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tent cannot be attributed to a corporation, in its ciples.” The action "involves nothing more than corporate capacity, it is not indictable for those a wrongful act intentionally done." crimes, of which malice or some specific criminal The same was held in Fenton v. Wilson Sewing intent is an essential ingredient.” “The distinc- Machine Co., 9 Phila. 189, where the authorities are tion scems to be between acts injurious in their exhaustively reviewed. So in Copley v. Grover & effects, and for which the actor is liable without re- Baker Sewing Machine Co., 2 Woods, 494 (Alabama gard to the motive which prompted them, and con- Federal Circuit), where the Owsley case was disapduct, the character of which depends upon the mo- proved. The court said: “It is not true that a cortive, and which apart from such motive cannot be poration has no mind. Its mind is the joint promade the ground of a legal responsibility. If this duct of the minds of its officers and directory in a distinction is well taken, it would follow that since united organization, and in point of fact corporaa corporation, as such, is incapable of malice, it is tions bring into their service the highest order of not liable to be sued for a malicious prosecution." ability and the best executive talent in the country.” “And such appears to us to be the better opinion, This is rested chiefly on Railroad Co. v. Quigley, 21 although we are aware that there are authorities How. 202. which seem to sustain the idea that an action for a In Stevens v. Midland County Ry. Co., 10 Exch. malicious prosecution may be maintained against a 352, Alderson, B., obiter expressed an opinion that corporation.” This is founded on Childs v. Bank, the action would not lie, but the decision was put 17 Mo. 213, and on dicta in Stephens v. Midland on another ground. In Whitfield v. Ry. Co., E. B. Counties Co., 10 Exch. 352, and McLellan v. Cum- & E. 115, Lord Campbell overruled a demurrer in berlund Bank, 24 Me. 566.

such an action, observing “there may be great The case of Gillett v. Mo. Valley R. Co., 55 Mo. difficulty in saying that under certain circumstances 315; S. C., 17 Am. Rep. 653, limits Childs v. Bank express malice may not be imputed to and proved of State of Missouri, 17 Mo. 213, which had denied against a corporation.” the liability of corporations for assault and battery, A corporation is civilly liable for vexatiously obmalicious prosecution, or slander; and admits that structing one's trade, Green v. London Omnibus Co., corporations may be liable in such actions, if the 7 C. B. (N. S.) 290; for assault, East Counties Ry. act comes within the purview of their charter pow- Co. v. Broom, 6 Exch. 314; Moore v. Fitchburgh ers and is within the scope of the agent's authority, Railroad, 4 Gray, 465; Hanson v. European & N. A. or is ratified. But the alleged malicious prosecution Ry. Co., 62 Me. 84; S. C., 16 Am. Rep. 404; Mcthere being a criminal prosecution for embezzle- | Kinley v. Chicago, etc., R. Co., 44 Iowa, 314; S. C., ment, it was held that this was not within the scope 24 Am. Rep. 748; Passenger R. Co. v. Young, 21 of the corporation's general or special powers, and Ohio St. 518; S. C., 8 Am. Rep. 78; for false imtherefore the action would not lie.

prisonment, Owsley v. R. Co., supra; for libel, On the authority of the Gillett case, the case of Phila., etc., R. Co. v. Quigley, 21 How. 202; for nuiIron Mountain Bank v. Mercantile Bank, 4 Mo. App. sance, First Baptist Church v. R. Co., 5 Barb. 79; 505, holds that a corporation may be liable for a and may be indicted for obstructing a highway, malicious prosecution, and says " there has been a Reg. v. Gt. North of Eng. Ry. Co., 9 Q. B. 315; for complete change in the rulings in this respect since libel, State v. Atchison, Lea, 729; S. C., 31 Am. Childs v. Bank of Missouri was determined.” The Rep. 663; for Sabbath breaking, State v. Balt. & C. case of Carter v. Howe Machine Co., supra, was ex- R. Co., 15 W. Va. 362, post; and may be punished actly like the Gillett case in circumstances, and it for contempt, People v. Albany & Vr. R. Co., 12 was held that although a corporation is liable to an Abb. Pr. 171; S. C., 20 How. Pr. 358. action for malicious prosecution, yet in such a case the agent must be shown to have express authority OBSERVATIONS ON THE PARTICULAR for his act, or it must have been ratified.

