The pardoning power is essentially of a political nature. Judicial officers are to do justice. Mercy is an act of policy or grace. A pardon after conviction presupposes guilt. Nevertheless, in a few States this royal prerogative of pardoning has been committed to a board of officers, headed by the Governor, of which some of the judiciary are members. There is this advantage in it, that judges know best how fully circumstances of extenuation are always taken into account by the court before pronouncing sentence, and therefore cannot but exercise a restraining power against the influences of mere sentimental promptings to inconsiderate clemency.

It may be said, in general, that the tendency towards keeping the judiciary apart from any active connection with the executive department has steadily increased since the first quarter of the nineteenth century.

When our position as a neutral power, in 1793, involved us in serious questions affecting the rights of Great Britain and France, Washington's cabinet advised him that the ministers of those countries be informed that the points involved would be referred to persons learned in the law, and that with this in view the Justices of the Supreme Court of the United States be invited to come to the capitol, six days later, "to give their advice on certain matters of public concern, which will be referred to them by the President."[Footnote: Jefferson's Writings, Library Ed., I, 370.] Nothing of this nature would now be dreamed of, under any conditions.

* * * * *



CHAPTER IV

THE FORCE OF JUDICIAL PRECEDENTS

The antipathy to legal codification, which, until recent years, was a characteristic both of the English and American bar, and still prevails, though with diminishing force, has given, and necessarily given, great force to judicial precedents. It is mainly through them that with us unwritten law passes into written law. Precedent is a fruit of reason ripened by time. Time, it has been said, is the daughter of Antiquity and takes place after Reason, which is the daughter of Eternity. Precedent rests on both. A legal code framed in any American State is little more than the orderly statement of what American courts have decided the law to be on certain points.

When reason is set to work upon the solution of a problem growing out of the affairs of daily life, it often happens that two minds will pursue different paths and perhaps come to different results. Not infrequently neither result can fairly be pronounced untenable. An English judge has said that nine-tenths of the cases which had ever gone to judgment in the highest courts of England might have been decided the other way without any violence to the principles of the common law.

Every lawsuit looks to two results: to end a controversy, and to end it justly; and in the administration of human government the first is almost as important as the last.[Footnote: Hoyt v. Danbury, 69 Conn. Reports, 341, 349.] Certainty is of the essence of justice; but among men and as administered by their governments it can only be such certainty as may be attained by an impartial, intelligent, and well-trained judge. If such a judge has, after a proper hearing, declared what, under a particular set of circumstances, the law is which determines the rights of the parties interested, this declaration makes it certain, once and forever, as far as they are concerned, and helps to make it certain as to any others in the future between whom there is a controversy under circumstances that are similar. If it is the declaration of a court of supreme authority it is ordinarily accepted as of binding force by any inferior courts of the same government, and treated with great respect and as high evidence of the law by any other of its superior courts, as well as by courts of other States before which a similar question may be presented.

A decision on a point of law by the highest court in a State does not, however, bind its lower courts as absolutely as would a statute. An inferior court may disregard it and decide the same point another way if it be fully satisfied that the action taken by the court above was ill-considered and erroneous. It is possible that in such event, on reconsideration, the court of last resort may reverse its original position.[Footnote: A good instance of this is furnished by the case of Johnson v. People, 140 Illinois Reports, 350; 29 Northeastern Reporter, 895. In McFarland v. People, 72 Illinois Reports, 368, the Supreme Court had stated in its opinion, that if two unimpeached witnesses gave the only testimony as to a certain point material to the plaintiff's case, and testified in contradiction of each other, the case failed for want of proof. Many years later a charge to the jury to this effect was asked and refused in an inferior court. An appeal was taken to the Supreme Court, and there Mr. Justice Schofield, the author of the original opinion, thus disposed of it: "Although in McFarland v. People, 72 III., 368, the writer of this opinion expressed the belief that a similar instruction was free of legal objection, his remarks in that respect were unnecessary to a determination of the case then before the court, and they were made without sufficient consideration, and are manifestly inaccurate. They are now overruled. The question of competency is one of law, and therefore for the court; but the question of credibility,—that is, of worthiness of belief,—and therefore the effect of the competent evidence of each witness, is one of fact, and for the jury."] If not, that acquires by this attack a double force.

Chief Justice Bleckley of Georgia once remarked that courts of last resort lived by correcting the errors of others and adhering to their own. Nevertheless, they have often, years after formally announcing a certain legal doctrine in one of their opinions, declared it to be unsound, and overruled the case in which it was laid down. They do this, however, with natural and proper reluctance, and never if this doctrine is one affecting private rights of property and has been followed for so long a course of time that it may be considered as a rule on which the people have relied in exchanging values and transferring titles.

The public, however, have rights to be regarded as fully as individuals, and if a right of private ownership has been adjudged to exist, which involves a public loss, the precedent thus created might be overruled with less hesitation than one would be determining rights and correlative obligations that were purely private. Thus the North Carolina courts for seventy years held that a public office was the private property of the incumbent. No other courts in the United States took that view, and it has, by a recent decision, been repudiated in North Carolina.[Footnote: Mial v. Ellington, 134 North Carolina Reports, 131; 46 Southeastern Reporter, 961; 65 Lawyers' Reports Annotated, 697.]

Still more are public interests to be regarded when a question arises as to reversing a decision as to the proper construction of a constitutional provision. If a judicial mistake be made in construing a statute it is easily remedied. The next legislature can amend the law. But a Constitution can only be amended with extreme difficulty and by a slow process. If the court falls into error as to its meaning, the correction must ordinarily come from its own action or not at all. Hence an opinion on a matter of constitutional construction is less to be regarded as a final and conclusive precedent than one rendered on a matter of mere private right.

