposes of society do not require a surrender of all our rights to our ordinary governors ; that there are certain portions of right not necessary to enable them to carry on an effective government, and which experience has nevertheless proved they will be constantly encroaching on, if submitted to them; that there are also certain fences which experience has proved peculiarly efficacious against wrong, and rarely obstructive of right,
1 Federalist, No. 84, by Hamilton.
which yet the governing powers have ever shown a disposition
to weaken and remove."1 Aud these governing powers (* 258] will be no less disposed * to be aggressive when chosen
by majorities than when selected by the accident of birth, or at the will of privileged classes. Indeed if, during the long struggle for constitutional liberty in England, covering the whole of the seventeenth century, importance was justly attached to a distinct declaration and enumeration of individual rights on the part of the government, when it was still in the power of the governing authorities to infringe upon or to abrogate them at any time, and when, consequently, the declaration could possess only a moral force, a similar declaration would appear to be of even more value in the Constitution of the United States, where it would constitute authoritative law, and be subject to no modification or repeal, except by the people themselves whose rights it was designed to protect, nor even by them except in the manner by the Constitution provided.2
· Jefferson's Works, Vol. III. 201. tion. This instrument forms us into
2 Mr. Jefferson sums up the ob- one State, as to certain objects, and jections to a bill of rights in the Con- gives us a legislative and executive stitution of the United States, and body for those objects. It should answers them as follows : “1. That therefore guard us against their abuses the rights in question are reserved by of power, within the field submitted the manner in which the federal to them. 2. A positive declaration of powers are granted. Answer: A con- some essential rights could not be stitutive act may certainly be so formed obtained in the requisite latitude. Adas to need no declaration of rights. swer: Half a loaf is better than no The act itself has the force of a bread. If we cannot secure all declaration, as far as it goes; and if rights, let us secure what we can. it goes to all material points, nothing 3. The limited powers of the federal more is wanting. In the draft of a con- government, and jealousy of the substitution which I had once a thought ordinate governments, afford a secuof proposing in Virginia, and printed rity, which exists in no other instance. afterwards, I endeavored to reach all Answer: The first member of this the great objects of public liberty, seems resolvable into the first objecand did not mean to add a declaration tion before stated. The jealousy of of rights. Probably the object was the subordinate governments is a preimperfectly executed; but the defi- cious reliance. But observe that those ciencies would have been supplied by governments are only agents. They others in the course of discussion. must have principles furnished them But in a constitutive act which leaves whereon to found their opposition. some precious articles unnoticed, and The declaration of rights will be the raises implications against others, a text whereby they will try all the acts declaration of rights becomes neces- of the federal government. In this sary by way of supplement. This is view it is necessary to the federal the case of our new federal Constitu- government also; as by the same text