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by the universality of the language. These provisions cannot be intended to prohibit a court of chancery from deciding cases without the intervention of a jury; because both constitutions, as we have seen, provide for the exercise of chancery powers. Nor can they be intended to require that justices of the peace should, in all cases, be assisted by a jury; for as their jurisdiction is never final, the parties may, by appeal, obtain the verdict of a jury, if they desire it. And lastly, it has been decided (a) that a jury need not necessarily consist of twelve men, though this is the usual number. The spirit of the declaration is, that the power to decide upon law and fact shall not be committed to the same individuals; but it is left to the legislature to determine how many persons shall be judges, and how many jurors. To guard against the abuse of this right of redress, it is made penal for any judicial or ministerial officer connected with the courts, or any attorney or counsellor at law, to encourage, excite, or stir up any suit, quarrel, or controversy, with intent to injure the persons concerned. But we have no provision against maintenance and champerty, as understood at common law. (b) Maintenance was "an officious intermeddling in a suit that no way belongs to one, by maintaining or assisting either party with money or otherwise to prosecute or defend it. Champerty was a bargain with a plaintiff or defendant to divide the land or other matter sued for between them, if they prevail at law; whereupon the champerter was to carry on the party's suit at his own expense Blackstone adds, " in our sense of the word, it signifies the purchasing of a suit, or right of suing; a practice so much abhorred by our law, that it is one main reason why a chose in action, or thing of which one hath the right but not the possession, is not assignable at common law; because no man should purchase any pretence to sue in another's right. But although we do not punish maintenance and champerty as offences, it has

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of guilty. Hirn v. Ohio, 1 Ohio State, 23. It is now held that this right can be waived in a criminal case. Daily v. The State, 4 id. 57; Dillingham e. The State, 5 id. 280. But in Williams v. The State, 12 Ohio State, 622, the attorney-general in open court submitted to the reversal of a judgment rendered in a prosecution for altering bank notes, when the defendant had waived a jury and consented to be tried by the court, upon the ground" that upon the trial of an issue raised by a plea of not guilty in the higher grades of crime, it is not in the power of the accused to waive a trial by jury, and by consent submit to the facts found by the court, so as to authorize a legal judgment and sentence upon such finding;” and the court agreed in this opinion. This case, so far as it conflicts with them, overrules or qualifies those last cited. It may also be waived in a civil case. Gest v. Kenner, 7 Ohio State, 75. See ante, p. 196, note. No person can be compelled, without his assent, to submit his suit to arbitration. People v. Haws, 37 Barb. 440. A State law suspending the privilege of a certain class of persons to prosecute and defend actions, is a violation of the constitution of Iowa and of the United States. Wilcox v. Davis, 7 Minn. 23.

(a) Hunt v. M'Mahan, 5 Ohio, 133; Beekman v. Saratoga Railroad Company, 3 Paige, 45. But see Lamb v. Lane, 4 Ohio State, 167. And outside of Ohio the general rule is, that a jury must consist of twelve men. Opinion of Justices, 41 N. H. 550; Vaughn v. Scade, 30 Miss. 600.

(b) 4 Black. Com. 184, 135; Key v. Vattier, 1 Ohio Rep. 132. Cain v. Monroe, 23 Geo. 82; Harring . Barwick, 24 id. 59. Maintenance does not extend to a fair bona fide purchase of a chose in action made for the purpose of securing payment of an antecedent debt. Sayles v. Tibbetts, 5 R. I. 279.

been held that a contract, the making of which would constitute either of these offences at common law, is void as against public policy. (a) This does not prevent a lawyer from making a valid bargain or fee, and even a contingent fee; but if he should add other stipulations, such as paying all costs himself, and prohibiting a compromise without his consent, the contract would then be void. And we shall hereafter see that the doctrine of choses in action not being assignable, because it would encourage litigation, exists now merely in name.

§ 89. Right of changing Government. (b) If all the means before enumerated should fail to secure the happiness of the people, there remains finally, as a last resort, the right of changing their form of government. The Declaration of Independence, after enumerating the ends of government, asserts "that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it." This indeed is self-evident, since all power comes from the people. They have created the government, and may destroy it, when it ceases to satisfy them. Delegated power, as above stated, is not irrevocable. The language of our State constitution does not even make the right of changing government depend upon the fact of its having failed to answer its ends; but asserts it without qualification or condition. "All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary." But it is needless to enlarge upon the general right of revolution. It must of necessity exist, whenever a majority desire it, even though the existing government should be in terms made perpetual, as some of the provisions in our constitutions are declared to be. To guard, however, against the evils of a revolution, every constitution provides for its amendment, (c) though generally by something more than a bare majority. The federal constitution may be amended as follows: Amendments may be proposed, either by two-thirds of both houses of Congress, or by a convention called by Congress, on the application of the legislatures of two-thirds of the States. But in either case, such amendments must be ratified by the legislatures or by conventions of threefourths of the States, according as one or the other mode may be proposed by Congress. But no amendment can be made to deprive

(a) Backus v. Byron, 4 Mich. 535; Scobey v. Ross, 13 Ind. 117; Weakly v. Hall, 13 Ohio, 167; Key v. Vattier, 1 id. 132. See Sedgwick v. Stanton, 4 Kern. 289; Roberts v. Cooper, 20 How. 467: Hay v. Cumberland, 25 Barb. 594.

(b) See Luther v. Borden, 7 How. 1.

