the same courts are competent to decide questioned executive acts to be legal or illegal. Indeed, it is safe to assert, that every American must ponder long before he can understand how a judiciary which can not question an executive act, can question an act of legislation. When judicial power was in America extended to cases arising under written constitutions, which involved the unconstitutionality and resultant invalidity of legislation, that extension was partially due to originality in creating new institutions and was partially the effect of existing causes. One of the most potent of existing causes must have been that the judges in every land of the Common law could decide upon the legality or illegality of the executive acts of officials. It has been said in France that judges should not be competent to decide laws to be unconstitutional because the judiciary is a feeble power. Doubtless, it is correct to say that the judiciary is a feeble power in France and other Civil law countries. But in all the lands of the Common law, whether in the Eastern, the Western, or the Southern hemisphere, the judiciary is not a feeble power, and never has been. The Common law judiciary grew and developed together with the trial by peers and by jury, and with a law of the land that bound the ruler of the land as well as the ruled thereof. Therefore in all Common law communities the judiciary is strong. Very different were the institutions amid which the existing judiciaries of the Civil law countries of Europe took form and shape. Therefore they are feeble. Continental princes and assemblies of estates were very different from kings and parliaments in England. Above all, on the European continent, the criminal tribunals were not courts of justice, but courts of injustice; for, trial by torture, not trial by jury, was their rule. Consequently, it is not strange that written constitutions have been established in Commonlaw and Civil-law communities with different results as to the constitutional rights and duties of the judicial power.

DIVISION F.

Of the court of the Imperial Chamber under the old German Empire.

The following remark is translated from Bluntschli's work above mentioned, vol. I, p. 560:

"In composite states there is an opportunity to provide "for the legislative power of the several states being held "within bounds by the judicial system. The federal or im"perial constitution will possess organs for the maintenance "of law throughout the whole confederacy or empire, to "which the chief authorities of the several states are to a "certain extent subordinated. Such was the significance "of the Court of the Imperial Chamber in the later period "of the [former] German Empire. The Supreme Court of "the United States has, as we have seen, an extended com"petency of this sort."

The Court of the Imperial Chamber above mentioned is referred to in the Federalist, No. 80,* and by Randolph in argument in Chisholm v. Georgia, 2 Dallas, 425, at dates when it was still in existence. In both instances such reference was made by a Framer of the constitution. The remarks in the Federalist are interesting in themselves and also in connection with those on the then existing institutions of the old German Empire in No. 19.†

In the Tuebingen Zeitschrift for Political Sciences, 1888, 44th year, p. 383, will be found an account of a case in the Imperial Chamber between the Baron of Frauenhofen, plaintiff, and the Elector of Bavaria, defendant. In it, the following were among the judicial questions arising for the decision of the court: whether the lordships of the Old and New Frauenhofen were free lordships held immediately of the Emperor and the Empire: whether the Elector of Bavaria and his ancestors had unduly claimed to bring those lordships under their territorial superiority and so into * Dawson's Edition, page 554.

† Dawson's Edition, p. 119.

mediate and not immediate feudal relation to the Empire. Upon these questions it depended whether the Barons of Frauenhofen were or were not subjects of the Electors of Bavaria, as lords of the land. The case was a never-ending It lasted through generations and was not finally adjudicated, when the old Empire, and with it, the Court of the Imperial Chamber ceased to exist.

one.

CHAPTER X.

Of the Roman law in connection with the subject.

DIVISION A.

Preliminary.

DIVISION B.

Of the law of rescripts in the classic period of the Roman jurisprudence.

DIVISION C.

Of the law of rescripts in Justinian's time.

DIVISION D.

Of certain points in the jus legum of the Roman

republic.

This Chapter will begin the examination of the Roman law, for light upon the subject of this Essay.

DIVISION A.

Preliminary.

In the foregoing cases it will be observed that the written constitutions mentioned are all junior to the constitution of the United States. Any consideration of them, therefore, regards things unknown to the Framers. When their convention met in 1787, eleven states of the Union possessed written constitutions, two of which had been adopted in 1776 before July 4th, while the constitutions of the two remaining states were unwritten. Written constitutions were then still unknown abroad. They are now the rule, and not the exception, on the continent of Europe.

The chapters following will be concerned with unwritten constitutions, and, for the most part, with laws and systems older than the constitution of the United States. With those laws and systems, the Framers were, or may be presumed to have been, familiar.

The Roman law prevails on the continent of Europe and has a certain restricted vigour in England. The principles of the Roman law bearing upon the subject will first be investigated.

DIVISION B.

Of the law of rescripts in the classic period of the Roman jurisprudence.

Under this branch of the investigation, the law of rescripts as developed in Rome during the earlier empire will first be considered.

At a period when the world-embracing legislative power of the emperors and a renowned jurisprudence existed together in Rome, the law of rescripts was as follows, if the writer has correctly understood the exposition in Weiske's Rechtslexicon, IX, pages 285, 286.

Rescripts were laws, but there was an important distinction between "them and other laws." In imperial edicts, as in the former republican leges, the legislative will undoubtedly laid down general propositions of law, and there was rarely any doubt as to who was bound thereby. The regular interpretation thereof was confined to the subject of the meaning of the law so laid down. In the case of rescripts, however, all this could be doubtful and often was so. The legal effect of a rescript, as a whole, depended upon interpretation. Whether it was to be held general legislation or not, depended upon the special interpretation of jurisconsults or prudentes, who could and did use freedom of judicial judgment in their official responses thereupon. A rescript was not necessarily authority for a generally binding proposition of law. Interpretation must decide whether or not the imperial disposition was based upon a legal rule of general application. Frequently, the disposition made in an act of the emperor was appropriate only to a particular case and its extension to other cases was not intended by the prince. Such acts were called personal constitutions: Dig. lib. 1. tit. 4. l. 1. § 2. Hence when a rescript, which might or might not be a personal constitution, was adduced as authority for a rule of law, recourse was in some cases had to legal reasons other than its authority in order to establish the rule, so that thereby all doubt might be removed concerning its vigour as an act of general legislation. In other cases, a like free judgment was exercised, in order to prove that a doubtful rescript was a personal constitution and so without vigour as general legislation. "Rescripts, which undoubtedly laid down a "generally applicable proposition of law, could be termed "generalia rescripta in opposition to personalia, and the "expression was actually used in that sense." (Dig. lib. 35. tit. 2. l. 89. § 1; Dig. lib. 26. tit. 4. l. 1. § 3; Dig. lib. 28. tit. 5. l. 9. § 2.)

If the above be correct, it is true that in Rome, at a certain date, official jurisconsults or prudentes were competent to decide the question whether an imperial rescript was a general or personal constitution, and, according to their