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The American Judiciary by Simeon E. Baldwin, LLD

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held one term of court.

Nothing of this kind has since occurred, nor would it now be
thought consistent with the proprieties of judicial office.

When the result of the election of the President and
Vice-President of the United States was contested in 1877,
Congress, as a temporary makeshift, bridged over the difficulty
by creating a commission of fifteen, five from each house and
five from the Supreme Court, to decide upon the returns. Four of
the justices were especially selected by the act passed for this
purpose, two of them being Republicans and two Democrats, and
they were directed to choose the fifth.[Footnote: 19 United
States Statutes at Large, 228.] They agreed on Justice Bradley,
a Republican. The Congressional members were equally divided
politically. The result proved to be that on every important
question in controversy every Republican voted for the view
favorable to the Republican candidates and every Democrat voted
for the other. The country could not fail to see that judges, as
well as other public men, may be insensibly influenced by their
political affiliations, and regarded the whole matter as a new
proof of the wisdom of separating the judiciary from any
unjudicial participation in the decision of political
issues.[Footnote: See Wilson, "Division and Reunion," 286;
S. S. Cox, "Three Decades of Federal Legislation," 655; Pomeroy,
"Some Account of the Work of Stephen J. Field," 440.]

Justices of the Supreme Court have since sat on international
tribunals of arbitration, but this is, or should be, a strictly
judicial proceeding.

In the State Constitutions, the judges of the highest courts are
now often expressly forbidden to accept other office,[Footnote:
See Chap XXII.] but in the absence of such a prohibition it would
be considered as unbecoming. Formerly and during the first third
of the nineteenth century this was in many States not so. Some
were then judges because they held legislative office and as an
incident of it. Others did not hesitate to accept political
positions. Of the six Federalist electors chosen in New
Hampshire at the presidential election of 1800, three were judges
of her Supreme Court.[Footnote: Wharton's State Trials, 47.]

Judges have frequently taken part in constitutional conventions
of their States. In Virginia, Chief Justice Marshall was a
member of that of 1829, and Judge Underwood of the District Court
presided over that of 1867. Chancellor Kent and Chief Justice
Spencer were members of that of 1821 in New York.

It may well be doubted if the advantages to be gained by their
counsel in such a position are not outweighed by the evil of
exposing it to criticism as dictated by selfish considerations.
A member of the New York convention thus alluded upon the floor
to the measures supported by the Chief Justice and Chancellor:

He regretted that such an opinion and plan had been proposed by
the Chief Justice. It must have arisen from the politics of
the Supreme Court. The judges of that court had been occupied
so much in politics that they had been compelled to press upon
the public a system that had nothing else to recommend it than
such a relief to themselves from the burthen of official duties
as would leave them to the free exercise of their
electioneering qualifications. But for this, the Chief Justice
might have shown a Holt, or a Mansfield. The elevated
character of the Chancellor had been often asserted and alluded
to. He meant no disrespect to that honorable gentleman. He
respected him as highly as any man when he confined himself to
the discharge of the official duties of his office; but when he
stepped beyond that line; when he became a politician, instead
of being his fancied oak, which, planted deeply in our soil,
extended its branches from Maine to Mexico, he rather resembled
the Bohon Upas of Java, that destroyed whatever sought for
shelter or protection in its shade.[Footnote: Reports of the
Proceedings and Debates of the Convention of 1821, 615.]

The pardoning power is essentially of a political nature.
Judicial officers are to do justice. Mercy is an act of policy
or grace. A pardon after conviction presupposes guilt.
Nevertheless, in a few States this royal prerogative of pardoning
has been committed to a board of officers, headed by the
Governor, of which some of the judiciary are members. There is
this advantage in it, that judges know best how fully
circumstances of extenuation are always taken into account by the
court before pronouncing sentence, and therefore cannot but
exercise a restraining power against the influences of mere
sentimental promptings to inconsiderate clemency.

It may be said, in general, that the tendency towards keeping the
judiciary apart from any active connection with the executive
department has steadily increased since the first quarter of the
nineteenth century.

When our position as a neutral power, in 1793, involved us in
serious questions affecting the rights of Great Britain and
France, Washington's cabinet advised him that the ministers of
those countries be informed that the points involved would be
referred to persons learned in the law, and that with this in
view the Justices of the Supreme Court of the United States be
invited to come to the capitol, six days later, "to give their
advice on certain matters of public concern, which will be
referred to them by the President."[Footnote: Jefferson's
Writings, Library Ed., I, 370.] Nothing of this nature would now
be dreamed of, under any conditions.

* * * * *



The antipathy to legal codification, which, until recent years,
was a characteristic both of the English and American bar, and
still prevails, though with diminishing force, has given, and
necessarily given, great force to judicial precedents. It is
mainly through them that with us unwritten law passes into
written law. Precedent is a fruit of reason ripened by time.
Time, it has been said, is the daughter of Antiquity and takes
place after Reason, which is the daughter of Eternity. Precedent
rests on both. A legal code framed in any American State is
little more than the orderly statement of what American courts
have decided the law to be on certain points.

When reason is set to work upon the solution of a problem growing
out of the affairs of daily life, it often happens that two minds
will pursue different paths and perhaps come to different
results. Not infrequently neither result can fairly be
pronounced untenable. An English judge has said that nine-tenths
of the cases which had ever gone to judgment in the highest
courts of England might have been decided the other way without
any violence to the principles of the common law.

Every lawsuit looks to two results: to end a controversy, and to
end it justly; and in the administration of human government the
first is almost as important as the last.[Footnote: Hoyt
_v._ Danbury, 69 Conn. Reports, 341, 349.] Certainty is of
the essence of justice; but among men and as administered by
their governments it can only be such certainty as may be
attained by an impartial, intelligent, and well-trained judge.
If such a judge has, after a proper hearing, declared what, under
a particular set of circumstances, the law is which determines
the rights of the parties interested, this declaration makes it
certain, once and forever, as far as they are concerned, and
helps to make it certain as to any others in the future between
whom there is a controversy under circumstances that are similar.
If it is the declaration of a court of supreme authority it is
ordinarily accepted as of binding force by any inferior courts of
the same government, and treated with great respect and as high
evidence of the law by any other of its superior courts, as well
as by courts of other States before which a similar question may
be presented.

A decision on a point of law by the highest court in a State does
not, however, bind its lower courts as absolutely as would a
statute. An inferior court may disregard it and decide the same
point another way if it be fully satisfied that the action taken
by the court above was ill-considered and erroneous. It is
possible that in such event, on reconsideration, the court of
last resort may reverse its original position.[Footnote: A good
instance of this is furnished by the case of Johnson _v._
People, 140 Illinois Reports, 350; 29 Northeastern Reporter, 895.
In McFarland _v._ People, 72 Illinois Reports, 368, the
Supreme Court had stated in its opinion, that if two unimpeached
witnesses gave the only testimony as to a certain point material
to the plaintiff's case, and testified in contradiction of each
other, the case failed for want of proof. Many years later a
charge to the jury to this effect was asked and refused in an
inferior court. An appeal was taken to the Supreme Court, and
there Mr. Justice Schofield, the author of the original opinion,
thus disposed of it: "Although in McFarland _v._ People, 72
III., 368, the writer of this opinion expressed the belief that a
similar instruction was free of legal objection, his remarks in
that respect were unnecessary to a determination of the case then
before the court, and they were made without sufficient
consideration, and are manifestly inaccurate. They are now
overruled. The question of competency is one of law, and
therefore for the court; but the question of credibility,--that
is, of worthiness of belief,--and therefore the effect of the
competent evidence of each witness, is one of fact, and for the
jury."] If not, that acquires by this attack a double force.

Chief Justice Bleckley of Georgia once remarked that courts of
last resort lived by correcting the errors of others and adhering
to their own. Nevertheless, they have often, years after
formally announcing a certain legal doctrine in one of their
opinions, declared it to be unsound, and overruled the case in
which it was laid down. They do this, however, with natural and
proper reluctance, and never if this doctrine is one affecting
private rights of property and has been followed for so long a
course of time that it may be considered as a rule on which the
people have relied in exchanging values and transferring titles.

The public, however, have rights to be regarded as fully as
individuals, and if a right of private ownership has been
adjudged to exist, which involves a public loss, the precedent
thus created might be overruled with less hesitation than one
would be determining rights and correlative obligations that were
purely private. Thus the North Carolina courts for seventy years
held that a public office was the private property of the
incumbent. No other courts in the United States took that view,
and it has, by a recent decision, been repudiated in North
Carolina.[Footnote: Mial _v._ Ellington, 134 North Carolina
Reports, 131; 46 Southeastern Reporter, 961; 65 Lawyers' Reports
Annotated, 697.]

Still more are public interests to be regarded when a question
arises as to reversing a decision as to the proper construction
of a constitutional provision. If a judicial mistake be made in
construing a statute it is easily remedied. The next legislature
can amend the law. But a Constitution can only be amended with
extreme difficulty and by a slow process. If the court falls
into error as to its meaning, the correction must ordinarily come
from its own action or not at all. Hence an opinion on a matter
of constitutional construction is less to be regarded as a final
and conclusive precedent than one rendered on a matter of mere
private right.

It has been the position of some American statesmen and jurists
that judicial decisions on points of constitutional construction
were not binding upon the executive or legislative department of
the government. President Jackson asserted this with great force
in his message to the Senate of July 10, 1832, disapproving the
re-charter of the Bank of the United States. He conceded,
however, that a judicial precedent may be conclusive when it has
received the settled acquiescence of the people and the States.
But while such acquiescence may strengthen the authority of a
decision, it can hardly be regarded as that which gives it
authority. That comes from the fact that it is an exercise of
the judicial power of the government in a case for the disposal
of which this judicial power has been properly invoked.

The decision of the court in McCulloch _v._
Maryland[Footnote: 4 Wheaton's Reports, 316. See Willoughby,
"The American Constitutional System," 44, 123.] unquestionably
settled forever, as between the cashier of the bank and the State
of Maryland, that the bank was a lawful institution. That in
Osborn _v._ The Bank of the United States[Footnote: 9
Wheaton's Reports, 738.] reaffirmed it as between the bank and
the Treasurer of the State of Ohio. It would be intolerable if
such judgments were not in effect equally conclusive for the
determination of all controversies between all men and all States
growing out of the creation of such a corporation. Practically,
then, the opinion of the executive department to the contrary
could only be of importance in such a case as Jackson had in
hand; that is, in its influencing executive action in approving
or disapproving some proposed measure of legislation. It could
not disturb the past.

The authority of a judicial precedent is weakened if it comes
from a divided court, and especially if a dissenting opinion is
filed in behalf of the minority. A silent dissent indicates that
the judge from whom it proceeds is not so impressed by the fact,
or the importance to the public, of what he deems the error of
the majority that he thinks it worth while to express the reasons
which lead him to differ from them.