(e) The first proposition in the convention was, that Congress should have no voice in amendments. Mad. Pap. 734, 844. This was afterwards stricken out. And it was simply resolved that amendments should be provided for id. 1175. It was then proposed that Congress should call a convention, on the application of two-thirds of the State legislatures-id. 1241, 1533-41. Finally, after considerable difference of opinion, the clause was placed in its present shape-id. 1590-3. A proposition that amendments proposed by the State conventions should be referred to another general convention, was unanimously negatived — id. 1593-5.

any State of its equal suffrage in the senate. Thus far, twelve amendments only have been made: the first ten in 1789; the eleventh in 1798, and the twelfth in 1803. (a) A thirteenth was proposed in 1811, and is sometimes published as an amendment, but it never was ratified by the requisite number of States. The State constitution may be amended as follows: Three-fifths of the members elected may propose amendments to be voted upon by the people. Or two thirds may propose the calling of a convention, which shall be done if a majority of the voters at the next election shall sanction the proposition. And once in twenty years, beginning with 1871, a vote is to be taken upon calling a convention, without any action of the legislature.

Here, then, terminates our view of constitutional law. I have commented, in the brief and general manner required by my plan, upon all the provisions of the federal and State constitutions. I have endeavored so to arrange the subjects as not to burden your memory, and at the same time to exhibit, in juxtaposition, the corresponding provisions of both constitutions, as well as the points of difference. If I have done any thing like justice to this great branch of law, I have exhibited the full reality of that theoretical organization described in the second lecture. In a word, I have sketched the most perfect system of civil polity the world has ever yet seen. One matter of regret, however, deserves to be mentioned. The maxim, stare decisis, so essential to stability in the administration of public affairs, has not been sufficiently regarded. It does not seem to be the American disposition to adhere to established decisions. I have remarked upon the frequency with which judicial precedents are overruled, when speaking of the common law; but I now refer more particularly to the decisions upon constitutional law. We have seen that half a century of trial has discovered many weighty questions not directly settled by the constitution itself. These have been discussed before the proper tribunals, as long as new light could be thrown upon them, and then finally decided. In most instances, all the departments of government have concurred in the determinations; and a general acquiescence in them, for a series of years, has given them, over well-constituted minds, all the authority of express constitutional declarations. And yet how few of these solemn decisions have been suffered by politicians to stand as settled principles! All have been repeatedly assailed, and many completely subverted. At this moment, hardly a single construction, once doubtful, can now be considered as established in the minds of the people. And if fifty years will not compose doubts of this kind, will as many centuries do it? The advocates of arbitrary power are, doubtless, right in pointing to this instability, this incessant fluctuation of opinion, as the most vulnerable part of our system; but I trust that this is only an accidental, and not an inevitable, result of the freedom of

(a) Two more have since been adopted, making fourteen, and a fifteenth has just been proposed by Congress.

opinion. Surely, submission to the decisions of the constituted authorities is not incompatible with freedom of opinion. And it seems to me that one of the first lessons to be inculcated upon every American mind is to acquiesce in established constructions until they shall either be ratified or reversed by constitutional amendments. What if they do not fully meet our individual approbation? Patriotism and magnanimity require us to sacrifice our predilections for the public good. The same conciliatory and compromising spirit which produced our government can alone perpetuate it. We have an illustrious instance of this spirit in Franklin. As a member of the convention which framed the federal constitution, he had sincerely opposed many of the propositions which finally prevailed; but when the great work was finished, he addressed the convention in favor of unanimously signing the constitution; and these were a part of his words: "I consent to this constitution, because I expect no better; and because I am not sure that it is not the best. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die." Could we but adopt and practise these sentiments, with regard to the questions which have since arisen, and been constitutionally decided, there would be no shadow upon the prospect of our permanency.

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PART III.

THE LAW OF PERSONS. (a)

LECTURE XII.

CORPORATIONS. (b)

§ 90. The Nature of Corporations. I have already observed that the chief objects of law are persons and property. I have also noticed Blackstone's division of rights, into rights of persons and rights of things, as well founded in reason, though not very accurate in point of expression. The rights of persons grow out of their relations to government or to one another; and I have mentioned the classes into which persons are divided, with respect to these relations. Before recapitulating these divisions, however, I cannot forbear to call your attention to the fundamental difference there is between personal relations in this country and in England, in consequence of our entire abolition of privileged orders. Our doctrine of equality has in this, as in everything else, been productive of simplicity. With us, in theory at least, all men start equally; they are born with equal rights; and their distinctions in after life are mainly made by themselves. This is the general rule, though, as we shall see, there are some slight exceptions founded on expediency. Whereas, in England, men set out unequally. Some are born to privileges which others never can attain. Hence, a fundamental division of persons there is into the nobility and commonalty. And this gives rise to a variety of subdivisions, rendering the classification of persons exceedingly complicated. The first book of Blackstone is almost wholly occupied with an enumeration of these distinctions; and we have only to glance at the contents of that book, to see how large a portion of it is totally inapplicable to American society. Here, personal rela

(a) On the Law of Persons in general, see the first book of Blackstone and of Swift; the Lectures of Kent, from the 24th to the 33d inclusive; and Reeves's Domestic Relations.

(b) On the Law of Corporations, see 1 Black. Com. ch. 18; 1 Swift, ch. 9; 2 Kent, Com. lect. 33; Angell & Ames on Corporations; Kyd on Corporations; Wilcox on Municipal Corporations; Grant on Corporations (London, 1850); Redfield on Railways; Pierce on American Railroad Law. Dillon on Municipal Corporations.

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