JURISPRUDENCE OF NEW YORK. The doctrine of the principal cases was held in

VI. Vance v. Erie Ry. Co., 32 N. J. L. 334. The court rested upon English cases, hereinafter cited, and The ne revolution between England and her trans

"HE governmental relations existing at the outbreak said: “If actions for malicious libel, for vexatious suits, for vexatiously and maliciously obstructing had been in the preceding century. The English Con

Atlantio colonies were very different from what they another in his business, for willful trespasses, and stitution, the product of purely local conditions and for assault and battery, in each of which the mo- agencies, had not originally contemplated colonization, tives and intent of the mind are directly involved, for it was built up with the feudal system which decan be maintained against a corporation aggregate,

manded a certain contiguity between the lord para

mount and his feudataries. no reasons, founded on principle, can be suggested

The vast intervening distance of America rendered why an action for malicious prosecution should not such a contiguous relation impossible, except in theory; also be sustainable against a corporation.” “When here the king was compelled either to delegatu some the nature of the action is considered, it comes portions of his prerogatives by written mandates, or strictly within the principles by which the actions authorizations, to resident governors and agents, or above enumerated are maintainable." "To hold a

else to parcel out these distaut dominions by formal

grants, after the established precedents, such as councorporation amenable to this particular action is

ties palatine or the remnant of the duchy of Norstrictly in accordance with well-settled legal prin- mandy. Those written delegations, or grants, as they

narrowed the powers of the governing classes and de- tion was read in the Provincial Congress, then sitting fined the rights of the colonists, came finally to be at the City Hall in New York, on the 24th day of May, considered colonial Constitutions, and it is easy to 1776, and a committee was appointed to consider the discern that they gave a vast impetus to the Anglo- matter (Jour. Prov. Cong.); they reported, “that the American conceptions of constitutional government, right of framing, creating aud new modeling civil and perhaps even suggested the formal constitutions governments is and ought to be in the people." Doubtof the Revolutionary period. By the beginning of the ing their power to form a government, the Provincial eighteenth century, the colonial governments, judi-Congress recommended the election of new deputies, catories and jurisprudence had become somewhat set- who should be constituted specially for such a purpose. tled, and the early pretensions of the crown corre- The new Congress having been accordingly elected, spondingly restricted.

met at the Court-House in White Plains, Westchester The original motive of the American Revolution - a county, on the 9th day of July, 1776, and on the next motive not difficult to discern, but in a juristic sense, day changed the title of the Congress of the Colony most importaut to remember — was the vindication of to that of the “ Convention of the representatives of the the paramount rights conferred by the colonial Con- State of New York." stitutions. The Revolution, at last, became a neces- On the 16th of July, New York being closely beset by sary protest against the violations of what had come the British forces, the convention postponed thc formato be considered as the fundamental law. A careful tion of a State government until August following. regard to the motive of the Revolution, is observable Meanwhile, all magistrates and officers of justice were in the frame of the first State government erected by requested to exercise their respective offices, provided the Constitution of 1777, on the ancient law of the that all processes and proceedings were under the au. laud. This Constitution imposed no violent changes; thority and in the name of the State of New York. This, it preserved much that was old, and that which was it will be perceived, was a formal substitution of the new harmonized well with that which was old. It is State, that vague nomen generalissimum,* for the king, not necessary to this conclusion to maintain that the who had ceased to be here the fountain of justice, the mere •externals of the former government remained offended prosecutor of crimes and the general conservaafter the Revolution, for externals of government are

tor of the peace. When the convention, pursuant to secondary; there may be, under liberal guises, most its adjournment, met in August, a committee was apviolent tyrannies and e converso. It may be said that pointed to take into consideration a plan for institutthe new form of government was founded in pursu- ing and framing a State government. (Jouru. Pror. ance of the origiual motive of the Revolution, beca Cong., Aug. 1, 1776.) On the 13th of March, 1777, the it was founded on those institutions of the common first section of the Constitution was agreed to; but law which have unquestionably been the progressive tho debates on the various sections continued at adforces of the Anglican type of law and liberty, and journed meetings until Sunday, the 20th of April, 1777, for whicb the colonists always distinctly contended. when the entire instrument was finally adopted and This consummation of the original motive of the Revo- promulgated as the supremo law of the State. lutionists may be termed the jurisprudential lesson of Were the particular reasons which occasioned the the Revolution.