No departure from precedent in any American court has ever
awakened so much feeling as that by the Supreme Court of the
United States in 1872, when it decided that Congress could make
government notes a legal tender for debts contracted before the
law was passed.[Footnote: The Legal Tender Cases, 12 Wallace's
Reports, 457, 529.] It had held precisely the contrary two years
before,[Footnote: Hepburn _v._ Griswold, 8 Wallace's
Reports, 603.] but it was by a bare majority and in the face of a
strong dissenting opinion. In the opinions filed in the second
case stress was laid upon this division of the court.[Footnote:
12 Wallace's Reports, 553, 569. See George F. Hoar,
"Autobiography," I, 286.]

The word "established" is often used to describe the kind of
precedent to which courts are bound to adhere. What serves to
establish one? Long popular usage, repeated judicial
affirmations, and general recognition by approved writers on
legal topics. Of these, in fact, the last is probably the most
powerful. Lawyers and courts, in countries without codes, get
their law mainly from the standard text-books. Such authors as
Coke, Blackstone, Kent and Cooley are freely cited and relied on
as authorities by the highest tribunals.[Footnote: See, for
instance, Western Union Telegraph Co. _v._ Call Publishing
Co., 181 United States Reports, 101; Louisville Ferry
Co. _v._ Kentucky, 188 United States Reports, 394, 397.] It
is by the writings of such men that judicial precedents are
sifted and legal doctrines finally clothed in appropriate terms
and arranged in scientific order.

The English courts long ago declared it to be a rule of law to
prevent perpetuities that no estate in lands could be created
which was not to commence within the compass of a life or lives
of persons then existing, with an exception intended to favor a
minor heir. American courts accepted this rule, but some of them
construed it as meaning that no estate in lands could be created
which was to continue after the expiration of such a period.
This construction was shown by Professor John C. Gray, in a work
on "Perpetuities," to be unwarranted, and since its publication
the cases which had proceeded on that basis have been generally
treated as erroneous.

The nature of a legal presumption, also, had been misconceived by
several American courts. It had been treated as evidence of
facts.[Footnote: Coffin _v._ United States, 156 United
States Reports, 432.] Professor J. B. Thayer, in his
"Preliminary Treatise on Evidence,"[Footnote: Pages 337, 566-
575.] argued so forcibly against this view that in at least one
State a decision in which it had been taken has been formally
overruled.[Footnote: Vincent _v._ Mutual Reserve Fund Life
Association, 77 Connecticut Reports, 281, 291; 58 Atlantic
Reporter, 963.]

The Court of Appeals of New York once held in a carefully
prepared opinion that a railroad might be built along the shore
of a navigable river, under authority from the State, without
first making compensation to the riparian proprietors, whose
access to the waters might thus be obstructed.[Footnote: Gould
_v._ Hudson River Railroad Co., 6 New York Reports, 522.]
In a text-book written by Chief Justice Cooley, this decision was
justly criticised,[Footnote: Cooley on Constitutional
Limitations, 670.] and not long after the publication of that
work it was formally overruled.[Footnote: Rumsey _v._ New
York and New England Railroad Co., 133 New York Reports, 79; 30
Northeastern Reporter, 654; 15 Lawyers' Reports Annotated, 618.]
It is safe to say that its fate was largely the result of the
comments thus made by a distinguished jurist, whose only motive
could be to maintain the integrity and consistency of legal

The general doctrine of the courts, which is commonly expressed
by the rule "_stare decisis_," was never better stated than
by Chief Justice Black of Pennsylvania, in these words:

When a point has been solemnly ruled by the tribunal of the
last resort, after full argument and with the assent of all the
judges, we have the highest evidence which can be procured in
favor of the unwritten law. It is sometimes said that this
adherence to precedent is slavish; that it fetters the mind of
the judge, and compels him to decide without reference to
principle. But let it be remembered that _stare decisis_
is itself a principle of great magnitude and importance....

A palpable mistake, violating justice, reason and law, must be
corrected, no matter by whom it may have been made. There are
cases in our books which bear such marks of haste and
inattention, that they demand reconsideration. There are some
which must be disregarded, because they cannot be reconciled
with others. There are old decisions of which the authority
has become obsolete, by a total alteration in the circumstances
of the country and the progress of opinion. _Tempora
mutantur_. We change with the change of the times, as
necessarily as we move with the motion of the earth. But in
ordinary cases, to set up our mere notions above the principles
which the country has been acting upon as settled and
established, is to make ourselves not the ministers and agents
of the law, but the masters of the law and the tyrants of the
people.[Footnote: McDowell _v._ Oyer, 9 Harris' Reports,

Generally, overruling a former decision is due to a change of
circumstances, which has given the court a new view-point. A
marked instance of this occurred in 1851, in proceedings before
the Supreme Court of the United States. More than a quarter of a
century before, a suit in admiralty for seamen's wages on an
inland river had been dismissed by the District Court of Kentucky
for want of jurisdiction, and on appeal this action had been
affirmed. Mr. Justice Story gave the opinion of the court, and
said that a court of admiralty could only take cognizance of such
a claim when the services were rendered at sea or upon waters
within the ebb and flow of the tide.[Footnote: The Thomas
Jefferson, 10 Wheaton's Reports, 428.] This was undoubtedly a
true statement of what had always been the doctrine of both
English and American courts. But out of what did this doctrine
spring? From the fact that in England there were no navigable
waters except those in which the tide ebbed and flowed, and that
in the United States, up to that time, there were none of a
different kind which had been largely used for commercial
purposes. Twenty years passed. Steam navigation had opened the
great lakes and the great rivers of the country to a profitable
carrying trade. The day was dawning when the bulk of American
shipping was to be employed upon them. A suit in admiralty was
brought against a ship for sinking another on Lake Ontario. The
defendants put in an answer relying on the doctrine laid down by
Story. The District Court overruled it. The case came by appeal
to the Supreme Court, and in an opinion by Chief Justice Taney
the appeal was dismissed. "The conviction," he said, referring
to the opinion of Mr. Justice Story, "that this definition of
admiralty powers was narrower than the Constitution contemplated,
has been growing stronger every day with the growing commerce on
the lakes and navigable rivers of the western States.... These
lakes are in truth inland seas. Different States border on them
on one side and a foreign nation on the other. A great and
growing commerce is carried on upon them between different States
and a foreign nation, which is subject to all the incidents and
hazards that attend commerce on the ocean. Hostile fleets have
encountered on them and prizes been made, and every reason which
existed for the grant of admiralty jurisdiction to the general
government on the Atlantic seas applies with equal force to the
lakes. There is an equal necessity for the instance and for the
prize power of the admiralty court to administer international
law, and if the one cannot be established neither can the
other.... The case of the _Thomas Jefferson_ did not decide
any question of property or lay down any rule by which the right
of property should be determined.... The rights of property and
of parties will be the same by whatever court the law is
administered. And as we are convinced that the former decision
was founded in error, and that the error, if not corrected, must
produce serious public as well as private inconvenience and loss,
it becomes our duty not to perpetuate it."[Footnote: The Genesee
Chief, 12 Howard's Reports, 443, 451.]

But without any change of circumstances, the proper desire of all
American courts to keep their common law in harmony with that of
the other States is often sufficient to induce the abandonment of
a doctrine once distinctly asserted.[Footnote: City of South Bend
_v._ Turner, 156 Indiana Reports, 418; 60 Northeastern
Reporter, 271.] The consistency of American law as a whole is
immeasurably more important than the consistency of the law of
any single State.

Sometimes a court of last resort treats a doctrine which it had
formerly asserted as manifestly unsound and abandons it without
stopping to give a reason or even to overrule the decision which
first announced it.

Illinois for a long generation adopted the rule that if an injury
occurred to one man through the concurring negligence of himself
and another, but his negligence was slighter than that of the
other, he might hold the latter responsible for the damages
suffered.[Footnote: Andrews, "American Law," 255, 1027.] It was
not a doctrine justified by the common law nor generally held in
this country, and in 1894 the Supreme Court of the State refused
to recognize it, with little or nothing more than this brief
_ipse dixit_: "The doctrine of comparative negligence is no
longer the law of this court."[Footnote: Lanark _v._
Dougherty, 153 Illinois Reports, 163; 38 Northeastern Reporter,

Occasionally a case is overruled because it has been forgotten.

An early decision in Massachusetts (Loomis _v._
Newhall[Footnote: 15 Pickering's Reports, 159.]) had affirmed the
position that if a statute required contracts of a certain kind
to be put in writing, and a contract of that kind, but embracing
also a different and distinct matter not touched by the statute,
was made orally, it was wholly void. Such a rule was illogical
and unsound, and in a later decision the same court, forgetting
that it had indorsed it, said so, and said so when it was not
necessary to the decision.[Footnote: Irvine _v._ Stone, 6
Cushing's Reports, 508, 510.] Subsequently, both these cases
having been brought to its attention, it affirmed the latter,
though remarking that "what was there said on this point was not
essential to the decision of that case, and would have been
omitted or modified if Loomis _v._ Newhall had been then
remembered."[Footnote: Rand _v._ Mather, 11 Cushing's
Reports, 1, 5.]

The authority of an opinion as a precedent on any point is always
proportioned to the necessity of determining that point in order
to support the judgment which was rendered. Some judges write
treatises instead of decisions or in addition to decisions.
Whatever goes beyond that which is required to show that the
judgment is the legal conclusion from the ascertained facts is
styled in law language _obiter dictum_. It may be
interesting and even persuasive, but it is not an authoritative
statement of law.

It may grow to be such by adoption in subsequent cases. The
Court of King's Bench in England was called on, at the beginning
of the eighteenth century, to say whether if a man undertook as a
friendly act, and not for pay, to cart another's goods, and did
it carelessly, he was bound to answer for any damage that might
result. There were four judges who heard the case, of whom three
gave their opinions.[Footnote: Coggs _v._ Bernard, Lord
Raymond's Reports, 909.] Two of these opinions were confined to
the precise point of law on which the case turned. In the third,
Chief Justice Holt seized the opportunity to lay down the law of
England as to all sorts of contracts arising out of the reception
by one man of the goods of another. This he did mainly by
setting forth what were the rules of the Roman law on the
subject, but not referring to their Roman origin, and quoting
them, so far as he could, from Bracton, an English legal writer
of the thirteenth century, who had also stated them as English

For four or five centuries these rules had been laid down in an
unofficial treatise, but the courts had not fully recognized
them. Now the Chief Justice of England had given such
recognition in the amplest manner. Meanwhile the trade of
England had reached a point at which some definite rules on all
these matters had become of the utmost importance. The bar were
only too glad to advise their clients in accordance with Lord
Holt's opinion. It was not long before it was universally
practiced upon, and no case in the English language touching
contract relations of that nature is of greater importance as a
precedent. Yet it became such not because of its intrinsic
authority as a judgment, so much as on account of its orderly and
scientific statement of a whole body of law of a kind that the
people needed and for the origin of which--whether at Rome or
London--they cared little, so long as it had been accepted by the
highest judicial authority in the realm.

On the other hand, the greatest judges have often, in delivering
the opinion of the court, asserted doctrines the consideration of
which was not essential to the decision, and later retracted the
assertion on fuller consideration or seen the court in a later
case retract it for them.

