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over acts of Congress and the power of the Court to declare a legislative act void. Mr. McMurtrie in
. his essay asked whence such a power was derived. Was such a political power ever heard of before? “Didt any state before ever grant to its judicial functionaries the power of declaring and enforcing the limits of its own sovereignty? What state before conferred on a court of justice, in determining the rights of two suitors, as a mere incident, and without a hearing on behalf of the state, the power to determine that its legislative acts, approved and sanctioned by all its statesmen for thirty years, had always been mere nullities—nullities ab initio ?” Is there, he asked, any such grant in the Constitution, or any allusion to it? Judge Marshall's opinion in Marbury v. Madison he declared to be a mere deduction of logic. McMurtrie's conclusion is as follows:
(1) That the power of declaring legislation to be unconstitutional and void has been created and lodged by inference, and by inference only, in one branch of the government, viz., the judicial:
(2) That there is no reference whatsoever to any such power in the text of the constitution:
(3) That no such exercise of judicial power has ever been heard of before in other civilized countries.'
McMurtrie's high reputation at the bar and the cogency of his reasoning were such as to require some rejoinder. Accordingly, Mr. Brinton Coxe of the
Coxe, Judicial Power, 34.
Philadelphia bar prepared an essay
on Judicial Power and Unconstitutional Legislation. It was published posthumously, in 1893. It has been truthfully described as "a wel of vast learning, which goes over the whole general subject of the judicial power, from the broadest field of jurisprudence.”: Its central theme is that this judicial power does not rest upon inference, but upon the express text of the Constitution, and that a similar power had been long recognized in jurisprudence. The framers of the Constitution were well aware of the foreign authorities which supported such a power.
It was no new thing to the colonists or to the men of 1787 to think of an act of assembly as void and of no effect, because it violated some law of superior authority. The author's mode of reasoning was not to build upon Marbury v. Madison: on the contrary, he sought to show that McMurtrie was correct in the assumption that Judge Marshall's argument, if accepted, would show the power to be purely inferential and this it was the aim of Coxe to refute. Marshall's opinion in Marbury v. Madison moves with a majestic step and the precision of scientific logic. But a converse line of reasoning was possible, as Marshall himself knew, and it is this line that Coxe pursued. Judicial competency was matter of express import according to the constitutional text, and was intentionally granted by the makers of the Constitution, who were familiar with the history of this power. Although Sir William Blackstone in his celebrated
See admirable article, "American Doctrine of Judicial Power," by William M. Meigs of Philadelphia, 40 American Law Review, 641, 650.
Commentaries had declared Parliament to be practically omnipotent, and Bluntschli, the great Cerman publicist, had asserted that in most modern states there is no legal remedy against the validity and applicability of a law on the ground that its contents contravene the constitution, Coxe, in an analysis of earlier authorities, arrayed the strongest sort of proof from history that tribunals of justice have from the days of republican Rome possessed the power of arresting or nullifying unconstitutional legislation, whether the constitution was written or unwritten.
As a result of his analysis and review of foreign laws, including the Roman law and the canon law, Coxe declared that when the American colonists invented written constitutions "they did not create an unprecedented novelty in framing them upon the principle that judiciaries might decide questioned legislation to be contrariant to a constitutional or other rule of right and hold it therefore void,” for there were then important precedents in Europe for such an institution. Legal history makes it clear that long before American independence there were in Europe unwritten systems of public law, according to which legislation might sometimes be decided to be contrariant to a binding right of superior strength to the legislative power exercised.: English law before the Revolution of 1688, the English law of the prerogative, the older French law, the older German law, the Roman law, and the canon law, he maintained, support this proposition. Investigation of the Roman law of legislative
• Coxe, Judicial Power, 45.
rescripts in the time of the Emperor Justinian shows that judges were given power to determine whether a rescript accorded with the general law and to reject it if they considered it contrary thereto.
Inasmuch as in certain countries the judiciary is competent to decide whether a law is unconstitutional and therefore void, and in other countries is powerless so to do, the framers of the Constitution of the United States, in approaching the subject of judicial power, were at liberty to act as they deemed wisest in bestowing or withholding this judicial competency. The Convention of 1787 was not taking a leap in the dark, for neither course was without precedents. The American precedents, such as they were, had clearly held it the duty of the courts to refuse to carry unconstitutional laws into effect.
After an analysis of the regency cases in the reigns of Louis XIII., Louis XIV., and Louis XV., in which the Parliaments of Paris declared legislative acts of the kings of France to be null and void, Coxe says:
These French cases suffice to show that the idea of a judicial court holding legislation to be void because contrary to binding right was known in France before the time when the Constitution of the United States was framed."
Coxe, Judicial Power, 80, 81, 163, 164.
In Switzerland it would seem that the Federal Tribunal may not decide whether a federal law is constitutional or unconstitutional, nor whether the constitution of a canton contains anything at variance with the constitution of the Confederation, nor is the judiciary of a canton competent to decide whether a cantonal law is repugnant to the cantonal constitution. These questions are not justiciable for the reason probably that the Federal Assembly determines whether the constitution of a canton offends that of the Confederation. It seems also that the constitution of a canton or an amendment of it before becoming operative is subject to the criticism of the Federal Assembly.
In Germany, Mr. Coxe finds conflicting decisions. The question, however, seems to be open in that country, but he observes that the Court of the Imperial Chamber under the old German Empire did possess this authority, and he quotes from Bluntschli to prove this contention. This Court, it appears, is referred to in that celebrated number of the Federalist, LXXX., in which the power of the Federal judiciary over unconstitutional legislation is discussed.
Analogous powers are traced by the author in the early Roman law and, according to him, Hamilton's famous sentence, “the act of a delegated authority contrary to the tenor of the commission under which it is exercised is void,” was not original with that profound thinker, but was a well-recognized principle of the Civilians, with roots extending back into early Roman jurisprudence: “Diligenter fines mandati custodiendi sunt: nam qui excessit, aliud quid facere videtur.”