An Essay on Professional Ethics | Page 7

the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is, in reality, effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure." (Marbury v. Madison, 1 Cranch, 177.) More weighty words than these have never, speaking of human things, fallen from the lips of man: weighty in themselves from their own simple but eloquent conclusiveness--weightier still from their unspeakable importance, the immeasurable influence they have had, and, it is to be hoped, will ever continue to have, upon the destinies of the United States of America. The judiciary department, though originating nothing, but acting only when invoked by parties in the prosecution of their rights, is thus necessarily an important political branch of the government. That department spreads the broad and impregnable shield of its protection over the life, limbs, liberty, and property of the citizen, when invaded even by the will of the majority. Our Bills of Rights are, therefore, not mere enunciations of abstract principles, but solemn enactments by the people themselves, guarded by a sufficient sanction. They have not, perhaps, as yet, carried far enough their provisions for the security of property from the unjust action of government. The obligation of contracts has been declared sacred; the right of eminent domain restricted by the provision for compensation. Yet, even as to contracts, the legislature may still exercise dangerous powers over the remedy, short of taking it away entirely, and over the rules of evidence. As to eminent domain, they possess an undefined right to determine the time and manner of ascertaining the compensation. Our constitutions are frequently undergoing revision; and too much care cannot be exercised to strengthen our securities in this quarter. Personal liberty, trial by jury, the elective and other political franchises, liberty of conscience, of speech and of the press, are able to protect themselves in a great measure from their own democratic affinities. It is true, that there really is no difference between wresting from a man the few dollars, the products or savings of his industry for any period of time, and depriving him of his liberty, or chaining him to a log, to work for another during the same period. Property eminently stands in need of every parchment barrier, which has been or can be thrown around it. An eminent Judge in our own State once threw out the opinion that there existed in the Constitution no disaffirmance of the power of the legislature to take the property of an individual for private uses with or without compensation. "The clause," he argued, "by which it is declared that no man's property shall be taken or applied to public use, without compensation made, is a disabling, not an enabling one, and the right would have existed in full force without it." (Harvey v. Thomas, 10 Watts, 63.) Fortunately, the decision of the court in that case did not require a resort to that reasoning, and but little examination was sufficient to satisfy the mind that this obiter dictum was unsustained by either principle or authority. A power in the legislature to take the property of A. and give it to B. directly, would be of the very essence of despotism. When it is declared in the Bill of Rights that no man shall be deprived of his life, liberty, or property, unless by the judgment of his peers, or the law of the land, this phrase, "law of the land," does not mean merely an act of the legislature. If it did, every restriction upon the legislative department would be practically abrogated. By an authority as old as Lord Coke, in commenting upon these same words in Magna Charta, they are to be rendered "without due process of law: that is, by indictment or presentment of good and lawful men, when such deeds be done in due manner, or by writ original of the common law, without being brought into answer but by due process of the common law." (2 Inst. 50.) The American laws are numerous and uniform to the point (see 1 American Law Mag. 315); and