Two of the great opinions of Chief Justice Marshall are Marbury
_v._ Madison[Footnote: 1 Cranch's Reports, 137.] and Cohens
_v._ Virginia.[Footnote: 6 Wheaton's Reports, 264.] In the
first the court held that it had no jurisdiction to command the
Secretary of State to deliver a commission executed under the
preceding administration, because, although Congress had assumed
to confer it, Congress had no power to do so; and in defending
this position Marshall observed that the Constitution defined the
jurisdiction of the Supreme Court over cases brought there in the
first instance, and that in this clause of the Constitution
affirmative words had the force of negative words so far as to
exclude jurisdiction over any other cases than those specifically
mentioned. In the second case this observation was relied on by
Virginia to defeat the power of the court to review a State
judgment. But, said the Chief Justice, "it is a maxim not to be
disregarded that general expressions in every opinion are to be
taken in connection with the case in which those expressions are
used. If they go beyond the case they may be respected, but
ought not to control the judgment in a subsequent suit when the
very point is presented for decision.... In the case of Marbury
_v._ Madison, the single question before the court, so far
as that case can be applied to this, was whether the legislature
could give this court original jurisdiction in a case in which
the Constitution had clearly not given it, and in which no doubt
respecting the construction of the article could possibly be
raised. The court decided, and we think very properly, that the
legislature could not give original jurisdiction in such a case.
But in the reasoning of the court in support of this decision
some expressions are used which go far beyond it.... The general
expressions in the case of Marbury _v._ Madison must be
understood with the limitations which are given to them in this
opinion; limitations which in no degree affect the decision in
that case or the tenor of its reasoning." He then proceeded to
dispose of the case in hand by saying that Virginia having
obtained an erroneous judgment against Cohens, Cohens had a right
to appeal, and the suit still remained a suit by a State against
him and not by him against a State. Unfortunately, here again
came in next an _obiter dictum_. If, he said, this were not
so, there was another principle equally decisive in support of
the jurisdiction, namely, that the Constitution gave the United
States judicial power over all cases arising under the
Constitution or laws of the United States without respect to
parties. Nearly a hundred years later a State was sued in the
courts of the United States on a cause of action arising under
the Constitution, and Cohens _v._ Virginia was relied on as
a precedent. "It must be conceded," was the reply of the Supreme
Court, "that the last observation of the Chief Justice does favor
the argument of the plaintiff. But the observation was
unnecessary to the decision, and in that sense extra-judicial,
and though made by one who seldom used words without due
reflection, ought not to outweigh the important considerations
referred to which lead to a different conclusion."[Footnote: Hans
_v._ Louisiana, 134 United States Reports, 1, 20.]

It may be added that decisions on a point not material to the
cause are generally made without the benefit of previous argument
by counsel. The lawyers will naturally address themselves to the
controlling questions, and if well trained will see what these
are quite as clearly as the court. It is the argument at the
bar, in which different views of law are presented and each
defended by men of learning and ability, which enables the judge,
after hearing both sides and weighing all that is said in behalf
of one against all that is said in behalf of the other, to come
to the true conclusion. The Romans recognized this in their rule
as to the force of precedent in a matter of customary law. The
first thing to ask was whether "_contradicto aliquando judicio
consuetudo firmata sit_."[Footnote: "Digest," 1, 3, _de
legibus_, etc., 34.]

The retrospective effect which a refusal to follow a former
decision may have in disturbing vested rights being one of the
most cogent reasons for adhering to precedent, there is less
objection to departing from it when the decision can be so
limited as to have only a future operation. This is occasionally
feasible. Thus the High Court of Errors and Appeals of
Mississippi by an early decision held that on the dissolution of
a bank all its rights and liabilities were extinguished. Thirty
years later the Supreme Court of the same State overruled that
decision, declaring it "condemned by reason and the principles of
modern and enlightened jurisprudence," but nevertheless applied
it as a controlling precedent to a case arising out of the
dissolution of a bank which had been incorporated previously to
the time when the original decision was made.[Footnote: 1 Bank of
Mississippi _v._ Duncan, 56 Mississippi Reports, 165.]

The effect of overruling a former opinion may also be limited by
the dual character of our government.

The courts of the United States follow the decisions of the State
courts in the determination of matters of State law. If a State
law is held by the courts of the State to have a particular
meaning and effect it will be accorded the same in the federal
courts. But if a federal judgment is for that reason rendered in
a certain form, and there is no appeal, it settles the rights of
the parties to the suit forever, even should the State courts
afterward reverse their former rulings as being
erroneous.[Footnote: 2 Deposit Bank _v._ Frankfort, 191
United States Reports, 499.]

De Tocqueville, in his estimate of the American bar,[Footnote: 3
"Democracy in America," II, Chap. XVI.] speaks of it as devoted
to investigating what has been done rather than what ought to be
done; to the pursuit of precedent rather than of reason.

In a very limited sense this is true. Where codes are wanting,
former judicial decisions must serve in their place. But it
would be a mistake to suppose that it is a large part of the
business of American lawyers to search out precedents for the
guidance of the courts. Most cases, after any facts in dispute
are once settled, depend on the application of the simplest
processes of ordinary reasoning. No aid from the past is needed
for this and none is to be had. It has been well said by an
English judge[Footnote: 1 James, L. J., in 1875, Law Reports, 10
Chancery Appeal Cases, 526.] that the clearer a thing is the more
difficult it is to find any express authority or any
_dictum_ exactly to the point. Nor, if there be one, is it
to be accepted without regard to the circumstances out of which
it arose or the end to be effected by the judgment. A precedent
may indeed be used slavishly, but so it may be used in the free
spirit in which it was conceived. Many an argument at the bar,
however, is ruined by an excessive anxiety to repeat the
_ipsissima verba_ of some ancient opinion, when the soul of
it is the only thing of value. And occasionally courts are
chargeable with pursuing the letter of some of their former
deliverances rather than the spirit which called them forth and
gave them all their vitality.

* * * * *



The English common law was and is an unwritten law. To find it
one has to look in legal treatises and reports of judicial
decisions. Its historical development has been not unlike that
of Rome. In Rome, as in England, there were in early times
written enactments or governmental declarations of standing rules
on but few points. Some of these writings were of special
importance, such as the twelve tables of Rome and the _Magna
Charta_ of England. These were regarded as so bound up with
the very life of the people as to have a place by themselves, and
a superior force to anything to the contrary to which the free
consent of the people was not formally given. But in general
Romans and Englishmen preferred to make custom their law, and to
let this law grow "not with observation," but insensibly from day
to day as the needs of their social organization might be found
to require. It was a wise preference, and founded on a better
philosophy than they knew--than the world knew, until the theory
of evolution was demonstrated by Darwin and applied to
governmental science by Spencer.

A customary law for a people of advancing civilization and power
must expand with corresponding rapidity. There will soon be
disputes as to what it is on certain points and a demand for some
authoritative information as to this. In Rome, the priests gave
it at first, and then the lawyers. In England, the priests never
gave it, as priests. There was no sacred college of law.
Priests took part in legislation. A priest, at the king's right
hand, was his spokesman in doing equity. But it was from the
first the king as a judge, or the king's judges deputed by him
and sitting for him, who settled controverted questions of common
law. For the Roman and for the Englishman the first
representatives of government who could be called judges were
primarily and principally executive officers. The Roman
_praetor_ was not given judicial functions because he had
legal attainments. The _aula regis_ of early England was
composed of the great officers of state. The chief justiciar,
however, soon ceased to be prime minister. His associates on the
bench, as law became a recognized profession, came to be chosen
largely for their fitness for judicial work and to be kept at it
during the king's pleasure. At Rome, on the contrary, the
praetorship remained a political place, held for a fixed term, and
a brief one. Information as to the unwritten law applicable to
any controversy between parties had therefore to be sought from
others. The lawyers could give it; and it was to them, not to
the judges, that resort was had. The opinion of a great jurist
was for Rome what the opinion of a judge was for England. It was
commonly accepted as conclusive not only by the people but by the

Such opinions profess to state what the law was by which rights
accrued out of a past transaction. In fact, they often do much
more. By declaring that to be the law, and declaring it with
authority, they are the first to make it certain that it is the
law. The difference between this and making law is not great.

The Romans at first accorded authority to the opinions
(_responsa_) of lawyers only because of the standing and
reputation of those who gave them. Later the emperors gave an
official character and weight to the opinions of certain lawyers
of the past. The English always accorded authority to the
opinions of their judges, because they spoke for the state.
Americans from the first have done the same.

American judges have exercised these powers of ascertaining and
developing unwritten law even more freely than English judges.
They were forced to it as a result of applying the common law of
one people to another people inhabiting another part of the world
and living under very different social conditions. In doing this
it was necessary to reject not a little of what for England had
already been definitely settled and universally accepted. The
legislatures of the colonies and States rejected much, but the
courts rejected more. The legislatures also added much, but the
courts added yet more.

Usages grow up rapidly in new settlements and along frontiers
bounded by territory held by savages. Of such usages, under the
rulings of the courts, many were soon crystallized into law.

New inventions and new political conceptions in the eighteenth
century began to change the face of the civilized world. The
common law as to agency had to be adapted to the operations of
business corporations; that as to highways to railroads; that as
to contracts by mail to contracts by telegram, and later to
contracts by telephone. The whole law of master and servant,
which for the English people was bottomed on the relation of
land-owner and serf, was to be recast. Public assemblies were to
be regulated and their proceedings published with greater regard
to public and less to private interest.[Footnote: Barrows
_v._ Bell, 7 Gray's Reports, 301; 66 American Decisions,
479.] Along all these lines and many others the American courts
have now for nearly three hundred years been quarrying out
American law from the mine of the unwritten law of the people
within their jurisdiction. It has been their natural endeavor to
make each part of the new system of jurisprudence which they were
gradually building up harmonious with every other and to give a
certain symmetry to the whole. This has forced them to deduce
rule from rule and principle from principle with a freedom for
which in older countries of settled institutions there is less
occasion. The process has gone on during the last fifty years
with ever-increasing rapidity, and for two reasons. There have
been more novel questions to meet and there has been a greater
wealth of suggestion and precedent at command.

Not a little, however, of the development of our unwritten law
has been and remains of a local character. This is particularly
true of that of the Pacific States, both on account of climatic
conditions and historical antecedents.[Footnote: Katz _v._
Walkinshaw, 141 California Reports, 116.] Chief Justice Field of
the Supreme Court of California, afterward so long a member of
the Supreme Court of the United States, did both a constructive
and a destructive work in shaping the jurisprudence of that
State. He found it seated in a land on which certain
institutions of civil law origin had been impressed for centuries
and into which other institutions of common law origin had been
introduced in recent years. His judicial opinions molded these
into one mass, rejecting something from each and retaining
something from each.[Footnote: Pomeroy, "Some Account of the Work
of Stephen J. Field," 38, 45.] Some of the results of his
creative touch have been the foundation of decisions in distant
States, but most were so dependent on local circumstances and
conditions as to be incapable of transplantation.

