OVER LEGISLATION

ITS ORIGIN; THE POWER TO SET ASIDE LAWS;
BOUNDARIES OF THE POWER;

JUDICIAL INDEPENDENCE;

EXISTING EVILS AND

REMEDIES

BY

J. HAMPDEN DOUGHERTY

AUTHOR OF "THE ELECTORAL SYSTEM OF THE UNited states"

UNIV. OF
CALIFORNIA

G. P. PUTNAM'S SONS
NEW YORK AND LONDON
The Knickerbocker Press
1912

COPYRIGHT, 1912

BY

J. HAMPDEN DOUGHERTY

The Knickerbocker Press, New York

:D8

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CONTENTS

Criticism of the courts is not new in the history of
the United States
Jefferson's letter to Judge Spencer Roane in 1821,
criticising Marshall's decision in Cohens v.
Virginia

Attempts in early years of nineteenth century to
curb the Federal judiciary, by making judges
removable on the address of the two Houses of
Congress, or by having them elected for short
terms

The Democratic Review of January, 1838, on the
Supreme Court during the Marshall régime

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I

I

Cessation of these efforts after Marshall's death

3

Modern criticism of the courts is based more upon
economic than upon political grounds

3

Judges charged with usurpation of power in setting
aside laws.

4

The modern theory that there is not a line in the
Constitution to warrant it

The thesis of this essay stated, which is, the members
of the Federal Convention and the State ratify-
ing conventions meant to confer upon the Federal
judiciary power to nullify unconstitutional legis-
lation, State and Federal.

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The Legal Tender Cases.

Mr. Richard C. McMur-

trie denies the jurisdiction of the Supreme Court

to declare a legislative act void. Statement of

McMurtrie's conclusions.

Rejoinder to McMurtrie by Brinton Coxe in an

essay on "Judicial Power and Unconstitutional

Legislation."

Brief summary of Coxe's views. The judicial power

does not rest upon inference, but upon the express

text of the Constitution. Similar power had been

recognized in other jurisdictions, as the framers

of the Constitution were well aware. Examples

cited from foreign laws, including the Roman
law and the canon law. Some foreign cases in
which legislative acts were held to be void.
Cases prior to the English Revolution of 1688

The case of Geddes v. Hales, and judicial recall

The State judiciaries had set aside laws before

the formation of the present government of the

United States. Cases are well known, though

few in number

Brief account of some early State cases in which

laws were set aside as unconstitutional. Case of

Josiah Philips, in Virginia; Commonwealth v.

Caton, Hopkins, and Lamb, Virginia; Rutgers v.

Waddington; Trevett v. Weeden; Den d. Bayard

v. Singleton

Views of James Iredell, afterwards Associate Justice

of the Supreme Court of the United States, upon

the controversy in Bayard v. Singleton. His

"Letter of an Elector" and his "Reply to

Richard Dobbs Spaight."

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9

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14

15

20

32, 34

Infractions by the States of provisions of the treaty

with Great Britain a cause of disquietude. The

Congress of the Confederation issues a circular

letter to the States asking them to repeal all

State legislation inimical to the treaty and

to have their State courts declare such legislation

void

Gravity of the situation when the Convention assem-
bled at Philadelphia in May, 1787. Importance
of establishing some modus vivendi

The Convention decides to arm the Federal judiciary

with power to declare laws unconstitutional

Erroneous view of Chief Justice Clark of the Supreme

Court of North Carolina that nothing in the

Constitution indicates that the Convention meant

to give the courts power to declare an act of

Congress void

Debates in the Convention as proof to the contrary

Momentous significance of the resolution offered in

the Convention by Luther Martin, July 17th

Evolution of the supreme law clause from the Martin

resolution; evolution of the judicial system

The Convention never voted not to give the judges,

as judges, authority to set aside unconstitutional

laws. Sources of the erroneous assumption that

it did so vote upon four different occasions.

What the Convention four times voted down was

a proposition to establish a Council of Revision.

The nature of this proposed Council. The Coun-

cil of Revision in New York State

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42

42 X

44 X

45

48, 50