assembly as soon as the state of the island would admit thereof. You observe, there is no reservation in the proclamation of any legislature to be exercised by the king, or by the governor and council under his authority in any manner, until the assembly should meet; but rather the contrary for whatever construction is to be put upon it, which, perhaps, may be very difficult through all the cases to which it may be applied, it alludes to a government by laws in being, and by courts of justice, not by a legislative authority, until an assembly should be called. There does not appear from the special verdict, any impediment to the calling an assembly immediately on the arrival of the governor, which was in December, 1764. But no assembly was called then or at any time afterwards, till the end of the year 1765.

We therefore think, that by the two proclamations and the commission to Governor Melville, the king had immediately and irrecoverably granted to all who were or should become inhabitants, or who had, or should acquire property in the island of Grenada, or more generally to all whom it might concern, that the subordinate legislation over the island should be exercised by an assembly with the consent of the governor and council, in like manner as the other islands belonging to the king.

Therefore, though the abolishing the duties of the French king and the substituting this tax in its stead, which according to the finding in this special verdict is paid in all the British Leeward Islands, is just and equitable with respect to Grenada itself, and the other British Leeward Islands, yet, through the inattention of the king's servants, in inverting the order in which the instruments should have passed, and been notoriously published, the last act is contradictory to, and a violation of the first, and is, therefore, void. How proper soever it may be in respect to the object of the letters-patent of the 20th July, 1764, to use the words of Sir Philip Yorke and Sir Clement Wearge, "it can only now be done, by the assembly of the island, or by an Act of the Parliament of Great Britain."

The consequence is, judgment must be given for the plaintiff.

SECTION II.

WRITTEN CONSTITUTIONS IN THE UNITED STATES.

NOTE TO PAXTON'S CASE OF THE WRIT OF ASSISTANCE1 (QUINCY'S REP. 51). (1761.)

[Quincy's Rep., Appendix I. 520.]

BUT Otis, while he recognized the jurisdiction of Parliament over the Colonies, denied that it was the final arbiter of the justice and constitutionality of its own acts; and relying upon words of the greatest English lawyers, and putting out of sight the circumstances under which they were uttered, contended that the validity of statutes must be judged by the courts of justice; and thus foreshadowed the principle of American Constitutional Law, that it is the duty of the judiciary to declare unconstitutional statutes void.

His main reliance was the well-known statement of Lord Coke in Dr. Bonham's Case-"It appeareth in our books, that in many cases the common law will control Acts of Parliament and adjudge them to be utterly void; for where an Act of Parlia ment is against common right and reason or repugnant or impossible to be performed, the common law will control it and adjudge it to be void."2 Otis seems also to have

1 By Horace Gray, Jr., Esq., now Mr. Justice Gray, of the Supreme Court of the United States.

I am indebted to the publishers, Messrs. Little, Brown & Co., and to Josiah Quincy, Esq., of Boston, the owner of the copyright, for permission to reprint here this valuable note. Quincy's Reports were published in 1865. — Ed.

28 Rep. 118 a, quoted by Otis, ante [Quincy], 474. Dr. Bonham's Case (so far as is material to exhibit this point) was an action of false imprisonment, brought against the president and censors of the College of Physicians in London, for committing the plaintiff to jail for practising medicine in London without their license. The defendants justified, on the ground that it was granted in their charter, and since confirmed by Act of Parliament, that no one should practise medicine in London without license from them, under penalty of 100s. for each month, one half to the king, and one half to the college: and it was moreover granted that they should have the supervision of all physicians practising in London, and the punishment of them for malpractice, and the scrutiny of all medicines: "so that the punishment of the same physicians so delinquent in the premises might be by fine and imprisonment, and other suitable manner." Coke, C. J., Warburton & Daniel, JJ., gave judgment for the plaintiff upon two points: 1st. That the defendants had no power to commit the plaintiff for the cause alleged. 2d. That if they had such power, they had not pursued it. 116 b, 117 a, 121 a. The 2d point need not be further noticed here.

Of the first point "the cause and reason shortly was" that the clanse giving the power to fine and imprison did not apply to those practising without license, but only to those who were guilty of malpractice. "And that was made manifest by five reasons, which were called vividæ rationes, because they had their vigor and life from th letters-patent and the Act itself," "by construction, and conferring all the parts of them together." 117 a. "And all these reasons were proved by two grounds or maxims in law: 1. Generalis clausula non porrigitur ad ea quæ specialiter sunt comprehensa.” 118 b. 2. Verba posteriora propter certitudinem addita ad priora quæ certitudine indigent sunt referenda." 119 a.

