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223 under permission of the law, they apply directly to the court. for advice in cases involving controverted questions of law or of fact. There is now no excuse for those who refuse to pay into the Treasury the sums for which the comptrollers hold them accountable. Such sums, after deposit, may be recovered through an orderly and inexpensive proceeding in court. Knowing that such proceedings may be instituted, comptrollers are not so apt to make arbitrary and partial decisions as they were when those accounting to them had no appeal save to a committee of Congress, already deafened and perplexed by crowds of petitioners. This subordination to the judiciary, and the formulation of principles through numerous decisions of the Court of Claims and the Supreme Court since 1863, far from weakening the comptrollers, have added much strength to their position and have greatly expanded the true field of their usefulness.

E. I. RENICK.

THE LEGISLATURES AND THE COURTS:

THE POWER TO DECLARE STATUTES UNCONSTITUTIONAL.

WHE

WHEN the question of the adoption of the constitution of 1787 was under discussion in the Virginia convention, Patrick Henry declared that he took it as the highest encomium on this country, that the acts of the legislature, if unconstitutional, were liable to be opposed by the judiciary. This power by which the courts disregard the acts of the legislature and declare them null and void because contrary to the supreme law of the constitution has been a source of endless wonder to foreign students of our system of government. "No feature in the government of the United States," says Professor Bryce, "has awakened so much curiosity in the European mind, caused so much discussion, received so much admiration and been more frequently misunderstood, than the duties assigned to the Supreme Court and the functions which it discharges in guarding the ark of the Constitution." 1

In speaking of this subject Sir Henry Maine says,

The success of this experiment has blinded men to its novelty. There is no exact precedent for it either in the ancient or in the modern world. The builders of constitutions have of course foreseen the violation of constitutional rules, but they have generally sought for an exclusive remedy not in the civil but in the criminal law, through the impeachment of the offender; and in popular government, fear or jealousy of an authority not directly delegated by the people has too often caused the difficulty to be left for settlement to chance or to the arbitrament of arms.2

1 American Commonwealth, I, 237. See Brougham's Political Philosophy, III, 337. As an illustration of this admiration and misunderstanding, I quote the following from Prof. J. E. Thorold Rogers' recent work, The Economic Interpretation of History, 344: "The American constitution even protects its citizens against legislation which is asserted to be just, for the Supreme Court can on appeal reverse and annul any act of the federal legislature which it declares to be unconstitutional." 2 Popular Government, p. 218.

224

can courts.

While the doctrine can exist only in a government where there is a division of powers and a written constitution, it is not, as is often asserted, the necessary outgrowth of such a system. There are many nations now living under written constitutions, but this power seems to be confined exclusively to the AmeriThe question has been much discussed by jurists in Germany and Switzerland, and while there are not wanting those who claim the power for certain courts in both these countries, the current of theory and practice is the other way. In Spain the supreme judicial tribunal may try cabinet ministers, but cannot set aside a royal decree. In France the Court of Cassation cannot question the validity of a law which has passed the Senate and the Chamber of Deputies. In Germany a law passed by the Federal Council and the Imperial Diet is beyond the reach of the Imperial Court. In Switzerland the supreme federal judicial power is vested in the Federal Tribunal, the members of which are appointed by the federal legislature. Under the constitution of 1848 there was an appeal on questions of public law to the Federal Council, from which there was a further appeal to the Federal Assembly. If the two chambers agreed, the decision was final; but if they disagreed, the decision of the Federal Council prevailed. This system was found unsatisfactory, as a large part of the time of the chambers was occupied in the discussion of mixed questions of law and politics. When the constitution of 1874 was adopted, this was in a measure remedied by providing for an appeal to the Federal Tribunal, which now has appellate jurisdiction over (1) conflicts of competency between federal and cantonal authorities; (2) disputes between cantons involving questions of public law; (3) certain claims for violation of rights of citizenship; (4) federal laws passed in execution of the federal constitution; (5) claims for violation of concordats between cantons and treaties with foreign countries.1 Generally, if a cantonal law violates the federal constitution or a federal law, the Federal Tribunal will declare it invalid,2 but in some cases recourse

1 Adams and Cunningham, The Swiss Confederation, 73, 260.

2 Jellinek, Gesetz und Verordnung, 401.

must be had to the Federal Council. The federal legislature is the sole judge of its own powers, and the courts must enforce every law passed by it even though it violates the constitution. All such laws are adopted by the people either tacitly or through the referendum, and the judiciary must submit their judgment on constitutional questions to the will of the people.

