peculiar provision in its constitution giving to the legislature of that state unusual scope; and there are many early decisions of leading judges against such a view; just as there are plenty of

That there are fundamental principles of free government underlying the provisions even of our written constitutions, unless expressly denied by them, was the opinion of Marshall, Story, Bushrod Washington, and Daniel Webster. See Fletcher v. Peck, 6 Cranch, 87, at pp. 135, 139; Terrett v. Taylor, 9 Cranch, 43, at p. 51; Wilkinson v. Leland, 2 Peters, 627, at p. 657; 5 Webster's Works, 487; 2 ib., 392; Washington's Opinion, Corfield v. Coryell, 4 Wash., 371, at p. 380; see also The Regents v. Williams, 9 Gil. & J., 365, at p. 408; Ham v. McClaws, 1 Bay, 98; Bowman v. Middleton, 1 Bay, 252; Field's dissenting opinion, Slaughter-House cases, 16 Wallace, at p. 106; Bradley's opinion at p. 116; Calder v. Bruce, 3 Dallas, 386, by Chase, J., at p. 388; Holden v. James, 11 Mass., 396, at p. 404; Austin v. Murray, 16 Pick., 121, at p. 124; Hoke v. Henderson, 4 Dev. (N. C.), 15; Atchison & N. Ry. v. Baty, 6 Neb., 37; Sweet v. Hulbert, 51 Barb., 318, 319; People v. Lawrence, 54 Barb., at p. 616; Doe's dissenting opinion, Orr v. Quimby, 54 N. H., 606; C. R. R. v. Greely, 17 N. H., 47, at p. 56; E. Kingston v. Towle, 48 N. H., 57, at pp. 60, 61; Maine v. Doherty, 60 Me., 504, at pp. 509, 510; Wheeling Bridge v. Gilmore (1894), 8 O. C. C., 658, at p. 664; Com. v. Perry, 155 Mass., at p. 121.

Cooley takes the contrary view (Const. Limitations, pp. *165-171), but his subsequent statements, though based on the threefold division of power, appear substantially inconsistent. (See *pp. 174-177.) And see, to the contrary, People v. Gallagher, 4 Mich., 244; Iredell's opinion, Calder v. Bruce, 3 Dallas, 386; Orr v. Quimby, 54 N. H., 590; Cochran v. Van Senley, 20 Wend., 365, at p. 382; Braddee v. Brownfield, 2 Watts & Serg., 271 at p. 277; Bank of

recent decisions on the bare point that state legislatures are only limited by the state and federal constitution.

Chenango v. Brown, 26 N. Y., 467, at p. 469; People v. Flagg, 46 N. Y., 404; Moor v. Veazie, 32 Me., 344.

That there are unwritten constitutional rights in this country would seem to be the theoretical principle; but there are not many actual cases directly nullifying a statute on this ground since the Revolution. As Iredell said, in Calder v. Bruce, above cited, "it is true that some speculative jurists have held that a legislative act against natural justice must, in itself, be void; but I cannot think that under a government composed of legislative, executive, and judicial departments, any court of justice would possess a power to declare it so." (See, however, Maine v. Doherty, and Sweet v. Hulbert, above; Taylor v. Porter, 4 Hill (N. Y.), 144; Bradley v. Falbrook Irrigation Co., Pac. R., and Wheeling Bridge v. Gilmore, above.) On the other hand, the better opinion would seem to be that if there be any such, the people have not waived them by adopting written constitutions, except in so far as these expressly control them. The courts, moreover, have been very broad in interpreting the provisions of the written constitutions to include such fundamental principles. In East Kingston v. Towle, 48 N. H., 57, 61, and other similar cases, the provision in the bill of rights that "no subject shall be arrested, imprisoned, despoiled, or deprived of his life, liberty, or estate but by the law

of the land," has been interpreted to mean, not any law or statute which the legislature might pass, but only a law not in violation of the fundamental maxims of justice and equity, not arbitrarily benefiting one person, or the state at the expense of another, nor arbitrarily making class distinctions. The phrases "law of the land," "due process of law," are thus made practically synonymous with what we have termed the unwritten constitution."