adoption of the various sections of the first ConstituPrior to the outbreak of the Revolution, the king tion better known than they now are, it would, in a was here, as elsewhere in his dominions, parens desultory sketch like the present, be impossible to dispatriæ, a constituent part of the provincial legisla- cuss them in detail. But, owing to circumstances, ture, the general conservator of the peace, the foun- much of the necessary material for such a discussion tain of justice, the generalissimo of the provincial is wholly wanting; it is supposed by some antiquariarmed forces, and the fountain of all honors, offices ans that a considerable portion of the minutes and and privileges. All this he was, not in a purely theo- memoranda of the first committee on government are retic sense, but in a juridical sense and in the sense of yet extant, though but one fragment is either printed the colonial Constitutions. He was the prosecutor for or attainable. (Col. of N. Y. Hist. MSS., Revolutionall crimes and offenses of a certain grade, because it ary Papers, Vol. I, p. 552.) It is more easy to credit was be who was injured, and it was his peace and dig- this when we reflect that as late as 1818, over forty nity which were offended. These notions, feudal years after its adoption, tho State did not possess the though they were, entered largely into the practical original Constitution; it was in the hands of a private conceptions of the colonial jurisprudence, and it is gentleman. (Assembly Journ., Feb. 11, 1818, p. 156.) impossible to account for certain features of our pres- Even the principal authorship of tho State Constituent jurisprudence without a reference to them. The tion -- though generally attributed to Mr. Jay - is practical deposition of the king was an overt act of uncertain. There is specific proof that Mr. Jay obthe Revolution, and for a time all his functions, powers jected to some of its provisions (N. Y. Col. Rer. Paand dignities essential to government were vested in pers, 678); and it is asserted in the late history revolutionary and temporary governments by commit- published from the manuscript of the Tory Judge tees, delegates aud congresses; but on the establish- Jones, that the historian William Smith, who later on ment of the State government, they were, in this deserted the popular cause, was its main author. (1 jurisdiction, distributed under the State Constitution. Joues' Hist'y N. Y., p. 143.) However this may be, It is this historical fact which has caused so many all must concede tho inspiration of its text. It is unfeudal notions and abstractions to survive side by side necessary to pursue the bistorical aspect of the Conwith an opposed democracy. Our jurisprudence is a stitution farther; the late Centennial has added much mosaic of many textures, one of which is the feudal to the literature of the subject. (See Stevens' Birth conception of law in certain of its relations.

of the Empire State, 3 Mag. Am. Hist’y, 1; O'Conor's Actual hostilities between the king and Parliament Centennial Address before tho N. Y. IIist. So., 1877; on the one side, and the united colonies on the other, Centennial Celebration of the State of N. Y., Weed, began with the battle of Lexington and Concord on Parsons & Co.; see, also, Butler's Outline of the Const. the 19th of April, 1775. At the commencement of the Hist'y of N. Y.; Address of Chan. Kent before N. Y. struggle temporary governments by committees and Hist. So., December 6, 1823; Sparks' Life of Morris; congresses were formed in New York. (Butler's Coust. Life of John Jay, by his son.) Hist'y N. Y. 48.) On the 10th of May, 1776, the Con- The first Constitution of this State was a statute tinental Congress recodimended that those colonies which were without a sufficient form of government * Used formerly in England to designate the government should adopt some suitable goverument. This resolu- under Cromwell,

enacted by the suffragists of the old province, acting after the establishment of the new government by the tbrough a convention delegated for the express pur- freeholders of the province. Mr. O'Conor, in the adpose. It is not difficult to discern that this instrument dress already referred to, has termed the constitu. was the product of the common law, for the termin- tional declaration that the people were the only source ology and the peculiar institutes, the ear-marks of of power, the new political institute. Yet theoretithe common law, are visible in its every line. Such cally this institute was not new, The eigbteenth cenchanges as it imposed were the inevitable results of tury had been the very elysium of political theorists, historical forces applied to colonial conditions. There- and many writers of different nations had advanced fore its construction and its development must be the proposition that the existence of all States was read, as its framers intended, by the light of the accu- based on the will of the persons composing them, or mulated experience and bistory of the common law in upon the social compact. The Constitution of New this country and in England; or else, sophists, Consti- Jersey, adopted in the year prior to 1777, had contained tution-menders and empiricists will ultimately subvert the recital, “that all the constitutional authority ever what remains of it, possibly to substitute something possessed by the kings of Great Britain over these better, but probably something worse.