It has been the position of some American statesmen and jurists that judicial decisions on points of constitutional construction were not binding upon the executive or legislative department of the government. President Jackson asserted this with great force in his message to the Senate of July 10, 1832, disapproving the re-charter of the Bank of the United States. He conceded, however, that a judicial precedent may be conclusive when it has received the settled acquiescence of the people and the States. But while such acquiescence may strengthen the authority of a decision, it can hardly be regarded as that which gives it authority. That comes from the fact that it is an exercise of the judicial power of the government in a case for the disposal of which this judicial power has been properly invoked.

The decision of the court in McCulloch v. Maryland[Footnote: 4 Wheaton's Reports, 316. See Willoughby, "The American Constitutional System," 44, 123.] unquestionably settled forever, as between the cashier of the bank and the State of Maryland, that the bank was a lawful institution. That in Osborn v. The Bank of the United States[Footnote: 9 Wheaton's Reports, 738.] reaffirmed it as between the bank and the Treasurer of the State of Ohio. It would be intolerable if such judgments were not in effect equally conclusive for the determination of all controversies between all men and all States growing out of the creation of such a corporation. Practically, then, the opinion of the executive department to the contrary could only be of importance in such a case as Jackson had in hand; that is, in its influencing executive action in approving or disapproving some proposed measure of legislation. It could not disturb the past.

The authority of a judicial precedent is weakened if it comes from a divided court, and especially if a dissenting opinion is filed in behalf of the minority. A silent dissent indicates that the judge from whom it proceeds is not so impressed by the fact, or the importance to the public, of what he deems the error of the majority that he thinks it worth while to express the reasons which lead him to differ from them.

No departure from precedent in any American court has ever awakened so much feeling as that by the Supreme Court of the United States in 1872, when it decided that Congress could make government notes a legal tender for debts contracted before the law was passed.[Footnote: The Legal Tender Cases, 12 Wallace's Reports, 457, 529.] It had held precisely the contrary two years before,[Footnote: Hepburn v. Griswold, 8 Wallace's Reports, 603.] but it was by a bare majority and in the face of a strong dissenting opinion. In the opinions filed in the second case stress was laid upon this division of the court.[Footnote: 12 Wallace's Reports, 553, 569. See George F. Hoar, "Autobiography," I, 286.]

The word "established" is often used to describe the kind of precedent to which courts are bound to adhere. What serves to establish one? Long popular usage, repeated judicial affirmations, and general recognition by approved writers on legal topics. Of these, in fact, the last is probably the most powerful. Lawyers and courts, in countries without codes, get their law mainly from the standard text-books. Such authors as Coke, Blackstone, Kent and Cooley are freely cited and relied on as authorities by the highest tribunals.[Footnote: See, for instance, Western Union Telegraph Co. v. Call Publishing Co., 181 United States Reports, 101; Louisville Ferry Co. v. Kentucky, 188 United States Reports, 394, 397.] It is by the writings of such men that judicial precedents are sifted and legal doctrines finally clothed in appropriate terms and arranged in scientific order.

The English courts long ago declared it to be a rule of law to prevent perpetuities that no estate in lands could be created which was not to commence within the compass of a life or lives of persons then existing, with an exception intended to favor a minor heir. American courts accepted this rule, but some of them construed it as meaning that no estate in lands could be created which was to continue after the expiration of such a period. This construction was shown by Professor John C. Gray, in a work on "Perpetuities," to be unwarranted, and since its publication the cases which had proceeded on that basis have been generally treated as erroneous.

The nature of a legal presumption, also, had been misconceived by several American courts. It had been treated as evidence of facts.[Footnote: Coffin v. United States, 156 United States Reports, 432.] Professor J. B. Thayer, in his "Preliminary Treatise on Evidence,"[Footnote: Pages 337, 566- 575.] argued so forcibly against this view that in at least one State a decision in which it had been taken has been formally overruled.[Footnote: Vincent v. Mutual Reserve Fund Life Association, 77 Connecticut Reports, 281, 291; 58 Atlantic Reporter, 963.]

The Court of Appeals of New York once held in a carefully prepared opinion that a railroad might be built along the shore of a navigable river, under authority from the State, without first making compensation to the riparian proprietors, whose access to the waters might thus be obstructed.[Footnote: Gould v. Hudson River Railroad Co., 6 New York Reports, 522.] In a text-book written by Chief Justice Cooley, this decision was justly criticised,[Footnote: Cooley on Constitutional Limitations, 670.] and not long after the publication of that work it was formally overruled.[Footnote: Rumsey v. New York and New England Railroad Co., 133 New York Reports, 79; 30 Northeastern Reporter, 654; 15 Lawyers' Reports Annotated, 618.] It is safe to say that its fate was largely the result of the comments thus made by a distinguished jurist, whose only motive could be to maintain the integrity and consistency of legal science.

The general doctrine of the courts, which is commonly expressed by the rule "stare decisis," was never better stated than by Chief Justice Black of Pennsylvania, in these words:

When a point has been solemnly ruled by the tribunal of the last resort, after full argument and with the assent of all the judges, we have the highest evidence which can be procured in favor of the unwritten law. It is sometimes said that this adherence to precedent is slavish; that it fetters the mind of the judge, and compels him to decide without reference to principle. But let it be remembered that stare decisis is itself a principle of great magnitude and importance....

A palpable mistake, violating justice, reason and law, must be corrected, no matter by whom it may have been made. There are cases in our books which bear such marks of haste and inattention, that they demand reconsideration. There are some which must be disregarded, because they cannot be reconciled with others. There are old decisions of which the authority has become obsolete, by a total alteration in the circumstances of the country and the progress of opinion. Tempora mutantur. We change with the change of the times, as necessarily as we move with the motion of the earth. But in ordinary cases, to set up our mere notions above the principles which the country has been acting upon as settled and established, is to make ourselves not the ministers and agents of the law, but the masters of the law and the tyrants of the people.[Footnote: McDowell v. Oyer, 9 Harris' Reports, 423.]