But as to all questions of general concern which can be answered
from analogies drawn from the common law, the judges of each
State--and it is the State judiciary on which the burden of
developing unwritten law mainly rests--now find in the reported
decisions of the courts of last resort in all the other States a
fertile source of supply when they are looking for a rule to fit
a case for which the ancient law made no direct provision. Keen
intellects from the bench, aided perhaps by keener ones from the
bar in forty-five different jurisdictions, are discussing the
problems of the day as they appear mirrored in litigated causes.
What is a new question in one State was set at rest ten years or
ten days ago by a judicial decision in another. If the decision
was a just and logical deduction from accepted principles of the
older law it will probably be followed everywhere. If unjust and
illogical, its very faults will serve to guard other courts to
better conclusions.

How far judges advance along these paths depends greatly on the
character of the bar. A judge rarely initiates anything. He is
apt to fall into a mistake if he does. The business which he has
to do is brought before him by others. It is brought before him
in the best way to throw all possible light upon it, because it
is set before him from two opposite points of view by two
antagonists, each strenuously endeavoring to detect a flaw in the
reasoning of the other. These two men have previously given the
subject in controversy much careful thought. What views neither
presents are generally not worth presenting. As was said in the
preceding chapter, it is only in the plainest case that a judge
can properly or safely base his decision on a position not
suggested at the bar or as to the soundness of which he has not
asked the opinion of the counsel at the hearing.

The development of law, therefore, whether unwritten or written,
is primarily the work of the lawyer. It is the adoption by the
judge of what is proposed at the bar.[Footnote: See Chap. VI, X.]

There are obvious limits to this power of developing unwritten
law. The courts are not to push forward into a place more
appropriate for the legislature to occupy.

Mr. Justice Holmes of the Supreme Court of the United States,
when Chief Justice of Massachusetts, stated with his usual
elegance and force the bounds within which, as it seemed to him,
judicial authority should be kept. In a common law suit against
a railroad company for damages suffered by an accident on its
road, the defendant had asked the trial court to order the
plaintiff to submit to an examination of his person by a
physician whom it named, for the purpose of determining what
injuries he had really suffered. "We agree," said the Chief
Justice, "that in view of the great increase of actions for
personal injuries it may be desirable that the courts should have
the power in dispute. We appreciate the ease with which, if we
were careless or ignorant of precedent, we might deem it
enlightened to assume that power. We do not forget the
continuous process of developing the law that goes on through the
courts in the form of deduction or deny that in a clear case it
might be possible even to break away from a line of decisions in
favor of some rule generally admitted to be based upon a deeper
insight into the present wants of society. But the improvements
made by the courts are made, almost invariably, by very slow
degrees and by very short steps. Their general duty is not to
change, but to work out, the principles already sanctioned by the
practice of the past. No one supposes that a judge is at liberty
to decide with sole reference even to his strongest convictions
of policy and right. His duty in general is to develop the
principles which he finds with such consistency as he may be able
to attain.... In the present case we perceive no such pressing
need of our anticipating the legislature as to justify our
departure from what we cannot doubt is the settled tradition of
the common law to a point beyond that which we believe to have
been reached by equity, and beyond any to which our statutes
dealing with kindred subjects ever have seen fit to go. It will
be seen that we put our decision, not upon the impolicy of
admitting such a power, but on the ground that it would be too
great a step of judicial legislation to be justified by the
necessities of the case."[Footnote: Stack _v._ New York, New
Haven and Hartford Railroad Co., 177 Massachusetts Reports, 155;
58 Northeastern Reporter, 686.]

The theory of judicial power thus stated carries implications
that would not be universally accepted. It is intimated that if
the necessity had seemed strong enough to call for the order
asked for in the trial court it ought to have been granted,
although not justified by any settled rule or authoritative
precedent, nor by any clear analogy from such a rule or
precedent. This is a view taken, though with less caution and
qualification, in a work written by the same hand many years
before, which is recognized as a legal classic on both sides of
the Atlantic. In "The Common Law,"[Footnote: Pp. 35, 36.] after
discussing some of the reasons which actuate judges in assuming
to unfold the unwritten law, it is stated thus:

The very considerations which judges most rarely mention, and
always with an apology, are the secret root from which the law
draws all the juices of life. I mean, of course,
considerations of what is expedient for the community
concerned. Every important principle which is developed by
litigation is in fact and at bottom the result of more or less
definitely understood views of public policy: most generally,
to be sure, under our practice and traditions the unconscious
result of instinctive preferences and inarticulate convictions,
but none the less traceable to views of public policy in the
last analysis.... The truth is that the law is always
approaching and never reaching consistency. It is forever
adopting new principles from life at one end, and it always
retains old ones from history at the other, which have not yet
been absorbed or sloughed off. It will become entirely
consistent only when it ceases to grow.

Courts enter on a dangerous ground when, to justify their action,
they rely on any rule of public policy not stated in Constitution
or statute and unknown to the common law. If such was once the
habit of the English courts, it was because of social conditions
with which they had to deal which no longer exist either in their
country or in ours. It is for the judge to adapt old principles
rather than adopt new ones. What one man thinks is public policy
another, equally clear-headed and well-informed, may not. The
safe course for the judiciary is to rely on the legislature to
declare it, so far as the common law does not. If, however, the
courts of a State are called upon for the first time to declare
what any rule of the common law, governing a past transaction,
is, or at a given time was, in that State, and this be a doubtful
question, the decision virtually calls for the making of a new
rule, though under the form of applying an old one, and that will
be adopted which may be deemed best calculated to do justice in
cases of that particular character.[Footnote: Seery _v._
Waterbury, 82 Conn., 567, 571; 74 Atlantic Reporter, 908.]

* * * * *



As governments must provide some authority to declare what the
unwritten law governing any transaction was, so they must provide
some authority to declare what the written law governing any
transaction means. Few statements of any rule or principle can
be written out in such a way as to convey exactly the same
impression to every mind. Thought is subtler than its
expression. The meaning of written laws will therefore often be

An answer is sometimes attempted by the authority from which the
law proceeded. A king declares what he intended by the terms of
an ambiguous edict. A legislature passes an act to declare the
meaning of a previous one. But meanwhile rights have accrued.
Something has been done in reliance upon a certain construction
of the law. If it was a right construction, then what was done
was lawful, and no subsequent explanation of his intentions by
the lawgiver can change this fact. Laws are addressed to the
community at large, and their meaning must be determined once for
all from the language used, however inadequate it may have been
to express the real design of those who enacted them, unless that
design so clearly appears, notwithstanding an unfortunate choice
of words, as to compel an interpretation against the letter but
in obedience to the spirit of the enactment. A "declaratory
statute"--one declaring what a previous statute meant--is
therefore, if it gives it a meaning unwarranted by its terms when
so interpreted, only effectual as respects future transactions.
As to the past, the meaning is for the courts, and while such a
statute may aid, it cannot control them.

Are the courts to send such questions to a jury or shall the
judges decide them? The answer must be determined by
considerations applicable to every sort of written paper. If the
true construction of an ambiguous document be left to juries, it
is evident that there would be no certainty that different
results would not be reached in different cases, and probable
that unanimity would seldom be attainable. If left to judges, a
decision will certainly be reached and, it may be presumed, be
reasoned out with care, while if the matter be one of public
importance the grounds on which they proceed will be so expressed
as to furnish a guide to others toward the same conclusion. The
construction of all writings is therefore, by the Anglo-American
common law, as by the judicial system of most countries, deemed,
in case of a question affecting litigated rights, to belong of
right to the judges. Their possession of this power in the
United States is especially necessary in respect to written law.

In every government there must be some human voice speaking with
supreme authority. It may be that of one man or of many men.
The essential thing is that it should be a personal utterance,
proceeding from persons to whom, by acknowledged law or custom,
submission is due, and one that, if need be, can be enforced by
the whole power of the State.

The fundamental principle of American government, as laid down in
the words of Harrington in the oldest of our State Constitutions,
after which many of the rest, and that of the United States as
well, have been largely patterned, is that it is one of "laws and
not of men."[Footnote: Constitution of Massachusetts, Part the
First, Art. XXX, quoted more fully in Chapter II.] Laws,
however, must be administered by men. Their meaning, if it be
uncertain, must be determined by men. It must be the subject, as
the same Constitution twice affirms, of "impartial
interpretation."[Footnote: _Id_., Preamble, and Part the
First, Art. XXIX.] This interpretation is really what gives them
force. It is the personal utterance of one speaking for the
State, and who speaks the last word. It was simply following
English precedent to give this power to the courts as respects
legislative enactments. But the principle which required it
inevitably extended with equal force to constitutional
provisions. The people who adopt written constitutions for their
government put their work in a form which must often give rise to
questions as to what they intended to express. They rely on the
judiciary to secure their enforcement, and the judiciary must
enforce them according to what it understands their meaning to

There is but a step from interpretation to enlargement. Every
statute is passed to accomplish something. If the object is
clear, the rules of Anglo-American law allow the court that may
be called on to apply it to extend its operation to cases within
the purpose evidently intended, although the language used is
inadequate fully to express it. This is styled giving effect to
"the equity of the statute." Even violence can be done to the
words, if so only can this judge-discovered intent be made
effectual. The rules governing judicial interpretation of
statute law fill a good-sized volume.

As the Roman lawyers worked out by force of logic and analogy an
extensive system of private law from the meagre fabric of the
Twelve Tables, so under the lead of American lawyers American
judges have applied the processes familiar in the development of
unwritten law to the development of our written law, both
statutory and constitutional.

Carlyle said that the Roman republic was allowed so long a day
because on emergencies the constitution was suspended by a
dictatorship. The American republics have a right, upon this
theory, to a still longer one. With them the Constitution need
not be temporarily set aside on an emergency. It may simply be
permanently enlarged or limited by judicial construction. A
Constitution is the garment which a nation wears. Whether
written or unwritten, it must grow with its growth. As Mr. Bryce
has put it: "Human affairs being what they are, there must be a
loophole for expansion or extension in some part of every scheme
of government; and if the Constitution is Rigid, Flexibility must
be supplied from the minds of the Judges."[Footnote: "Studies in
History and Jurisprudence," 197.]

The Constitution of the United States declares that no State
shall pass any law impairing the obligation of contracts. This
proposition being the major premise, Chief Justice Marshall added
the minor premise that every charter of a private corporation is
a contract, and completed the syllogism by the conclusion that no
State can pass any law impairing the obligation of such charters.
The counsel who opposed this doctrine urged that every one must
acknowledge that neither the men who framed the Constitution nor
the people who adopted it ever thought that the word "contracts,"
as so used, embraced "charters." Be it so, was Marshall's
answer, that proves nothing unless you can go farther and satisfy
the court that if they had contemplated the construction we put
upon it they would have used words to exclude it.[Footnote:
Dartmouth College _v._ Woodward, 4 Wheaton's Reports, 518.]

