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whom is committed the power of the State in the particular

case.

The moment we get beyond the limit defining power and come to the region in which right should govern—the question is not judicial for that applies to power-but it has nothing to do with the wisdom or folly, the right or the wrong, if you can predicate these things of legal powers.

end of the controversy.

Probably there never will be an There is no standard to appeal to. The practical argument of greatest efficiency is to ask, do you believe the nation would have consented to endow a court with this unlimited and undefined power to stop the action of government, if they had been asked to do so? Is it becoming in a judicial tribunal to arrogate such a power by mere implication? For myself I cannot see even an excuse.

The fact that all men are compelled to obey the legislature at the peril of legislation being illegal is a dreadful consequence of a written Constitution-so much so that the want of any provision for the case is the blot on the wisdom of the framers. But what is to be our fate if a standard that may or may not be applied at the caprice of such judge such as have been selected? Will the standard be the social compact, the principles called American institutions or a paternal government? Are the rules of socialism or anarchy more certain? And is not certainty in law the first of all requisites?

No one expects certainty in the ordinary sense of the word, it is impossible. The principles being admitted and the language selected, there remains and always must remain all the uncertainty that we all see and feel and lament. But if the meaning of a testator is a never-failing source of uncertainty when the problem is only what his language means, what a chaos it becomes if there is to be no language in which the intention is expressed nor any definition of the principles to be applied in ascertaining that intention?

This it seems to me is the canon by which constitutional law is to be ascertained if the written document is not the sole guide for a judiciary, and it is a consequence that would

punishment for crime be not a legislative question one may ask what is. If the power to prescribe the term of service in the field and enrollment into the army be not legislative, what is the power and what is its definition? Grant that we should relegate this to the police-that power which overrides all others, that power is certainly within legislative control. It seems incredible that any system of law can emancipate the police of a government from its legislature.

There being then two constitutional systems, one of them consisting in so much of the original inherited but unwritten law intended to govern or rather direct the legislature and all organs of the State, as the State has seen fit to embody in a written code, and by making it part of the law of the land superior to any rule of the common law or any enactment of the legislature, has given to the Judiciary by implication right to that extent to control the legislation, where does the power reside to enforce the residue of the Constitution not incorporated into the written code?

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Is there any ground for asserting that the residue of the Constitution is repealed by the enactment of a part? If the position of the Constitution before anything was adopted as a code to control legislatures and executives, and subject the to courts in ascertaining the extent of their powers, is consid ered it is obvious that a particular restraint could not be construed as giving a license in all other particulars.

If the unwritten Constitution, prior to the adoption of written one, served as a guide to which to appeal as far as reason or conscience could exercise sway, what is there in the fact of the adoption of a written Constitution to change the tribunal to terminate this appeal? It cannot be that all such appeals to Senate, House and Governor, are no longer legitimate on the question of legislating. Having had its influence then, what is there in the Constitution that confers the power to make the same appeal to the judges, not as aids in construction about which no one doubts, but as limits restraining the action of the State regardless of necessity or prudence..

Is it not plain that so far as the State has not seen fit to trammel its own action the course of action is left for those to

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whom is committed the power of the State in the particular

case.

The moment we get beyond the limit defining power and come to the region in which right should govern—the question is not judicial for that applies to power-but it has nothing to do with the wisdom or folly, the right or the wrong, if you can predicate these things of legal powers.

Probably there never will be an end of the controversy. There is no standard to appeal to. The practical argument of greatest efficiency is to ask, do you believe the nation would have consented to endow a court with this unlimited and undefined power to stop the action of government, if they had been asked to do so? Is it becoming in a judicial tribunal to arrogate such a power by mere implication? For myself I cannot see even an excuse.

The fact that all men are compelled to obey the legislature at the peril of legislation being illegal is a dreadful consequence of a written Constitution-so much so that the want of any provision for the case is the blot on the wisdom of the framers. But what is to be our fate if a standard that may or may not be applied at the caprice of such judge such as have been selected? Will the standard be the social compact, the principles called American institutions or a paternal government? Are the rules of socialism or anarchy more certain? And is not certainty in law the first of all requisites?

