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tent cannot be attributed to a corporation, in its corporate capacity, it is not indictable for those crimes, of which malice or some specific criminal intent is an essential ingredient." "The distinction seems to be between acts injurious in their effects, and for which the actor is liable without regard to the motive which prompted them, and conduct, the character of which depends upon the motive, and which apart from such motive cannot be made the ground of a legal responsibility. If this distinction is well taken, it would follow that since a corporation, as such, is incapable of malice, it is not liable to be sued for a malicious prosecution." "And such appears to us to be the better opinion, although we are aware that there are authorities which seem to sustain the idea that an action for a malicious prosecution may be maintained against a corporation." This is founded on Childs v. Bank, 17 Mo. 213, and on dicta in Stephens v. Midland Counties Co., 10 Exch. 352, and McLellan v. Cumberland Bank, 24 Me. 566.

ciples." The action "involves nothing more than a wrongful act intentionally done."

The same was held in Fenton v. Wilson Sewing Machine Co., 9 Phila. 189, where the authorities are exhaustively reviewed. So in Copley v. Grover & Baker Sewing Machine Co., 2 Woods, 494 (Alabama Federal Circuit), where the Owsley case was disapproved. The court said: "It is not true that a corporation has no mind. Its mind is the joint product of the minds of its officers and directory in a united organization, and in point of fact corporations bring into their service the highest order of ability and the best executive talent in the country." This is rested chiefly on Railroad Co. v. Quigley, 21 How. 202.

In Stevens v. Midland County Ry. Co., 10 Exch. 352, Alderson, B., obiter expressed an opinion that the action would not lie, but the decision was put on another ground. In Whitfield v. Ry. Co., E. B. & E. 115, Lord Campbell overruled a demurrer in such an action, observing "there may be great

against a corporation."

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 the liability of corporations for assault and battery, malicious prosecution, or slander; and admits that corporations may be liable in such actions, if the act comes within the purview of their charter powers and is within the scope of the agent's authority, or is ratified. But the alleged malicious prosecution there being a criminal prosecution for embezzlement, it was held that this was not within the scope of the corporation's general or special powers, and therefore the action would not lie.

On the authority of the Gillett case, the case of Iron Mountain Bank v. Mercantile Bank, 4 Mo. App. 505, holds that a corporation may be liable for a malicious prosecution, and says "there has been a complete change in the rulings in this respect since Childs v. Bank of Missouri was determined." The case of Carter v. Howe Machine Co., supra, was exactly like the Gillett case in circumstances, and it was held that although a corporation is liable to an action for malicious prosecution, yet in such a case the agent must be shown to have express authority for his act, or it must have been ratified.

The doctrine of the principal cases was held in Vance v. Erie Ry. Co., 32 N. J. L. 334. The court

A corporation is civilly liable for vexatiously obstructing one's trade, Green v. London Omnibus Co., 7 C. B. (N. S.) 290; for assault, East Counties Ry. Co. v. Broom, 6 Exch. 314; Moore v. Fitchburgh Railroad, 4 Gray, 465; Hanson v. European & N. A. Ry. Co., 62 Me. 84; S. C., 16 Am. Rep. 404; McKinley v. Chicago, etc., R. Co., 44 Iowa, 314; S. C., 24 Am. Rep. 748; Passenger R. Co. v. Young, 21 Ohio St. 518; S. C., 8 Am. Rep. 78; for false imprisonment, Owsley v. R. Co., supra; for libel, Phila., etc., R. Co. v. Quigley, 21 How. 202; for nuisance, First Baptist Church v. R. Co., 5 Barb. 79; and may be indicted for obstructing a highway, Reg. v. Gt. North of Eng. Ry. Co., 9 Q. B. 315; for libel, State v. Atchison, 3 Lea, 729; S. C., 31 Am. Rep. 663; for Sabbath breaking, State v. Balt. & C. R. Co., 15 W. Va. 362, post; and may be punished for contempt, People v. Albany & Vt. R. Co., 12 Abb. Pr. 171; 3. C., 20 How. Pr. 358.

OBSERVATIONS ON THE PARTICULAR
JURISPRUDENCE OF NEW YORK.

