Such a provision existed hi the constitution of the State of New York,
adopted in 1846, and it was to invoke the protection of this clause that
one Wynehamer, who had been indicted in 1855, carried his case to the
Court of Appeals in the year 1856. In that cause Mr. Justice Comstock,
who was one of the ablest jurists New York ever produced, gave an
opinion which is a model of judicial' reasoning. He showed conclusively
the absurdity of constitutional restrictions, if due process of law may
be held to mean the enactment of the very statute drawn to work
confiscation.[23] This decision, which represented the profoundest
convictions of men of the calibre of Comstock and Denio, deserves to
rank with Marshall's effort in the Dartmouth College Case. In both
instances the tribunal exerted itself to carry out Hamilton's principle
of judicial duty by exercising its _judgment_ and not its _will_. In
other words, the judges propounded a general rule and then simply
determined whether the set of facts presented to them fell within that
rule. They resolutely declined to legislate by entering upon a
consideration of the soundness or reasonableness of the policy which
underlay the action of the legislature.
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