The fourth of the reasons thus derived from the whole context, and supported by

had in mind the equally familiar dictum of Lord Hobart -"Even an Act of Parliament made against natural equity, as to make a man judge in his own case, is void in itself:

legal maxims for restraining the application of general words, was this: "The censors cannot be judges, ministers, and parties; judges to give sentence or judgment; ministers to make summons; and parties to have the moiety of the forfeiture, quia aliquis non debet esse judex in propria causa, imo iniquum est aliquem suæ rei esse judicem; and one cannot be judge and attorney for any of the parties." "And it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void." 118 a. And see S. C. 2 Brownl. 265. When this passage was made one of the points of attack against him, Coke called the king's attention to the fact (which had been omitted in the questions drawn up by his enemies, Lord Chancellor Ellesmere and Sir Francis Bacon) that the words of his report did "not import any new opinion, but only a relation of such authorities of law, as had been adjudged and resolved in ancient and former times, and were cited in the argument of Bonham's Case;" "and therefore the beginning is, It appeareth in our books, etc. And so it may be explained, as it was truly intended." 6 Bacon's Works (ed. 1824), 400, 405, 407. One of the authorities thus referred to was the remark of Herle, C. J., in Tregor v. Vaughan, 8 E. 3, 30, that "some statutes are made against law and right, which they that made them, perceiving, would not put them in execution." The others are either cases in which a limited construction had been given to general words in order to avoid an absurdity; or instances of rejecting repugnant or unfavorable provisions, as in other English and American cases. Case of Alton Woods, 1 Rep. 47. Cromwell's Case, 4 Rep. 13. Jenk. Cent. 196, pl. 4. Riddle v. White, Gwillim's Tithe Cases, 1387. United States v. Cantril, 4 Cranch, 167. Sullivan v. Robbins, 3 Gray, Campbell's Case, 2 Bland, 232. Cheezem v. State, 2 Ind. 149.

476.

In a later case Coke is reported to have said "that Fortescue and Littleton and all others agreed, that the law consists of three parts: First, Common Law: Secondly, Statute Law, which corrects, abridges, and explains the common law: The third, Custom, which takes away the common law: but the common law corrects, allows, and disallows, both statute law and custom; for if there be repugnancy in statute, or unreasonableness in custom, the common law disallows and rejects it, as it appears by Dr. Bonham's Case," &c. Rowles v. Mason, 2 Brownl. 197, 198. In his first Institute he repeats the same classification, adding, “The common law hath no controller in any part of it, but the High Court of Parliament." Co. Lit. 115 b. Again he says, in a passage which seems to have been cited by Otis (ante, 56), "the surest construction of a statute is by the rule and reason of the common law." Co. Lit. 2726. S. P. Harbert's Case, 3 Rep. 13 b. And in his second Institute, in commenting on the 12th chapter of Magna Charta, declaring that assizes should "not be taken except in their own counties," and on the apparently repugnant decision that "if a man be disseised of a commote or lordship marcher in Wales, holden of the king in capite," the assize should be taken in an adjoining county in England, he says, "the reason is notable, for the Lord Marcher, though he had jura regalia, yet could not he doe justice in his owne case." "Hereby it appeareth (that I may observe it once for all) that the best expositors of this and all other statutes are our bookes and use or experience." 2 Inst. 25.

The same rules of construction have prevailed ever since. Acts of Parliament are always to be construed according to the common law and natural right, even if it should be necessary for this purpose to adopt what would otherwise be a forced construction. Fulmerston v. Steward, Plow. 109. Sheffield v. Ratcliffe, Hob. 346. Williams v. Pritchard, 4 T. R. 3. The King v. Inhabitants of Cumberland, 6 T. R. 194. Dwarris on Sts. (2d ed.) 484, 623. The rule has been thus expressed by one of the most exact of modern English judges: "The rule by which we are to be guided in construing Acts of Parliament is to look at the precise words, and to construe them in their ordinary sense, unless it would lead to any absurdity or manifest injustice; and if it should, so to vary VOL. I.-4

for jura naturæ sunt immutabilia, and they are leges legum."1 Lord Holt is reported to have said, "What my Lord Coke says in Dr. Bonham's Case in his 8 Rep is far from any extravagancy, for it is a very reasonable and true saying, That if an Act of Parliament should ordain that the same person should be party and judge, or what is the same thing, judge in his own cause, it would be a void Act of Parliament." 2

and modify them as to avoid that which it certainly could not have been the intention of the legislature should be done." Parke, B., in Perry v. Skinner, 2 M. & W. 476.

