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From this source Vattel, the great Swiss publicist, who died in 1767, drew his opinions. Vattel maintained that
legislators ought to consider the fundamental laws as sacred, if the nation has not, in very express terms, given them the power to change them. For the constitution of the state ought to be fixed: and since that was first established by the nation, which afterwards trusted certain persons with the legislative power, the fundamental laws are excepted from their commission. In short, these legislators derive their power from the constitution; how then can they change it, without destroying the foundation of their authority ?
In the controversies between the Church and the throne in England as far back as the time of Henry II., it seems that the same doctrine was advocated by Thomas à Becket, the famous Cardinal, in cases where the temporal statutes invaded the province of the canon law. All such legislation the canonical court held to be void "from defect of the power of the laymen enacting it."2 In the reign of Edward II. and the pontificate of Clement V., certain statutes of the realm were held void as against the Church.
THE ENGLISH REVOLUTION OF 1688
With the Reformation, however, came a fundamental change in the English Constitution, "the partition of power between the English state and the Roman church * Coxe, Judicial Power, 119.
* Id., 125.
was abolished. In ecclesiastical matters, the prerogative of the king and the authority of parliament were no longer restricted by anything said or done by a power seated outside of England. ... Then came the revolution of 1688, giving parliament a plenitude of power in both ecclesiastical and temporal matters, which was so absolute that no king could dispute it in the name of prerogative." It is this omnipotence of Parliament to which Blackstone refers.
An English case which strikingly illustrates the doctrine of the right of the judiciary to annul legislation and the danger underlying the power of judicial recall is Geddes v. Hales. It was there held that an act of Parliament prescribing a test oath was of no validity as against the king's dispensing power. Macaulay describes efforts of King James II. to obtain a prosecuting officer who would do his bidding and to fashion a court into subserviency to his will. This case was one of the causes leading to the Revolution of 1688. Having resolved to obtain from the
law courts an acknowledgment of his dispensing power, the King soon found, says Macaulay, that "he had against him almost the whole sense of Westminster Hall.”
Four of the judges gave him to understand that they could not, on this occasion, serve his purpose; and it is remarkable that all the four were violent Tories, and that among them were men who had accompanied Jeffreys on the Bloody Circuit, and who had consented to the death of Cornish and Elizabeth Gaunt. Jones, the chief justice
Coxe, Judicial Power, 160, 161 et seq.
of the Common Pleas, a man who had never before shrunk from any drudgery, however cruel or servile, now held in the royal closet language which might have become the purest magistrates in our history. He was told that he must give up either his opinion or his place. “For my place," he answered, “I care little. I am old and worn out in the service of the crown, but I am mortified to find that your Majesty thinks me capable of giving a judgment which none but an ignorant or a dishonest man could give." "I am determined,” said the King, “to have twelve judges who shall be all of my mind as to this matter." "Your Majesty," answered Jones, “may find twelve judges of your mind, but hardly twelve lawyers." He was dismissed, together with Montague, Chief Baron of the Exchequer, and two puisne (associate) judges, Neville and Charlton.
The pith of the decision was that no act of Parliament could take away the king's prerogative of dispensing in his discretion with any of the laws, and that he was the sole judge of that necessity. “In this remarkable decision,” says Coxe, “the Court regarded it as a judicial question whether or not a statute could bind the king in certain cases of prerogative right and regarded it as a judicial obligation to hold the statute to be invalid after answering that question in the negative. According to now prevalent American ideas, if the constitution of England had been written, and such a prerogative right had been constitutional, the Court ought to have done precisely what it did.”
The cases in which before the formation of the present government of the United States, the State judiciary had condemned legislation as unconstitutional, are well known to students of early State history. It matters not that the instances in which this authority was exercised were few in number. The occasions for use of the power were doubtless rare; nor, commonly viewed, is it at all astonishing that such judicial action should have aroused opposition. The American colonists had become somewhat imbued with the later English notion-announced by Sir William Blackstone -of the supremacy of Parliament within the sphere of its operations, or translating this expression into more general terms, of the supremacy of the legislature. But whenever occasion required, they could vigorously resent parliamentary usurpation, and their courts would pronounce judgments showing the old principle still vital. If, in the first days of statehood, when the courts several times set aside unconstitutional laws there was a show of popular resentment, it arose from natural irritation that a weapon previously employed for the protection of the people against kings and Parliament was found equally effective against the people themselves in their own moments of arbitrary action. The earliest State governments were at most only thirteen years older than the national government organized in 1789, so that the cases in which judges declared laws unconstitutional would not be numerous. This essay will deal only with those whose influence was assuredly felt in the Convention of 1787. But there should precede a brief reference to the treatment of this subject in colonial times.
1 Macaulay's History of England, vol. ii., 62.
Some of the authors who now claim the power a usurpation in America, admit that prior to 1688, English courts had declared acts of Parliament void, and that a similar power was exercised by the judiciary in other countries. It is part of the argument of this same class of teachers to deny that previous to the Constitution the courts of any of the States of the Union exercised any such authority, and to maintain that the cases were very few, and the knowledge of them not extensive, the purpose being to inculcate the notion that when the Convention sat such a power was practically unheard of, and hence that it could not have been the intention of the Convention to confer it, the language of subdivision 1, section 2, Article III., and section 2, Article VI., of the Constitution to the contrary notwithstanding.
As to the experience of the American colonies, it should be sufficient to cite the authority of a wellknown historian, whose words were written, as the lawyers say, ante litem motam (before this present controversy), when he could have had no motive to distort history. The historian McMaster makes these observations:
But there had developed in the course of the half century another restraint on the legislative branch of government which was not imposed by any constitution. Judges had assumed the right to set aside acts of legislation which in their opinion were unconstitutional. When and where this