Generally, overruling a former decision is due to a change of circumstances, which has given the court a new view-point. A marked instance of this occurred in 1851, in proceedings before the Supreme Court of the United States. More than a quarter of a century before, a suit in admiralty for seamen's wages on an inland river had been dismissed by the District Court of Kentucky for want of jurisdiction, and on appeal this action had been affirmed. Mr. Justice Story gave the opinion of the court, and said that a court of admiralty could only take cognizance of such a claim when the services were rendered at sea or upon waters within the ebb and flow of the tide.[Footnote: The Thomas Jefferson, 10 Wheaton's Reports, 428.] This was undoubtedly a true statement of what had always been the doctrine of both English and American courts. But out of what did this doctrine spring? From the fact that in England there were no navigable waters except those in which the tide ebbed and flowed, and that in the United States, up to that time, there were none of a different kind which had been largely used for commercial purposes. Twenty years passed. Steam navigation had opened the great lakes and the great rivers of the country to a profitable carrying trade. The day was dawning when the bulk of American shipping was to be employed upon them. A suit in admiralty was brought against a ship for sinking another on Lake Ontario. The defendants put in an answer relying on the doctrine laid down by Story. The District Court overruled it. The case came by appeal to the Supreme Court, and in an opinion by Chief Justice Taney the appeal was dismissed. "The conviction," he said, referring to the opinion of Mr. Justice Story, "that this definition of admiralty powers was narrower than the Constitution contemplated, has been growing stronger every day with the growing commerce on the lakes and navigable rivers of the western States.... These lakes are in truth inland seas. Different States border on them on one side and a foreign nation on the other. A great and growing commerce is carried on upon them between different States and a foreign nation, which is subject to all the incidents and hazards that attend commerce on the ocean. Hostile fleets have encountered on them and prizes been made, and every reason which existed for the grant of admiralty jurisdiction to the general government on the Atlantic seas applies with equal force to the lakes. There is an equal necessity for the instance and for the prize power of the admiralty court to administer international law, and if the one cannot be established neither can the other.... The case of the Thomas Jefferson did not decide any question of property or lay down any rule by which the right of property should be determined.... The rights of property and of parties will be the same by whatever court the law is administered. And as we are convinced that the former decision was founded in error, and that the error, if not corrected, must produce serious public as well as private inconvenience and loss, it becomes our duty not to perpetuate it."[Footnote: The Genesee Chief, 12 Howard's Reports, 443, 451.]

But without any change of circumstances, the proper desire of all American courts to keep their common law in harmony with that of the other States is often sufficient to induce the abandonment of a doctrine once distinctly asserted.[Footnote: City of South Bend v. Turner, 156 Indiana Reports, 418; 60 Northeastern Reporter, 271.] The consistency of American law as a whole is immeasurably more important than the consistency of the law of any single State.

Sometimes a court of last resort treats a doctrine which it had formerly asserted as manifestly unsound and abandons it without stopping to give a reason or even to overrule the decision which first announced it.

Illinois for a long generation adopted the rule that if an injury occurred to one man through the concurring negligence of himself and another, but his negligence was slighter than that of the other, he might hold the latter responsible for the damages suffered.[Footnote: Andrews, "American Law," 255, 1027.] It was not a doctrine justified by the common law nor generally held in this country, and in 1894 the Supreme Court of the State refused to recognize it, with little or nothing more than this brief ipse dixit: "The doctrine of comparative negligence is no longer the law of this court."[Footnote: Lanark v. Dougherty, 153 Illinois Reports, 163; 38 Northeastern Reporter, 892.]

Occasionally a case is overruled because it has been forgotten.

An early decision in Massachusetts (Loomis v. Newhall[Footnote: 15 Pickering's Reports, 159.]) had affirmed the position that if a statute required contracts of a certain kind to be put in writing, and a contract of that kind, but embracing also a different and distinct matter not touched by the statute, was made orally, it was wholly void. Such a rule was illogical and unsound, and in a later decision the same court, forgetting that it had indorsed it, said so, and said so when it was not necessary to the decision.[Footnote: Irvine v. Stone, 6 Cushing's Reports, 508, 510.] Subsequently, both these cases having been brought to its attention, it affirmed the latter, though remarking that "what was there said on this point was not essential to the decision of that case, and would have been omitted or modified if Loomis v. Newhall had been then remembered."[Footnote: Rand v. Mather, 11 Cushing's Reports, 1, 5.]

The authority of an opinion as a precedent on any point is always proportioned to the necessity of determining that point in order to support the judgment which was rendered. Some judges write treatises instead of decisions or in addition to decisions. Whatever goes beyond that which is required to show that the judgment is the legal conclusion from the ascertained facts is styled in law language obiter dictum. It may be interesting and even persuasive, but it is not an authoritative statement of law.

It may grow to be such by adoption in subsequent cases. The Court of King's Bench in England was called on, at the beginning of the eighteenth century, to say whether if a man undertook as a friendly act, and not for pay, to cart another's goods, and did it carelessly, he was bound to answer for any damage that might result. There were four judges who heard the case, of whom three gave their opinions.[Footnote: Coggs v. Bernard, Lord Raymond's Reports, 909.] Two of these opinions were confined to the precise point of law on which the case turned. In the third, Chief Justice Holt seized the opportunity to lay down the law of England as to all sorts of contracts arising out of the reception by one man of the goods of another. This he did mainly by setting forth what were the rules of the Roman law on the subject, but not referring to their Roman origin, and quoting them, so far as he could, from Bracton, an English legal writer of the thirteenth century, who had also stated them as English law.

