No. 2.

Of Part I. of the Historical Commentary.

The foregoing chapters show that there are two classes of extraordinary reasons for a fresh discussion of the subject of this Essay. The reasons belonging to the second class show the necessity of an investigation of foreign laws for light on the subject. Such an investigation should include the laws of certain European states and unions of states and an examination of the Roman and Canon laws. It should discriminate between the different periods in the history of the different laws investigated. Especially, should it distinguish between what was law abroad before, and what after, 1787, the date when the U. S. constitution was framed in Philadelphia.

Such an investigation of foreign laws is imperatively necessary since the making of the decision in Juilliard v. Greenman. Since the opinion in that case, foreign laws may be freely appealed to to decide constitutional questions. In it, a Hungarian case of royal power is appealed to in order to support an implied power of making U. S bills of credit a legal tender, and French law is relied upon in order to extend such legal tender power to previously existing as well as future contracts. Thus an implied power of making a law impairing the obligation of contracts is obtained for Congress. This climax of implication is reached by grouping a Hungarian case with a French authority.

*

In defending the decision of Juilliard v. Greenman, Mr. McMurtrie cites Vattel and invokes the authority of a Polish case upon the law of coined money to support one of the links of his argument. This is done in defence of a legislative power. In discussing the nature of judicial power, he maintains that a power of declaring laws to be void for any reason whatsoever is utterly unknown to all foreign laws. The weight of foreign laws upon this matter is so great that

* See pages 447, 449, of 110 U. S. Reports.

† See his page 23. Contrast Poor's Charters and Constitutions, page 1890, paragraph 2 from bottom,

it must have decided his judgment against such a power at any time before Marshall wrote his opinion in Marbury v. Madison. Marshall's reasoning is held to be pure implication, but its force is declared to be so great that it triumphs over all arguments from foreign laws to the contrary. Before Marbury v. Madison, therefore, the judicial power and the legislative powers delegated by the constitution were in the same predicament, as far as foreign doctrines were concerned. Implication against implication, the foreign doctrines then predominated as to the latter as well as to the former. It is only the force of Marshall's extraordinary genius which has made the change, if Mr. McMurtrie be correct.

Both the court and Mr. McMurtrie abstain from going into detail, in appealing to foreign laws relating to the legislative powers discussed by the former and the judicial power expounded by the latter. Both group foreign laws together and generalize from the mass. This is going too far, if foreign doctrines be objectionable. If they be unobjectionable, it is not going far enough. No appeal to foreign laws can be final, unless such laws be investigated in detail. If foreign doctrines are to decide, or to have a share in deciding constitutional questions, the different foreign laws should be examined seriatim. English law, Roman law, French law, German law, and other laws should be investigated separately. When necessary, different periods in each law and different branches thereof should be discriminated. By so proceeding, when truths are ascertained, they can be stated with precision. When errors are committed, they can be attacked in detail. The best of methods can not afford security against error in so wide a field of investigation. But a method of detail can prevent confusion and bring the investigator nearer to the truth: citius emergit veritas ex errore quam ex confusione.*

Such a method will be that followed in Part I. of the Historical Commentary, which will investigate the most important foreign laws bearing on the subject. These will be studied in detail. Each law will be examined with refer

* Bacon: Novum Organum, II. aph. 20; Bacon's Works, Spedding's edition, I. 260.

ence to the relation of judicial power to legislation impeached as contrary to constitutional or other right, written or unwritten. Each law will be examined in order to ascertain whether therein can be found a constitutional or other fundamental rule of binding right, which is of such a nature that the question of contrariety may become a judicial one. The investigation will include the further question, whether, according to any foreign law, legislation judicially ascertained to be contrariant to a constitution or other rule of binding right, should therefore be judicially regarded as null or void.

The result of such an investigation of foreign laws will, it is contended, show that, when Americans invented written constitutions in the last century, they did not create an unprecedented novelty in framing them upon a principle that judiciaries might decide questioned legislation to be contrariant to a constitution and hold it therefore void: that is to say, that it might be a judicial and not an extrajudicial question whether such legislation was so contrariant or not. But on the contrary, that there were then important precedents in Europe for such a judicial institution. Long before American independence, there were in Europe unwritten systems of public law, according to which legislation might sometimes be judicially decided to be contrariant to a binding right of superior strength to the legislative power exercised. Thus, whether legislators had or had not proceeded secundum jus potestatis suæ, and, whether challenged legislation was consonant or accordant to binding right, might sometimes be judicial and not extrajudicial questions.

No. 3.

Of Part II. of the Historical Commentary.

The next part of the Historical Commentary will relate to American legal history. It will discuss the relation of judicial power to unconstitutional legislation in certain of the states before and during the confederation. The legal history of certain of the states has an important bearing on

the subject of this Essay. It will show that the men who framed the U. S. constitution did not lead the way to the judicial competency under discussion, but followed the route indicated by judicial decisions in certain of the states.

No. 4.

Of Part III. of the Historical Commentary.

An historical investigation of the constitutional texts concerned does not begin with the meeting of the Framers in convention. It must examine the public historical antecedents of those texts. These antecedents are other texts, which were printed and published before the Framers met, and with which they were familiar. Under existing circumstances, this Essay would be actually incomplete, if this branch of constitutional history were forgotten.

The investigation of the historical antecedents of the texts of the constitution, which are herein concerned, will be Part III. of the Historical Commentary.

No. 5.

Of Part IV. of the Historical Commentary.

This Essay maintains that the text of the constitution expressly establishes a certain judicial competency relating to unconstitutional legislation, and does so by using words and phrases which are technical terms of law with one exception only. If this be so, the Framers of the constitution must have expressly intended what such language expressly means. To deny this, would be contrary to common sense. It is true that suggestions have been quite often made in print that men have built wiser than they knew in building structures less visible than stone houses. But nobody has ever thought that the framers of a written constitution could build wiser than they knew, if they used technical terms of law without knowing the meaning thereof.

The recorded evidence of the debates and proceedings of the Framers must, therefore, be examined to ascertain what light they throw upon the relation of judicial power to

constitutional legislation. A full examination will be made and the result will, it is contended, show that the Framers expressly intended what is expressly imported by the constitutional text, as the writer reads it. That is to say, his two contentions as to the express meaning of the text and the express intentions of the Framers thereof, are in full harmony with each other. Those jurists who maintain that the judicial competency under discussion is implied, but not expressed, by the text, must do one of two things. They must either show that the writer misunderstands what the Framers intended, or prove that the latter did not select apt words for expressing their acknowledged intentions.

No. 6.

Of the Textual Commentary.

The second branch of this Essay will be the Textual Commentary. The observations, which are now in place upon it, have been anticipated to a great extent in previous remarks. In the Textual Commentary the texts of the constitution, which are especially concerned, will be considered in detail. It is the most important portion of the work, and the one to which the other parts lead up.

This branch of the Essay will consider the relation of judicial power to unconstitutional legislation in a commentary upon the particular texts concerned. It will endeavour to show that the constitution contains express texts providing for judicial competency to decide questioned legislation to be constitutional or unconstitutional and to hold it valid or void accordingly. This Textual Commentary is thus concerned with any legislation conflicting with the constitution of the United States, whether it be such as is made by Congress, or such as proceeds in any form from a state. It is concerned with the judiciary of the United States and the judiciaries of the several states in so far as they have any constitutional relations to such unconstitutional legislation.

Whether impeached legislation be constitutional or un