The acquisition of foreign territory is a matter not especially
provided for in the Constitution of the United States. Jefferson
hesitated to make the Louisiana purchase on this account, and was
quite inclined to think, when he did make it, that he had
transcended the bounds of his authority. The courts gave the
Constitution a different interpretation, and stamped this upon it
as permanently as if it had been a birthmark. It was done by
Marshall in a single sentence. "The Constitution," he observed,
"confers absolutely on the government of the Union the powers of
making war and of making treaties: consequently that government
possesses the power of acquiring territory either by conquest or
by treaty."[Footnote: American Insurance Co. _v._ Canter, 1
Peters' Reports, 511, 542.]

In the course of the same opinion, the great Chief Justice led
the way toward the doctrine, to be developed later, that the
manner in which such territory was to be held and its inhabitants
governed need not be such as the Constitution prescribed for the
territory within one of the United States. It was to be
prescribed by Congress under its power "to make all needful rules
and regulations respecting the territory or other property
belonging to the United States." Congress had set up a
Legislative Council in the Territory of Florida, and the
Legislative Council had established a court of admiralty, with
judges holding office for four years. The case in hand turned
upon the effect of a judgment of that court. It was contended at
the bar that it had no effect, because by the express terms of
the Constitution the judicial power of the United States extended
to all cases of admiralty jurisdiction, and must be vested in one
Supreme Court and such inferior courts as Congress might ordain.
"We have only," was Marshall's reply, "to pursue this subject one
step further to perceive that this provision of the Constitution
does not apply to it. The next sentence declares that 'the
judges both of the Supreme and inferior courts shall hold their
offices during good behaviour.' The Judges of the Superior Courts
of Florida hold their offices for four years. These Courts,
then, are not constitutional Courts in which the judicial power
conferred by the Constitution on the general government can be
deposited. They are incapable of receiving it. They are
legislative Courts, created in virtue of the general right of
sovereignty which exists in the government, or in virtue of that
clause which enables Congress to make all needful rules and
regulations respecting the territory belonging to the United
States. The jurisdiction with which they are invested is not a
part of that judicial power which is defined in the third article
of the Constitution, but is conferred by Congress in the
execution of those general powers which that body possesses over
the territories of the United States. Although admiralty
jurisdiction can be exercised in the States in those Courts only
which are established in pursuance of the third article of the
Constitution, the same limitation does not extend to the
territories. In legislating for them, Congress exercises the
combined powers of the general and of a State
government."[Footnote: 'American Insurance Co. _v._ Canter,
1 Peters' Reports, 511, 546.]

It will be perceived that the argument here was that the Florida
court did not exercise any of the judicial power of the United
States because it could not, and that it could not because the
judges were not commissioned for life. This left unanswered the
deeper question whether any act of Congress could serve to
support a court existing under authority of the United States,
the judges of which were to hold office only for a term of years.
It was assumed that the provision for a life tenure did not apply
to the Florida judges, because if it did the court would be
illegally constituted. Whether it was legally or illegally
constituted was not discussed, except for the general reference
to the power of Congress to legislate for the territories and
exercise the rights of sovereignty over territory newly acquired
by contest or treaty.

On this decision has been built up our present system of
governing territorial dependencies at the will of
Congress.[Footnote: Mormon Church _v._ United States, 136
United States Reports, 1, 43; Dorr _vs._ United States, 195
United States Reports, 138, 141.]

Marshall's was the last appointment made to the Supreme bench
from the Federalist party. It was not many years before that
party disappeared from the face of the earth. Jefferson put
three men there representing the other school of political
doctrine,[Footnote: Among Jefferson's papers is a description of
five men whom he especially considered with reference to filling
the first vacancy which occurred during his administration.
Politics figures largely in the sketch of each. As to William
Johnson, whom he selected, it is noted that he is of "republican
convictions and of good nerves in his political principles."
American Historical Review, III, 282.] and his appointments were
followed by others of a similar nature, until in 1830, after
Mr. Justice Baldwin had taken his seat, it became evident that
the nationalizing tendencies which the great Chief Justice from
the beginning of the century had impressed upon its opinions were
likely soon to cease. He apprehended himself that the court
would come to decline jurisdiction in the cases ordinarily
presented over writs of error to reverse the judgments of State
courts.[Footnote: Proceedings: Massachusetts Historical Society,
2d Series, XIV, 342.] In the following year he thought seriously
of resigning. He disliked, he wrote to Mr. Justice Story, to
leave him almost alone to represent the old school of thought,
but he adds, "the solemn convictions of my judgment, sustained by
some pride of character, admonish me not to hazard the disgrace
of continuing in office a mere inefficient pageant."[Footnote:
Proceedings Massachusetts Historical Society, 2d Series, XIV,

The next Chief Justice, while far from being of Marshall's
school, was not one to attempt to overthrow what he had done. In
Ableman _v._ Booth,[Footnote: 21 Howard's Reports, 506.] he
insisted on the supremacy of the courts of the United States over
those of the States with the utmost firmness, and defended the
doctrine on principle with force and ability. The Supreme Court,
however, under Taney, was not looked on with much favor by the
survivors of the old Federalists. "I do not," wrote Chancellor
Kent in 1845 to Justice Story, "regard their decisions (yours
always excepted) with much reverence, and for a number of the
associates I feel habitual scorn and contempt."[Footnote:
Proceedings of the Massachusetts Historical Society, 2d Series,
XIV, 420.]

Our State constitutions generally guarantee the citizen against
deprivation of his rights without "due process of law" or "due
course of law." A similar provision was made for the United
States by the fifth amendment to their Constitution, and since
1868 the fourteenth amendment has established the same rule
inflexibly for every State. What is due process of law? It is
for the courts to say, and while they have cautiously refrained
from assuming to give any precise and exhaustive definition, they
have, in many instances, enforced the guaranty at the cost of
declaring some statute which they held incompatible with it to be
no law. They have also, and much more frequently, supported some
act of government claimed to contravene it, and which, according
to the ancient common law of England, would contravene it,
because in their opinion this ancient law had been outgrown.

Sir Edward Coke, whom no expounder of the English common law
outranks in authority, in his "Institutes," in treating of
_Magna Charta_, referred to the phrase _per legem
terrae_, as equivalent to "by the law of the land (that is, to
speak it once for all) by the due course and process of law." It
is incontestable that due course and process of law in England at
the time when the American colonies were planted was understood
to require the action of a grand jury before any one could be put
on trial for a felony. Some of our States have abolished grand
juries in whole or part. To review a capital sentence for murder
in one of these States, a writ of error was prayed out from the
Supreme Court of the United States in 1883. The
constitutionality of the State law was sustained. In disposing
of the case the court did not controvert the position that by the
English common law no man could be tried for murder unless on a
presentment or indictment proceeding from a grand jury. But,
said the opinion, while that is due process of law which had the
sanction of settled usage, both in England and in this country,
at the time when our early American constitutions were adopted in
the eighteenth century, it by no means follows that nothing else
can be. To hold that every feature of such procedure "is
essential to due process of law would be to deny every quality of
the law but its age, and to render it incapable of progress or
improvement. It would be to stamp upon our jurisprudence the
unchangeableness attributed to the laws of the Medes and
Persians.... It is most consonant to the true philosophy of our
historical legal institutions to say that the spirit of personal
liberty and individual right, which they embodied, was preserved
and developed by a progressive growth and wise adaptation to new
circumstances and situations of the forms and processes found fit
to give, from time to time, new expression and greater effect to
modern ideas of self-government.... It follows that any legal
proceeding enforced by public authority, whether sanctioned by
age and custom or newly devised in the discretion of the
legislative power in furtherance of the general public good,
which regards and preserves these principles of liberty and
justice, must be held to be due process of law."[Footnote:
Hurtado _v._ California, 110 United States Reports, 513,
528, 529, 530, 537.]

Many of our State Constitutions specify certain rights as
inherent and indefeasible, and among them that "of acquiring,
possessing, and protecting property." What is property?
American courts have said that it includes the right of every one
to work for others at such wages as he may choose to accept. One
of them, in supporting a decree for an injunction against
combined action by a labor union to deprive non-union men of a
chance to work, by force or intimidation, notwithstanding a
statute abrogating the common law rule making such acts a
criminal conspiracy, has put it thus:

The right to the free use of his hands is the workman's
property, as much as the rich man's right to the undisturbed
income from his factory, houses, and lands. By his work he
earns present subsistence for himself and family. His savings
may result in accumulations which will make him as rich in
houses and lands as his employer. This right of acquiring
property is an inherent, indefeasible right of the workman. To
exercise it, he must have the unrestricted privilege of working
for such employer as he chooses, at such wages as he chooses to
accept. This is one of the rights guaranteed to him by our
Declaration of Rights. It is a right of which the legislature
cannot deprive him, one which the law of no trades union can
take from him, and one which it is the bounden duty of the
courts to protect. The one most concerned in jealously
maintaining this freedom is the workman himself.[Footnote:
Erdman _v._ Mitchell, 207 Pennsylvania State Reports, 79;
56 Atlantic Reporter, 331.]

But, as already suggested in the preceding chapter, the judges
whose opinions have vitalized and enlarged our written law by
reading into it some new meaning or application have but echoed
the voice of the bar.

The greatest achievements of Marshall in this direction were
really but a statement of his approbation of positions laid down
before him by Daniel Webster. In the early stages of the
Dartmouth College case, when it was before the State courts in
New Hampshire, it was Webster and his associates, Jeremiah Mason
and Jeremiah Smith, both lawyers of the highest rank, who first
put forward the doctrine that the charter of a private
corporation was a contract; and when the cause came before the
Supreme Court of the United States it fell to the lot of Webster
to bring it to the attention of the great Chief
Justice.[Footnote: "Works of Daniel Webster," V, 497.] So in the
Florida case it was he, in supporting the cause of the prevailing
party, who suggested that the Territory of Florida, though owned
by the United States, was no part of them. "By the law of
England," he went on to say, "when possession is taken of
territories, the king, _Jure Corona_, has the power of
legislation until parliament shall interfere. Congress have the
_Jus Corona_ in this case, and Florida was to be governed by
Congress as she thought proper."[Footnote: American Insurance
Co. _v._ Canter, 1 Peters' Reports, 611, 538.]

This argument did not spend its force in its effect on Marshall.
When, after the lapse of two generations, greater problems of the
relations of the United States to territory newly acquired from
Spain arose, it was, as has been said above, made one of the
cornerstones of the opinion of the same court which determined
what they were.[Footnote: Downes _v._ Bidwell, 182 United
States Reports, 244, 265.]

So in the Hurtado case, which has been described at length, no
description of due process of law was found better and none is
better than that given by Webster so many years before in the
Dartmouth College case. The Supreme Court of New Hampshire, from
whose judgment that cause came up by writ of error, had held--and
on that point its decision was final--that the change in the
college charter was no violation of the bill of rights embodied
in the Constitution of that state. This, following _Magna
Charta_, provided (Part I, Art. 15) that no subject should be
"despoiled or deprived of his property, immunities, or
privileges, put out of the protection of the law, exiled, or
deprived of his life, liberty or estate, but by the judgment of
his peers or the law of the land." _Magna Charta_ was wrung
from a tyrant king. So, said the State court, this article was
inserted to protect the citizens against the abuse of the
executive power. When it speaks of the law of the land it means
the law of New Hampshire, and that is whatever the legislature of
New Hampshire chooses to enact, so long as it contravenes no
other constitutional provision.