For four or five centuries these rules had been laid down in an unofficial treatise, but the courts had not fully recognized them. Now the Chief Justice of England had given such recognition in the amplest manner. Meanwhile the trade of England had reached a point at which some definite rules on all these matters had become of the utmost importance. The bar were only too glad to advise their clients in accordance with Lord Holt's opinion. It was not long before it was universally practiced upon, and no case in the English language touching contract relations of that nature is of greater importance as a precedent. Yet it became such not because of its intrinsic authority as a judgment, so much as on account of its orderly and scientific statement of a whole body of law of a kind that the people needed and for the origin of which—whether at Rome or London—they cared little, so long as it had been accepted by the highest judicial authority in the realm.

On the other hand, the greatest judges have often, in delivering the opinion of the court, asserted doctrines the consideration of which was not essential to the decision, and later retracted the assertion on fuller consideration or seen the court in a later case retract it for them.

Two of the great opinions of Chief Justice Marshall are Marbury v. Madison[Footnote: 1 Cranch's Reports, 137.] and Cohens v. Virginia.[Footnote: 6 Wheaton's Reports, 264.] In the first the court held that it had no jurisdiction to command the Secretary of State to deliver a commission executed under the preceding administration, because, although Congress had assumed to confer it, Congress had no power to do so; and in defending this position Marshall observed that the Constitution defined the jurisdiction of the Supreme Court over cases brought there in the first instance, and that in this clause of the Constitution affirmative words had the force of negative words so far as to exclude jurisdiction over any other cases than those specifically mentioned. In the second case this observation was relied on by Virginia to defeat the power of the court to review a State judgment. But, said the Chief Justice, "it is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.... In the case of Marbury v. Madison, the single question before the court, so far as that case can be applied to this, was whether the legislature could give this court original jurisdiction in a case in which the Constitution had clearly not given it, and in which no doubt respecting the construction of the article could possibly be raised. The court decided, and we think very properly, that the legislature could not give original jurisdiction in such a case. But in the reasoning of the court in support of this decision some expressions are used which go far beyond it.... The general expressions in the case of Marbury v. Madison must be understood with the limitations which are given to them in this opinion; limitations which in no degree affect the decision in that case or the tenor of its reasoning." He then proceeded to dispose of the case in hand by saying that Virginia having obtained an erroneous judgment against Cohens, Cohens had a right to appeal, and the suit still remained a suit by a State against him and not by him against a State. Unfortunately, here again came in next an obiter dictum. If, he said, this were not so, there was another principle equally decisive in support of the jurisdiction, namely, that the Constitution gave the United States judicial power over all cases arising under the Constitution or laws of the United States without respect to parties. Nearly a hundred years later a State was sued in the courts of the United States on a cause of action arising under the Constitution, and Cohens v. Virginia was relied on as a precedent. "It must be conceded," was the reply of the Supreme Court, "that the last observation of the Chief Justice does favor the argument of the plaintiff. But the observation was unnecessary to the decision, and in that sense extra-judicial, and though made by one who seldom used words without due reflection, ought not to outweigh the important considerations referred to which lead to a different conclusion."[Footnote: Hans v. Louisiana, 134 United States Reports, 1, 20.]

It may be added that decisions on a point not material to the cause are generally made without the benefit of previous argument by counsel. The lawyers will naturally address themselves to the controlling questions, and if well trained will see what these are quite as clearly as the court. It is the argument at the bar, in which different views of law are presented and each defended by men of learning and ability, which enables the judge, after hearing both sides and weighing all that is said in behalf of one against all that is said in behalf of the other, to come to the true conclusion. The Romans recognized this in their rule as to the force of precedent in a matter of customary law. The first thing to ask was whether "contradicto aliquando judicio consuetudo firmata sit."[Footnote: "Digest," 1, 3, de legibus, etc., 34.]

The retrospective effect which a refusal to follow a former decision may have in disturbing vested rights being one of the most cogent reasons for adhering to precedent, there is less objection to departing from it when the decision can be so limited as to have only a future operation. This is occasionally feasible. Thus the High Court of Errors and Appeals of Mississippi by an early decision held that on the dissolution of a bank all its rights and liabilities were extinguished. Thirty years later the Supreme Court of the same State overruled that decision, declaring it "condemned by reason and the principles of modern and enlightened jurisprudence," but nevertheless applied it as a controlling precedent to a case arising out of the dissolution of a bank which had been incorporated previously to the time when the original decision was made.[Footnote: 1 Bank of Mississippi v. Duncan, 56 Mississippi Reports, 165.]

The effect of overruling a former opinion may also be limited by the dual character of our government.

The courts of the United States follow the decisions of the State courts in the determination of matters of State law. If a State law is held by the courts of the State to have a particular meaning and effect it will be accorded the same in the federal courts. But if a federal judgment is for that reason rendered in a certain form, and there is no appeal, it settles the rights of the parties to the suit forever, even should the State courts afterward reverse their former rulings as being erroneous.[Footnote: 2 Deposit Bank v. Frankfort, 191 United States Reports, 499.]

De Tocqueville, in his estimate of the American bar,[Footnote: 3 "Democracy in America," II, Chap. XVI.] speaks of it as devoted to investigating what has been done rather than what ought to be done; to the pursuit of precedent rather than of reason.