VI.

governmental relations existing at the outbreak

rested upon English cases, hereinafter cited, and THE FOV Revolution between England and her trans

said: "If actions for malicious libel, for vexatious suits, for vexatiously and maliciously obstructing another in his business, for willful trespasses, and for assault and battery, in each of which the motives and intent of the mind are directly involved, can be maintained against a corporation aggregate, no reasons, founded on principle, can be suggested why an action for malicious prosecution should not also be sustainable against a corporation." "When the nature of the action is considered, it comes strictly within the principles by which the actions above enumerated are maintainable." "To hold a corporation amenable to this particular action is strictly in accordance with well-settled legal prin

Atlantic colonies were very different from what they had been in the preceding century. The English Constitution, the product of purely local conditions and agencies, had not originally contemplated colonization, for it was built up with the feudal system which demanded a certain contiguity between the lord paramount and his feudataries.

The vast intervening distance of America rendered such a contiguous relation impossible, except in theory; here the king was compelled either to delegate some portions of his prerogatives by written mandates, or authorizations, to resident governors and agents, or else to parcel out these distant dominions by formal grants, after the established precedents, such as counties palatine or the remnant of the duchy of Normandy. Those written delegations, or grants, as they

narrowed the powers of the governing classes and defined the rights of the colonists, came finally to be considered colonial Constitutions, and it is easy to discern that they gave a vast impetus to the AngloAmerican conceptions of constitutional government, and perhaps even suggested the formal constitutions of the Revolutionary period. By the beginning of the eighteenth century, the colonial governments, judicatories and jurisprudence had become somewhat settled, and the early pretensions of the crown correspondingly restricted.

The original motive of the American Revolution-a motive not difficult to discern, but in a juristic sense, most importaut to remember was the vindication of the paramount rights conferred by the colonial Constitutions. The Revolution, at last, became a necessary protest against the violations of what had come to be considered as the fundamental law. A careful regard to the motive of the Revolution, is observable in the frame of the first State government erected by the Constitution of 1777, on the ancient law of the land. This Constitution imposed no violent changes; it preserved much that was old, and that which was new harmonized well with that which was old. It is not necessary to this conclusion to maintain that the mere externals of the former government remained after the Revolution, for externals of government are secondary; there may be, under liberal guises, most violent tyrannies and e converso. It may be said that the new form of government was founded in pursuance of the original motive of the Revolution, because it was founded on those institutions of the common law which have unquestionably been the progressive forces of the Anglican type of law and liberty, and for which the colonists always distinctly contended. This consummation of the original motive of the Revolutionists may be termed the jurisprudential lesson of the Revolution.

Prior to the outbreak of the Revolution, the king was here, as elsewhere in his dominions, parens patriæ, a constituent part of the provincial legislature, the general conservator of the peace, the fountain of justice, the generalissimo of the provincial armed forces, and the fountain of all honors, offices and privileges. All this he was, not in a purely theoretic sense, but in a juridical sense and in the sense of the colonial Constitutions. He was the prosecutor for all crimes and offenses of a certain grade, because it was he who was injured, and it was his peace and dignity which were offended. These notions, feudal though they were, entered largely into the practical conceptions of the colonial jurisprudence, and it is impossible to account for certain features of our present jurisprudence without a reference to them. The practical deposition of the king was an overt act of the Revolution, and for a time all his functions, powers and dignities essential to government were vested in revolutionary and temporary governments by committees, delegates and congresses; but on the establishment of the State government, they were, in this jurisdiction, distributed under the State Constitution. It is this historical fact which has caused so many feudal notions and abstractions to survive side by side with an opposed democracy. Our jurisprudence is a mosaic of many textures, one of which is the feudal conception of law in certain of its relations.