Webster, in paving the way toward his claim that the charter was
a contract, and, as a vested right of property, inviolable by a
State, alluded to the sacredness of all rights under the
guaranties to be found in our American system of constitutional
government. It was not surprising that the Constitution of the
United States should protect them in the way he asserted. All
the States, and New Hampshire among them, had done the same in
placing the great features of _Magna Charta_ in their bills
of rights. What, he asked, was this law of the land by which all
things were to be tried and judged? This was his answer: "By the
law of the land is most clearly intended the general law; a law
which hears before it condemns; which proceeds upon inquiry, and
renders judgment only after trial. The meaning is that every
citizen shall hold his life, liberty, property and immunities
under the protection of the general rules which govern society.
Everything which may pass under the form of an enactment is not
therefore to be considered the law of the land. If this were so,
acts of attainder, bills of pains and penalties, acts of
confiscation, acts reversing judgments, and acts directly
transferring one man's estate to another, legislative judgments,
decrees and forfeitures in all possible forms, would be the law
of the land."[Footnote: "Works of Daniel Webster," V, 486.]

In the opinion by Mr. Justice Mathews in Hurtado _v._
California he observes: "It is not every act, legislative in
form, that is law. Law is something more than mere will exerted
as an act of power. It must be not a special rule for a
particular person or a particular case, but, in the language of
Mr. Webster, in his familiar definition, 'the general law, a law
which hears before it condemns, which proceeds upon inquiry, and
renders judgment only after trial,' so 'that every citizen shall
hold his life, liberty, property and immunities under the
protection of the general rules which govern society.'"
[Footnote: Hurtado _v._ California, 110 United States
Reports, 516, 535.]

Other instances might be mentioned, equally conspicuous, which
will entitle Webster to the name given him by his contemporaries
of "the expounder of the Constitution."[Footnote: See Article by
Everett P. Wheeler on Constitutional Law of the United States as
Moulded by Daniel Webster, in Yale Law Journal, Vol. XIII,
p. 366, and in the 27th Annual Report of the New York State Bar
Association.] No one American lawyer has done as much in that
direction, but there are few of the greater ones who have not
done something. As, however, the glory of a battle won is for
the commander of the victorious forces, so the glory of adding a
new meaning to a constitution at a vital point is, with the
public, always for the judge whose opinion is the first to
announce it. Who announced it to him they never know or soon

The acknowledged possession by the judiciary of the power to
interpret written law, and thus to delimit its effect, has led to
a serious abuse in our methods of legislation. Statutes are
often favorably reported and enacted, both in Congress and the
State legislatures, which are admitted to be either of doubtful
constitutionality or to contain expressions of doubtful meaning,
on the plea that those are questions for the courts to settle.
This has been aptly termed the method of the "_referendum_
to the courts in legislation."[Footnote: Thomas Thacher, Address
before the State Bar Association of New Jersey, 1903.] It is
unfair to them, so far as any question of the Constitution is
concerned, since as soon as the measure is enacted a presumption
arises that it is not unconstitutional. The courts will not hold
otherwise without strong grounds. It comes to them with the
benefit of a full legislative endorsement. It is unfair to the
people, both as to questions of constitutionality and of
interpretation. A statute can be so drawn as to need no
interpretation, or none the outcome of which can be a matter of
doubt to any competent lawyer. A legislature abandons its
function when it enacts what it does not understand.

The Sherman Anti-Trust Act is an instance of legislation of this
character. It forbids contracts "in restraint of trade or
commerce" between the States. When the bill was reported it was
objected in the House of Representatives that these terms were
vague and uncertain. The chairman of the committee himself
stated that just what contracts will be in restraint of such
commerce would not and could not be known until the courts had
construed and interpreted the phrase.

The real intent of those who inserted it was that it should not
embrace contracts which were reasonable and not contrary to
public policy. A similar term in the English Railway and Canals
Traffic Act had received that interpretation in the English
courts, and they supposed that our courts would follow those
precedents.[Footnote: George F. Hoar, "Autobiography," II, 364.]
The Supreme Court of the United States did construe it as
embracing all contracts in restraint of inter-State trade,
whether reasonable or unreasonable, fair or unfair.[Footnote:
United States _v._ Joint Traffic Association, 171 United
States Reports, 505, 570.] One of the justices who concurred in
that opinion, in a subsequent case arising under the same statute
intimated that on reconsideration he thought the view that had
been thus adopted was wrong.[Footnote: Northern Securities
Co. _v._ United States, 193 United States Reports, 197,
361.] The addition by those who drafted the bill of three or
four words to make their intended meaning clear would have
avoided a result unexpected by them and probably undesired, and
relieved the court from deciding questions of doubtful
construction involving important political considerations and
immense pecuniary interests.

* * * * *



Government is a device for applying the power of all to secure
the rights of each. Any government is good in which they are
thus effectually secured. That government is best in which they
are so secured with the least show of force. It is not too much
to say that this result has been worked out in practice most
effectually by the American judiciary through its mode of
enforcing written constitutions. How far it has gone in
developing their meaning and building upon the foundations which
they furnish has been made the subject of discussion in the
preceding chapter. It remains to consider its office of
adjudging statutes which come in conflict with their meaning, as
thus determined, to be void.

The idea of a supreme authority exercising the function of
setting aside acts of legislative bodies which it deemed
inconsistent with a higher law was familiar to Americans from an
early period of our colonial history.[Footnote: See Chap. I;
Dicey, "Law of the Constitution," 152; "Two Centuries Growth of
American Law," 12, 19.] The charter of each colony served the
office of a constitution. The Lords of Trade and Plantations
exercised the power of enforcing its observance. They did in
effect what, as the colonies passed into independent States with
written Constitutions, naturally became the function of their own
courts of last resort. The Constitution, like the charter, was
the supreme law of the land. Whatever statutes the legislature
of a State might pass, it passed as the constitutional
representative of the people of that State. It was not made
their plenary representative. Every Constitution contained some
provisions restricting the legislative power. If any particular
legislative action transgressed these restrictions, it
necessarily went beyond the authority of the body from which it

The Judicial Committee of the Privy Council, which now exercises
the functions formerly belonging to the Lords of Trade and
Plantations, and is in fact the same body, deals in a similar way
today with questions of a constitutional character. If one of
the provinces included in the Dominion of Canada should in its
local legislation infringe upon a field belonging to the Dominion
Parliament, this committee can "humbly advise the king" that the
act in question is for that reason void.[Footnote: In July, 1903,
for instance, an Act of the Province of Ontario, entitled the
"Lord's Day Profanation Act," was thus declared _ultra

The Revolution found the new-made States of the Union without
this safeguard against a statute repugnant to a higher law. They
had enjoyed as colonies the advantage which Burke declared was an
ideal in government. "The supreme authority," he said, "ought to
make its judicature, as it were, something exterior to the
State." The supreme judicature for America had been in England.
There was now no King in Council with power to set a statute
aside forthwith by an executive order. But the other function of
the King in Council, that of acting as a court of appeal from
colonial judgments, had been simply transferred to new hands.
The State into which the colony had been converted now exercised
it for itself and through her judiciary.

The judgment of a court is the legal conclusion from certain
facts. Unless it is a legal conclusion from the facts on which
it purports to rest it is erroneous, and, if there is any higher
court of appeal, can be reversed. If such a judgment depends
upon a statute which justifies or forbids the act or omission
which constituted the cause of action, it is legal or illegal
according as this statute is or is not law. It cannot be law if
its provisions contravene rules laid down by the Constitution of
the State to restrict the legislative power. The court which
tries the cause must meet this question whenever it arises like
any other and decide it. A court of law must be governed by law.
What has the form of law is not law, in a country governed by a
written constitution, unless it is consistent with all which that
instrument provides.

The first decision of an American court bottomed on these
principles was probably rendered as early as 1780, and in New
Jersey.[Footnote: Holmes _v._ Walton, IV _American
Historical Review_, 456.] One of her greatest statesmen, who
after taking a distinguished part in framing the federal
Constitution became a justice of the Supreme Court of the United
States, vigorously enforced the same doctrine on the circuit
fifteen years later in trying a cause turning on the
unconstitutionally of a confirming act passed by the legislature
of Pennsylvania. "I take it," Justice Patterson said in charging
the jury, "to be a clear position that if a legislative act
oppugns a constitutional principle the former must give way and
be rejected on the score of repugnance. I hold it to be a
position equally clear and sound that in such case it will be the
duty of the court to adhere to the Constitution, and to declare
the act null and void."[Footnote: Vanhorne's Lessee _v._
Dorrance, 2 Dallas' Reports, 304, 309, 316.]

The accession of the Republicans to power in 1801, only to find
the courts of the country controlled by judges appointed from the
ranks of the Federalists, was the occasion of new attacks upon
the doctrine thus laid down. It was vigorously denied by Senator
Breckenridge of Kentucky, afterward Attorney-General of the
United States, in the debates preceding the repeal of the
Judiciary Act of 1801.[Footnote: Elliot's Debates, IV, 444.] A
year later (in 1803) the question came for the first time before
the Supreme Court of the United States, and the same positions
advanced by Patterson were taken in what is known as the leading
case upon this subject by Chief Justice Marshall.[Footnote:
Marbury _v._ Madison, I Cranch's Reports, 137. See
Willoughby, "The American Constitutional System," 39.] It was
unfortunate that the action was one involving a matter of
practical politics, in which the plaintiff sought the benefit of
a commission the issue of which had been directed by President
Adams at the close of his term, but which was withheld by the
Secretary of State under President Jefferson. Party feeling ran
high at this time. The views of Breckenridge were shared by
many, and the supremacy of the judicial department, which this
prerogative, if it possessed it, seemed to imply, was distasteful
to a large part of the people.

An eminent judge of a State court, Chief Justice Gibson of
Pennsylvania, as late as 1825, in a dissenting opinion, combated
at length the reasoning of Marshall as weak and inconclusive.
If, he said, the judiciary had the power claimed, it would be a
political power. Our judicial system was patterned after that of
England. Our judges had, as such, no power not given by the
common law. It was conceded that English judges could not hold
an act of Parliament void because it departed from the British
constitution. No more could American judges hold an act of a
State legislature void because it departed from the State
Constitution, unless that Constitution in plain terms gave them
such a power. The Constitution of the United States did give it,
political though it was, to all judges (Art. XI, Sec. 2), and a
State statute which was contrary to that Constitution might
therefore properly be declared void by the courts.[Footnote:
Eakin _v._ Raub, 12 Sergeant and Rawle's Reports, 330.]
Later in his judicial career Gibson abandoned this position,
[Footnote: Norris _v._ Clymer, 2 Pennsylvania State Reports,
281.] and the ground taken by Marshall has been since 1845
universally accepted.