In a very limited sense this is true. Where codes are wanting, former judicial decisions must serve in their place. But it would be a mistake to suppose that it is a large part of the business of American lawyers to search out precedents for the guidance of the courts. Most cases, after any facts in dispute are once settled, depend on the application of the simplest processes of ordinary reasoning. No aid from the past is needed for this and none is to be had. It has been well said by an English judge[Footnote: 1 James, L. J., in 1875, Law Reports, 10 Chancery Appeal Cases, 526.] that the clearer a thing is the more difficult it is to find any express authority or any dictum exactly to the point. Nor, if there be one, is it to be accepted without regard to the circumstances out of which it arose or the end to be effected by the judgment. A precedent may indeed be used slavishly, but so it may be used in the free spirit in which it was conceived. Many an argument at the bar, however, is ruined by an excessive anxiety to repeat the ipsissima verba of some ancient opinion, when the soul of it is the only thing of value. And occasionally courts are chargeable with pursuing the letter of some of their former deliverances rather than the spirit which called them forth and gave them all their vitality.

* * * * *



CHAPTER V

THE JUDICIAL POWER OF DEVELOPING UNWRITTEN LAW

The English common law was and is an unwritten law. To find it one has to look in legal treatises and reports of judicial decisions. Its historical development has been not unlike that of Rome. In Rome, as in England, there were in early times written enactments or governmental declarations of standing rules on but few points. Some of these writings were of special importance, such as the twelve tables of Rome and the Magna Charta of England. These were regarded as so bound up with the very life of the people as to have a place by themselves, and a superior force to anything to the contrary to which the free consent of the people was not formally given. But in general Romans and Englishmen preferred to make custom their law, and to let this law grow "not with observation," but insensibly from day to day as the needs of their social organization might be found to require. It was a wise preference, and founded on a better philosophy than they knew—than the world knew, until the theory of evolution was demonstrated by Darwin and applied to governmental science by Spencer.

A customary law for a people of advancing civilization and power must expand with corresponding rapidity. There will soon be disputes as to what it is on certain points and a demand for some authoritative information as to this. In Rome, the priests gave it at first, and then the lawyers. In England, the priests never gave it, as priests. There was no sacred college of law. Priests took part in legislation. A priest, at the king's right hand, was his spokesman in doing equity. But it was from the first the king as a judge, or the king's judges deputed by him and sitting for him, who settled controverted questions of common law. For the Roman and for the Englishman the first representatives of government who could be called judges were primarily and principally executive officers. The Roman praetor was not given judicial functions because he had legal attainments. The aula regis of early England was composed of the great officers of state. The chief justiciar, however, soon ceased to be prime minister. His associates on the bench, as law became a recognized profession, came to be chosen largely for their fitness for judicial work and to be kept at it during the king's pleasure. At Rome, on the contrary, the praetorship remained a political place, held for a fixed term, and a brief one. Information as to the unwritten law applicable to any controversy between parties had therefore to be sought from others. The lawyers could give it; and it was to them, not to the judges, that resort was had. The opinion of a great jurist was for Rome what the opinion of a judge was for England. It was commonly accepted as conclusive not only by the people but by the courts.

Such opinions profess to state what the law was by which rights accrued out of a past transaction. In fact, they often do much more. By declaring that to be the law, and declaring it with authority, they are the first to make it certain that it is the law. The difference between this and making law is not great.

The Romans at first accorded authority to the opinions (responsa) of lawyers only because of the standing and reputation of those who gave them. Later the emperors gave an official character and weight to the opinions of certain lawyers of the past. The English always accorded authority to the opinions of their judges, because they spoke for the state. Americans from the first have done the same.

American judges have exercised these powers of ascertaining and developing unwritten law even more freely than English judges. They were forced to it as a result of applying the common law of one people to another people inhabiting another part of the world and living under very different social conditions. In doing this it was necessary to reject not a little of what for England had already been definitely settled and universally accepted. The legislatures of the colonies and States rejected much, but the courts rejected more. The legislatures also added much, but the courts added yet more.

Usages grow up rapidly in new settlements and along frontiers bounded by territory held by savages. Of such usages, under the rulings of the courts, many were soon crystallized into law.

New inventions and new political conceptions in the eighteenth century began to change the face of the civilized world. The common law as to agency had to be adapted to the operations of business corporations; that as to highways to railroads; that as to contracts by mail to contracts by telegram, and later to contracts by telephone. The whole law of master and servant, which for the English people was bottomed on the relation of land-owner and serf, was to be recast. Public assemblies were to be regulated and their proceedings published with greater regard to public and less to private interest.[Footnote: Barrows v. Bell, 7 Gray's Reports, 301; 66 American Decisions, 479.] Along all these lines and many others the American courts have now for nearly three hundred years been quarrying out American law from the mine of the unwritten law of the people within their jurisdiction. It has been their natural endeavor to make each part of the new system of jurisprudence which they were gradually building up harmonious with every other and to give a certain symmetry to the whole. This has forced them to deduce rule from rule and principle from principle with a freedom for which in older countries of settled institutions there is less occasion. The process has gone on during the last fifty years with ever-increasing rapidity, and for two reasons. There have been more novel questions to meet and there has been a greater wealth of suggestion and precedent at command.

Not a little, however, of the development of our unwritten law has been and remains of a local character. This is particularly true of that of the Pacific States, both on account of climatic conditions and historical antecedents.[Footnote: Katz v. Walkinshaw, 141 California Reports, 116.] Chief Justice Field of the Supreme Court of California, afterward so long a member of the Supreme Court of the United States, did both a constructive and a destructive work in shaping the jurisprudence of that State. He found it seated in a land on which certain institutions of civil law origin had been impressed for centuries and into which other institutions of common law origin had been introduced in recent years. His judicial opinions molded these into one mass, rejecting something from each and retaining something from each.[Footnote: Pomeroy, "Some Account of the Work of Stephen J. Field," 38, 45.] Some of the results of his creative touch have been the foundation of decisions in distant States, but most were so dependent on local circumstances and conditions as to be incapable of transplantation.