colonies, or their other dominions, was by compact Few of the features of the first Constitution were derived from the people and held of them for the comnovel. There is perhaps no better illustration of this mon interest of the whole society;" thus, it is evident fact than Sparks' accidental commentary, contained that the doctrine embodied in the Constitution was in the “Life of Gouverneur Morris" (1 Vol., p. 121): new rather as an institution than as an institute. Speaking of the formation of the State government, To what class of governments the new State governthis author says: “The greatest difficulty was experi- ment created by the Constitution may most properly “enced in determining where to lodge the power of be determined, it is not proposed to consider; it may “appointing officers both civil and military, and by be generally described as of the parliamentarian type. "what mode this power should be exercised. No won- There is reason to suppose that if any violent or radi“der that this should prove a perplexing topic to new cal changes had been made in the pre-existing legisla“beginners in the art of government-making, and tive or judicial institutions they would have alienated “especially when a plan embracing many original and the conservative portion of the continental party. For "untried features was to be contrived. It was easy to a like reason, the former freeholders of the province "form a practical system for regulating the powers were retained as the basis of the future government; "and proceedings of the executive, Legislature and and thus all reasons for dissatisfaction were allayed. “judiciary, as far as the specific duties of each were The sections of the Constitution which are of para“concerned, and also the electoral franchise -- because mount importance to the discussion of our subject are “there were very good models in several of the old those which relate to an institutional Legislature on “colonial governments, and experience afforded all the Anglican plan, the new and old limitations of “ necessary light." This is a startling commentary on the legislative power, the judicatories and the juristhe novel features of the new Constitution, for it prudence of the uew State. A very slight reference would seem that the judicature, the Legislature and to the executive and to the other distributaries of the the executive, the three great branches of government, administrative functions of government will suffice. were left substantially to the old model, while the The entire legislative power was vested in two sepamain attention of the founders of the new government rate and distinct bodies; the lower of which retained its were directed to the method of appointing the place- provincial name, the Assembly, and the upper of which men. But, yet, this was not an oversight; it was the received that dignified title, the Senate. Their resemresult of design. The Revolutionary statesmen were bla the former legislative chambers was so marked not doctrinaires; they were wise and patriotic. It as to cause them to be functionally indistinguisbable. would have been as easy a task to have overthrown the Referring to the upper branch of the State legislature, old institutions as it was to preserve them; for the Mr. O'Conor says: “The only State organism that bore new Constitution was not submitted to the people and any shadow of resemblance to the English House of it was enacted in a time of great public excitement, Peers was the Senate; and there, in the closest imitaThe reason why so many of the former features of tion of our parent state, the Constitution enthroned government were retained, is explained by the reply the supreme judicial power, with final appellate jurisof John Adams to Mr. Turgot's strictures on the re- diction in law and equity. Grace aud majesty shone · semblance of the American Constitutions to the Eng- forth in the copy as the original.” The resemblance lish model. He says, in substance, that the colonial which the Senate bore to the House of Lords was, inplans of government were retained after the Revolu- deed, slight, for it was modeled on the provincial tion because they were founded in nature and reason, council, which also had appellate jurisdiction in law and the people were attached to their familiar features. and equity. The framers of the State government, (Adams' Am. Const., 1 Vol., p. 5.) The Revolution intimately acquainted with the organization of tho was not waged against these things; it was waged legislative council, naturally chose for a model that against the king and the Parliament, not against the body with which they were most familiar, and which common law, nor the familiar institutions including by reason of inherent differences, other than the mere the legislative plan, the juridical structure and the titular dignity and tenure of the members -- was a general administrative features of government. Hence much more desirable model than the House of Lords. it was that the Revolutionary statesmen were not What these differences were, we shall have occasion to doctrinaires.

