OFFICE AND DUTY OF THE JUDICIARY.

30. The judicial department of the government is the final and authoritative interpreter of the constitution.

There is a sense in which every person, even a private individual, must judge of the meaning and effect of the constitution, in order to govern his own actions and his dealings with other men. And the executive and legislative departments of government are clearly under the necessity of making similar determinations, at least in advance of authoritative expositions by the courts. But as the constitution is a law, and questions concerning its scope and interpretation, and of the conformity of public and private acts to its behests, are questions of law, the ultimate determination of such questions must belong to the department which is charged with the function of ascertaining and applying the law. And as the courts have the power to enforce their judgments, their determination of such ques

tions is final. And as their decisions are entitled to respect and obedience as precedents, their expositions of the constitution are authoritative.

ADJUDGING UNCONSTITUTIONALITY.

31. It is the right and duty of the courts to examine the constitutional validity of every statute brought fairly before them as applicable to a pending controversy; and if they find such statute to be in contravention of the constitution, they may and must pronounce it a nullity and no law.1

It is the business of the judicial department of government to interpret and apply the law to cases brought before them. In so doing, they must determine what is the law applicable to a particular case. A statute which, if valid, will govern the case, is presumptively the law for its decision. But a statute is the expressed will of the legislature, while the constitution is the expressed will of the people. The latter is paramount. If the statute conflicts with it, it is invalid; it is no law. Now when this question of unconstitutional legislative action is raised, in such a manner as to become necessary to the determination of the pending cause, the court must decide it; and if it shall find that the statute is in violation of the constitution, and therefore no law, it must so declare, and decide the case accordingly. This is the whole rationale of the power of the courts to adjudge statutes invalid. It is not a veto power. It is not a supervisory power over legislation. It is simply the power to ascertain and decide what is the law for the determination of the cause which happens to be before the court."

An American Institution.

This power of the judiciary to judge of the constitutional validity of acts of legislation is an invention of the American people and an institution peculiar to our country. It is not one of the political ideas borrowed from the British constitution. No such power be longs to the English judges. It is true there are some cases in their reports, prior to the revolution, in which the judges would appear 1 Vanhorne's Lessee v. Dorrance, 2 Dall. 304.

Griffin's Ex'r v. Cunningham, 20 Grat. (Va.) 31.

to have asserted a right to decide upon the validity of acts of parlia ment and to adjudge them void if they violated the great principles of liberty or of natural justice. Thus in Bonham's Case,' Lord Coke is reported to have said: "It appeareth in our books that in many cases the common law will control acts of parliament and adjudge them to be utterly void; for where an act of parliament is against common right and reason or repugnant or impossible to be performed, the common law will control it and adjudge it to be void." But a careful examination of the authorities will show that these statements mean no more than that the judges would not so construe an act of parliament as to give it an unjust, unreasonable, or oppressive operation, if they could avoid it, and that, to escape such consequences, they would resort even to a forced and unnatural construction, assuming that parliament could not have intended such a result. But it was clearly settled in England, at the time of the American revolution, that if it was the positive will of parliament to enact an unjust or unreasonable law, and if that will was too clearly expressed to admit of its being construed away, then the judges were bound to obey it, and there was no power which could control it, unless it were by a revolution. Neither is there at the present day any court on the continent of Europe which possesses the power and authority to pronounce against the validity of an act of the national legislature on account of its conflict with the written constitution of the state." So that the position of the American

8 Coke, 118a. And see, also, Day v. Savadge, Hob. 87; City of London ▼. Wood, 12 Mod. 687.

41 Bl. Comm. 91; 1 Kent, Comm. 447. Winthrop v. Lechmere, Thayer, Cas. Const. Law, 34, was a case (in 1727) in which the privy council adjudged an act of the colony of Connecticut to be null and void, because in conflict with the royal charter of the colony, in that it was contrary to the laws of England. But this can hardly be considered as a precedent for the American doctrine, on account of the limited nature of the legislative authority of the colony and its dependent position.