But as to all questions of general concern which can be answered from analogies drawn from the common law, the judges of each State—and it is the State judiciary on which the burden of developing unwritten law mainly rests—now find in the reported decisions of the courts of last resort in all the other States a fertile source of supply when they are looking for a rule to fit a case for which the ancient law made no direct provision. Keen intellects from the bench, aided perhaps by keener ones from the bar in forty-five different jurisdictions, are discussing the problems of the day as they appear mirrored in litigated causes. What is a new question in one State was set at rest ten years or ten days ago by a judicial decision in another. If the decision was a just and logical deduction from accepted principles of the older law it will probably be followed everywhere. If unjust and illogical, its very faults will serve to guard other courts to better conclusions.

How far judges advance along these paths depends greatly on the character of the bar. A judge rarely initiates anything. He is apt to fall into a mistake if he does. The business which he has to do is brought before him by others. It is brought before him in the best way to throw all possible light upon it, because it is set before him from two opposite points of view by two antagonists, each strenuously endeavoring to detect a flaw in the reasoning of the other. These two men have previously given the subject in controversy much careful thought. What views neither presents are generally not worth presenting. As was said in the preceding chapter, it is only in the plainest case that a judge can properly or safely base his decision on a position not suggested at the bar or as to the soundness of which he has not asked the opinion of the counsel at the hearing.

The development of law, therefore, whether unwritten or written, is primarily the work of the lawyer. It is the adoption by the judge of what is proposed at the bar.[Footnote: See Chap. VI, X.]

There are obvious limits to this power of developing unwritten law. The courts are not to push forward into a place more appropriate for the legislature to occupy.

Mr. Justice Holmes of the Supreme Court of the United States, when Chief Justice of Massachusetts, stated with his usual elegance and force the bounds within which, as it seemed to him, judicial authority should be kept. In a common law suit against a railroad company for damages suffered by an accident on its road, the defendant had asked the trial court to order the plaintiff to submit to an examination of his person by a physician whom it named, for the purpose of determining what injuries he had really suffered. "We agree," said the Chief Justice, "that in view of the great increase of actions for personal injuries it may be desirable that the courts should have the power in dispute. We appreciate the ease with which, if we were careless or ignorant of precedent, we might deem it enlightened to assume that power. We do not forget the continuous process of developing the law that goes on through the courts in the form of deduction or deny that in a clear case it might be possible even to break away from a line of decisions in favor of some rule generally admitted to be based upon a deeper insight into the present wants of society. But the improvements made by the courts are made, almost invariably, by very slow degrees and by very short steps. Their general duty is not to change, but to work out, the principles already sanctioned by the practice of the past. No one supposes that a judge is at liberty to decide with sole reference even to his strongest convictions of policy and right. His duty in general is to develop the principles which he finds with such consistency as he may be able to attain.... In the present case we perceive no such pressing need of our anticipating the legislature as to justify our departure from what we cannot doubt is the settled tradition of the common law to a point beyond that which we believe to have been reached by equity, and beyond any to which our statutes dealing with kindred subjects ever have seen fit to go. It will be seen that we put our decision, not upon the impolicy of admitting such a power, but on the ground that it would be too great a step of judicial legislation to be justified by the necessities of the case."[Footnote: Stack v. New York, New Haven and Hartford Railroad Co., 177 Massachusetts Reports, 155; 58 Northeastern Reporter, 686.]

The theory of judicial power thus stated carries implications that would not be universally accepted. It is intimated that if the necessity had seemed strong enough to call for the order asked for in the trial court it ought to have been granted, although not justified by any settled rule or authoritative precedent, nor by any clear analogy from such a rule or precedent. This is a view taken, though with less caution and qualification, in a work written by the same hand many years before, which is recognized as a legal classic on both sides of the Atlantic. In "The Common Law,"[Footnote: Pp. 35, 36.] after discussing some of the reasons which actuate judges in assuming to unfold the unwritten law, it is stated thus:

The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy: most generally, to be sure, under our practice and traditions the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis.... The truth is that the law is always approaching and never reaching consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.

Courts enter on a dangerous ground when, to justify their action, they rely on any rule of public policy not stated in Constitution or statute and unknown to the common law. If such was once the habit of the English courts, it was because of social conditions with which they had to deal which no longer exist either in their country or in ours. It is for the judge to adapt old principles rather than adopt new ones. What one man thinks is public policy another, equally clear-headed and well-informed, may not. The safe course for the judiciary is to rely on the legislature to declare it, so far as the common law does not. If, however, the courts of a State are called upon for the first time to declare what any rule of the common law, governing a past transaction, is, or at a given time was, in that State, and this be a doubtful question, the decision virtually calls for the making of a new rule, though under the form of applying an old one, and that will be adopted which may be deemed best calculated to do justice in cases of that particular character.[Footnote: Seery v. Waterbury, 82 Conn., 567, 571; 74 Atlantic Reporter, 908.]

* * * * *



CHAPTER VI

THE JUDICIAL POWER OF INTERPRETING AND DEVELOPING WRITTEN LAW

As governments must provide some authority to declare what the unwritten law governing any transaction was, so they must provide some authority to declare what the written law governing any transaction means. Few statements of any rule or principle can be written out in such a way as to convey exactly the same impression to every mind. Thought is subtler than its expression. The meaning of written laws will therefore often be questioned.

