The proper department to be made the depositary of this important power would seem to be the judicial. That department does not initiate, has no policies, does not act of its own volition, but acts only when its action is regularly invoked in some controversy and then only to end that controversy. It may seem unnecessary even to state, much less defend, the proposition, but as its logical result is that the judiciary when invoked by the individual must refuse effect, so far as he is concerned, to a legislative act which deprives him of some right guaranteed by the constitution, and must thus disappoint those who procured the passage of the act, the proposition has been, is still being, denied. The action of the courts in exercising that power has been and is even now denounced as usurpation. Though the proposition is now long established, these attacks justify some repetition of the argument in its support. The logic of Chief Justice Marshall in Marbury v. Madison, I Cranch 137 at p. 176, seems to me irresistible and

worthy of frequent quotation despite the attacks upon it. The Chief Justice said: "This original and supreme will (of a people) organizes the government and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. . . . The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited and to what purpose is that limitation committed to writing if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, either that the Constitution controls any legislative act repugnant to it, or that the

legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. . . . Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the legislature repugnant to the Constitution is void."

In 1825 that eminent jurist, Chief Justice Gibson of Pennsylvania, in a dissenting opinion in Eakin v. Raub, 12 S. & R. 330, insisted in an able, elaborate, and exhaustive argument that while the judiciary was bound to refuse effect to a state statute in conflict with the Federal Constitution, it was bound to give it effect if repugnant only to the state constitution. He frankly ad

mitted the logical conclusion that in such case the only remedy the citizen had to enforce his constitutional rights was that of revolution. When, however, his opinion in Eakin v. Raub was cited in 1845 in argument in Norris v. Clymer, 2 Pa. St. 277, he said he had changed his opinion on that question, partly "from experience of the necessity of the case." In the later case, De Chastellux v. Fairchild, 15 Pa. St. 18, he was emphatic in his declaration of the power and duty of the court to refuse effect to a state statute in conflict with the state constitution. In delivering the opinion of the court he used this vigorous language: "It is idle to say the authority of each branch (of the government) is defined and limited in the constitution, if there be not an independent power able and willing to enforce the limitations. . . . From its very position it is apparent that the conservative power is lodged with the judiciary, which in the exercise of its undoubted right is bound to meet every emergency."

The results of the contrary doctrine are well stated by the same court in Perkins v. Philadelphia, 156 Pa. St. 554. "If laws in conflict with the constitution be passed by the legislature, approved by the governor and sustained by the court, that is revolution. It is no less revolution because accomplished without great violence. It matters little to the house owner whether the structure built to shelter him be blown up by dynamite, or the foundation be pried out stone by stone with a crowbar. In either case he is houseless."

One desirable result of this doctrine that the courts when regularly invoked can and should refuse effect to an unconstitutional statute is that it ensures to every person, not in the military or naval service, the right to test in the judicial courts the authority of any official to interfere with his person, liberty, or property, whatever authority, executive or legislative, the official may plead. In France and other countries of continental Europe questions of the ex