The last official attack upon it was made in 1831, at the time
when the feeling against protective tariffs was strong in the
South, and South Carolina was known to be meditating opposition
to their enforcement. The judiciary committee of the House of
Representatives reported a bill to repeal the section of the
Judiciary Act which gave the Supreme Court of the United States
the right to reverse judgments of State courts that it might deem
contrary to the Constitution of the United States. The report
said that such a grant was unwarranted by the Constitution and "a
much greater outrage upon the fundamental principles of
theoretical and practical liberty as established here than the
odious writ of _quo warranto_ as it was used in England by a
tyrannical king to destroy the right of corporations." The
House, however, rejected the bill by a very large majority.

A proper regard for the coordination of the departments of
government forbids courts to declare that a statute is
inconsistent with the Constitution unless the inconsistency is
plain. It has been judicially asserted that it must be plain
beyond a reasonable doubt, thus applying a rule of evidence which
governs the disposition of a criminal cause. As judgments
declaring a statute inconsistent are often rendered by a divided
court, this position seems practically untenable. The majority
must concede that there is a reasonable doubt whether the statute
may not be consistent with the Constitution, since some of their
associates either must have such a doubt, or go further and hold
that there is no inconsistency between the two documents.

This right of a court to set itself up against a legislature, and
of a court of one sovereign to set itself up against the
legislature of another sovereign, is something which no other
country in the world would tolerate. It rests on solid reason,
but as the Due de Noailles has said, "Un semblable raisonnement
ne ferait pas fortune aupres des republicans d'Europe, fort
chatouilleux sur le chapitre de la puissance legislative. C'est
que la notion de l'Etat differe d'une facon essentielle sur les
deux rives de l'Atlantique."[Footnote: Cent Ans de Republique aux
Etats-Unis, II, 145.]

Our people have been satisfied with the interposition of the
courts to defend their Constitutions from executive or
legislative attack, because these Constitutions stand for
something in which they thoroughly believe. President Hadley has
well said that "a written Constitution serves much the same
purpose in public law which a fence serves in the definition and
protection of private rights to real estate. A fence does not
make a boundary; it marks one. If it is set where a boundary
line has previously existed by tradition and agreement, it forms
an exceedingly convenient means of defending it against
encroachments. If it is set near the boundary and allowed to
stay there unchallenged, it may in time become itself the
accepted boundary. But if the attempt is made to establish a
factitious boundary by the mere act of setting up a fence the
effort fails."[Footnote: Freedom and Responsibility, 30.]
Americans took principles and institutions with which they had
become familiar in colonial days and made their Constitutions out
of them. Their attachment to what the Constitution provides goes
behind the Constitution to the rock of ancient custom and
precedent on which it rests, the common heritage of all the

There is an obvious reason for the unwillingness of the judiciary
to exercise the power under consideration unless in case of
necessity. The legislature presumably does only what the public
sentiment of the day justifies or demands. One branch of it, at
least, is the direct representative of the people. To defeat the
operation of a statute is therefore always presumably an
unpopular thing to do, and if in any case there is known to be
truth behind the presumption, it requires, as the Federalist
[Footnote: No. LXXVIII.] put it, "an uncommon portion of
fortitude in the judges to do their duty as faithful guardians of
the constitution."

It is seldom that an inferior court declares a statute void. The
mere fact that it was enacted by the legislature imports the
opinion of that body that it was within its powers; and such an
opinion of a department of government is entitled to great
respect. If a different, opinion is to prevail, it should
ordinarily be first pronounced by the highest authority that can
speak for the judicial department. So far, however, as the
question of power or jurisdiction is concerned, a justice of the
peace, in trying a five-dollar case, has the same authority to
disregard a statute, whether it be one enacted by the State
legislature or by Congress, if he deems it unconstitutional,
which belongs to the full bench of the Supreme Court of the
United States. If he is wrong, the only remedy is by appeal.

The number of statutes which have been judicially pronounced in
whole or part invalid in the United States is very large. Among
the Acts of Congress which have fallen in this manner and have
been made the subject of elaborate opinions may be mentioned the
provision in the original Judiciary Act giving the Supreme Court
of the United States greater original jurisdiction than the
Constitution provided;[Footnote: Marbury _v._ Madison, I
Cranch's Reports, 137.] the Act of 1865, excluding from practice
in the United States courts attorneys who could not take the
"iron-clad oath" that they had not supported the South in the
Civil War;[Footnote: _Ex parte_ Garland, 4 Wallace's
Reports, 333.] the Legal Tender Act of 1866;[Footnote: Hepburn
_v._ Griswold, 8 Wallace's Reports, 603, overruled in the
Legal Tender Cases, 12 Wallace's Reports, 457.] the Act of 1870,
to protect the colored voter;[Footnote: United States _v._
Reese, 92 U. S. Reports, 214.] the Civil Rights Act of
1875;[Footnote: United States _v._ Stanley, 109
U. S. Reports, 3.] the Trade Mark Act of 1876,[Footnote: The
Trade Mark Cases, 100 U. S. Reports, 82.] and the Income Tax Act
of 1894.[Footnote: Pollock _v._ Farmers' Loan and Trust Co.,
157 U. S. Reports, 429.] Fifteen others of less importance have
fallen by the same sword. The Supreme Court of the United States
has also set aside in the same manner, as inconsistent with the
Constitution of the United States, over two hundred statutes
passed by States. Of the twenty-one acts of Congress thus
declared unconstitutional, the decisions as to all but two were
rendered after 1830; of the State statutes all but
twenty-six.[Footnote: Condensed Reports Supreme Court (Peters'
Ed.), 325. note a; see also 131 U. S. Reports, ccxxxv.] The
fourteenth amendment has added largely to the list of the latter
since its adoption in 1868.

State statutes set aside by the State courts since 1780 as in
violation of their respective State constitutions number
thousands. In the year from October 1, 1902, to October 1, 1903,
the legislatures of forty-four States and fully organized
Territories of the United States were in session and nearly
14,400 new statutes were enacted. During the same year fifty
State statutes were declared in whole or part unconstitutional by
courts of last resort. Three of these decisions were rendered by
the Supreme Court of the United States. Five statutes of
Missouri and as many of Indiana were thus set aside; three each
of California, Kansas and Ohio; two each of Florida, Illinois,
Mississippi, Montana, Nebraska, New York, Oregon and Wisconsin,
and one each of those of Kentucky, Maine, Michigan, Minnesota,
New Jersey, Georgia, South Carolina, South Dakota, Tennessee,
Texas, Vermont, Washington and West Virginia.[Footnote: Bulletin
No. 86, New York State Library, "Comparative Summary and Index of
Legislation, 1903," 273, 281.] On the average probably as many
as one statute out of every three hundred that are enacted from
year to year are thus judicially annulled.

The declaration by a court that a statute is unconstitutional and
void is only a step in a cause. In the judgment it may not be
found necessary or proper even to allude to it. But the order of
the court which the judgment contains must be executed precisely
as if no such statute had ever been enacted. It may, in effect,
be directed against the State whose statute is pronounced void if
the plaintiff complains of action taken under it which has
deprived him of property and put it in the hands of public
officers, or seeks a remedy to prevent a threatened wrong.

The State of Ohio in 1819 passed a statute reciting that a branch
of the United States Bank was transacting business there contrary
to the law of the State, and imposing a tax upon it, in case it
continued to do so, of $50,000 a year, to be collected by the
auditor and paid over to the treasurer. The auditor subsequently
sent a man to the bank who forcibly seized and carried off
$98,000 in specie. This was given to the State treasurer, who
kept it in the treasury in a trunk by itself. The bank sued all
three for the money in the Circuit Court, setting forth all these
proceedings at length. Judgment went against them and, with a
slight modification, was affirmed by the Supreme Court of the
United States. It was held by Marshall in giving the opinion
that the statute was void; that the money had never become
mingled with the funds of the State; and that they were liable
for it precisely as if they were private individuals who had
wrongfully seized it.[Footnote: Osborn _v._ Bank of the
United States, 9 Wheaton's Reports, 738.]

These proceedings awakened great feeling in Ohio, and became the
subject of much criticism throughout the country by those
adhering to the Democratic party. The legislature of Ohio
adopted resolutions denouncing them as unauthorized by the
Constitution of the United States, and directed the Governor to
forward a copy to the legislature of every other State with a
request for its opinion on the subject. The replies varied in
tone according to the political predilections of the party then
in control of the State addressed.

Still closer does a court come to collision with the political
sovereignty of the State when it commands a public officer to do
something in violation of a statute which it pronounces void, or
not to do something which such a statute requires. A striking
instance of this is furnished by the power to nullify legislative
gerrymanders. The Constitutions of almost every State provide
that it shall be districted from time to time by the legislature
for the purpose of electing certain officers or local
representatives, and that this shall be so done as to make the
districts as nearly equal in population as conveniently may be,
and composed of contiguous territory. If a legislature
undertakes to construct districts by any other rule, the courts
can compel those charged with the conduct of elections to
disregard it and to hold them according to the districts
previously established under the former law.[Footnote: State
_v._ Cunningham, 83 Wis., 90; 53 Northwestern Reporter, 35;
17 Lawyers' Reports Annotated, 145; 35 American State Reports,
29; Board of Supervisors _v._ Blacker, 92 Michigan Reports,
638; 52 Northwestern Reporter, 951; 16 Lawyers' Reports
Annotated, 432 Brooks _v._ State 152 Indiana Reports; 70
Northeastern Reporter, 980.] But however necessary may be the
conclusion from the premises, it can hardly be agreeable to the
authors of a law which it serves to destroy. In effect, though
not in theory, it subordinates one department of government to
another. The practical result is to give the judiciary a
superior power to the legislature in determining what laws the
latter can enact. It is not a right of veto, but in a case which
calls for its exercise it is an equal right exercised in a
different way.

In the first instance of a resort to it[Footnote: See p. 100.]
the section of the New Jersey Constitution of 1776 confirming the
right of trial by jury was held by the full bench of the Supreme
Court to render a statute void which authorized a trial without
appeal before a jury of six, on a proceeding for the forfeiture
of goods brought in from British territory or the British
military lines. This was an unwelcome decision to many who were
interested in such seizures, and they sent in several petitions
to the legislature for redress. No action criticising the
judges, however, was taken by that body.

Four years later the Mayor's Court of New York, in the case of
Rutgers _v._ Waddington, held that an act of the legislature
of that State, if given the effect which it was plainly intended
to secure, would be contrary to the Constitution of the State,
and therefore allowed it so limited an operation as virtually to
annul it. The legislature retorted by resolutions of
censure.[Footnote: Hunt, "Life of Edward Livingston," 49-51.]