An answer is sometimes attempted by the authority from which the law proceeded. A king declares what he intended by the terms of an ambiguous edict. A legislature passes an act to declare the meaning of a previous one. But meanwhile rights have accrued. Something has been done in reliance upon a certain construction of the law. If it was a right construction, then what was done was lawful, and no subsequent explanation of his intentions by the lawgiver can change this fact. Laws are addressed to the community at large, and their meaning must be determined once for all from the language used, however inadequate it may have been to express the real design of those who enacted them, unless that design so clearly appears, notwithstanding an unfortunate choice of words, as to compel an interpretation against the letter but in obedience to the spirit of the enactment. A "declaratory statute"—one declaring what a previous statute meant—is therefore, if it gives it a meaning unwarranted by its terms when so interpreted, only effectual as respects future transactions. As to the past, the meaning is for the courts, and while such a statute may aid, it cannot control them.

Are the courts to send such questions to a jury or shall the judges decide them? The answer must be determined by considerations applicable to every sort of written paper. If the true construction of an ambiguous document be left to juries, it is evident that there would be no certainty that different results would not be reached in different cases, and probable that unanimity would seldom be attainable. If left to judges, a decision will certainly be reached and, it may be presumed, be reasoned out with care, while if the matter be one of public importance the grounds on which they proceed will be so expressed as to furnish a guide to others toward the same conclusion. The construction of all writings is therefore, by the Anglo-American common law, as by the judicial system of most countries, deemed, in case of a question affecting litigated rights, to belong of right to the judges. Their possession of this power in the United States is especially necessary in respect to written law.

In every government there must be some human voice speaking with supreme authority. It may be that of one man or of many men. The essential thing is that it should be a personal utterance, proceeding from persons to whom, by acknowledged law or custom, submission is due, and one that, if need be, can be enforced by the whole power of the State.

The fundamental principle of American government, as laid down in the words of Harrington in the oldest of our State Constitutions, after which many of the rest, and that of the United States as well, have been largely patterned, is that it is one of "laws and not of men."[Footnote: Constitution of Massachusetts, Part the First, Art. XXX, quoted more fully in Chapter II.] Laws, however, must be administered by men. Their meaning, if it be uncertain, must be determined by men. It must be the subject, as the same Constitution twice affirms, of "impartial interpretation."[Footnote: Id., Preamble, and Part the First, Art. XXIX.] This interpretation is really what gives them force. It is the personal utterance of one speaking for the State, and who speaks the last word. It was simply following English precedent to give this power to the courts as respects legislative enactments. But the principle which required it inevitably extended with equal force to constitutional provisions. The people who adopt written constitutions for their government put their work in a form which must often give rise to questions as to what they intended to express. They rely on the judiciary to secure their enforcement, and the judiciary must enforce them according to what it understands their meaning to be.

There is but a step from interpretation to enlargement. Every statute is passed to accomplish something. If the object is clear, the rules of Anglo-American law allow the court that may be called on to apply it to extend its operation to cases within the purpose evidently intended, although the language used is inadequate fully to express it. This is styled giving effect to "the equity of the statute." Even violence can be done to the words, if so only can this judge-discovered intent be made effectual. The rules governing judicial interpretation of statute law fill a good-sized volume.

As the Roman lawyers worked out by force of logic and analogy an extensive system of private law from the meagre fabric of the Twelve Tables, so under the lead of American lawyers American judges have applied the processes familiar in the development of unwritten law to the development of our written law, both statutory and constitutional.

Carlyle said that the Roman republic was allowed so long a day because on emergencies the constitution was suspended by a dictatorship. The American republics have a right, upon this theory, to a still longer one. With them the Constitution need not be temporarily set aside on an emergency. It may simply be permanently enlarged or limited by judicial construction. A Constitution is the garment which a nation wears. Whether written or unwritten, it must grow with its growth. As Mr. Bryce has put it: "Human affairs being what they are, there must be a loophole for expansion or extension in some part of every scheme of government; and if the Constitution is Rigid, Flexibility must be supplied from the minds of the Judges."[Footnote: "Studies in History and Jurisprudence," 197.]

The Constitution of the United States declares that no State shall pass any law impairing the obligation of contracts. This proposition being the major premise, Chief Justice Marshall added the minor premise that every charter of a private corporation is a contract, and completed the syllogism by the conclusion that no State can pass any law impairing the obligation of such charters. The counsel who opposed this doctrine urged that every one must acknowledge that neither the men who framed the Constitution nor the people who adopted it ever thought that the word "contracts," as so used, embraced "charters." Be it so, was Marshall's answer, that proves nothing unless you can go farther and satisfy the court that if they had contemplated the construction we put upon it they would have used words to exclude it.[Footnote: Dartmouth College v. Woodward, 4 Wheaton's Reports, 518.]

The acquisition of foreign territory is a matter not especially provided for in the Constitution of the United States. Jefferson hesitated to make the Louisiana purchase on this account, and was quite inclined to think, when he did make it, that he had transcended the bounds of his authority. The courts gave the Constitution a different interpretation, and stamped this upon it as permanently as if it had been a birthmark. It was done by Marshall in a single sentence. "The Constitution," he observed, "confers absolutely on the government of the Union the powers of making war and of making treaties: consequently that government possesses the power of acquiring territory either by conquest or by treaty."[Footnote: American Insurance Co. v. Canter, 1 Peters' Reports, 511, 542.]

