An Essay on Professional Ethics | Page 7

these conflicting rules governs
the case. This is of the very essence of judicial duty. If, then, the courts
are to regard the Constitution, and the Constitution is superior to any
ordinary act of the legislature, the Constitution, and not such ordinary
act, must govern 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