tions, causes, and things whatsoever, arising or happening within this state, or between or concerning persons inhabiting or residing or brought within the same."

As to the thirty-first article of the bill of rights, it merely provides that" the legislature shall assemble for the redress of public grievances, and for making such laws as the public good may require." Yet "the grievance" attempted to be redressed by the act under consideration was not a "public" one; and if it were, the obvious meaning of the article is, that such grievances should be redressed by "laws," and not by proceedings which are in their nature judgments. The constitution afterwards confers upon the legislature only legislative power, for the purpose of effecting that "redress."

The thirty-seventh article is more ambiguous. It declares that in the government of this state "the three essential powers thereof, to wit, the legislative, executive and judicial, ought to be kept as separate from and independent of each other as the nature of a free government will admit, or as is consistent with the chain of connection which binds the whole fabric of the constitution in one indissoluble bond of union and amity."

It has been contended, and we with readiness admit, that from the close of this article the inference is clear that our costitution did not intend to make a total separation of the three powers of the government. The executive was to be united with the legislative in the passage of laws; and the former was to depend upon the latter for his salary. A part of the judiciary, too, was united with a part of the legislature in the trial of some impeachments; and all of the judiciary were made dependent on the executive for appointments, and on the legislative and executive for the erection of courts, the apportionment of jurisdiction, for compensation, and for removal by address. But these connections and dependencies are not left to implication; they are all created by subsequent express provisions, and the above article was probably clothed in such cautious language that it might not conflict with those provisions: Federalist, No. 47, Mr. Madison. It means no more than a similar article in the Illinois constitution, which, after dividing the powers of government, proceeds to say (15 Niles' Register, 93): "that no person or collection of persons, being one of those departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted." For, in our constitution, if any one power, not afterwards expressly permitted or properly belonging to one

department, could be exercised by it through implication, these consequences will follow: either that no powers need have been expressly permitted or apportioned, as the whole could, through implication, be exercised by either branch; or that though some are expressly apportioned, others may be implied and expressed contrary to the spirit of what are so apportioned.

As the thirty-seventh article, then, declares the general propriety of a separation between the different departments of government, and as it contains no qualifications of that principle which are inconsistent with excluding the legislature from judicial powers properly belonging to another department, no inference from this article can be deduced that the legislature were intended to be a branch of the judiciary. In fine, that they were not so intended by this or any other part of the constitution is manifest from many more circumstances, some of which it may be proper to enumerate. At the formation of our present constitution, whatever might have been the prior connection between the legislative and judicial departments, a great solicitude existed to keep them thenceforward, on the subject of private controversies, perfectly separate and independent: Bl. Com. App. A; Letter of Judges Supreme Court of the United States, April, 1872.

It was well known and considered that "in the distinct and separate existence of the judicial power consists one main preservative of the public liberty: Bl. Com. 269; that indeed 'there is no liberty if the power or judging be not separated from the legislative and executive powers:'" Montesquieu, B. 11, Co. 6. In other words that "the union of these two powers is tyranny:" 7 Johns. 508; or, as Mr. Madison observes, "may justly be pronounced the very definition of tyranny:" Federalist, No. 47; or in the language of Mr. Jefferson, "is precisely the definition of despotic government:" Notes on Virginia, 195.

Not a single constitution therefore exists in the whole Union, which does not adopt this principle of separation as a part of its basis: Federalist, No. 81; 1 Bl. Com. App. 126, Tucker's Ed.; 3 Niles' Register, 2; 4 Id. 400. We are aware that in Connecticut, till lately, and still in New York, a part of their legislature exercises some judicial authority: 4 Niles' Register, 443. This is probably a relic of the rude and monarchical governments of the eastern world; in some of which no division of powers existed in theory, and very little in practice. Even in England, the executive and judicial departments were once united: 1 Bl. Com. 267; 2 Hutch. Hist. 107. And when our

ancestors emigrated hither, they, from imitation, smallness of numbers and attachment to popular forms, vested often in one department not only distinct, but sometimes universal, powers: 2 Wils. Works, 50; 1 Minot's Hist. 27; 1 Hutch. Hist. 30; 2 Id. 250, 414.

The practice of their assemblies to perform judicial acts (Calder v. Bull, 3 Dall. 386) has contributed to produce an impression that our legislatures can also perform them. But it should be remembered that those assemblies were restrained by no constitutions, and the evils of this practice (Federalist, No. 44) united with the increase of political science, have produced the very changes and prohibitions before mentioned. The exceptions in Connecticut and New York do not affect the argument, because those exceptions are not implied, but detailed in specific terms in their charters; and this power also, as in the house of lords in England, is in those states to be exercised in the form of judgments and not of laws, and by one branch, and not by all of the legislature: 4 Niles' Register, 444. "The entire legislature can perform no judiciary act:" Federalist, No. 47. It is questionable whether at this day such an act by all the branches of the British Parliament, though in theory omnipotent, could be inforced: 1 Bl. Com. 44; 2 Id. 344. "There is a statute, made in the fourth year of King Henry IV., Ch. 22, whereby it is enacted that judgment given by the king's courts shall not be examined in the chancery, parliament, nor elsewhere:" Doctor and Student, Dialogue 1, ch. 8.