What was probably the second instance of the actual use of the
power in question arose in 1786, out of a statute of Rhode Island
passed to support the credit of her paper money of that year's
issue. Any one declining to receive it in payment for goods sold
at par was to be liable to a _qui tum_ action, to be tried
without a jury. Counsel for a man sued in such a proceeding put
in a plea that the act was unconstitutional and so
void.[Footnote: Trevett _v._ Weeden. See Coxe, "Judicial
Power and Unconstitutional Legislation," 234, 237.] The court,
which was composed of five judges, threw out the action on this
ground, treating the charter from Charles II and the long usage
under it as having established trial by jury as a fundamental and
indefeasible right. The General Assembly shortly afterward
summoned the judges before it to account for this judgment. They
appeared and stated their reasons for their conclusion,
protesting also against the adoption of any resolution for their
removal from office (which had been suggested) until after a
formal trial. They were not impeached, but at the ensuing
session, their terms of office having expired, the Assembly chose
others in their place.

Not far from the same time the Supreme Judicial Court of
Massachusetts pronounced a statute unconstitutional, but there
the legislature displayed no feeling, and at the next session
unanimously repealed it.[Footnote: This, no doubt, was one of the
instances of the exercise of this power referred to by Elbridge
Gerry in the Federal Convention of 1787. Elliot's Debates, V,
151. It is described in Proceedings Massachusetts Historical
Society, XVII, 507.]

In 1808, Judge Calvin Pease of the Ohio Circuit Court was
impeached for holding a law of Ohio unconstitutional. He avowed
the act, and insisted that as it was a judicial one the soundness
or unsoundness of his conclusions could not be inquired into as a
ground of impeachment. The result was an acquittal.[Footnote:
Foster, "Commentaries on the Constitution of the United States,"
I, 691.]

Georgia was the only one of the original States which set up no
Supreme Court at the beginning of its statehood. Her
Constitution established (Art. III, Sec. 1) a Superior Court, and
left it to the General Assembly to give it, if they thought best,
appellate jurisdiction. The judges were subsequently by statute
authorized to sit _in banc_ and hear appeals. In 1815,
while so sitting, they declared a certain statute of the State
unconstitutional and void. The legislature showed its resentment
by a set of resolutions, of which the parts material in this
connection read thus:

Whereas, John McPherson Berrien, Robert Walker, Young Gresham
and Stephen W. Harris, judges of the Superior Court, did, on
the 13th day of January, 1815, assemble themselves together in
the city of Augusta, pretending to be in legal convention, and
assuming to themselves ... the power to determine on the
constitutionality of laws passed by the general assembly, and
did declare certain acts of the legislature to be
unconstitutional and void; and ... the extraordinary power of
determining upon the constitutionality of acts of the state
legislature, if yielded by the general assembly whilst it is
not given by the constitution or laws of the state, would be an
abandonment of the dearest rights and liberties of the people,
which we, their representatives, are bound to guard and protect

Be it therefore resolved, That the members of this general
assembly view, with deep concern and regret, the aforesaid
conduct of the said judges ... and they can not refrain from an
expression of their entire disapprobation of the power assumed
by them of determining upon the constitutionality of laws
regularly passed by the general assembly, as prescribed by the
constitution of this state; we do, therefore, solemnly declare
and protest against the aforesaid assumption of powers, as
exercised by the said judges, and we do, with heartfelt
sensibility, deprecate the serious and distressing consequences
which followed such decision; yet we forbear to look with
severity on the past, in consequence of judicial precedents,
calculated in some measure to extenuate the conduct of the
judges, and hope that for the future this explicit expression
of public opinion will be obeyed.

In 1821 a case was argued before the Supreme Court of the United
States involving the validity of a Kentucky statute passed to
protect occupants of land who had made valuable improvements upon
it in good faith, in case it should be subsequently proved to
belong to some one else. The occupant had employed no lawyer,
and it was surmised that the court would decide against him. The
Governor of Kentucky called the attention of the legislature to
this, and advised the employment of counsel to defend the law.
The legislature responded by resolving "that they consider an
adjudication, that the laws in question are void, incompatible
with the constitutional powers of this state, and highly
injurious to the best interests of the people; and therefore do,
in the name of the commonwealth of Kentucky, and the good people
thereof, solemnly remonstrate and protest against any such
adjudication," but that two commissioners should be appointed "to
attend the Supreme Court of the United States at the next term
and oppose any decision that may be attempted to be procured from
the Supreme Court, that those laws are void in such manner as
they may deem most respectful to the court and most consistent
with the dignity of this state."[Footnote: Niles' Register, XXI,
190, 404, 405.] The case had already been heard _ex parte_,
and the court soon proceeded to give judgment that the statute in
question was void. The Kentucky commissioners employed counsel,
who moved for a reargument, and obtained one, but with the same
result.[Footnote: Green _v._ Biddle, 8 Wheaton's Reports,
1.] The legislature at its next session discussed the opinion in
the case and resolved "that they do most solemnly protest against
the doctrines promulgated in that decision as ruinous in their
practical effects to the good people of this commonwealth and
subversive of their dearest and most valuable political
rights."[Footnote: Niles' Register, XXV, 275.]

They then took up two decisions of their own Court of Appeals,
declaring other statutes of the State unconstitutional and void,
and resolved "that in the opinion of this legislature the
decision of the Court of Appeals of Kentucky in the cases of
Blair against Williams[Footnote: 4 Littell's Kentucky Reports,
34.] and Lapsley against Brashears[Footnote: _Ibid_., 47.]
are erroneous, and the laws declared therein to be
unconstitutional are, in the opinion of this present General
Assembly, constitutional and valid acts."[Footnote: Niles'
Register, XXV, 275.] The next step was to endeavor to remove the
judges, but the two-thirds vote required by the Constitution to
support an address to the Governor for that purpose could not be
secured. At the next session, in 1824, the judges were summoned
to show cause why they should not be removed. They defended
their conclusions so well that the two-thirds vote of each house
required by the Constitution could not be obtained. By a
majority vote the court was then abolished, a new one set up by
the same name, and four new judges appointed. The old court
refused to recognize the validity of their proceedings. The new
one assumed to organize and to do business. At the next election
the question which court ought to be recognized was the dominant
one. The result was that the friends of the old court gained
control of the House and those of the new court that of the
Senate, one of them being also chosen as the Governor. The new
court now got possession of most of the papers of the old court.
The latter ordered their sergeant to bring them back. The
Governor made preparations to use military force to resist the
execution of this order. At last, in 1826, an act was passed
(Session Laws, p. 13) over the Governor's veto, declaring the
acts abolishing the old court unconstitutional and void. The
Governor thereupon appointed a warm champion of the new court
chief justice of the old one to fill a vacancy which had occurred
on that bench, and for the first time for two years the judicial
establishment of the State was on a proper footing.[Footnote:
Niles' Register, XXXI, 324; McMaster "History of the People of
the United States," V, 162-166; "The Old and the New Court, in
The Green Bag," XVI, 520.]

Meanwhile both courts had been sitting and disposing of cases.
New appeals from the inferior courts had been entered in the one
which the appellant's counsel thought most likely to stand as the
rightful authority. The judges of the inferior courts were in
despair when the mandates of the Court of Appeals came down, and
they were called upon to determine whether to obey them. Some
held that the new court was a _de facto court_, and to be
respected accordingly. The ultimate decision fell to the old
court, which, after the repealing Act of 1826, held that there
could be no such thing as a _de facto_ Court of Appeals so
long as civil government was maintained and the _de jure_
court was in the exercise of its functions.[Footnote: Hildreth's
Heirs _v._ M'Intire's Devisee, 1, J. J. Marshall's Kentucky
Reports, 206.]

The same spirit of jealousy still occasionally manifests itself
in a less outspoken but more effective fashion. If a question of
political importance is likely to come before a court, it may be
within the power of the legislature to prevent it by a change in
its statutory jurisdiction.

In this way the Supreme Court of the United States was kept from
passing on the validity of the Reconstruction Acts enacted by
Congress at the close of the Civil War, in a case which was
actually pending. Under these Acts a Mississippi newspaper
editor was arrested in 1867 by military order on account of an
article which he had published reflecting on the policy of the
government, and held for trial before a military commission. He
appealed to the Circuit Court of the United States for the
District of Mississippi for discharge on a writ of _habeas
corpus_. Judgment went against him, and he appealed to the
Supreme Court of the United States. The court, on August 1, held
that it had jurisdiction to review the decision and to decide
whether he could be tried before such a commission.[Footnote:
_Ex parte_ McCardle, 6 Wallace's Reports, 318, 327.] The
cause was then heard on its merits and all the questions involved
discussed at length, four days being devoted to it. Congress
apprehended a decision that the Reconstruction Acts were
unconstitutional, and before one was arrived at, during the same
month, passed an act repealing the right of appeal in such cases
from the Circuit Court. The purpose of this was obvious, but it
was none the less effective, and the court, without deciding the
case, dismissed it for want of jurisdiction.[Footnote: _Ex
parte_ McCardle, 7 Wallace's Reports, 506.]

A legislature whose work has been set aside by the courts as
unconstitutional sometimes asks, in effect, for a reconsideration
of the question by passing another law substantially of the same
nature, although expressed in somewhat different terms. This is
oftenest done when the decision was made by a divided court or is
contrary to the weight of judicial opinion in other States.
Early in the history of California, for instance, a statute was
passed making it a misdemeanor to keep open any store, shop or
factory, or to sell goods, on Sunday. The Supreme Court of the
State held this to be contrary to the provisions in her
Constitution that all men had the inalienable right of acquiring
property, and that the free exercise of religious profession
should be allowed without discrimination or preference. Most of
the other States had similar statutes, and their courts had
supported their validity. Judge Stephen J. Field, then on the
California bench, dissented in a vigorous opinion.[Footnote:
_Ex parte_ Newman, 9 California Reports, 502.] Three years
later the legislature, unconvinced by the reasoning of the
majority of his associates, passed a new Sunday law, which did
not differ materially from the other, and after a few months the
court overruled their former decision, on the very ground taken
by Judge Field.[Footnote: _Ex parte_ Andrews, 18 California
Reports, 679.]

Any dissent from a judgment setting aside a statute greatly
weakens its force. It has also much less claim to public
confidence if all the judges on the bench did not participate in
it. In 1825, the Court of Appeals of Kentucky declined to follow
a decision of the Supreme Court of the United States, which held
certain statutes of Kentucky to be contrary to the Constitution
of the United States.[Footnote: Green _v._ Biddle, 8
Wheaton's Reports, 1.] The reason stated for this was that the
decision was not concurred in by a majority of the court. It had
been made by a majority of a quorum, but not by a majority of the
whole court.[Footnote: Bodley _v._ Gaither, 3 Monroe's
Kentucky Reports, 57.] After this it became the practice of the
Supreme Court under Chief Justice Marshall not to give judgment
in any case involving constitutional questions, unless a majority
of the court concurred in opinion in regard to these.[Footnote:
New York _v._ Miln, 8 Peters' Reports, 118, 122.]

Several American courts have asserted the doctrine that the
judiciary can disregard a statute which plainly violates the
fundamental principles of natural justice, although it may not
contravene any particular constitutional provisions. The English
courts now claim no such power, although Sir Edward Coke, in one
of his discursive opinions, very little of which was necessary

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