For an example of American opinion upon this subject, it is sufficient to quote from Chief Justice Marshall the following "principles in the exposition of statutes:" "An Act of Congress ought never to be construed to violate the Law of Nations if any other possible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the Law of Nations as understood in this country." 'Every part of the statute is to be considered, and the intention of the legislature to be extracted from the whole;" and "where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the legislature be plain, in which case it must be obeyed." Murray v. The Charming Betsey, 2 Cranch, 118. United States v. Fisher, Ib. 386.

The same doctrine has been applied to the construction of a written constitution. Chief Justice Parsons, and his associates (and afterwards in turn successors) Justices Sewall and Parker, in an opinion given to the Massachusetts House of Representatives in 1811, said: "The natural import of the words of any legislative Act, according to the common use of them, when applied to the subject-matter of the Act, is to be considered as expressing the intention of the legislature; unless the intention, so resulting from the ordinary import of the words, be repugnant to sound, acknowledged principles of national policy. And if that intention be repugnant to such principles of national policy, then the import of the words ought to be enlarged or restrained, so that it may comport with those principles; unless the intention of the legislature be clearly and manifestly repugnant to them. For although it is not to be presumed that a legislature will violate principles of public policy, yet an intention of the legislature, repug nant to those principles, clearly. manifestly and constitutionally expressed, must have the force of law." Opinion of Justices, 7 Mass. 524, 525.

Thus by weighing Coke's words, and comparing them with his own statements and later authorities, they are relieved from the misconstruction, which has occasioned modern commentators either, like Chancellor Kent, to praise a boldness which Coke never assumed, or, like Lord Campbell, to sneer at what they would not take the trouble to understand. 1 Kent Com. (6th ed.) 448. 2 Campbell's Lives of the Chancellors, 248, note. 1 Campbell's Lives of the Chief Justices, 290.

1 Day v. Saradge, Hob. 87. The dispute there was upon the liability of a freeman of London to pay wharfage to the city, and the question was whether this should be tried by certificate of the mayor and aldermen according to the customs of London (which had been confirmed by Act of Parliament) or by a jury. The very paragraph which contains the dictum quoted in the text shows that there was another sufficient reason for ordering a trial by jury. That paragraph, which concludes the opinion, is thus: "By that that hath been said it appears, that though in pleading it were confessed that the custome of certificate of the customes of London is confirmed by Parliament, yet it made no change in this case, both because it is none of the customes intended, and because even an Act of Parliament, made against naturall equitie, as to make a man judge in his owne case, is void in it selfe, for Jura naturæ sunt immutabilia, and they are leges legum."

Bracton, with more accuracy, wrote, “Jura enim naturalia dicuntur immutabilia, quia non possunt ex toto abrogari vel auferri, poterit tamen eis derogari vel detrahi in specie vel in parte." Lib. 1, c. 5, § 8.

2 City of London v. Wood, 12 Mod. 687. Approved by Wilde, J., in Commonwealth v. Worcester, 3 Pick. 472, and by Metcalf, J., in Williams v. Robinson, 6 Cush. 335, 336. Nemo debet esse judex in sua propria causa has always been a fundamental maxim of

The law was laid down in the same way, on the authority of the above cases, in Bacon's Abridgment, first published in 1735; in Viner's Abridgment, published 174151, from which Otis quoted it; and in Comyn's Digest, published 1762-7, but written more than twenty years before. And there are older authorities to the same effect. So that at the time of Otis's argument his position appeared to be supported by some of the highest authorities in the English law.1