Be this, however, as it may in that country, one great object of constitutions here (Federalist, No. 81), was to limit the powers of all the departments of government: Bill of Rights, arts. 1, 7, 8, 38. And our constitution contains many express provisions in relation to them, which are wholly irreconcilable with the exercise of judicial powers by the legislature, as a branch of the judiciary. That clause which confers upon the "general court" the authority "to make laws," provides, at the same time, that they must not be "repugnant or contrary to the constitution." One prominent reason for creating the judicial distinct from the other legislative department, was that the former might determine when laws were thus " repugnant," and so operate as a check upon the latter, and as a safeguard to the people against its mistakes or encroachments. But the judiciary would in every respect cease to be a check on the legislature, if the legislature could at pleasure revise or alter any of the judgments of the judiciary. The legislature, too,

would thus become the court of last resort, "the superior court," or "supreme judicial" tribunal of the state; and those expressions so often applied to this court in the constitution, Const., 7, 9, 22, 20, would become gross misnomers. If our legislators, too, possessed such high judicial powers, much consistency cannot exist in the provision, that "upon important questions of law and upon solemn occasions," they may be advised by the justices of this court; which, on the above principle, is inferior and subordinate. Nor is this all. "Every reason which recommends the tenure of good behavior for judicial officers, militates against placing the judiciary power in the last resort in a body composed of men chosen for a limited period. Men, too, not selected for their knowledge of the laws, nor with a view to those other qualifications which fit men to be judges: "Hamilton's Works, 255. Nor are our legislators commissioned and sworn in any manner as judicial officers are required to be. Nor can they, like judges, for malconduct, be removed by address or impeachment. Because the house themselves are the tribunal to try impeachments; and both united are the bodies authorized to present addresses for removals: Const. 13. Nor can it easily be conceived that the judiciary are independent of the legislature to any extent, however small, if the legislature itself compose a part of that judiciary.

Certain reasons induce us to rest this opinion upon general principles; but under this point it may not be unimportant to notice one consideration of a particular nature. The constitution itself seems to declare what tribunals shall exercise jurisdiction over the subject-inatter of the dispute between the present plaintiff and defendants. For it says, in express language, that till other provisions are made, the probate of wills" shall be exercised by the judges of probate," and "all appeals from the respective judges of probate shall be heard and tried by the superior court:" Const. 20. No provisions have since been made which transferred any part of the above power to the legislature.

In deciding an abstract question like this, it cannot, we apprehend, be material, whether a view is provided in appeals from courts of probate; or whether, after judgment in such appeals, a new trial could be awarded by this court on petition by the party aggrieved. Because, if all our statutes on reviews and new trials were repealed to-morrow, the legislature would possess no more authority to exercise judicial powers than they

now possess, as their authority was confined and limited by the people at the formation of the constitution, and must continue as it was then, until the constitution itself is altered. A different construction would enable the legislature, if the court of common pleas was abolished, to issue writs and try causes till other courts for that purpose were organized; and if no sheriffs happened to be in office, to proceed also to serve the writs issued by themselves.

3. As our legislature, then, are not a branch of the judiciary, it only remains to inquire, whether, without being made a branch of the judiciary, they are, either by special clauses in the constitution, or as a mere legislative body, authorized to pass the act under consideration.

The people being supreme, might, without intending to make the legislature a branch of the judiciary, have invested them, by some special clause, with that judicial power which was exercised in this act. But no such clause has been found in the constitution, and without such a clause it would be most unwarrantable to presume that the people intended to confer this judicial power on the legislature, when all the reasons before mentioned, and the spirit of the peoples' language in the whole instrument, forbid such a presumption. If our general court, then, were in any capacity authorized to pass this act, it must have been in that of mere legislators. The legislative power is surely one of the most honorable and useful in all governments. We should be among the last persons inclined to impair its rights. As it emanates more immediately from the people, it should also be ample, in order that the grievances of the people may be redressed; and we entertain no doubt that in this state, all its acts of a legislative character, not prohibited by our constitution, should be supported and construed favorably: Dash v. Van Kleeck, 7 Johns. 477 [5 Am. Dec. 291]. But those acts must, in substance, be of a legislative character. Their form is immaterial. They must be laws, must be confined to subsequent occurrences. For the very nature and effect of a new trial is a rule for future cases: 7 Johns. 503 [5 Am. Dec. 291]. They must, too, in general, be rules prescribed for civil conduct to the whole community, and not a "transient, sudden order from a superior to, or concerning a particular person:" 1 Bl. Com. 44. For every subject of this state is entitled to a certain remedy, by having recourse to the laws: Const. 14; but an act which operates on the rights of property of only a few individuals, without their consent, is a violation of the