consider in connection with the extraordinary powers The first great statute of this State, termed the Con- ultimately assumed by the judicial branch of the new stitution, begins with an important preamble in justi-government. The leading authorities seem to indicato fication of the change of government which it inaugu- that the council of the province was unquestionably rated; it recites the several steps taken toward this the model of the State Senate. (Int'd to Journ. of new establishment and concludes, that by virtue Leg. Council of N. Y., P. xxvi; Col. Doc. III, 624, 628; thereof all powers of government had reverted to the Journ. Leg. Council; 1 Smith's Hist'y N. Y. 305; Butpeople. This conclusion, in connection with the first ler's Const. Hist'y N. Y., p. 42.) section of the enacting part of the Constitution, was a Unaccustomed to unlimited legislation, and fearful most explicit enunciation of the doctrine of popular of the misuse of such vast powers, the Revolutionary sovereignty - but of popular sovereignty in a more Statesmen devised a very remarkable check upon hasty restricted sense than we now understand the term. The legislation. The third section of the Constitution enlightened theory of manhood suffrage came long provided for a revision of all bills by a council cousisting of the governor, the judges of the Supreme Court


most probable that the proposal to revolutionize and the chancellor, or any two of them. The Council the inherited jurisprudence of this State may come of Revision thus possessed a qualified veto or negative from within the State itself; that it will be gradual, or on legislation :- qualified and limited for the reason almost imperceptible; but however the proposal may that, by a two-third vote in both houses, any objection come or whence may come, if due regard is had to which the council reported might be ignored. During the genius aud the historical forces which bare deits existence the council objected to one hundred and veloped the jurisprudence of the common law, the sixty-nine legislative bills, fifty-one of which, never- essentials of this system will be retained. Neither is theless, became laws. The report of their opinions is such a retention inconsistent with the repeal of archaic valuable as an exposition and construction of the Con- niceties; nor, with alterations, in the true sense of the stitution. (Street's “ Council of Revision.")

term, tending to adapt the present jurisprudence to The new Legislature, as thus established, contained the ever increasing complications of modern society. within itself the power of enacting laws — but not all The ultimate codification of the entire body of the laws. Their law-making power was restricted by the law of this State is not incousistent with the retention very statute which conferred such power. Both and preservation of those leading principles of law and houses of the Legislature were constituted the sole liberty which underlie the Anglo-American type of judges of their respective memberships - a grant which government and civilization. The danger to be apprebore the mark of a historic struggle. But, in other hended from certain forms of codification is, that alrespects, their procedure was not left optional; the tracted by the skillful statutory arrangement and whole body of the legislative customs and usages, disposition of the Roman law, we may be thereby which are sometimes termed the parliamentary com- induced either to discard some essential principle of mon law, were made obligatory on them. This was a inestimable value to the jurisprudence already in minor limitation. The major was, that the character force for over two centuries of our history, or else to of their legislation should conform to the canons of incorporate some principle subversive of the existing the jurisprudence of the common law. The framers type of law and liberty. Without adverting to the of the new government unquestionably intended that respective merits or demerits of the two great systems such of the provisions of the common law of England of jurisprudence termed the Roman or Civil law and and of the statute law of England, Great Britain and the Anglican or Common law, it is but proper to the former province, as were not repuguant to the Con- remark that in their developments there seem to have stitution itself, should remain the basis of the future been certain opposed forces leading to widely divergent laws of the State, for the Legislature was invested results. The tendency of the common or Anglican with a power to make alterations only concerning the

law has been toward an alliance with progressive freesame. Subject to such alterations and provisions as dom, self-government, open and popular judicatories, the Legislature should make concerning it, the ancient and democratical institutions; the tendency of the law, as it stood at the date of the battle of Concord Roman law, to an association with centralized adminisand Lexington, was continued or established as the trations, despotic governments, secret and inquisitorial future law of the State. This provision of the first judicatories, and imperial institutions.* The common Constitution was adopted substantially in the existing law is crude in its arrangement and development; but Constitution.

