The American Judiciary Part 5

Politics figures largely in the sketch of each. As to William Johnson, whom he selected, it is noted that he is of "republican convictions and of good nerves in his political principles."

American Historical Review, III, 282.] and his appointments were followed by others of a similar nature, until in 1830, after Mr. Justice Baldwin had taken his seat, it became evident that the nationalizing tendencies which the great Chief Justice from the beginning of the century had impressed upon its opinions were likely soon to cease. He apprehended himself that the court would come to decline jurisdiction in the cases ordinarily presented over writs of error to reverse the judgments of State courts.[Footnote: Proceedings: Ma.s.sachusetts Historical Society, 2d Series, XIV, 342.] In the following year he thought seriously of resigning. He disliked, he wrote to Mr. Justice Story, to leave him almost alone to represent the old school of thought, but he adds, "the solemn convictions of my judgment, sustained by some pride of character, admonish me not to hazard the disgrace of continuing in office a mere inefficient pageant."[Footnote: Proceedings Ma.s.sachusetts Historical Society, 2d Series, XIV, 347.]

The next Chief Justice, while far from being of Marshall's school, was not one to attempt to overthrow what he had done. In Ableman _v._ Booth,[Footnote: 21 Howard's Reports, 506.] he insisted on the supremacy of the courts of the United States over those of the States with the utmost firmness, and defended the doctrine on principle with force and ability. The Supreme Court, however, under Taney, was not looked on with much favor by the survivors of the old Federalists. "I do not," wrote Chancellor Kent in 1845 to Justice Story, "regard their decisions (yours always excepted) with much reverence, and for a number of the a.s.sociates I feel habitual scorn and contempt."[Footnote: Proceedings of the Ma.s.sachusetts Historical Society, 2d Series, XIV, 420.]

Our State const.i.tutions generally guarantee the citizen against deprivation of his rights without "due process of law" or "due course of law." A similar provision was made for the United States by the fifth amendment to their Const.i.tution, and since 1868 the fourteenth amendment has established the same rule inflexibly for every State. What is due process of law? It is for the courts to say, and while they have cautiously refrained from a.s.suming to give any precise and exhaustive definition, they have, in many instances, enforced the guaranty at the cost of declaring some statute which they held incompatible with it to be no law. They have also, and much more frequently, supported some act of government claimed to contravene it, and which, according to the ancient common law of England, would contravene it, because in their opinion this ancient law had been outgrown.

Sir Edward c.o.ke, whom no expounder of the English common law outranks in authority, in his "Inst.i.tutes," in treating of _Magna Charta_, referred to the phrase _per legem terrae_, as equivalent to "by the law of the land (that is, to speak it once for all) by the due course and process of law." It is incontestable that due course and process of law in England at the time when the American colonies were planted was understood to require the action of a grand jury before any one could be put on trial for a felony. Some of our States have abolished grand juries in whole or part. To review a capital sentence for murder in one of these States, a writ of error was prayed out from the Supreme Court of the United States in 1883. The const.i.tutionality of the State law was sustained. In disposing of the case the court did not controvert the position that by the English common law no man could be tried for murder unless on a presentment or indictment proceeding from a grand jury. But, said the opinion, while that is due process of law which had the sanction of settled usage, both in England and in this country, at the time when our early American const.i.tutions were adopted in the eighteenth century, it by no means follows that nothing else can be. To hold that every feature of such procedure "is essential to due process of law would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians.... It is most consonant to the true philosophy of our historical legal inst.i.tutions to say that the spirit of personal liberty and individual right, which they embodied, was preserved and developed by a progressive growth and wise adaptation to new circ.u.mstances and situations of the forms and processes found fit to give, from time to time, new expression and greater effect to modern ideas of self-government.... It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law."[Footnote: Hurtado _v._ California, 110 United States Reports, 513, 528, 529, 530, 537.]

Many of our State Const.i.tutions specify certain rights as inherent and indefeasible, and among them that "of acquiring, possessing, and protecting property." What is property?

American courts have said that it includes the right of every one to work for others at such wages as he may choose to accept. One of them, in supporting a decree for an injunction against combined action by a labor union to deprive non-union men of a chance to work, by force or intimidation, notwithstanding a statute abrogating the common law rule making such acts a criminal conspiracy, has put it thus:

The right to the free use of his hands is the workman's property, as much as the rich man's right to the undisturbed income from his factory, houses, and lands. By his work he earns present subsistence for himself and family. His savings may result in acc.u.mulations which will make him as rich in houses and lands as his employer. This right of acquiring property is an inherent, indefeasible right of the workman. To exercise it, he must have the unrestricted privilege of working for such employer as he chooses, at such wages as he chooses to accept. This is one of the rights guaranteed to him by our Declaration of Rights. It is a right of which the legislature cannot deprive him, one which the law of no trades union can take from him, and one which it is the bounden duty of the courts to protect. The one most concerned in jealously maintaining this freedom is the workman himself.[Footnote: Erdman _v._ Mitch.e.l.l, 207 Pennsylvania State Reports, 79; 56 Atlantic Reporter, 331.]