• Professor Thayer, in his valuable collection of cases on constitutional law (pp. 146-149), quoting from Coxe on Judicial Power, mentions a case of Garbade v. State of Bremen, in the Hanseatic court of upper appeal, in 1875, in which judgment was given against the validity of a law of Bremen, because It was in contravention of the constitution of that state. It is stated that the court was much influenced in this case by the writings of the jurist Von Mohl, who, in turn, based many of his views on the works of Story, Kent,

courts, in this regard, is virtually unique. It is not to be supposed, however, that this power of our courts was created by the constitution of the United States. It may be justified by that instrument. But there are several well-authenticated instances in which the courts of the states declared against the validity of acts of their legislatures, on account of repugnance to their constitutions, before the federal constitution was adopted. Therefore if we regard the power as expressly given by the federal constitution to the federal courts, it was not an invention of the framers of that constitution, but was in line with precedents already furnished by the states. And if we are to consider that the federal courts claimed the power as an implication from their constitution and office, they had authority for the claim in the previous action of the state courts.* The first case

and the Federalist. But this decision was expressly overruled, in 1883, by the imperial tribunal (or supreme court) of the German Empire, in the case of K. v. Dyke Board of Niedervieland, in which the power of the judiciary to pass upon the constitutional validity of statutes was categorically denied. See, also, Krieger v. State of Bremen, in Thayer, ubi supra. It appears that the federal court of Switzerland may in some cases pronounce against the validity of a cantonal law. Bryce, Am. Com. vol. 1, p. 430, note. And the supreme court of Hawaii may adjudge statutes unconstitutional. King v. Young Tang, 7 Hawaii, 49. These are the only known exceptions to the general rule, and in both these cases the idea was evidently borrowed from the American system.

• Among these early cases, particular attention should be directed to the following: Bayard v. Singleton, 1 Mart. (N. C.) 42; Rutgers v. Waddington, Thayer, Cas. Const. Law, 63; Com. v. Caton, 4 Call, 5; Bowman v. Middleton, 1 Bay, 252; Byrne v. Stewart, 3 Desaus. Eq. 466; Com. v. Smith, 4 Bin. 117; Trevett v. Weeden, Thayer, Cas. Const. Law, 73. In the last-named case, in 1786, the superior court of judicature of Rhode Island decided against the constitutionality of an act of assembly which authorized summary convictions in certain cases without a trial by jury. The indignation of the legislature was aroused, and they summoned the judges to appear before them, "to render their reasons for adjudging an act of the general assembly unconstitutional and so void." The judges accordingly appeared, and defended themselves with dignity, but with much vigor and learning. It was then voted by the legislature that they were not satisfied with the reasons given by the judges, and a motion was made to dismiss the judges from their office. But it was shown that this could not be done except by impeachment "or other regular process;" and it was finally resolved that the judges be discharged from any further attendance upon the assembly, on the ground that they were not charged with any "criminality" in rendering the judg

in which the supreme court of the United States adjudged an act of congress to be unconstitutional and void was Marbury v. Madison,' in which the decision was against that portion of the judiciary act which gave to the supreme court authority to issue writs of man damus to public officers. This power has not always been claimed by the courts. There are some instances in which they have distinctly repudiated it. But it is now fully and irrevocably settled, not only that the power belongs to the judicial tribunals, but that they are bound to exercise it in all proper cases.

SAME-THE COURT.

32. All courts have the right to judge of the constitutionality of a statute. But there are certain cases in which the decision of one court, on such a question, is binding on other courts.

Considerations relating to the relative rank of different courts, and the effect of precedents, have given rise to the following rules:

1. Inferior courts, whether of the state or federal system, should not undertake to adjudge against the validity of a statute, except

ment they had given. No impeachment proceedings were had, but we are told that in the succeeding year the legislature elected a new bench of judges, who were more compliant to their will.

71 Cranch, 137. Marshall, C. J., in delivering the opinion, vindicated the right and duty of the judiciary with great clearness and ability. Cooper v. Telfair, 4 Dall. 14, was an earlier case, but there, while the court inclined to the opinion that an act in plain violation of the constitution might be adjudged invalid, they refused to so rule in regard to a bill of attainder passed by the legislature of Georgia in 1782, on the ground that there was at that time no specific provision of the constitution which forbade such acts, and that they must be considered as within the general scope of legislative power unless prohibited.

Thus, in Eakin v. Raub, 12 Serg. & R. 330, Judge Gibson, of Pennsylvania, expressed the opinion that the judiciary had no right or power to pronounce an act of the legislature void for conflict with the constitution of the state, although they were not bound to give effect to acts which were in violation of the constitution of the United States. But twenty years later, in Norris v. Clymer, 2 Pa. St. 281, this judge admitted that he had changed his opinion on this point, partly "from experience of the necessity of the case."