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right of the judiciary originated, what were the conditions under which it developed, who was the first man to boldly announce it from the bench, are questions which cannot be answered. But it is safe to assert that, like every other judicial idea that ever existed, it is the slow outcome of circumstances. The majority of the colonies for years before their quarrel with the mother-country had seen their laws disallowed at pleasure by the King or Queen in council. They had, therefore, become used to the idea of the existence of a body that could set aside a law enacted by a Legislature and approved by a governor. They were used to written charters and frames of government, and were accustomed to appeal to them as the source of all authority under King. When, therefore, in their quarrel with the mothercountry, it became necessary to find some reason for resisting the stamp-tax, the colonists appealed to a written document, and declared the tax law invalid, because it violated the provisions of Magna Charta."
Specific instances are given by him and other historians. In February, 1766, says McMaster, the clerk and other officers of the Court of Hustings for Northampton County, Virginia, appeared before the bench of the Supreme Court and asked its opinion on two questions: “Was the law of Parliament imposing duties in America binding on Virginia? Would they, as officers of the law, incur any penalty by not using stamped paper?” The judges were unanimously of the opinion that the law “did not bind, affect or concern the inhabitants of Virginia, ‘inasmuch as they conceived the said act to be unconstitutional. In
* History of U. S., V., 394 (published in 1900).
Massachusetts, Mr. Justice William Cushing, destined to become a justice of the Supreme Court of the United States, charged a jury that certain acts of Parliament were null, and won the congratulations of John Adams for his courageous declaration. Adams repeatedly
" asserted the same doctrine, and on one occasion in a memorable argument used these words: “The stamp act is invalid; we never consented to it. A parliament in which we are not represented had no legal authority to impose it; and, therefore, it ought to be waived by the judges as against natural equity and the constitution."2
As early as 1761, in opposing before the Supreme Court of the colony of Massachusetts the petition of the customs officers for writs of assistance to enable them to enforce odious British tax laws, the eloquent James Otis declared: “No act of parliament can establish such a writ; even though made in the very language of the petition, it would be a nullity. An act of parliament against the constitution is void."3
George Mason of Virginia, author of the famous Declaration of Rights, adopted by that commonwealth in 1776, had condemned as unconstitutional a law authorizing the sale of the descendants of Indian women as slaves. 4
In fact, as far back as 1738 and 1739, the Supreme Court of Massachusetts refused to enforce an order issued by his Majesty in Council, because the powers
i History of U. S., V., 395, 396.
4 McMaster, V., 395.
of the Court, revived through the charter and the laws passed to carry the same into effect, were, in the judgment of the Court, inadequate for that purpose.
Some years ago in an article upon the origin of the supreme judicial power in the Federal Constitution, 1 Honorable Robert Ludlow Fowler, now Surrogate of the County of New York, set forth as his thesis that “the judicial power of declaring acts of the legislature void because in conflict with the constitution of government-is very ancient in America." He also adverted to the fact that Dr. Robertson in his History of the Reign of Charles V., which appeared in the year 1769, noted the similarity of the power of the justiza, the supreme judge of Aragon, to the power of the judiciary in this country. “The Aragonese,” says Robertson, “had recourse to an institution peculiar to themselves, and elected a justiza or supreme judge. ... He was the supreme interpreter of the laws. Not only inferior judges, but the kings themselves were bound to consult him in every doubtful case and to receive his responses with implicit deference. An appeal lay to him from the royal judges, as well as from those appointed by the barons within their respective territories."
EARLY STATE CASES
The case of Josiah Philips arose in Virginia, May, 1778. Philips was attainted by a bill of attainder passed by the Assembly of Virginia, May, 1778.
1 American Law Review, Sept.-Oct., 1895.
According to this act, he was guilty of devastating and marauding within the State. He was captured in the autumn of that year, indicted, tried, and convicted of highway robbery. The act of attainder was not enforced, but it is impossible to determine whether the failure to enforce it was due to the inaction of the Attorney-General or the refusal of the Court to recognize it as valid.'
Commonwealth v. Caton, Hopkins, and Lamb was decided in the Court of Appeals, Virginia, in 1782.2 The defendants had been condemned for treason by the General Court under an act of Assembly passed in 1776, depriving the executive of the power to grant pardon in such cases. In June, 1782, the House of Delegates passed a resolution which it sent to the Senate for concurrence, granting the prisoners a pardon. The Senate refused to concur. In October the AttorneyGeneral moved in the General Court that execution of the judgment might be awarded. The prisoners pleaded the resolution of the lower house of the legislature as a pardon, the Attorney-General denied its sufficiency because the Senate had not concurred in it, and the General Court according to the reporter adjourned the case “for novelty and difficulty to the Court of Appeals." The judges of this tribunal were of the opinion that the treason act of 1776 did not infringe the onstitution and that pardon by resolution of the House of Delegates was invalid. In this case no law was decided unconstitutional. A resolution of one house was treated as a nullity because of the non* Coxe, Judicial Power, 220.
2 4 Call's Reports, 5.
concurrence of the other in it. Whether the declaration was obiter or not, the Court unequivocally asserted its right to hold “any resolution or act of the legislature or of either branch of it to be unconstitutional and void."
Rutgers v. Waddington was decided in the Mayor's Court of the City of New York, August 27, 1784.2 It was the first case in which a conflict arose between an
Wythe, J., who was positive in his convictions, said: “If the whole legislature, an event to be deprecated, should attempt to overleap the bounds prescribed to them by the people, I, in administering the public justice of the country, will meet the united powers at my seat, in this tribunal; and, pointing to the Constitution, will say to them, here is the limit of your authority, and hither shall you go, but no further.”
Pendleton was less confident: “How far this court, in whom the judiciary powers may in some sort be said to be concentrated, shall have power to declare the nullity of a law passed in its forms by the legislative power, without exercising the power of that branch, contrary to the plain terms of that constitution, is indeed a deep, important, and I will add, a tremendous question, the decision of which might involve consequences to which gentlemen may not have extended their ideas."
But “Chancellor Blair and the rest of the judges were of opinion, that the court had power to declare any resolution or Act of the Legislature, or of either branch of it, to be unconstitutional and void; and that the resolution of the House of Delegates, in this case, was inoperative, as the Senate had not concurred in it.”
2 The account of this case in Coxe's work is drawn principally from a contemporary report entitled “Arguments and Judgments of the Mayor's Court of the City of New York in a Cause between Elizabeth Rutgers and Joshua Waddington, New York, printed by Samuel Leudon, 1784." There is a full and interesting narrative, largely compiled from the same source, by the late Honorable Charles P. Daly in a history of the Court of Common Pleas, New York County, that forms an introduction to volume i., E. D. Smith's Reports. The case is the subject of brief comment in McMaster's History of the United States (vol. i., 219, 220).