of a nation which are under discussion, not because it is a constitution which is being interpreted. On the other hand, take an act of the Federal or State legislatures, which it is claimed tramples on the individual liberty of the citizen. Take, for instance, that pernicious piece of legislation of the State of Iowa which enabled one to accuse another ex parte of selling liquor, and on the strength of this ex parte statement obtain from a court an injunction to prevent him from selling liquor; and again on another ex parte statement that the injunction has been violated, without trial by jury, the person might be committed for contempt. Where, we ask, would the protection for our liberty as individuals be if in the heat of local controversy such laws can be passed and the courts advance to the consideration of their constitutionality with the sincere desire to sustain the law if it can be sustained? When questions of civil liberty are at stake, it seems to us that the right attitude of the court should be to guard with jealous care the fundamental principles of that liberty as expressed in bills of rights. As a general proposition, of course, no one will dispute Professor THAYER'S statements that a judge ought to be convinced beyond reasonable doubt of the unconstitutionality of an act before he sets it aside, but the same is true of any other important decision. Before making it the judge should be convinced beyond reasonable doubt. The difference between constitutional interpretation and the interpretation of the meaning of an ordinary law is that the greater importance of the decision should make the judge more careful in his consideration of the subject. But the fact that it is a constitution which is being interpreted and an act of the legislature which is being set aside should not render the court desirous of upholding the law. Whether they desire to uphold the law or not depends as a matter of statesmanship on the subject with which it deals. However unwise, however foolish, if it is a question of the exercise of a power of government, those powers should be construed in no narrow spirit; but if, on the other hand, it is a question of the rights of individuals as it was intended they should be preserved by the constitution which have been violated, no pains, it seems to us, should be spared to protect the individual as against the legislature.

The article of Professor THAYER is timely because of the loose and careless way in which acts of State legislatures are set aside by State courts. This evil is due to the fact that the legislature actually passes many unconstitutional laws on the theory that the court is the only body competent to examine the constitutionality of a law. It seems to us that this is a great and increasing evil and calls for some very radical remedy; but that that remedy does not lie along the lines suggested by Professor THAYER, and that the introduction of the idea for which he contends would result in sustaining so many laws which trampled on individual liberty, that our condition would soon become intolerable.

Cattle and FENCES.

We have received the following interesting communication from Mr. ALBERT B. RONEY, of Philadelphia:

"In the December number of the AMERican Law REGISTER there

is reported, under the Digest of Important Decisions, a new view of Constitutional Law. The case to which I refer is Smith v. Bivens, 352. The case arose in the Circuit for the District of South Carolina.

"For many years the State required the owners of cattle to fence them in the law was changed as to the locality in question so as to require the owners of pasture lands to fence all cattle out.

"Judge SIMONTON, who has lately been nominated for the position of Circuit Judge for the Fourth District, holds that this amounts to depriving a man of his property without 'due process of law.'

"It may be of interest to call attention to the fact that for two hundred years the State of Pennsylvania required the owners of land to so fence them as to keep cattle out, yet no one ever suspected that this law deprived the owners of their property without due process of law, and it was only as the State became thickly settled that the rule was reversed and the owners of cattle required to fence them in. In many of the western States thousands of acres are devoted to pasture to every one devoted to tillage, and to require the owners of cattle to fence them in for the benefit of the few who cultivate the soil would be to destroy what amounts in some States to their principal wealth.

"But as a question of constitutional law this decision is but another illustration of the tendency to hold that legislation which in the opinion of the judges is unjust or unwise is therefore necessarily unconstitutional."

MR. COXE'S Essay on the Judicial Power AND UNCONSTITUTIONAL

LEGISLATION.

