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pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice.

The argument that has been combated is, not that the courts may never have abused a power plainly reposed in them, but that the courts possess no power at all to set a law aside. The specific fallacy sought to be exposed is that the Convention that framed the Constitution did not mean to repose in the judiciary any power to condemn unconstitutional legislation and that the courts of the States which ratified the Constitution never possessed any such authority.

Again and again has it been asserted by the champions of judicial recall that the precedents in the early States were few and unimportant, that persons in other States were not aware of the decisions in a particular State, that there was little if any interchange of opinion, that there were no newspapers of consequence when the Convention of 1787 sat, and that there was no general acceptance of the doctrine of judicial control.

If these modern sciolists are to be credited, few persons gave any heed to the burning eloquence of James Otis, or to Justice William Cushing's charge to the Massachusetts jury or to John Adams's public approval of it; few were aware of the decision in the Mayor's Court of New York City upon the famous trespass act, of the storm of protest which it aroused, or the resolution of the Assembly which it evoked; or knew of the cogent argument of Varnum in Trevett v. Weeden, of the unanimous opinion of the judges in that celebrated case, or the futile attempt of the legislature

of Rhode Island to discipline them; or the controversy which aroused the State of North Carolina in Bayard v. Singleton. Few persons, we are asked to assume, knew of Iredell's "Letter of an Elector" in the summer of 1786, his reply to Spaight in August, 1787, or his published answer to George Mason's "Objections to the Constitution"; few persons ever read Hamilton's convincing defence of the judicial power in the Federalist or his splendid appeals to the New York ratifying convention, or heard of Ellsworth's or Johnson's arguments for the new judiciary in the Connecticut ratifying convention; or, although in the Virginia Convention (as in others) the Constitution was discussed clause by clause, heard of Patrick Henry's lengthy and eloquent denunciation of it, although Henry was, perhaps, the greatest orator of his day,—or knew of the replies of Madison, or Marshall, in that body; or of Wilson's speeches in the Pennsylvania Convention, or Charles Pinckney's arguments in the South Carolina Convention, or Davie's and Iredell's in the first North Carolina Convention, or read the debates in the first session of Congress when the judiciary act of 1789 was framed.

What we wish, says Dean Trickett, "is authentic evidence that a majority of the ratifying majorities of the ratifying conventions, at the moment of ratification,

1 Richard Henry Lee, one of Virginia's most formidable opponents of the new Constitution, "appealed to the world through the press in a series of 'Letters from the Federal Farmer' of which thousands of copies were scattered through the central states." Lee disseminated in Philadelphia not only his own objections but also George Mason's “Objections to the Constitution" (Bancroft, vi., 374, 383).

understood that they were conferring and intended to confer on the courts a power to annul statutes of Congress." Evidence of such far-reaching nature is manifestly impossible. As well ask proof that the vote by which the Fourteenth Amendment to the Federal Constitution was ratified was with conscious knowledge of the scope of that amendment or that any great principle which has been submitted to referendum was understood in a specific manner by a majority of its approvers. In these pages has, however, been massed evidence such as would determine the action of prudent men in matters of importance, that the assertion of the right of the judiciary to control legislation was well known. Never in the history of the nation was discussion of public questions relatively more general or intelligent. The argument of our modern teachers requires the assumption that Webster's studies of the origin of the Constitution were built upon fallacies, that his Reply to Hayne, which at one bound gave him a great national reputation and led to the dinner in New York at which Chancellor Kent presided, contained false, unhistorical statements, and that his defence of the judicial power, long treated by scholars and thinkers as conclusive, was utterly unsound and not the brilliant and unanswerable argument which the country at large deemed it to be. Furthermore, the argument of these teachers ignores altogether the inevitable conclusion to be drawn from the substitution of the Martin resolution of July 17, 1787, for Madison's plan of a Council of Revision and the process of evolution step by step into the supreme law clause of the Constitution, which, with its "twin

text" (section 2, Article III.), became, in the language of Charles Pinckney and Webster, the keystone of the arch upon which the government was founded.

Enough has been quoted from debates and letters to refute the unfounded charge, so often heard to-day, that the Convention met in secrecy to frame a government that was undemocratic. Secrecy was deemed essential in the drafting of the Constitution in order to insure definite action. The widest publicity was immediately afterwards given to the Convention's workNo part received more thorough explanation or was the subject of fuller discussion than its plan for the judicial department. In no spirit of dislike to democracy, but with the broadest vision, the framers of the Constitution resolved upon

AN INDEPENDENT JUDICIARY

How to secure judicial independence was a profoundly important question. The Convention had before it experience both in England and in the original States of the Union. There was the light of experience in England, which upon the accession of William of Orange had vested in Parliament all power of removal of judges. That the full jurisdiction of Parliament might not be impaired by a royal pardon, the same act that took away from the king his old power to unseat judges provided that no pardon under the great seal of England should ever be pleadable to an impeachment by the House of Commons. This

meant that the king by a pardon should not be able to shield an unrighteous judge from deposition by the legislature. There was also the light of experience in the several States. All the thirteen States had erected their judicial systems upon this model, providing fixity of tenure during good behavior and the process of impeachment for judicial wrongdoing.

To emancipate judges from all temptation to subserviency to the legislature the new Constitution provided that their salaries should not be subject to diminution. Thus the independence of the judge was safeguarded. With the same end in view, appointment was kept from control by the legislative department, the department whose work it would become the duty of the courts to interpret and review.

As was said by Hamilton in the Federalist,' the

I The power of the crown to terminate the official life of a judge ceased with the Revolution of 1688. The constitutional guarantee erected by Parliament against further subversion of judicial independence, which took the form of a withdrawal to itself of all power of removal, has been curiously misconstrued in this country. The English statute lies at the basis of the constitutions of several of the eastern StatesNew Hampshire, Massachusetts, Connecticut, Rhode Island. It has been erroneously assumed that the English statute gave the right of removal arbitrarily and without reason. The language seems to import such broad authority, although no such power has ever been exercised by Parliament. The intention of Parliament was not to remove without cause. It was to take away from the king all power of this sort and not to leave in him any vestige of authority. Had the act of Parliament given that body power to remove for cause, the implication might have been that power of removal without cause remained with the sovereign. In most of the States of the Union the legislature removes only for good cause.

2 LXXVIII.

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