The jurists of Belgium maintain, in theory, that an act of parliament opposed to the constitution should be disregarded by the courts; but during almost sixty years of Belgian independence the power does not appear to have been exercised.2 The continental statesmen have preferred to trust to the efficacy of declarations of rights and the restraining power of public opinion, rather than permit the courts to pass upon political questions. By such means they have attempted to confine legislative power within very narrow limits, without making any provision for rendering unconstitutional legislation of no effect.

The germ of the principle established in American constitutional law is found in the English law. The judiciary is an offshoot from the executive; it developed slowly from absolute dependence to comparative independence. Montesquieu, who found his ideal in the English constitution, appreciated the subordinate position of the judiciary as compared with the executive and legislature, remarking that "of the three powers above mentioned, the judiciary is in some measure next to nothing." Lord Bacon advised his ideal judge to consult with the king and the state, "to remember that Solomon's throne was supported with lions on both sides. Let them [the judges] be lions, but lions under the throne, circumspect that they do not check or oppose any points of sovereignty."

"3

The English people worked out their freedom through this subordinate judiciary. And while there were many instances of corrupt and subservient courts, the contests maintained by

1 Dubs, Das öffentliche Recht der schweizerischen Eidgenossenchaft. (Zurich, 1878.) Soldan, Du recours de droit public au Tribunal Fédéral. Supplément du Journal des Tribunaux (Bâle, 1886).

2 But see Giron, Le droit public de la Belgique, pp. 129-158. 8 Essay of Judicature.

the judges with the crown form some of the brightest chapters in English history. It required the loftiest courage to balance the scales of justice between the crown and the people. The judges were dependent for their offices upon the pleasure of a king whose prerogative was vague and uncertain. It was difficult to reconcile the acts of a tyrannical monarch with the principle that the king could do no wrong; yet this principle was the means by which the power of the courts was so extended as to permit them to inquire into the validity of acts of the government. As the king could not be presumed to have commanded a violation of law, an illegal act was treated as the act of a minister, who was not allowed to plead the command of the king in bar. Thus the violation of law was punished, and the dignity of the crown preserved.1 The struggle between the crown and the people seeking in the courts a remedy for arbitrary violations of law was long and bitter, and ended only with the revolution of 1688, which definitely limited the royal prerogative. In 1769, Wilkes obtained a verdict of four thousand pounds against Lord Halifax, secretary of State, for illegally issuing a general warrant under which the plaintiff was arrested, his house searched and his papers seized.2 It was through this course that the judiciary ascended to the level of the executive, and thus established a practical and effective check upon the arbitrary acts of the crown. But from the nature of the government no such control could be obtained over the legislature. A legislative act, being the joint act of crown, lords and commons, was a sovereign act and beyond control. A few eminent judges have, indeed, claimed for the English courts power to limit this absolute supremacy of Parliament, but it was never generally admitted and is inconsistent with the theory of the British constitution. It remained for the colonists to carry the principle of judicial control further and apply it to legislative as well as to executive acts.

1 Hare's Constitutional Law, I, 136. For an analogous principle in reference to American commonwealths, see Poindexter vs. Greenhow, 114 U. S. 290.

2 See Wilkes vs. Wood, 19 State Trials, 1153; Entinck vs. Carrington, 19 State Trials, 1029. Cf. Boyd vs. U. S., 116 U. S. 616, 626.

Coke declared: "The Common Law doth control acts of Parliament and adjudge

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