Or

the common law. Chancellor of Oxford's Case, 8 H. 6, 18; Bro. Ab. Patent, 15. Lit. § 212. Co. Lit. 141 a. Derby's Case, 12 Rep. 114; 4 Inst. 213. 2 Rol. Ab. Judges, A. Hesketh v. Braddock, 3 Bur. 1858. The Queen v. Justices of Hertfordshire, 6 Q. B. 753. Dimes v. Grand Junction Canal, 3 H. L. Cas. 759. Egerton v. Brownlow, 4 H. L. Cas. 240. Pearce v. Atwood, 13 Mass. 340, 341. Commonwealth v. McLane, 4 Gray, 427. Hush v. Sherman, 2 Allen, 597. Washington Ins. Co. v. Price, Hopk. Ch. 1. Peck v. Freeholders of Essex, Spencer, 475; 1 Zab. 657. Governor Winthrop, when accused before the General Court of Massachusetts in 1645 for acts done by him as a magistrate, "coming in with the rest of the magistrates, placed himself beneath within the bar and so sat uncovered." 2 Winthrop's Hist. N. E. 224. And so did Lord Holt upon the trial in 1693 of a suit brought by the Crown to test his right as C. J. K. B. to appoint the chief clerk for enrolling pleas in that court. Bridgman v. Holt, Show. P. C. 111. Yet an interested judge may act if no other has jurisdiction of the matter. Anon, cited 8 H. 6, 19 b, and Bro. Ab. Judges, 6. Great Charte v. Kennington, 2 Stra. 1173; Bur. Set. Cas. 194. The Queen v. Great Western Railway, 13 Q. B. 327. Ranger v. Great Western Railway, 5 H. L. Cas. 88. Commonwealth v. Ryan, 5 Mass. 92. Hill v. Wells, 6 Pick. 109. Commonwealth v. Emery, 11 Cush. 411. In re Leefe, 2 Barb. Ch. 39. if he is expressly authorized by statute. The King v. Justices of Essex, 5 M. & S. 513. Commonwealth v. Worcester, 3 Pick. 472. Commonwealth v. Reed, 1 Gray, 474, 475. And an interested judge may do formal acts necessary to bring the case before the proper tribunal. The King v. Yarpole, 4 T. R. 71. Dimes v. Grand Junction Canal, 3 H. L. Cas. 787. Jeffries v. Sewall, 2 John Adams's Works, 138, 139. Richardson v. Boston, 1 Curt. C. C. 251. Buckingham v. Davis, 9 Maryland, 329. Heydenfeldt v. Towns, 27 Alab. 430. But if a judge causes a suit in which he is interested to be brought before him, his judgment therein will be void, although he is sole judge of the court. Mayor of Hereford's Case, cited 7 Mod. 1; 2 Ld. Raym. 766; & 1 Salk. 201, 396. Richardson v. Welcome, 6 Cush. 332. Judge Rolle was of opinion that even consent of parties would not give jurisdiction to an interested judge, “because it is against natural reason." Smith v. Hancock, Style, 138. But it is now well settled that the objection of interest may be waived, unless it is made by constitution or statute an absolute disqualification. Regina v. Cheltenham Commissioners, 1 Q. B. 475. Kent v. Charlestown, 2 Gray, 281. Tolland v. County Commissioners, 13 Gray, 13. Sigourney v. Sibley, 21 Pick. 106. Paddock v. Wells, 2 Barb. Ch. 335. Oakley v. Aspinwall,

3 Comst. 547.

1 Bac. Ab. Statutes, A. Vin. Ab. Statutes, E. 6 pl. 15; ante, 51. Com. Dig. Parliament, R. 27. Story's Miscellaneous Writings, 125-133. Doct. & Stud. lib. 1, cc. 2,

6.

1 Finch, c. 6. Noy's Max. 19. John Milton, in his Defence of the People of England, appealed to "that fundamental maxim in our law, by which nothing is to be counted a law, that is contrary to the law of God, or of reason." 6 Milton's Prose Works (ed. 1851), 204.

Even Sir William Blackstone in his Commentaries, first published in 1765, admitted "that the rule is generally laid down that Acts of Parliament contrary to reason are void;" adding, however, “but if the Parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it." 1 Bl. Com. 91. And so the law was stated in the editions published during his life, the eighth and last of which was published in 1778. In the posthumous editions his statement is thus modified: "I know of no power in the ordinary forms of the Constitution, that is vested with authority to control it;" and the qualifying words appear in the corrections for the press made in his own handwriting in the margin of a copy of the eighth edition, now owned by Mr. Francis E. Parker of Boston. Perhaps the American Revolution