But, as already suggested in the preceding chapter, the judges whose opinions have vitalized and enlarged our written law by reading into it some new meaning or application have but echoed the voice of the bar.

The greatest achievements of Marshall in this direction were really but a statement of his approbation of positions laid down before him by Daniel Webster. In the early stages of the Dartmouth College case, when it was before the State courts in New Hamps.h.i.+re, it was Webster and his a.s.sociates, Jeremiah Mason and Jeremiah Smith, both lawyers of the highest rank, who first put forward the doctrine that the charter of a private corporation was a contract; and when the cause came before the Supreme Court of the United States it fell to the lot of Webster to bring it to the attention of the great Chief Justice.[Footnote: "Works of Daniel Webster," V, 497.] So in the Florida case it was he, in supporting the cause of the prevailing party, who suggested that the Territory of Florida, though owned by the United States, was no part of them. "By the law of England," he went on to say, "when possession is taken of territories, the king, _Jure Corona_, has the power of legislation until parliament shall interfere. Congress have the _Jus Corona_ in this case, and Florida was to be governed by Congress as she thought proper."[Footnote: American Insurance Co. _v._ Canter, 1 Peters' Reports, 611, 538.]

This argument did not spend its force in its effect on Marshall.

When, after the lapse of two generations, greater problems of the relations of the United States to territory newly acquired from Spain arose, it was, as has been said above, made one of the cornerstones of the opinion of the same court which determined what they were.[Footnote: Downes _v._ Bidwell, 182 United States Reports, 244, 265.]

So in the Hurtado case, which has been described at length, no description of due process of law was found better and none is better than that given by Webster so many years before in the Dartmouth College case. The Supreme Court of New Hamps.h.i.+re, from whose judgment that cause came up by writ of error, had held--and on that point its decision was final--that the change in the college charter was no violation of the bill of rights embodied in the Const.i.tution of that state. This, following _Magna Charta_, provided (Part I, Art. 15) that no subject should be "despoiled or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty or estate, but by the judgment of his peers or the law of the land." _Magna Charta_ was wrung from a tyrant king. So, said the State court, this article was inserted to protect the citizens against the abuse of the executive power. When it speaks of the law of the land it means the law of New Hamps.h.i.+re, and that is whatever the legislature of New Hamps.h.i.+re chooses to enact, so long as it contravenes no other const.i.tutional provision.

Webster, in paving the way toward his claim that the charter was a contract, and, as a vested right of property, inviolable by a State, alluded to the sacredness of all rights under the guaranties to be found in our American system of const.i.tutional government. It was not surprising that the Const.i.tution of the United States should protect them in the way he a.s.serted. All the States, and New Hamps.h.i.+re among them, had done the same in placing the great features of _Magna Charta_ in their bills of rights. What, he asked, was this law of the land by which all things were to be tried and judged? This was his answer: "By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.

Everything which may pa.s.s under the form of an enactment is not therefore to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures in all possible forms, would be the law of the land."[Footnote: "Works of Daniel Webster," V, 486.]

In the opinion by Mr. Justice Mathews in Hurtado _v._ California he observes: "It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case, but, in the language of Mr. Webster, in his familiar definition, 'the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial,' so 'that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.'"

[Footnote: Hurtado _v._ California, 110 United States Reports, 516, 535.]

Other instances might be mentioned, equally conspicuous, which will ent.i.tle Webster to the name given him by his contemporaries of "the expounder of the Const.i.tution."[Footnote: See Article by Everett P. Wheeler on Const.i.tutional Law of the United States as Moulded by Daniel Webster, in Yale Law Journal, Vol. XIII, p. 366, and in the 27th Annual Report of the New York State Bar a.s.sociation.] No one American lawyer has done as much in that direction, but there are few of the greater ones who have not done something. As, however, the glory of a battle won is for the commander of the victorious forces, so the glory of adding a new meaning to a const.i.tution at a vital point is, with the public, always for the judge whose opinion is the first to announce it. Who announced it to him they never know or soon forget.

The acknowledged possession by the judiciary of the power to interpret written law, and thus to delimit its effect, has led to a serious abuse in our methods of legislation. Statutes are often favorably reported and enacted, both in Congress and the State legislatures, which are admitted to be either of doubtful const.i.tutionality or to contain expressions of doubtful meaning, on the plea that those are questions for the courts to settle.