No one expects certainty in the ordinary sense of the word, it is impossible. The principles being admitted and the language selected, there remains and always must remain all the uncertainty that we all see and feel and lament. But if the meaning of a testator is a never-failing source of uncertainty when the problem is only what his language means, what a chaos it becomes if there is to be no language in which the intention is expressed nor any definition of the principles to be applied in ascertaining that intention?

This it seems to me is the canon by which constitutional law is to be ascertained if the written document is not the sole guide for a judiciary, and it is a consequence that would

warrant an amendment restricting the powers of the judiciary as to all such questions if the State is to remain free.

If this is a mistake will not some one come to the rescue and justify on a rational basis, the claim to authority to declare as the law of the land, that the legislative power of a State is restrained by rules not to be looked for in any written document, but which may be evolved out of the inner consciousness of the judiciary, and possibly out of that of a majority of one out of nine. And secondly that this power, if it exists, is conferred on the judiciary only and not on the mob.

The Annotations are prepared by the following Editors and Assistants : Department of PRACTICE, PLEADING AND EVIDENCE.

Hon. George M. Dallas, Editor. Assistants: Ardemus Stewart, Henry N. Smaltz, John A. McCarthy, William Sanderson Furst. Department of CONSTITUTIONAL LAW.

Prof. Christopher G. Tiedeman, Editor. Assistants: Wm. Draper
Lewis, Wm. Struthers Ellis.

Department of MUNICIPAL CORPORATIONS.

Hon. John F. Dillon, LL. D., Editor. Assistant: Mayne R. Longstreth.

Department of EQUITY.

Richard C. McMurtrie, LL. D., Editor. Assistants: Sydney G. Fisher, John Douglass Brown, Jr., Robert P. Bradford. Department of TORTS.

Melville M. Bigelow, Esq., Editor. Assistants: Benjamin H. Lowry, Alex. Durbin Lauer, Patrick C. B. O'Donovan. DEPARTMENT OF CORPORATIONS.

Angelo T. Freedley, Esq., Editor. Assistants: Lewis Lawrence
Smith, Clinton Rogers Woodruff, Maurice G. Belknap, H.
Bovce Schermerhorn.

Department of CARRIERS AND TRANSPORTATION COMPANIES. Charles F. Beach, Jr., Esq., Editor. Assistants: Lawrence Godkin, Owen Wister, Victor Leovy, Cyrus E. Woods. Department of ADMIRALTY.

Morton P. Henry, Esq., Editor. Assistant: Horace L. Cheyney. Department of COMMERCIAL LAW.

Frank P. Prichard, Esq., Editor. Assistants: H. Gordon Mc-
Couch, Chas. C. Binney, Chas. C. Townsend, Francis H.
Bohlen, Oliver Boyce Judson.

Department of INSURANCE.

George Richards, Esq., Editor. Assistants: George Wharton Pepper, Luther E. Hewitt, Samuel Kahn Loucheim. Department of CRIMINAL LAW AND CRIMINAL PRACTICE. Prof. Geo. S. Graham, Editor. Assistants: E. Clinton Rhoads, C. Percy Wilcox. Department of PATENT LAW.

George Harding, Esq., Editor. Assistant: Hector T. Fenton. Department of PROPERTY.

Hon. Clement B. Penrose, Editor. Assistants: Alfred Roland
Haig, Wm. A. Davis, Jos. T. Taylor.

Department of MEDICAL JURISPRUDENCE.

Hon. Marshall D. Ewell, LL. D., Editor. Assistants: Thomas
E. D. Bradley, Milton O. Naramore.

Department of WILLS, EXECUTORS AND ADMINISTRATORS.

Hon. Wm. N. Ashman, Editor. Assistants: Howard W. Page, Charles Wilfred Conard, Joseph Howard Rhoads, William Henry Loyd, Jr., Edward Brooks, Jr., Samuel D. Matlack. Department of TRUSTS AND COMBINATIONS IN RESTRAINT OF

TRADE.

H. La Barre Jayne, Esq., Editor. Assistants: George S. Patterson,
Charles F. Eggleston,

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