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

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

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

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

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

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

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

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

SAME-THE COURT.

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

Considerations relating to the relative rank of different courts, and the effect of precedents, have given rise to the following rules: 1. Inferior courts, whether of the state or federal system, should. not undertake to adjudge against the validity of a statute, except

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

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

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

in cases where its unconstitutionality is plain and unmistakable." This rule is based, not only upon the respect which is due to the legislative body, but also upon the consideration that the judgments of these courts are subject to review in the higher tribunals, where any erroneous determinations may be corrected. Yet it is the right, and may become the duty, of an inferior court, in proper cases, to pass upon the validity of acts of legislation. Thus, a county court of a state may adjudge an act of the state legislature to be void for repugnance to the federal constitution; for the judge of that court is bound by his oath to support that constitution as the supreme law of the land.10

2. If the court of last resort in a state has pronounced in favor of or against the constitutionality of a state statute, its decision is binding on all the inferior courts of the state, and the question is no longer an open one for such courts.11

3. If the question of the validity of a statute of one state comes legitimately before the courts of another state, such courts are at liberty to determine the question for themselves. But in so doing, they will pay great respect to the opinions of the courts of the state which enacted the statute, if the question concerns its conformity to the constitution of that state. If the question arises from an alleged repugnance to the federal constitution or an act of congress, the court trying the case will be bound by a decision of the United States supreme court, if any there be, on the same question, otherwise it will be at liberty to exercise its own judgment.12

4. The judgment of the highest court of a state, that a statute has been enacted in accordance with the requirements of the state · constitution, is conclusive upon all the courts of the United States and will not be reviewed by them. But if the ground of invalidity `urged against the statute is that it contravenes the federal constitution or an act of congress, the federal courts will not be bound by the decisions of the state courts.13

Sarony v. Lithographic Co., 17 Fed. 591; White v. Kendrick, 1 Brev. (S. C.) 469.

10 Lent v. Tillson, 140 J. S. 316, 11 Sup. Ct. 825.

11 Palmer v. Lawrence, 5 N. Y. 389; Wheeler v. Rice, 4 Brewst. (Pa) 129. 12 Stoddart v. Smith, 5 Bin. (Pa.) 355.

18 Atlantic & G. R. Co. v. Georgia, 98 U. S. 359.

5. The validity of an act of congress may be passed upon by the state courts, until it has been settled by the supreme court of the United States; after that, the question is no longer open.

6. A decision of the supreme federal court, for or against the validity of an act of congress, or for or against the validity of a state law in respect to its conformity to the federal constitution or federal laws, is binding and conclusive, until overruled, on all courts of every grade, both state and national.

SAME-FULL BENCH.

33. It is a rule adopted by many appellate courts, though not all, that they will not decide the question of the constitutionality of a statute until a hearing has been had before the full bench of judges, in order that all the members of the court may participate in the decision.

The reasons for this rule are two: In the first place it is possible that a judgment pronounced by less than a majority of the whole. court might be overruled by the full court when the question again arises; and all courts are disposed to avoid events which so seriously unsettle the law. Secondly, the courts are inclined to defer the decision of such questions until a full bench can be had on account of the great importance of the question involved and on account of a delicacy in the matter of setting aside a legislative act unless their full number has considered it. But this rule is not imposed upon the courts by any constitutional provision or statute. And it is sometimes impossible to apply it. For instance, the decision in the very important case known as the "Chicago Lake Front Case" 14 was rendered by four judges out of the nine who compose the supreme court. But that was because two of the judges, on account of interest, took no part in the decision of the case, and three dissented.

14 Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110.