and regularity of attendance separately or in combination made them the dominant element in the Convention."I Of this fraction seventeen, he says, pronounced themselves, directly or indirectly, in favor of judicial control. John Blair, one of the Virginia delegates, had been a member of the Virginia Court of Appeals when The Commonwealth v. Caton was decided. No dissent of his was recorded from the opinion of the Court that “it had power to declare any resolution or act of the legislature, or of either branch of it, to be unconstitutional and void"; hence it must be assumed that he understood the meaning of the supreme law clause, and the authority which the Constitution would repose in the judges. Wilson's views were frequently expressed in the Convention; and Wilson, with Blair, a fellow delegate, and Peters, while all three sat on the Circuit Court for the District of Pennsylvania, addressed to the President of the United States, April 18, 1792, a letter protesting against a recent act of Congress as devolving upon the Court non-judicial functions. The Constitution, says the protest, is "the supreme law of the land. This supreme law all judicial officers of the United States are bound, by oath or affirmation, to support. The opinion of Rufus King, a delegate from Massachusetts, and afterwards a senator from New York, was stated as early as June 4th. In opposing a Council of Revision, he said that the "judiciary ought not to join in the negative of a law, because the judges will have the 1 Political Science Quarterly, vol. xxxviii., 4. 2 See note 2 to Hayburn's case, 3 Dallas, 409.

I

expounding of those laws when they come before them; and they will no doubt stop the operation of such as shall appear repugnant to the constitution." Gerry, one of the delegates, on June 4, 1787, declared that "in some of the States the judges had actually set aside laws as being against the constitution."2 On July 17th, came the proposition to negative all laws passed by the several States "contravening in the opinion of the national legislature the Articles of Union, or any treaties subsisting under the authority of ye Union. "3 Sherman declared this unnecessary for the reason that "the courts of the States would not consider as valid any law contravening the authority of the Union."4 Madison presented at length his reasons for considering the negative "essential to the efficacy and security of the general government"; but Morris opposed it, declaring that "a law that ought to be negatived will be set aside in the judiciary department." The proposition to negative was favored by Charles Pinckney, but it failed, and immediately thereafter Luther Martin moved his resolution.7

5

Dickinson is to be numbered among those whose sentiments were so expressed as to show comprehension of the far-reaching scope of judicial power. While he thought that no such power as judicial control ought to exist, nevertheless appreciating the importance of establishing some authority to reconcile conflicting State and Federal legislation, he declared that he was "at a loss what expedient to substitute." That he

I Farrand, Record of the Convention, i., 109.

2 Id., 97.

5 Id., ii., 28. 6 Id., 28. 7 Id., 28, 29.

had the power of the judiciary to declare legislation void plainly before his mind, and perhaps had read the famous historian Robertson, is shown by his next utterance, which is "The Justiciary of Aragon became by degrees the lawgiver.

Despite the passage of the Martin resolution both Madison and Wilson returned to their favorite idea of establishing a revisionary power in the judiciary and the executive combined, Wilson saying "it had been said that the judges, as expositors of the laws, would have an opportunity of defending their constitutional rights. There was weight in this observation, but this power of the judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive, and yet not be so unconstitutional as to justify the judges in refusing to give them effect. But the Convention nevertheless adhered to the Martin resolution.

While the record of the Convention may contain no opinion upon this subject by Oliver Ellsworth of Connecticut or Alexander Hamilton of New York, they were leading advocates of the doctrine of judicial control, as will hereafter be shown. Luther Martin, author of the resolution, while opposing the MadisonWilson theory of a Council of Revision on July 21st, said:

A knowledge of mankind, and of legislative affairs cannot be presumed to belong in a higher degree to the judges than to the legislature and as to the constitutionality of laws, that 2 Id., ii., 73.

I Farrand, Record of the Convention, ii., 299.

point will come before the judges in their proper official character. In this character they have a negative on the laws. Join them with the executive in the revision and they will have a double negative. It is necessary that the supreme judiciary should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating against popular measures of the legislature. 1

George Mason of Virginia supported the MadisonWilson plan of associating the judges with the executive in revising the laws, using the following language:

Notwithstanding the precautions taken in the constitution of the Legislature, it would so much resemble that of the individual states, that it must be expected frequently to pass unjust and pernicious laws. This restraining power was therefore essentially necessary. It would have the effect not only of hindering the final passage of such laws, but would discourage demagogues from attempting to get them passed. It had been said (by Mr. L. Martin) that if the Judges were joined in this check on the laws, they would have a double negative, since in their expository capacity of judges they would have one negative. He would reply that in this capacity they could impede, in one case only, the operation of laws. They could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive, or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course. He wished the further use to be made of the Judges, of giving aid in preventing every improper law. Their aid will be the more valuable as they are in the habit and practice of considering laws in their true principles, and in all their consequences. 2

I

Farrand, Record of the Convention, ii., 76.

2 Id., ii., 78.

Later, when the tenure of judges was under consideration, Dickinson proposed to add after the words "good behavior," a provision making the judges removable by the executive on the application of the Senate and House of Representatives. Gerry seconded the motion, but Morris opposed it, as subjecting the judges to arbitrary removal.1 Rutledge touched the core of the matter when he said, "If the Supreme Court is to judge between the United States and particular States, this alone is an insuperable objection to the motion. What else was implied in Rutledge's remark than that the Supreme Court was to be authorized to nullify acts of State legislation?2

LIGHT UPON INTENT FROM DEBATES IN THE RATIFYING

CONVENTIONS

In the last analysis, the meaning of the Constitution is to be ascertained from its language. Nevertheless, as it has been asserted that there is no reliable evidence that "the majority of any one convention of the thirteen States conceived, as among the powers of judges, that of refusing execution to statutes, or intended to confer it,"3 debates in the ratifying conventions should be examined to see whether there is such evidence or not. Ratifying conventions were held in all of the original thirteen States except Rhode Island, which had

1 Farrand, Record of the Convention, ii., 428.

2 Id., ii., 428.

by Dean

3 "Judicial Dispensation from Congressional Statutes, William Trickett, of the Dickinson Law School, American Law Review, vol. xli., 82.