iew we have already noted. *
Nor was Madison's reference solely to the then recent activity of state
Legislatures in behalf of the much embarrassed but politically dominant
small farmer class. He had also in mind that other and more ancient
practice of Legislatures of enacting so-called "special legislation,"
that is, legislation altering under the standing law the rights of
designated parties, and not infrequently to their serious detriment.
Usually such legislation took the form of an intervention by the
Legislature in private controversies pending in, or already decided
by, the ordinary courts, with the result that judgments were set
aside, executions canceled, new hearings granted, new rules of evidence
introduced, void wills validated, valid contracts voided, forfeitures
pronounced--all by legislative mandate. Since that day the courts have
developed an interpretation of the principle of the separation of powers
and have enunciated a theory of "due process of law," which renders
this sort of legislative abuse quite impossible; but in 1787, though the
principle of the separation of powers had received verbal recognition
in several of the state Constitutions, no one as yet knew precisely what
the term "legislative power" signified, and at that time judicial
review did not exist. * * Hence those who wished to see this nuisance
of special legislation abated felt not unnaturally that the relief
must come from some source external to the local governments, and they
welcomed the movement for a new national Constitution as affording them
their opportunity.

* See supra, Chapter II.

* * On special legislation, see the writer's "Doctrine of Judicial
Review" (Princeton, 1914), pp. 36-37, 69-71.

The Constitution, in Article I, Section X, forbids the States to "emit
bills of credit, make anything but gold and silver a legal tender in
payment of debts, pass any bill of attainder, ex post facto law, or
law impairing the obligation of contracts." Until 1798, the provision
generally regarded as offering the most promising weapon against special
legislation was the ex post facto clause. In that year, however, in its
decision in Calder vs. Bull the Court held that this clause "was not
inserted to secure the citizen in his private rights of either property
or contracts," but only against certain kinds of penal legislation. The
decision roused sharp criticism and the judges themselves seemed fairly
to repent of it even in