from the complicated nature of its procedure and adWhat legislative alterations in the fundamental ministration it is difficult to corrupt or pervert; on juridical law were contemplated by the framers of the other hand, the Roman law is subtle and philothe government remaius, therefore, a question of sophic in its disposition; but from its inevitable and moment and we may digress to consider it. The legis- absolute dependence on the State and the Legislature, lative power of altering the fundamental law may be it is of uncertain value to institutional liberty. A construed in two ways, quite opposed and divergent. codification which has indistinct reference to the One construction permits the total abrogation of the spirits of the differences indicated is an alteration in ancient law and the substitution of another juridical the ancient law, the dangers of which we have digressed system of laws. The other construction preserves the to consider; for, until it is determined how far the rationale of the ancient law and confines the power of particular canons and even the terminology of the the Legislature to that of altering, in the sense opposed common law affect the citizen in his relations to the to annihilating, the ancient law. For the first sixtye fainily institution and to the State, it is too soon to years of the State government the latter construction undertake to alter such canons and terminology ou the prevailed, not only in the courts but in the Legislature. plea that they are barbarous, or cumbersome and unClearly, it is the latter construction only which is con- philosophic. While these considerations are, perhaps, sistent with the bill of rights sections of the Constitu- foreign to our theme, they are yet illustrative of the tion; for these sections, without the essentials of the changes which, under some circumstances, may yet jurisprudence of the common law, would be very ensue in the jurisprudence which was established by ineffectual guarantees of personal liberty and security. the framers of the Constitution as the future law of When an entire revolution in the present organic this State. juridical law of the State is proposed, there will inevit- The government established by the Constitution of ably be two schools of lawyers, who, in their considera- 1777 – whether it be termed an aristocratical or an tion of the power of the Legislature to alter such oligarchical republic, or a democratical republic is of fundamental law, will be as opposed as the Sabiniaus and the Proculians ever were, or could have been.

* By this observation it is not intended to ignore the his. Whence this proposal to change the existing laws may

torical fact that Anglican jurisprudence owes much to

Roman law. But what it thus owes it owes mainly to the come, or how it may come, is at present but partially

private law not to tho public law of the Romans, and the indicated. There are already rumors of a contem

question naturally suggests itself “how far are the pubplated National Code of laws which shall tend to lic and the private law of the Romans interdependent?" unify the laws of the several States, and which may The remark in the text is unquestionably predicated on subvert the particular jurisprudence of this State. an assumption based on effects only. Yet modern disSuch a Code, as it tends to the exaltation of the gen

covery seems to be demonstrating that many of the best eral government, will prove alluring to those with

features of the jurisprudence of the common law are due

to Germanic rather than to Roman institutions. It is whom the magnificence and the power of the nation

however too soon to decide this moot point. Until it is are paramount to all other considerations; therefore,

decided it must be apparent that the considerations stated while its achievement is, in all probability, remote, it in the text should be regarded even in the work of codi. is possibly not so remote as we conceive. It is, how- Acation.


no consequence - unquestionably bore a close resem- the provincial practice; for they were ordinarily memblance to the government which preceded it. It was a bers of the council, and sat as part of the magna curia modification of the provincial government and but or judicial branch of the Legislature, but they could little more; Turgot, John Adams, Jefferson, Wilson, not vote on appeals from their own judgment, yet Story, Everett and Lieber have substantially stated might deliver arguments in support of the same-ansuch to be the fact. The bicameral Legislature, the other peculiar feature perpetuated in the court of power of the legislative houses to be the sole judges errors of the State ($ 33, Const. 1777; Forsey v. Cunof their own memberships, the method of choosing ningham, N. Y. Hist. Soc. Col.) From the earliest the presiding officer of the more popular branch, the times in the province of New York magistrates were parliamentary common law, the veto on legislation, debarred from deciding appeals taken from their own the bill of rights, the judicature, the jurisprudence judgments (“Duke's Lawes, A. D. 1661.) and the franchises, were all provincial institutions The continuance of the Supreme Court of Judicacontinued after the Revolution by virtue of the Con- ture of the province and tho old Court of Chancery stitution and because they were associated with all was evidently contemplated by the framers of the that was wisest and best in the previous history of State government. The Constitution provided for New York. The Revolution was not a war against the tenure of the judges of such courts and eix nomthese things; it was a war for these things — the com- inibus made them members of the future council of mon porperty of the Anglican race.

revision and of the court of errors; yet iu no more Tbe sections of the Constitution relating to the direct way were these fundamental courts of the comqualification of electors, voting by ballot instead of by mou law perpetuated. It is a noteworthy fact, that the former viva voce method, naturalization, religious both these high courts of justice, thus impliedly transliberty, militia service, and the purchase of lands from ferred to the new order of things, had been either the Indians are discussed by Mr. Stevens in his his- erected or continued by virtue of ordinances promul. torical essay on the Constitution (3 Am. Mag. Hist. | gated by the royal governors of the province without, p. 1), and it is unnecessary to consider them in con- aud, indeed, contrary to, the assent of the Legislature. nection with the subject of this paper.

