'[44] No correct civilian, and especially no
proud admirer of the ancient republic (if any such then existed), could
have reflected on this interference with private rights and pending
suits without disgust and indignation; and we are rather surprised to
find that, under the violent and arbitrary genius of the Roman
government, the principle before us should have been acknowledged and
obeyed to the extent in which we find it. The fact shows that it must be
founded in the clearest justice. Our case is happily very different from
that of the subjects of Justinian. With us the power of the lawgiver is
limited and defined; the judicial is regarded as a distinct, independent
power; private rights are better understood and more exalted in public
estimation, as well as secured by provisions dictated by the spirit of
freedom, and unknown to the civil law. Our constitutions do not admit
the power assumed by the Roman prince, and the principle we are
considering is now to be regarded as sacred."
These acts infringe also the thirty-seventh article of the constitution
of New Hampshire; which says, that the powers of government shall be
kept separate. By these acts, the legislature assumes to exercise a
judicial power. It declares a forfeiture, and resumes franchises, once
granted, without trial or hearing.
If the constitution be not altogether waste-paper, it has restrained the
power of the legislature in these particulars. If it has any meaning, it
is that the legislature shall pass no act directly and manifestly
impairing private property and private privileges.
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