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pride. In their subordinate relation to the United States, they should endeavour to discharge the duty which they owe to the latter, without forgetting the respect which they owe to themselves. In the appropriate language of Sir William Blackstone, and which he applied to the people of his own country, they should be "loyal, yet free; obedient, and yet independent."





MUNICIPAL law is a rule of civil conduct, prescribed by the supreme power in a state. It is composed of written and unwritten, or statute and common law. Statute law is the express written will of the legislature, rendered authentic by certain prescribed forms and solemnities.

It is a principle in the English law, that an act of parliament, delivered in clear and intelligible terms, cannot be questioned, or its authority controlled in any court of justice. "It is," says Sir William Blackstone, "the exercise of the highest authority that the kingdom acknowledges upon earth." When it is said in the books, that a statute contrary to natural equity and reason, or repugnant, or impossible to be performed, is void, the cases are understood to mean, that the courts are to give the statute a reasonable construction. They will not readily presume, out of respect and duty to the lawgiver, that any very unjust or absurd consequence was within the contemplation of the law. But if it should happen to be too palpable in its direction to admit of but one construction, there is no

Laws repug

nant to the


doubt in the English law, as to the binding efficacy of the statute. The will of the legislature is the supreme law of the land, and demands perfect obedience."

But while we admit this conclusion of the English law, we cannot but admire the intrepidity and powerful sense of justice which led Lord Coke, when chief justice of the K. B., to declare, as he did in Doctor Bonham's case, that the common law doth control acts of parliament, and adjudges them void when against common right and reason. The same sense of justice and freedom of opinion, led Lord Chief Justice Hobart, in Day v. Savage, to insist that an act of parliament made against natural equity, as to make a man judge in his own case, was void; and induced Lord Chief Justice Holt to say, in the case of the City of London v. Wood, that the observation of Lord Coke was not extravagant, but was a very reasonable and true saying. haps what Lord Coke said in his reports, on this point, may have been one of the many things that King James alluded to, when he said, that in Coke's Reports there were many dangerous conceits of his own uttered for law, to the prejudice of the crown, parliament, and subjects.e


The principle in the English government, that the parliaconstitition ment is omnipotent, does not prevail in the United States; though, if there be no constitutional objection to a statute, it is with us as absolute and uncontrollable as laws flowing from the sovereign power, under any other form of government. But in this, and all other countries where there is a written constitution, designating the powers and duties of the legislative, as well as of the other departments of the government, an act of the legislature may be void as

a 1 Blacks. Com. 91. 160. 185. Christian's note to 1 Blacks. Com. 41.

b 8 Co. 118.

c Hob. 87.

d 12 Mod. 687.

e Bacon's Works, vol. 6. p. 128.


being against the constitution. The law with us must conform, in the first place, to the constitution of the United States, and then to the subordinate constitution of its particular state, and if it infringes the provisions of either, it is so far void. The courts of justice have a right, and are in duty bound, to bring every law to the test of the constitution, and to regard the constitution, first of the United States, and then of their own state, as the paramount or supreme law, to which every inferior or derivative power and regulation must conform. The constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power, contrary to the true intent and meaning of the constitution, is absolutely null and void. The judicial department is the proper Power of the judiciary to power in the government to determine whether a statute be declare them or be not constitutional. The interpretation or construction of the constitution, is as much a judicial act, and requires the exercise of the same legal discretion, as the interpretation or construction of a law. To contend that the courts of justice must obey the requisitions of an act of the legislature, when it appears to them to have been passed in violation of the constitution, would be to contend, that the law was superior to the constitution, and that the judges had no right to look into it, and regard it as the paramount law. It would be rendering the power of the agent greater than that of his principal, and be declaring, that the will of only one concurrent and co-ordinate department of the subordinate authorities under the constitution, was absolute over the other departments, and competent to control, according to its own will and pleasure, the whole fabric of the government, and the fundamental laws on which it rested. The attempt to impose restraints upon the exercise of the legislative power would be fruitless, if the constitutional provisions were left without any power in the government to guard and enforce them. From the VOL. I.


mass of powers necessarily vested in the legislature, and the active and sovereign nature of those powers; from the numerous bodies of which the legislature is composed, the popular sympathies which it excites, and its immediate dependence upon the people by the means of frequent periodical elections, it follows, that the legislative department of the government will have a decided superiority of influence. It is constantly acting upon all the great interests in society, and agitating its hopes and fears. It is liable to be constantly swayed by popular prejudice and passion, and it is difficult to keep it from pressing with injurious weight upon the constitutional rights and privileges of the other departments. An independent judiciary, venerable by its gravity, its dignity, and its wisdom, and deliberating with entire serenity and moderation, is peculiarly fitted for the exalted duty of expounding the constitution, and trying the validity of statutes by that standard. It is only by the free exercise of this power that courts of justice are enabled to repel assaults, and to protect every part of the government, and every member of the community, from undue and destructive innovations upon their chartered rights.

It has accordingly become a settled principle in the legal polity of this country, that it belongs to the judicial power, as a matter of right and of duty, to declare every act of the legislature made in violation of the constitution, or of any provision of it, null and void. The progress of this doctrine, and the manner in which it has been discussed and established, is worthy of notice. It had been very ably examined in the Federalist, and its solidity vindicated by unanswerable arguments; but it was not until the year 1792 that it seems to have received a judicial consideration.


In Hayburne's case, which came before the Circuit Court of the United States for the district of New-York, in April, 1791, the judges proceeded with the utmost delicacy and

a No. 78.

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