An Introduction to the Study of the Constitution (Volume 11) (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated.1892 Excerpt: ... SECTION IV.--IN THE LAW OF PEOCEDUEE. The law of procedure is now classed as adjective law,1 as distinguished from rules of action which relate to substantive rights.2 But the classification cannot claim to be based on universally valid distinctions. Courts in the United States have not hesitated to declare enactments of legislative bodies unconstitutional where they seriously interfered with remedies previously existing,3 claiming that they impaired the substantial obligations of contracts, or tended to deprive persons of their vested rights. Adjective law, in virtue of the use of that term, would seem, according to modern conception, to occupy a subordinate place.4 And yet in early days it was notoriously otherwise. So great is the ascendancy of the law of actions in the infancy of courts of justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure; and the early lawyers can only see the law through the envelope of its technical forms.5 The earliest known codes give the first, if not the predominant, place to the modes or methods of bringing parties into court.6 And Sir Henry Maine contends that the authority of the court of justice overshadowed all other ideas and considerations in the minds of early code-makers.7 And that 'Holland, Elements of Jurisprudence, Chap. XV.; Austin, Jurisprudence, 853, 1032, 1034; Amos, Science of Jurisprudence, 283. 2 See the authorities cited in the preceding note. 3 See, however, Austin and Amos, supra. Remedies have at times been invested by courts with the character of property. (See Hare, American Constitutional Law, Vol. II., Lectures 37, 38.) And courts have given decisions the character of legislation. Gelpche v. Dubuque, 1 Wallace, 175, 20G; Havemeyer...