Actual hostilities between the king and Parliament on the one side, and the united colonies on the other, began with the battle of Lexington and Concord on the 19th of April, 1775. At the commencement of the struggle temporary governments by committees and congresses were formed in New York. (Butler's Const. Hist'y N. Y. 48.) On the 10th of May, 1776, the Continental Congress recommended that those colonies which were without a sufficient form of government should adopt some suitable government. This resolu

tion was read in the Provincial Congress, then sitting at the City Hall in New York, on the 24th day of May, 1776, and a committee was appointed to consider the matter (Jour. Prov. Cong.); they reported, "that the right of framing, creating and new modeling civil governments is and ought to be in the people." Doubting their power to form a government, the Provincial Congress recommended the election of new deputies, who should be constituted specially for such a purpose. The new Congress having been accordingly elected, met at the Court-House in White Plains, Westchester county, on the 9th day of July, 1776, and on the next day changed the title of the Congress of the Colony to that of the "Convention of the representatives of the State of New York."

On the 16th of July, New York being closely beset by the British forces, the convention postponed the formation of a State government until August following. Meanwhile, all magistrates and officers of justice were requested to exercise their respective offices, provided that all processes and proceedings were under the authority and in the name of the State of New York. This, it will be perceived, was a formal substitution of the State, that vague nomen generalissimum,* for the king, who had ceased to be here the fountain of justice, the offended prosecutor of crimes and the general conservator of the peace. When the convention, pursuant to its adjournment, met in August, a committee was appointed to take into consideration a plan for instituting and framing a State government. (Journ. Prov. Cong., Aug. 1, 1776.) On the 13th of March, 1777, the first section of the Constitution was agreed to; but the debates on the various sections continued at adjourned meetings until Sunday, the 20th of April, 1777, when the entire instrument was finally adopted and promulgated as the supreme law of the State.

Were the particular reasons which occasioned the adoption of the various sections of the first Constitution better known than they now are, it would, in a desultory sketch like the present, be impossible to discuss them in detail. But, owing to circumstances, much of the necessary material for such a discussion is wholly wanting; it is supposed by some antiquarians that a considerable portion of the minutes and memoranda of the first committee on government are yet extant, though but one fragment is either printed or attainable. (Col. of N. Y. Hist. MSS., Revolutionary Papers, Vol. I, p. 552.) It is more easy to credit this when we reflect that as late as 1818, over forty years after its adoption, the State did not possess the original Constitution; it was in the hands of a private gentleman. (Assembly Journ., Feb. 11, 1818, p. 156.) Even the principal authorship of the State Constitution - though generally attributed to Mr. Jay-is uncertain. There is specific proof that Mr. Jay objected to some of its provisions (N. Y. Col. Rev. Papers, 678); and it is asserted in the late history published from the manuscript of the Tory Judge Jones, that the historian William Smith, who later on deserted the popular cause, was its main author. (1 Joues' Hist'y N. Y., p. 143.) However this may be, all must concede the inspiration of its text. It is unnecessary to pursue the historical aspect of the Constitution farther; the late Centennial has added much to the literature of the subject. (See Stevens' Birth of the Empire State, 3 Mag. Am. Hist'y, 1; O'Conor's Centennial Address before the N. Y. Hist. So., 1877; Centennial Celebration of the State of N. Y., Weed, Parsons & Co.; see, also, Butler's Outline of the Const. Hist'y of N. Y.; Address of Chan. Kent before N. Y. Hist. So., December 6, 1828; Sparks' Life of Morris; Life of John Jay, by his son.)

The first Constitution of this State was a statute

* Used formerly in England to designate the government under Cromwell.

enacted by the suffragists of the old province, acting through a convention delegated for the express purpose. It is not difficult to discern that this instrument was the product of the common law, for the terminology and the peculiar institutes, the ear-marks of the common law, are visible in its every line. Such changes as it imposed were the inevitable results of historical forces applied to colonial conditions. Therefore its construction and its development must be read, as its framers intended, by the light of the accumulated experience and history of the common law in this country and in England; or else, sophists, Constitution-menders and empiricists will ultimately subvert what remains of it, possibly to substitute something better, but probably something worse.