These ordinances had originally provoked hostility, for The supreme executive power and authority were the Legislature maintained that the governor had no vested in a governor to be chosen from and by the power to act, in this regard, without their concurrence. freeholders of the State. The manner in which the It is highly probable the framers of the Constitution had chief executive was chosen was entirely novel, but his abandoned the old objections to the ordinances foundpowers corresponded to those enjoyed by his prede- | ing these courts, which always bore a political rather cessor, the governor of the province. He was com- than a legal complexion. Or, it is possible, that with the mander of the military forces and the chief magistrate reverence formally felt for the common law, the theory of the State; he possessed the authority to convene and —that the jurisdiction of the fundamental courts was prorogue the Assembly on extraordinary occasions. derived from the common law - obtained and they The Constitution contemplated also a message from were considered as falling within such parts of the the executive, addressed to the Legislature, according common and statute law of England as were adopted to the former practice iu the province. To aid the by the 35th section of the Constitution. However the chief executive the office of lieutenant-governor was fact may have been, these courts of general jurisdiccontinued, with a modification which made him ex- tion, in law or equity, continued substantially on their officio president of the upper legislativo house. The old foundations until the Constitution of 1846. powers of the executive were, in comparison with the The original Constitution enlarged that “resolve" of powers subsequently delegated by the Federal Consti- the convention of the representatives of the State which tution to the chief executive of the nation, carefully first provided that legal process and proceedings in the prescribed and limited, with a view to the prevention courts of the Revolutionary era should be in the name of the arbitrary conduct manifested by the governors of the State, by ordaining that they should thenceforth of the province. The council of revision shared with run in the name of the People of the State. the executive the responsibilities of the veto, and the It is unnecessary to refer to the “ Bill of Rights" council of appointment was invested with the power sections of the Constitution; they were not original or of appointing all officers whose selection was not peculiar, and their particular provisions were in the otherwise determined by the Coustitution. The par- main adopted as a whole by the 35th section which doning power of the executive was also restricted. made the common law the future law of the State,

The judicature, which rapidly became a co-ordinate Their specific enactment was, therefore, unnecessary. branch of the new government, received, it is thought The historical facts narrated, together with the designedly, very little attention at thu hands of the legitimate inferences drawn therefrom, tend to verify framers of the Constitution. One new tribunal of the observation, that revolutions work gradual, rather justice only was created, the court for the trial of im- than abrupt and radical, changes in the aucient laws of peachments and the correction of errors. It consisted a State. of the president of the Senate, the senators, the chancellor and the judges of the Supreme Court, or a JURISDICTION OF FEDERAL COURTS OVER quorum of them. When this court sat as a court of

SUITS BY STATES. impeachments, the chancellor and Supreme Court justices, if impeached, were disqualified from sitting in

SUPREME COURT OF THE UNITED STATES, NOV. 8, 1880. judgment on themselves — a provision evidently supererogatory. The power of impeaching all officers of State was, in analogy to the practice in England, vested


Plaintiff in Error, v. STATE OF MISSISSIPPI. in the lower house of the Legislature.

The conception of vesting the supreme appellate Upon the authority of Cohen: v. Virginia, 6 Wheat. 375; jurisdiction in the upper legislativo house was derived Osborne v. Bank of United States, 9 id. 816; Mayor v. by the framers of the State government from the Cooper, 6 Wall. 250; Gold-Washing and Water Co. v. Keyes, familiar practice in vogue in the provincial era, when

96 U. S. 201, and Davis v. Tennessee, 100 id. 264, held to be

settled law: appeals lay to the provincial council. This council had possessed judicial as well as legislative and councilling

That while the 11th amendment of the National Constitu

tion excludes the judicial power of the United States powers; it was magna curia of the province. So, in from suits, in law or equity, commenced or prosecuted all probability, the designation of the judges and chan- against one of the United States by citizens of another cellors as members of the court of errors arose from State, such power is extended by the Constitution to

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