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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 emanated.

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 vires_.]

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 républicans d'Europe, fort chatouilleux sur le chapitre de la puissance législative. C'est que la notion de l'État diffère d'une façon essentielle sur les deux rives de l'Atlantique."[Footnote: Cent Ans de République aux États-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 States.

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 inviolate;

  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 for the determination of the cause, asserted that an act of Parliament "against common right and reason" could be adjudged void at common law.[Footnote: Dr. Bonham's Case, 8 Coke's Reports, 114, 118.] So far as there was any previous judicial authority for this position, however, it is believed that it can only be found in decisions made before the Reformation, on questions arising from interference by Parliament with rights claimed under the Church of Rome. Such questions were of the nature of those arising under a written Constitution. The law of the church within its province was then accepted as a supreme law.[Footnote: Coxe, "Judicial Power and Unconstitutional Legislation,"' 147, _et seq_.]

The rule laid down by Sir Edward Coke was accepted by the Supreme Court of South Carolina in two early cases,[Footnote: Ham _v._ M'Claws, 1 Bay's Reports, 98; Bowman _v._ Middleton, _Ibid_., 252.] and has been substantially repeated in some judicial opinions in other States.[Footnote: See Goshen _v._ Stonington, 4 Connecticut Reports, 209, 225, and Regents _v._ Williams, 9 Gill & Johnson's Reports, 365, 31 American Decisions, 72.] In the Supreme Court of the United States its authority was emphatically denied by Mr. Justice Iredell, near the close of the eighteenth century,[Footnote: Calder _v._ Bull, 3 Dallas' Reports, 386, 399.] but in 1874 the full court only one member dissenting, held a State statute void which authorized cities to issue bonds in aid of private manufacturing enterprises, because they could only be discharged by taxation, and to tax for such a purpose would be taking property from all for the good of one. That, said Mr. Justice Miller in delivering the opinion, "is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative form."[Footnote: Loan Association _v._ Topeka, 20 Wallace's Reports, 655, 664; approved in Parkersburg _v._ Brown, 106 U. S. Reports, 487, 501.]

This view of the law had been forcibly, though tentatively, put shortly after he came to the bench by Chief Justice Marshall in a leading case,[Footnote: Fletcher _v._ Peck, 6 Cranch's Reports, 87.] but one in which it was not necessary to decide whether the doctrine was sound. "It may well be doubted," he observed, "whether the nature of society and of government does not prescribe some limits to the legislative power; and, if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation?  To the legislature all legislative power is granted; but the question whether the act of transferring the property of an individual to the public be in the nature of the legislative power is well worthy of serious reflection."

The weight of American authority is in favor of the position taken by Iredell.[Footnote: Cooley's "Constitutional Limitations," Chap, VII; State _v._ Travelers' Insurance Co., 73 Connecticut Reports, 255, 283; 47 Atlantic Reporter, 299; 57 Lawyers' Reports Annotated, 481.] Time has made it safer to stand upon it, for since he spoke not only have our State constitutions been generally expanded by adding important restrictions on the legislative power, but the fourteenth amendment has added to the Constitution of the United States a prohibition of State laws depriving any person of life, liberty, or property without due process of law. "Due process of law" is an elastic term. Requiring it certainly imports that no one is to be made to suffer in person or property unless he has had an opportunity to claim before an impartial tribunal the protection of his rights by the settled law of the land.

The principle of Roman law that, as custom can make law, so disuse can destroy it has never been adopted in the United States. No court, therefore, will pronounce a statute not to have the force of law on the ground that it is obsolete.[Footnote: Chief Justice Mason of Iowa, in 1840, undertook to import the doctrine into American jurisprudence, but without effect. Hill _v._ Smith, Morris' Reports, 70; explained and limited in Pearson _v._ International Distillery, 72 Iowa Reports, 357.]