Few of the features of the first Constitution were novel. There is perhaps no better illustration of this fact than Sparks' accidental commentary, contained in the "Life of Gouverneur Morris" (1 Vol., p. 121): Speaking of the formation of the State government, this author says: "The greatest difficulty was experi"enced in determining where to lodge the power of "appointing officers both civil and military, and by "what mode this power should be exercised. No won"der that this should prove a perplexing topic to new "beginners in the art of government-making, and "especially when a plan embracing many original and "untried features was to be contrived. It was easy to "form a practical system for regulating the powers "and proceedings of the executive, Legislature and "judiciary, as far as the specific duties of each were "concerned, and also the electoral franchise- because "there were very good models in several of the old "colonial governments, and experience afforded all "necessary light." This is a startling commentary on the novel features of the new Constitution, for it would seem that the judicature, the Legislature and the executive, the three great branches of government, were left substantially to the old model, while the main attention of the founders of the new government were directed to the method of appointing the placemen. But, yet, this was not an oversight; it was the result of design. The Revolutionary statesmen were not doctrinaires; they were wise and patriotic. It would have been as easy a task to have overthrown the old institutions as it was to preserve them; for the new Constitution was not submitted to the people and it was enacted in a time of great public excitement. The reason why so many of the former features of government were retained, is explained by the reply of John Adams to Mr. Turgot's strictures on the resemblance of the American Constitutions to the English model. He says, in substance, that the colonial plans of government were retained after the Revolution because they were founded in nature and reason, and the people were attached to their familiar features. (Adams' Am. Const., 1 Vol., p. 5.) The Revolution was not waged against these things; it was waged against the king and the Parliament, not against the common law, nor the familiar institutions including the legislative plan, the juridical structure and the general administrative features of government. Hence it was that the Revolutionary statesmen were not doctrinaires.

The first great statute of this State, termed the Constitution, begins with an important preamble in justification of the change of government which it inaugurated; it recites the several steps taken toward this new establishment and concludes, that by virtue thereof all powers of government had reverted to the people. This conclusion, in connection with the first section of the enacting part of the Constitution, was a most explicit enunciation of the doctrine of popular Sovereignty-but of popular sovereignty in a more restricted sense than we now understand the term. The enlightened theory of manhood suffrage came long

after the establishment of the new government by the freeholders of the province. Mr. O'Conor, in the address already referred to, has termed the constitutional declaration that the people were the only source of power, the new political institute. Yet theoretically this institute was not new. The eighteenth century had been the very elysium of political theorists, and many writers of different nations had advanced the proposition that the existence of all States was based on the will of the persons composing them, or upon the social compact. The Constitution of New Jersey, adopted in the year prior to 1777, had contained the recital," that all the constitutional authority ever possessed by the kings of Great Britain over these colonies, or their other dominions, was by compact derived from the people and held of them for the common interest of the whole society;" thus, it is evident that the doctrine embodied in the Constitution was new rather as an institution than as an institute.

To what class of governments the new State government created by the Constitution may most properly be determined, it is not proposed to consider; it may be generally described as of the parliamentarian type. There is reason to suppose that if any violent or radical changes had been made in the pre-existing legislative or judicial institutions they would have alienated the conservative portion of the continental party. For a like reason, the former freeholders of the province were retained as the basis of the future government; and thus all reasons for dissatisfaction were allayed.

The sections of the Constitution which are of paramount importance to the discussion of our subject are those which relate to an institutional Legislature on the Anglican plan, the new and old limitations of the legislative power, the judicatories and the jurisprudence of the new State. A very slight reference to the executive and to the other distributaries of the administrative functions of government will suffice.

The entire legislative power was vested in two separate and distinct bodies; the lower of which retained its provincial name, the Assembly, and the upper of which received that dignified title, the Senate. Their resemblance to the former legislative chambers was so marked as to cause them to be functionally indistinguishable. Referring to the upper branch of the State legislature, Mr. O'Conor says: "The only State organism that bore any shadow of resemblance to the English House of Peers was the Senate; and there, in the closest imitation of our parent state, the Constitution enthroned the supreme judicial power, with final appellate jurisdiction in law and equity. Grace and majesty shone forth in the copy as the original." The resemblance which the Senate bore to the House of Lords was, indeed, slight, for it was modeled on the provincial council, which also had appellate jurisdiction in law and equity. The framers of the State government, intimately acquainted with the organization of tho legislative council, naturally chose for a model that body with which they were most familiar, and whichby reason of inherent differences, other than the mere titular dignity and tenure of the members-was a much more desirable model than the House of Lords. What these differences were, we shall have occasion to consider in connection with the extraordinary powers ultimately assumed by the judicial branch of the new government. The leading authorities seem to indicato that the council of the province was unquestionably the model of the State Senate. (Int'd to Journ. of Leg. Council of N. Y., p. xxvi; Col. Doc. III, 624, 628; Journ. Leg. Council; 1 Smith's Hist'y N. Y. 305; Butler's Const. Hist'y N. Y., p. 42.)