This has been aptly termed the method of the "_referendum_ to the courts in legislation."[Footnote: Thomas Thacher, Address before the State Bar a.s.sociation of New Jersey, 1903.] It is unfair to them, so far as any question of the Const.i.tution is concerned, since as soon as the measure is enacted a presumption arises that it is not unconst.i.tutional. The courts will not hold otherwise without strong grounds. It comes to them with the benefit of a full legislative endors.e.m.e.nt. It is unfair to the people, both as to questions of const.i.tutionality and of interpretation. A statute can be so drawn as to need no interpretation, or none the outcome of which can be a matter of doubt to any competent lawyer. A legislature abandons its function when it enacts what it does not understand.

The Sherman Anti-Trust Act is an instance of legislation of this character. It forbids contracts "in restraint of trade or commerce" between the States. When the bill was reported it was objected in the House of Representatives that these terms were vague and uncertain. The chairman of the committee himself stated that just what contracts will be in restraint of such commerce would not and could not be known until the courts had construed and interpreted the phrase.

The real intent of those who inserted it was that it should not embrace contracts which were reasonable and not contrary to public policy. A similar term in the English Railway and Ca.n.a.ls Traffic Act had received that interpretation in the English courts, and they supposed that our courts would follow those precedents.[Footnote: George F. h.o.a.r, "Autobiography," II, 364.]

The Supreme Court of the United States did construe it as embracing all contracts in restraint of inter-State trade, whether reasonable or unreasonable, fair or unfair.[Footnote: United States _v._ Joint Traffic a.s.sociation, 171 United States Reports, 505, 570.] One of the justices who concurred in that opinion, in a subsequent case arising under the same statute intimated that on reconsideration he thought the view that had been thus adopted was wrong.[Footnote: Northern Securities Co. _v._ United States, 193 United States Reports, 197, 361.] The addition by those who drafted the bill of three or four words to make their intended meaning clear would have avoided a result unexpected by them and probably undesired, and relieved the court from deciding questions of doubtful construction involving important political considerations and immense pecuniary interests.

CHAPTER VII

THE JUDICIAL POWER OF DECLARING WHAT HAS THE FORM OF LAW NOT TO BE LAW

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 const.i.tutions. 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 Const.i.tution," 152; "Two Centuries Growth of American Law," 12, 19.] The charter of each colony served the office of a const.i.tution. The Lords of Trade and Plantations exercised the power of enforcing its observance. They did in effect what, as the colonies pa.s.sed into independent States with written Const.i.tutions, naturally became the function of their own courts of last resort. The Const.i.tution, like the charter, was the supreme law of the land. Whatever statutes the legislature of a State might pa.s.s, it pa.s.sed as the const.i.tutional representative of the people of that State. It was not made their plenary representative. Every Const.i.tution 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 const.i.tutional 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, ent.i.tled 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 const.i.tuted 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 Const.i.tution 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 const.i.tution, 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 Const.i.tution 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 unconst.i.tutionally of a confirming act pa.s.sed 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 const.i.tutional 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 Const.i.tution, 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 Const.i.tutional 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 const.i.tution. No more could American judges hold an act of a State legislature void because it departed from the State Const.i.tution, unless that Const.i.tution in plain terms gave them such a power. The Const.i.tution 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 Const.i.tution 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 Const.i.tution of the United States. The report said that such a grant was unwarranted by the Const.i.tution 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 Const.i.tution unless the inconsistency is plain. It has been judicially a.s.serted 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 Const.i.tution, since some of their a.s.sociates either must have such a doubt, or go further and hold that there is no inconsistency between the two doc.u.ments.

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 republicans d'Europe, fort chatouilleux sur le chapitre de la puissance legislative. C'est que la notion de l'etat differe d'une facon essentielle sur les deux rives de l'Atlantique."[Footnote: Cent Ans de Republique aux etats-Unis, II, 145.]

Our people have been satisfied with the interposition of the courts to defend their Const.i.tutions from executive or legislative attack, because these Const.i.tutions stand for something in which they thoroughly believe. President Hadley has well said that "a written Const.i.tution 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 fact.i.tious boundary by the mere act of setting up a fence the effort fails."[Footnote: Freedom and Responsibility, 30.]

Americans took principles and inst.i.tutions with which they had become familiar in colonial days and made their Const.i.tutions out of them. Their attachment to what the Const.i.tution provides goes behind the Const.i.tution 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 fort.i.tude in the judges to do their duty as faithful guardians of the const.i.tution."

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 ent.i.tled to great respect. If a different, opinion is to prevail, it should ordinarily be first p.r.o.nounced 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 unconst.i.tutional, 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 p.r.o.nounced 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 Const.i.tution 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 Const.i.tution of the United States, over two hundred statutes pa.s.sed by States. Of the twenty-one acts of Congress thus declared unconst.i.tutional, 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, ccx.x.xv.] 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 const.i.tutions 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 unconst.i.tutional 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, Was.h.i.+ngton 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 unconst.i.tutional 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 p.r.o.nounced 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 pa.s.sed 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 Const.i.tution 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 p.r.o.nounces 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 Const.i.tutions 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 Const.i.tution 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 pet.i.tions 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 Const.i.tution 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.]