An Essay on Professional Ethics | Page 8

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 the same eminent Judge, to whom reference has been made in a
later case, declared his adhesion to the sound and true doctrine in the
most emphatic language, without noticing his own previous dictum to
the contrary. "It was deemed necessary," said he, "to insert a special
provision in the Constitution to enable them (the legislature) to take
private property even for public use, and on compensation made; but it
was not deemed necessary to disable them specially in regard to taking
the property of an individual, with or without compensation, in order to
give it to another, not only because the general provision in the Bill of
Rights was deemed sufficiently explicit for that, but because it was
expected that no legislature would be so regardless of right as to
attempt it. Were this reasonable expectation to be disappointed, it
would become our plain and imperative duty to obey the immediate

and paramount will of the people, expressed by their voices in the
adoption of the Constitution, rather than the repugnant will of their
delegates acting under a restricted but transcended authority." (Norman
v. Heist, 5 W. & S. 171.)
Yet, while the right of private property cannot be thus directly invaded,
its security against the acts of the legislature is not as perfect as it might
and ought to be made. The legislature must be allowed a large
discretion in judging what is a public use: on that pretext much may be
brought within its sweep unjustly, and the courts, in the absence of a
constitutional rule, would be embarrassed in defining its limits.
Experience has shown that much power to do wrong lurks under grants
by no means essential to the public good. Besides what has been before
referred to, the assumption of judicial functions by the Legislature and
the broad field of Chancery jurisdiction over trust estates, which it has
been held that they may exercise immediately, if they see fit, instead of
vesting them in appropriate tribunals, are fraught with serious danger.
The proneness of bodies so constituted to disembarrass themselves of
the ordinary rules of evidence, to act upon ex parte statements and
testimony imperfectly authenticated, as well as the absence of all legal
forms from their proceedings, and their numbers, among whom the
responsibility of giving due attention to the case is divided, add to the
peril. The power of legislating retrospectively has far too wide a scope;
the constitutional inhibition of ex post facto laws having been construed
to apply to criminal or penal cases merely, restraining the legislature
from making that an offence which was not so at the time of its
commission, or increasing the punishment annexed to it. The course of
legislation in this country amply demonstrates the wisdom, and even
necessity, of extending the same prohibition to civil cases. There is no
particular or partial inconvenience, which could outweigh the general
benefits of a provision that no law, public or private, should operate
retrospectively upon past acts; that the judgment of the tribunals upon
every case should be according to the law as it was at the time of the
transaction, which the parties were bound to know, and in accordance
with which they are to be presumed to have acted.
As well in the domain of public as of private law, the great fundamental

principle for judge and counsellor ought to be, THAT AUTHORITY IS
SACRED. There is no inconvenience so great, no private hardship so
imperative, as to justify the application of a different rule to the
resolution of a case, than the existing state of the law will warrant.
"There is not a line from his pen," says Mr. Binney of Chief Justice
Tilghman, "that trifles with the sacred deposit in his hands by claiming
to fashion it according to a private opinion of what it ought to be.
Judicial legislation he abhorred, I should rather say, dreaded, as an
implication of his conscience. His first inquiry in every case was of the
oracles of the law for their response; and when he obtained it,
notwithstanding his clear perception of the justice of the cause, and his
intense desire to reach it, if it was not the justice of the law, he dared
not to administer it. He acted upon the sentiment of Lord Bacon, that it
is the foulest injustice to remove landmarks, and that to corrupt the law
is to poison the very fountains of justice. With a consciousness that to
the errors of the science there are some limits, but none