Unaccustomed to unlimited legislation, and fearful of the misuse of such vast powers, the Revolutionary Statesmen devised a very remarkable check upon hasty legislation. The third section of the Constitution provided for a revision of all bills by a council cousist

ing of the governor, the judges of the Supreme Court and the chancellor, or any two of them. The Council of Revision thus possessed a qualified veto or negative on legislation-qualified and limited for the reason that, by a two-third vote in both houses, any objection which the council reported might be ignored. During its existence the council objected to one hundred and sixty-nine legislative bills, fifty-one of which, nevertheless, became laws. The report of their opinions is valuable as an exposition and construction of the Constitution. (Street's "Council of Revision.")

The new Legislature, as thus established, contained within itself the power of enacting laws- but not all laws. Their law-making power was restricted by the very statute which conferred such power. Both houses of the Legislature were constituted the sole judges of their respective memberships - a grant which bore the mark of a historic struggle. But, in other respects, their procedure was not left optional; the whole body of the legislative customs and usages, which are sometimes termed the parliamentary common law, were made obligatory on them. This was a minor limitation. The major was, that the character of their legislation should conform to the canons of the jurisprudence of the common law. The framers of the new government unquestionably intended that such of the provisions of the common law of England and of the statute law of England, Great Britain and the former province, as were not repugnant to the Constitution itself, should remain the basis of the future laws of the State, for the Legislature was invested with a power to make alterations only concerning the same. Subject to such alterations and provisions as the Legislature should make concerning it, the ancient law, as it stood at the date of the battle of Concord and Lexington, was continued or established as the future law of the State. This provision of the first Constitution was adopted substantially in the existing Constitution.

What legislative alterations in the fundamental juridical law were contemplated by the framers of the government remains, therefore, a question of moment and we may digress to consider it. The legislative power of altering the fundamental law may be construed in two ways, quite opposed and divergent. One construction permits the total abrogation of the ancient law and the substitution of another juridical system of laws. The other construction preserves the rationale of the ancient law and confines the power of the Legislature to that of altering, in the sense opposed to annihilating, the ancient law. For the first sixty years of the State government the latter construction prevailed, not only in the courts but in the Legislature. Clearly, it is the latter construction only which is consistent with the bill of rights sections of the Constitution; for these sections, without the essentials of the jurisprudence of the common law, would be very ineffectual guarantees of personal liberty and security. When an entire revolution in the present organic juridical law of the State is proposed, there will inevitably be two schools of lawyers, who, in their consideration of the power of the Legislature to alter such fundamental law, will be as opposed as the Sabiniaus and the Proculians ever were, or could have been. Whence this proposal to change the existing laws may come, or how it may come, is at present but partially indicated. There are already rumors of a contemplated National Code of laws which shall tend to unify the laws of the several States, and which may subvert the particular jurisprudence of this State. Such a Code, as it tends to the exaltation of the general government, will prove alluring to those with whom the magnificence and the power of the nation are paramount to all other considerations; therefore, while its achievement is, in all probability, remote, it is possibly not so remote as we conceive. It is, how

