such Canonical cause and such defect of power and (they being found) to hold the questioned temporal statute to be null, ipso facto et ipso jure. This is shown by the Rotal case of the Roman lands and Genoese testament, decided in 1648, in which the Roman Rota expressly held that every temporal statute ascertained and decided to be contrary to ecclesiastical liberty is ipso facto et jure nullum ex defectu potestatis laicorum statuentium.

It was therefore neither a novelty nor an inelegancy in point of jurisprudence for the framers of an American constitution so to frame it that there should exist thereunder a judicial competency of deciding questioned legislation to be constitutional or unconstitutional and of holding it void or valid accordingly.

4. The Canon law contains a division of spiritual and temporal powers between a church, or religious organization, and a state, or political organization. The constitution of the United States contains a division of delegated and reserved powers between the United States and the several states, and a further division of such delegated powers between Congress and other vestees. Each of the constitutions of the several states contains a division of powers between the legislative, executive and judicial departments of the government of the state. The constitution of each state proceeds upon the basis that there is a division of federal and municipal powers between the Union and the state.

The Canon law shows that according to the principles of law and the doctrines of jurisprudence, defect of power in a system of division of powers, is legal and rightful cause for a temporal statute being null, and that the question of the existence of such cause may be a judicial one.

There is therefore precedent for saying that it accords with the principles of law and the doctrines of jurisprudence for a written constitution to be so framed that defect of legislative power, resulting from its system of divisions of powers, shall be a legal and constitutional cause for a statute being void, and that the question of the existence of such cause may be a judicial one.

5. Thus the idea of a judicial competency of deciding

a questioned statute to be contrary to binding right and holding it therefore null and void can be traced as far back as the Canon law. Furthermore, the use of the word "null" and the word "void" to express the absence of legislative vigour in an unrepealed statute, is not a new Americanism in speech. The Rotal judgment above mentioned holds part of a temporal statute to be "null" for the Canonical cause specified and shows what the Canon law had been for a long period of time.

The case of the Prior of Castlaker v. the Dean of St. Stephens in the reign of Henry VII. is a Common law case having relation to the Canon law, and the report of the argument at the bar shows that the word "void" was actually used as legally applicable to temporal statutes legislating on matters merely affecting the spiritualty. The case of Rous v. an Abbot in the reign of Henry VI. may or may not be connected with the Canon law, but certainly was one affecting ecclesiastical persons and property. In it the court applied the word "void" to a whole chapter of an unrepealed statute.

6. In any of the medieval states throughout which the division into spiritual and temporal powers was fundamental law under the sanction of spiritual coercion, the nullity of a temporal statute must have been merely an effect. The cause of that effect was the contrariety of the statute to ecclesiastical right or liberty. Controversies between the spiritual and temporal powers, must, therefore, have generally turned on questions concerning what was or was not contrary to ecclesiastical right or liberty, rather than on any question of the validity or invalidity of a temporal statute conceded to be so contrary. Similarly, here and now, there are numerous differences of opinion as to what is or is not constitutional. It is exceptional to hear the doctrine maintained that a law should be deemed obligatory, although pronounced by a competent court to be unconstitutional.

CHAPTER XV.

Of the English law concerning parliamentary legislation in certain temporal cases before the Revolution of 1688.

No. 1. Of acts of parliament restricting the royal prerogative before 1688.

No. 2. Of the case of Godden v. Hales in the reign of James II.

No. 3. Of the sheriff's case in the Year Book of 2 Henry VII. p. 6

This chapter will consider the English law concerning parliamentary legislation in certain cases affecting the royal prerogative, which arose before the Revolution of 1688. As is well known, that revolution divides the history of the law of prerogative into two parts, which differ as to the king's relations to acts of parliament.

No. 1.

Of acts of parliament restricting prerogative before 1688.

While it is true that since the Revolution of 1688 an English court would never think of holding an act of parliament to be void because it conflicted with the royal prerogative, a like assertion can not be made for the time before that date. In the case of Godden v. Hales, in 1686, the Court of King's Bench actually held that important provisions of the statute of 25 Charles II. cap. 2, were

void because conflicting with the king's rightful prerogative. It, moreover, gave judgment accordingly, there being no other question in the cause.*

No. 2.

Of the case of Godden v. Hales.

The decision in this case is celebrated in English history as intimately connected with the causes of the revolution of 1688. The abolition of the royal power of dispensing with any statute, made in the 1st year of William and Mary, was caused by the existence of this decision. The case is discussed at length by Macaulay, who criticises both the decision and the motives of the court with great severity. The second paragraph of the bill of rights in the statute of 1 William and Mary, sess. 2. cap. 2., formally declares to be illegal what the decision declared to be legal.

It is thus matter of authority that the decision was erroneous not only after the Revolution but also when it was made. This does not, however, prevent it from being of the highest interest to every one investigating the origin of a judicial competency of deciding a questioned statute to be contrary to binding right and holding it to be therefore void. In this remarkable decision the court regarded it as a judicial question whether or not a statute could bind the king in certain cases of prerogative right and regarded it as a judicial obligation to hold the statute to be invalid after answering that question in the negative. According to now prevalent American ideas, if the constitution of England had been written, and such a prerogative right had been constitutional, the court ought to have done precisely what it did. Moreover, had the decision been one in favour of a popular right instead of a prerogative right, the assertion of a judicial competency of deciding a questioned statute to be contrary to binding right, might have been, perhaps,

* Godden v. Hales is reported in Shower, 475; Comberbach, 21; Cobbett's State Trials, IX. 1167. It is discussed in Macaulay's History, Ed. 2, vol. 2, ch. 6, p. 84,

very differently regarded. Such, indeed, was precisely what happened in Rhode Island in 1786 as to the case of Trevett v. Weeden, which will be fully considered hereinafter and need only be briefly referred to here.

Trevett v. Weeden was a case in which a statute, made under an unwritten constitution, and destroying the popular right of trial by jury, was judicially rejected as unconstitutional and therefore void. In the interest of popular rights, an American court flatly refused to obey a clearly worded statute. Godden v. Hales was a case in which an English court, also proceeding under an unwritten constitution, did likewise in the interest of royal prerogative. Animated by different motives and striving for different objects, both courts, nevertheless, performed like judicial acts in regard to questioned legislation. The American court is celebrated in history for the success of its action not only in its own state, but throughout a "growing world," for Trevett v. Weeden is the first reported case of its kind on this continent. The English court is memorable in history for the failure of its action on the eve of a revolution which it helped to provoke. This historical contrast must strike all who consider it. That illustrious man of science, Joseph Henry, taught his students at Princeton to record their failures as well as their successes in making experiments. What is true of physical science, is as true of legal science. Let the failures be studied in history as well as in the laboratory.

The following extracts from Shower's report of the case of Godden v. Hales will be sufficient for the present purpose:

"Debt for five hundred pounds upon the statute of 25 "Car. II. c. 2, for accepting and exercising the office of "colonel, etc., not having taken the oaths, and subscribed "the declaration; and set forth an indictment, and convic"tion for the same, per quod actio accrevit.

"The defendant pleads in bar, that after his admission, "and before three months expired, the king, by his letters patent, had pardoned, released, and dispensed with said "oaths. The plaintiff demurs.