Just after writing the above commentary on Professor THAYER'S article, we received from the executors of the late Brinton Coxe, of Philadelphia, an essay of some 395 pages on the "Judicial Power and Unconstitutional Legislation." We understand Mr. Coxx had been at work on this essay for a long time before his death. The manuscript, which has been very ably prepared by Mr. WILLIAM M. MEIGS, was in many places evidently nothing more than notes of what Mr. Coxx would have written had he lived to complete his task. In spite, however, of the necessary shortcoming arising from the fact that death cut off the author before his work was done, nothing of equal value on the origin of the idea that a court can set aside the act of a legislature for unconstitutionality and that such exercise of power on the part of the court is the exercise of a judicial function has as yet come to our notice. The essay as a whole is cast in the form of a thesis, the text of the main proposition being that the Constitution of the United States contains, in Art. 2, 23 and 6, a direction to the courts of the United States and of the States to hold the acts of the States or the United States contrary to the Constitution of the United States null and void. In other words, that the framers of the Constitution intended and clearly expressed their intention in the Constitution which they drew up, that the judicial power was to decide as a judicial question the constitutionality of the acts of Congress and State Legislatures.

That which seems to have led Mr. Coxx to begin his investigation was mainly the celebrated pamphlet written by Mr. MCMURTRIE shortly after the decision of the Supreme Court in Juillaird v. Greenman, and in defence of this case, and in reply to the historian BANCROFT'S "Plea for the Constitution." In this essay Mr. MCMURTRIE had impliedly maintained the following propositions:

First, That the power to declare legislation to be unconstitutional and void has been created and lodged by inference, and by inference only, in one branch of the government, to wit: the judicial.

Second, That there is no reference whatsoever to any such powers in the text of the Constitution.

Third, That no such exercise of judicial power had ever been heard of before in any other civilized countries.

It may be said that Mr. Coxx's essay is an attempted refutation of these positions.

Mr. CoXE first takes up the last of Mr. MCMURTRIE's assertions and examines more especially the constitutional history of France, Rome and England for the purpose of maintaining the negative. He points out that the Parliament of Paris prior to the Revolution, having the power, as is well known, to record the laws made by the king, frequently refused, and in some instances successfully refused, to sanction the king's legislation by recording his acts, thereby rendering such legislation of no effect.

Turning to Rome, he points out that the validity of the edict of the emperor went unchallenged by any judicial authority, but that at one time jurisconsults or prudentes had the right to determine the question whether the other class of imperial laws, known as rescripts, had the force of general laws or were simply to be held binding in particular cases. This, as Mr. Coxx admits, was not holding a legislative act void, but it was holding that a legislative act was void of vigor in all cases except one.

He also points out that the Senate of Rome, acting as a judicial body, had the power to determine whether a law proposed by the magistrate at the rogation of a magistrate and accepted by the people was generally a law enacted with the proper solemnities. The interest of these extracts from mediæval French and Roman jurisprudence is great, but it is difficult to say what is the connection between them and the main argument of the author. It is true that the framers of the Constitution might have known-many undoubtedly did know of the Parliament of Paris and its powers and the history of its controversies with the crown. But it would be going further than most of us would care to go to assert that this information was in their minds when they discussed and enacted the Constitution of the United States.

This, however, does not apply to the quotations from the writings of VATTEL, where that learned commentator on international law, in discussing the legislative power of a State and the authority of those entrusted with it, raises the question whether their power extends as far

"A Plea for the Supreme Court," by Richard C. McMurtrie, Esq.

as to the fundamental laws so that they may change the constitution of the State. He maintains "that the authority of these legislators does not extend so far, and that they ought to consider the fundamental laws as sacred if the nation has not in express terms given them the power to change them." This argument of Vattel is quoted and emphasized by VARNUM, the principal counsel in the celebrated case of Trevett v. Weeden, in which the judges, as a result of VARNUM'S argument, declared void an act of the legislature of Rhode Island, which deprived persons accused of certain offences of the right of trial by jury. That the case of Trevett v. Weeden influenced the framers of the con stitution may be admitted.