ever, most probable that the proposal to revolutionize the inherited jurisprudence of this State may come from within the State itself; that it will be gradual, or almost imperceptible; but however the proposal may come or whence it may come, if due regard is had to the genius and the historical forces which have developed the jurisprudence of the common law, the essentials of this system will be retained. Neither is such a retention inconsistent with the repeal of archaic niceties; nor, with alterations, in the true sense of the term, tending to adapt the present jurisprudence to the ever increasing complications of modern society. The ultimate codification of the entire body of the law of this State is not inconsistent with the retention and preservation of those leading principles of law and liberty which underlie the Anglo-American type of government and civilization. The danger to be apprehended from certain forms of codification is, that attracted by the skillful statutory arrangement and disposition of the Roman law, we may be thereby induced either to discard some essential principle of inestimable value to the jurisprudence already in force for over two centuries of our history, or else to incorporate some principle subversive of the existing type of law and liberty. Without adverting to the respective merits or demerits of the two great systems of jurisprudence termed the Roman or Civil law and the Anglican or Common law, it is but proper to remark that in their developments there seem to have been certain opposed forces leading to widely divergent results. The tendency of the common or Anglican law has been toward an alliance with progressive freedom, self-government, open and popular judicatories, and democratical institutions; the tendency of the Roman law, to an association with centralized administrations, despotic governments, secret and inquisitorial judicatories, and imperial institutions.* The common law is crude in its arrangement and development; but from the complicated nature of its procedure and administration it is difficult to corrupt or pervert; on the other hand, the Roman law is subtle and philosophic in its disposition; but from its inevitable and absolute dependence on the State and the Legislature, it is of uncertain value to institutional liberty. A codification which has indistinct reference to the spirits of the differences indicated is an alteration in the ancient law, the dangers of which we have digressed to consider; for, until it is determined how far the particular canons and even the terminology of the common law affect the citizen in his relations to the family institution and to the State, it is too soon to undertake to alter such canons and terminology on the plea that they are barbarous, or cumbersome and unphilosophic. While these considerations are, perhaps, foreign to our theme, they are yet illustrative of the changes which, under some circumstances, may yet ensue in the jurisprudence which was established by the framers of the Constitution as the future law of this State.

The government established by the Constitution of 1777 whether it be termed an aristocratical or an oligarchical republic, or a democratical republic is of

By this observation it is not intended to ignore the historical fact that Anglican jurisprudence owes much to Roman law. But what it thus owes it owes mainly to the private law not to the public law of the Romans, and the question naturally suggests itself "how far are the public and the private law of the Romans interdependent?" The remark in the text is unquestionably predicated on an assumption based on effects only. Yet modern discovery seems to be demonstrating that many of the best features of the jurisprudence of the common law are due to Germanic rather than to Roman institutions. It is however too soon to decide this moot point. Until it is decided it must be apparent that the considerations stated in the text should be regarded even in the work of codification.

the provincial practice; for they were ordinarily members of the council, and sat as part of the magna curia or judicial branch of the Legislature, but they could not vote on appeals from their own judgment, yet might deliver arguments in support of the same-another peculiar feature perpetuated in the court of errors of the State (§ 33, Const. 1777; Forsey v. Cun

no consequence- unquestionably bore a close resemblance to the government which preceded it. It was a modification of the provincial government and but little more; Turgot, John Adams, Jefferson, Wilson, Story, Everett and Lieber have substantially stated such to be the fact. The bicameral Legislature, the power of the legislative houses to be the sole judges of their own memberships, the method of choosingningham, N. Y. Hist. Soc. Col.) From the earliest

the presiding officer of the more popular branch, the parliamentary common law, the veto on legislation, the bill of rights, the judicature, the jurisprudence and the franchises, were all provincial institutions continued after the Revolution by virtue of the Constitution and because they were associated with all that was wisest and best in the previous history of New York. The Revolution was not a war against these things; it was a war for these things- the common porperty of the Anglican race.

The sections of the Constitution relating to the qualification of electors, voting by ballot instead of by the former viva voce method, naturalization, religious liberty, militia service, and the purchase of lands from the Indians are discussed by Mr. Stevens in his historical essay on the Constitution (3 Am. Mag. Hist. p. 1), and it is unnecessary to consider them in connection with the subject of this paper.