In the course of the same opinion, the great Chief Justice led the way toward the doctrine, to be developed later, that the manner in which such territory was to be held and its inhabitants governed need not be such as the Constitution prescribed for the territory within one of the United States. It was to be prescribed by Congress under its power "to make all needful rules and regulations respecting the territory or other property belonging to the United States." Congress had set up a Legislative Council in the Territory of Florida, and the Legislative Council had established a court of admiralty, with judges holding office for four years. The case in hand turned upon the effect of a judgment of that court. It was contended at the bar that it had no effect, because by the express terms of the Constitution the judicial power of the United States extended to all cases of admiralty jurisdiction, and must be vested in one Supreme Court and such inferior courts as Congress might ordain. "We have only," was Marshall's reply, "to pursue this subject one step further to perceive that this provision of the Constitution does not apply to it. The next sentence declares that 'the judges both of the Supreme and inferior courts shall hold their offices during good behaviour.' The Judges of the Superior Courts of Florida hold their offices for four years. These Courts, then, are not constitutional Courts in which the judicial power conferred by the Constitution on the general government can be deposited. They are incapable of receiving it. They are legislative Courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States. The jurisdiction with which they are invested is not a part of that judicial power which is defined in the third article of the Constitution, but is conferred by Congress in the execution of those general powers which that body possesses over the territories of the United States. Although admiralty jurisdiction can be exercised in the States in those Courts only which are established in pursuance of the third article of the Constitution, the same limitation does not extend to the territories. In legislating for them, Congress exercises the combined powers of the general and of a State government."[Footnote: 'American Insurance Co. v. Canter, 1 Peters' Reports, 511, 546.]

It will be perceived that the argument here was that the Florida court did not exercise any of the judicial power of the United States because it could not, and that it could not because the judges were not commissioned for life. This left unanswered the deeper question whether any act of Congress could serve to support a court existing under authority of the United States, the judges of which were to hold office only for a term of years. It was assumed that the provision for a life tenure did not apply to the Florida judges, because if it did the court would be illegally constituted. Whether it was legally or illegally constituted was not discussed, except for the general reference to the power of Congress to legislate for the territories and exercise the rights of sovereignty over territory newly acquired by contest or treaty.

On this decision has been built up our present system of governing territorial dependencies at the will of Congress.[Footnote: Mormon Church v. United States, 136 United States Reports, 1, 43; Dorr vs. United States, 195 United States Reports, 138, 141.]

Marshall's was the last appointment made to the Supreme bench from the Federalist party. It was not many years before that party disappeared from the face of the earth. Jefferson put three men there representing the other school of political doctrine,[Footnote: Among Jefferson's papers is a description of five men whom he especially considered with reference to filling the first vacancy which occurred during his administration. 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: Massachusetts 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 Massachusetts 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 associates I feel habitual scorn and contempt."[Footnote: Proceedings of the Massachusetts Historical Society, 2d Series, XIV, 420.]

Our State constitutions 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 Constitution, 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 assuming 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 Coke, whom no expounder of the English common law outranks in authority, in his "Institutes," 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 constitutionality 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 constitutions 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 institutions 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 circumstances 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 Constitutions 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 accumulations 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. Mitchell, 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 Hampshire, it was Webster and his associates, 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 Hampshire, 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 Constitution 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 Hampshire, and that is whatever the legislature of New Hampshire chooses to enact, so long as it contravenes no other constitutional 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 constitutional government. It was not surprising that the Constitution of the United States should protect them in the way he asserted. All the States, and New Hampshire 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 pass 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 entitle Webster to the name given him by his contemporaries of "the expounder of the Constitution."[Footnote: See Article by Everett P. Wheeler on Constitutional 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 Association.] 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 constitution 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 constitutionality 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 Association of New Jersey, 1903.] It is unfair to them, so far as any question of the Constitution is concerned, since as soon as the measure is enacted a presumption arises that it is not unconstitutional. The courts will not hold otherwise without strong grounds. It comes to them with the benefit of a full legislative endorsement. It is unfair to the people, both as to questions of constitutionality 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 Canals Traffic Act had received that interpretation in the English courts, and they supposed that our courts would follow those precedents.[Footnote: George F. Hoar, "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 Association, 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 constitutions. 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 Constitution," 152; "Two Centuries Growth of American Law," 12, 19.] The charter of each colony served the office of a constitution. The Lords of Trade and Plantations exercised the power of enforcing its observance. They did in effect what, as the colonies passed into independent States with written Constitutions, naturally became the function of their own courts of last resort. The Constitution, like the charter, was the supreme law of the land. Whatever statutes the legislature of a State might pass, it passed as the constitutional representative of the people of that State. It was not made their plenary representative. Every Constitution 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 constitutional 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, entitled 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 constituted 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 Constitution 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 constitution, 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 Constitution 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 unconstitutionally of a confirming act passed 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 constitutional 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 Constitution, 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 Constitutional 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 constitution. No more could American judges hold an act of a State legislature void because it departed from the State Constitution, unless that Constitution in plain terms gave them such a power. The Constitution 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 Constitution 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 Constitution of the United States. The report said that such a grant was unwarranted by the Constitution 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 Constitution unless the inconsistency is plain. It has been judicially asserted 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 Constitution, since some of their associates either must have such a doubt, or go further and hold that there is no inconsistency between the two documents.

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 Constitutions from executive or legislative attack, because these Constitutions stand for something in which they thoroughly believe. President Hadley has well said that "a written Constitution 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 factitious boundary by the mere act of setting up a fence the effort fails."[Footnote: Freedom and Responsibility, 30.] Americans took principles and institutions with which they had become familiar in colonial days and made their Constitutions out of them. Their attachment to what the Constitution provides goes behind the Constitution 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 fortitude in the judges to do their duty as faithful guardians of the constitution."

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 entitled to great respect. If a different, opinion is to prevail, it should ordinarily be first pronounced 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 unconstitutional, 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 pronounced 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 Constitution 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 Constitution of the United States, over two hundred statutes passed by States. Of the twenty-one acts of Congress thus declared unconstitutional, 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, ccxxxv.] The fourteenth amendment has added largely to the list of the latter since its adoption in 1868.