Turning to England Mr. Cox¤ first takes up the canon law and discusses those early cases, more especially the controversy between BECKETT and HENRY VII, over the Constitutions of Clarendon, in which the prelate successfully undertook to annul the statutes because they were contra libertatem ecclesiasticam. That acts contrary to ecclesiastical dignity or privilege, or contrary to the express mandates of the Pope were, practically, of no effect in England prior to the reign of Henry VIII, is, of course, undisputed. But we cannot see that the controversy between Church and State has any vital historical connection between the modern constitutional controversies between Federal and local authority. The conduct of the Roman church in the twelfth century in endeavoring to free ecclesiastical persons from the jurisdiction of civil courts may strongly resemble the decision in the case of Tennessee v. Davis, in 10 Otto, 257, in which the Supreme Court of the United States held a plea to an indictment for homicide in a State court good, which set out that the court had no jurisdiction, because the accused was a United States official, and the act charged was done in discharge of his duty. There may be some surface similarity in these two cases, but they have no historical connection, direct or indirect. On the whole, it would seem to us that these ecclesiastical cases do not add anything to the strength of the argument, that the power of the judiciary to set aside acts of legislation was familiar to the framers of the constitution, because history prior to the adoption of the constitution showed many examples of such judicial acts. The act of ecclesiastics in annulling the statutes which were in derogation of their independence of the common law was not a judicial act, but the act of an independent power in the body politic, which independent power was, after a long struggle, brought under the civil power of the State. The reign of HENRY VIII is the final culmination and successful issue of this struggle. The king and Parliament became supreme over all persons in England. The same criticism may be extended to the examples given by the author of the cases in England prior to the revolution of 1688, which, as the case of Godden v. Hales, declared that no act of Parliament could take away the power of the king to dispense with the laws, for the laws were his laws, and he was an absolute sovereign. This power of the judges to disregard an act of Parliament and to obey the king, rather than the Parliament, was finally and forever done away with by the Bill of Rights of 1688. That the framers of our constitution were familiar with these cases goes without saying, but that

a case like Godden v. Hales could have had any influence on their minds other than one of repulsion seems to us almost beyond dispute. The court in its controversy with the Parliament had, in the then most recent examples, invariably upheld the right of the oppressor-the kingly as opposed to the popular side. We must confess that an examination of the authorities submitted by Mr. COXE has not proved to us that the framers of the Constitution could have been by any possibility influenced in what they did, in regard to erecting the judiciary as the arbitrator of the constitutionality of legislation, by the constitutional or legal history of England.

When, however, the author turns to our own judicial history, prior to 1787, then it seems to us he has no difficulty in establishing the fact that the framers of the Constitution must have been perfectly familiar with the circumstance that the judges in several States had exercised the power of setting aside the act of the legislature as contrary to the constitution, both in cases where the constitution of a State was written, as in North Carolina, and where it was largely unwritten, as in Rhode Island. His examinations of the cases of Rutgers v. Waddington, from New York; of Bayard v. Singleton, from North Carolina, are excellent. In the discussion of the latter case he gives in full the text of Judge IREDELL'S letter to RICHARD Dobrs SpaigHT, then attending the Constitutional Convention in Philadelphia, in defence of the court's decision, a great convenienee, because of the scarcity of copies of the life and correspondence of IREDELL.

In

The discussion of the case of Rutgers v. Waddington is of especial importance from the new light in which Mr. CoXE views the case. that case, as those familiar with the general subject know, the New York court held that in interpreting the statutes of the State they should follow BLACKSTONE'S Tenth Rule of Construction, and refuse to regard an act as deliberately intending to repeal prior acts unless the legislature had introduced a non obstante clause, i.e., unless they had used the expression, "all prior acts to the contrary notwithstanding." In other words, Mr. CoXE points out that the court in New York took the English position that they would not construe an act as directly going coutrary to the general principles of the law of the land, unless there were express words repealing the prior acts, as rules of law. He also points out that the ordinary oath of a judge on taking his office, not only involved the fact that the judge was to maintain the laws as enacted by the legislature, but the laws of the land, i.e., those fundamental principles of law which had grown up with the history of English jurisprudence. The upholding of the law of the land, except where it was expressly set aside by acts of the legislature, was part of the judicial duty of the court. Therefore, when the Constitution of the United States said that the Constitution of the United States and laws made pursuant thereof should be the supreme law of the land, and the judges in every State should be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding, they used technical phrases which showed that they were addressing not only the judiciary of the United States but of the States, and laying on them an additional