The supreme executive power and authority were vested in a governor to be chosen from and by the freeholders of the State. The manner in which the chief executive was chosen was entirely novel, but his powers corresponded to those enjoyed by his predecessor, the governor of the province. He was commander of the military forces and the chief magistrate of the State; he possessed the authority to convene and prorogue the Assembly on extraordinary occasions. The Constitution contemplated also a message from the executive, addressed to the Legislature, according to the former practice in the province. To aid the chief executive the office of lieutenant-governor was continued, with a modification which made him exofficio president of the upper legislativo house. The powers of the executive were, in comparison with the powers subsequently delegated by the Federal Constitution to the chief executive of the nation, carefully prescribed and limited, with a view to the prevention of the arbitrary conduct manifested by the governors of the province. The council of revision shared with the executive the responsibilities of the veto, and the council of appointment was invested with the power of appointing all officers whose selection was not otherwise determined by the Constitution. The pardoning power of the executive was also restricted.

The judicature, which rapidly became a co-ordinate branch of the new government, received, it is thought designedly, very little attention at the hands of the framers of the Constitution. One new tribunal of justice only was created, the court for the trial of impeachments and the correction of errors. It consisted of the president of the Senate, the senators, the chancellor and the judges of the Supreme Court, or a quorum of them. When this court sat as a court of impeachments, the chancellor and Supreme Court justices, if impeached, were disqualified from sitting in judgment on themselves—a provision evidently supererogatory. The power of impeaching all officers of State was, in analogy to the practice in England, vested in the lower house of the Legislaturo.

The conception of vesting the supreme appellate jurisdiction in the upper legislativo house was derived by the framers of the State government from the familiar practice in vogue in the provincial era, when appeals lay to the provincial council. This council had possessed judicial as well as legislative and councilling powers; it was magna curia of the province. So, in all probability, the designation of the judges and chancellors as members of the court of errors arose from

times in the province of New York magistrates were debarred from deciding appeals taken from their own judgments ("Duke's Lawes, A. D. 1664.)

The continuance of the Supreme Court of Judicature of the province and the old Court of Chancery was evidently contemplated by the framers of the State government. The Constitution provided for the tenure of the judges of such courts and eis nominibus made them members of the future council of revision and of the court of errors; yet in no more direct way were these fundamental courts of the common law perpetuated. It is a noteworthy fact, that both these high courts of justice, thus impliedly transferred to the new order of things, had been either erected or continued by virtue of ordinances promulgated by the royal governors of the province without, and, indeed, contrary to, the assent of the Legislature. These ordinances had originally provoked hostility, for the Legislature maintained that the governor had no power to act, in this regard, without their concurrence. It is highly probable the framers of the Constitution had abandoned the old objections to the ordinances founding these courts, which always bore a political rather than a legal complexion. Or, it is possible, that with the reverence formally felt for the common law, the theory -that the jurisdiction of the fundamental courts was derived from the common law - obtained and they were considered as falling within such parts of the common and statute law of England as were adopted by the 35th section of the Constitution. However the fact may have been, these courts of general jurisdiction, in law or equity, continued substantially on their old foundations until the Constitution of 1846.

The original Constitution enlarged that "resolve" of the convention of the representatives of the State which first provided that legal process and proceedings in the courts of the Revolutionary era should be in the name of the State, by ordaining that they should thenceforth run in the name of the People of the State.

It is unnecessary to refer to the "Bill of Rights" sections of the Constitution; they were not original or peculiar, and their particular provisions were in the main adopted as a whole by the 35th section which made the common law the future law of the State, Their specific enactment was, therefore, unnecessary. The historical facts narrated, together with the legitimate inferences drawn therefrom, tend to verify the observation, that revolutions work gradual, rather than abrupt and radical, changes in the ancient laws of a State.

JURISDICTION OF FEDERAL COURTS OVER SUITS BY STATES.

SUPREME COURT OF THE UNITED STATES, NOV. 8, 1880.

NEW ORLEANS, MOBILE AND TEXAS RAILROAD Co., Plaintiff in Error, v. STATE OF MISSISSIPPI. Upon the authority of Cohens v. Virginia, 6 Wheat. 375; Osborne v. Bank of United States, 9 id. 816; Mayor v. Cooper, 6 Wall. 250; Gold-Washing and Water Co. v. Keyes, 96 U. S. 201, and Davis v. Tennessee, 100 id. 264, held to be settled law:

That while the 11th amendment of the National Constitution excludes the judicial power of the United States from suits, in law or equity, commenced or prosecuted against one of the United States by citizens of another State, such power is extended by the Constitution to

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