The Massachusetts constitutional provision (Part II., Chap. i., Sect. 1, Art. 4) expressly empowers the legislature "to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this Commonwealth, and for the government and ordering thereof, and of the subjects of the same." The word this might seem to authorize the Massachusetts Legislature to pass any laws which are reasonable and not in conflict with the provisions of the written constitution of that state. And in three instances at least the Massachusetts Supreme Court has held, twice by direct decision and once inferentially, that the legislature has power to limit or forbid the making of certain kinds of contracts concerning labor."

And of this reasonableness the courts, by the usual doctrine, may not be the judge. To leave this determination to them would be subversive of our principle of three departments of government, to determine the reasonableness of a statute being not a judicial but a legislative function. Of its constitutionality alone are the courts the judge. Moor v. Veazie, 32 Me., 544; and see next note.

Thus, Com. v. Perry, 155 Mass., 121, the majority opinion, while recognizing general freedom of contract, seems to hold that under the above provision the legislature might constitutionally forbid contracts under which the employee

But there is no such broad authority usually given to the legislatures by the constitutions of the other states. It is probable that in most of

rendered himself liable to a fine by the employer; while in Opinion of Justices, Weekly Payment Law, 163 Mass., 589, and Com. v. Hamilton Mfg. Co., 120 Mass., 383, a definite prohibition by law of certain contracts was sustained.

"Nevertheless there are similar provisions in the neighboring states of New Hampshire, Maine, Vermont, and in Georgia and Alabama; N. H. C., 1, 31; 2, 5; Mass. C., 2, 1, 1, 4; Me. C., 4, 3, 1; Vt. C., 2, 9; Ga. C., 3, 7, par. 22; Ala. C., 4, 25. But it does not appear that they have ever been construed, except in Massachusetts and Maine, to extend the power of the legislature to all things not expressly forbidden in the state constitution; and the Maine constitution expressly so requires. On the contrary, by an early opinion of the Supreme Court of New Hampshire, given in 1827 (4 N. H., 566), this constitutional limitation of the legislative authority is stated and explained as follows: "The power granted is a power to make all manner of laws and statutes which are wholesome and reasonable, and not repugnant to the constitution. It is in its nature a limited, restricted power. It is an old maxim of the common law, that when an act of parliament is against common right and reason, the common law will control it and adjudge it void; and one object of this provision in our constitution was to adopt and confirm that maxim of the common law. An act of the legislature, in order to have the force of a statute, must, therefore, be neither repugnant to reason nor to the constitution."

And in a later case, East Kingston v. Towle, 48 N. H., at p. 59, by Judge Perley, "The general court is the legislative department of the state government, and has under the constitution an ample grant of legislative power; the extent of the power is, however, limited, not only by the express prohibitions of the constitution, but by the nature itself of the

the states such power is expressly denied the legislature under their constitutional provision (inserted usually at the end of the first, or Bill of Rights section) that "this enumeration of rights shall not be construed to impair or deny others, retained by the people;" or that "all

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power granted; and to be valid and binding the act of legislature must be within the general scope of legislative authority. The power delegated by the constitution "to make and ordain all manner of reasonable and wholesome orders, laws," etc., confers no authority to make an order or law in plain violation of the fundamental principles of natural justice, though the act may not be prohibited by any express limitation in the constitution."

And in a Rhode Island case (Wilkinson v. Leland, 2 Peters, 627), occurring before the adoption of the state constitution, but under the old charter of Charles II., which gave the legislature power to make laws in the most ample manner, the United States Supreme Court, by Judge Story, held in effect that such power did not allow the legislature to interfere with general rights of personal liberty and property based on unwritten constitutional principles, and said (p. 657), "No court of justice in this country would be warranted in assuming that the power to violate and disregard them—a power so repugnant to the common principles of justice and civil liberty-lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security and well-being, without very strong and direct expressions of such an intention."

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Me. C., 1, 24; R. I. C., 1, 23; N. J. C., 1, 21; O. C., 1, 20; Io. C., 1, 25; Minn. C., 1, 16; Kan. C., B. Rts., 20; Neb. C., 1, 26; Md. Decln. Rts., 45; Va. C., 1, 21; N. C. C., 1, 37; Mo. C., 2, 32; Ark. C., 2, 29; Cal. C., 1, 23; Ore.