arm of the Court, and he is expected to protect the Court from disorder and assault. A Marshal appointed to defend Justice Field from a threatened assault, shot and killed the assailant of the Justice and was held not to be answerable to California law, the State in which the justifiable defence was made.'

United States

The United States District Attorney is the District Federal prosecutor. He institutes proceedings against persons violating Federal law.

Attorney.

The District Attorney and the Marshal are both under the direction of the Attorney-General of the United States, the head of the Department of Justice. Through these officers Federal authority covers the whole territory of the Union.

Power to

From a political point of view the most important function of the Judiciary is its power of declaring Declare a Law an act unconstitutional. This power applies Unconstitu- not only to the acts of Congress but to the acts of any of the State legislatures. An act declared unconstitutional by the Supreme Court is as if it had never been.

tional.

"Rights cannot be built up under it; contracts which depend upon it for consideration are void; it constitutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was made. It is to be regarded as never having, at any time, been possessed of any legal force.'

92

It is a power not conferred expressly by the Constitution, and when it was first exercised by the national courts, and acts of Congress and of the State legislatures were set aside as null and void and of no force, this exercise of authority created considerable alarm. Jefferson and the States' Rights party were afraid the Supreme 1 See the case of Neagle.

2 Cooley, Constitutional Limitations, p. 222, cited by Hinsdale,

Court, with this right of overruling Congress and the State legislatures, would make itself such a powerful arm of the National Government that the people would lose control over their laws. It was thought to be dangerous to have their legislative will thus thwarted and interfered with. Therefore Jefferson and his party urged more effective popular control of the courts; that the judges' office should be elective and for a briefer tenure; that they should not be independent of, or that at any rate they should not be superior to, the political arm of the Government. Jefferson and his followers were not willing that the Supreme Court should exercise this power against State laws, as this would be like a national agency vetoing the laws of the States. In the Convention that framed the Constitution in 1787 it was proposed that a veto on the acts of the State legislatures be conferred upon Congress; that any State law that Congress deemed inexpedient or unwise might be vetoed. This was almost unanimously rejected. Later the proposal was modified to allow Congress to veto only unconstitutional laws of the States. There were serious objections to this also. To veto the law of a State, though the law might violate the Federal Constitution, would seem like a political act; it would have offended State loyalty; it would have been difficult to exercise, since Congress would not be constantly in session, and it would certainly have provoked collisions between State and Federal authority. Such an emanation of Federal authority, with power to interfere with the liberty and conduct of the State, would have been a constant irritation. This veto power was consequently denied to Congress. The power having been so denied, is it to be supposed that it had been inadvertently conferred upon the Supreme Court? When the early decisions and interpretations of the Supreme Court brought this power unexpectedly into being, Jefferson and the adher

Was a National Negative on State Laws Inadverently Conferred in

the Con stitution

Should a Na

tional Authority Decide on the Limits of National Power?

The Virginia

Resolutions.

ents of States' rights denied this function to the Court. All parties admitted that unconstitutional laws did not bind the people. But Jefferson and the Virginia school thought it "a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions; that would place us under the despotism of an oligarchy.' They were unwilling that a national agency should be allowed to define the limits of national authority, and when the vital question was raised as to whose prerogative it should be to decide upon the constitutionality of laws, Jefferson asserted, unfortunately, that "as in all other cases of compact among parties having no common judge, each party (presumably each State) has an and Kentucky equal right to judge for itself as well of infractions as of the mode and measure of redress."1 This was a political doctrine set forth by Jefferson to meet a political issue, the issue between State and national power. As a political theory it has since been abandoned, because an extreme application was logically made of it that was calculated to undermine and destroy the Union. But it is also abandoned because of the fact that the Supreme Court has attained to the position of an accepted and impartial umpire to settle the constitutional cause then in dispute,-the limits of power between State and Nation. But this power of the Court to declare laws unconstitutional was then new and startling, although it is now exercised without offence to any party in the country,—a tribute to the people's confidence in the Supreme Court. In disputes between the States and the Central Government, Jefferson recognized mate Arbiter" that there must be somewhere an ultimate arin Disputes

The "Ulti

and Nation.

between State biter, but the final judgment was not to be with either party to the dispute. "The ultimate arbiter is the people of the Union, assembled by their

Kentucky Resolutions.

deputies in convention at the call of Congress or of two thirds of the States. Let them decide to which organ they mean to give an authority claimed by two of their organs. But our usage has referred the arbitrament of such disputes on constitutional questions to the Supreme Court, "a body which is to be deemed not so much a third authority in the Government as the living voice of the Constitution, the unfolder of the mind of the people whose will stands expressed in that supreme instrument.'''

In Allowing

such Supremacy to the

Judiciary America is Unique.

The power in the courts to declare a law unconstitutional is distinctly American. It excites special attention and comment from European students of our politics, and it is a matter of some amazement to them that Americans permit it. Under no other constitutional government does this power rest with the Judiciary. In England, as we have seen, Parliament is supreme.' There all statutes are of equal authority; all were made by the legislature and all can be changed by the legislature. No court would presume to set aside an act of Parliament. An English political leader may declaim against a proposed act of Parliament as "unconstitutional"; but by this he merely means that the act is contrary to precedent or usage; or he may mean that it is contrary to certain historic measures which in England are called con- "Constitustitutional statutes, such as the Magna Charta (1215), the Petition of Right (1628), the Bill of Statutes" in Rights (1688), the Act of Settlement (1701), the Acts of Union (1708, 1800), the Reform Bill (1832)— important, long-standing measures defining the character of the State and according to which all parties are expected to conduct the Government. But even these great measures may be repealed by act of Parliament.

tional

England.

1" Jefferson's Opinions of Marshall and his Court,” American Law Review, January-February, 1901, and Jeffersonian Cyclopedia. See pp. 95 et seq.

2 Bryce, vol. i., p. 357.

Whatever law Parliament passes, the courts will accept and apply, and if it conflicts with any preceding act, no matter of what importance, the latest act will stand as law. If English judges find an act conflicting with a decided case, "they prefer the act to the case, as being of higher authority. As between two conflicting acts they prefer the latter, because it is the last expression of the mind of Parliament." If an English judge find two laws conflicting he merely looks at the date, and the last law prevails. There is no such thing as an invalid act of Parliament. That would be like an unconstitutional constitution. Parliament is the people. It is politically omnipotent and what it does stands in court until the same omnipotent power changes it. Even in other European countries where there are written constitutions binding the legislature, like France, Switzerland, and Germany, the courts are not allowed to declare a legislative act invalid. The legislatures are also the judges of the Constitution, and the courts are bound to enforce the laws of the legislature. In Switzerland, whose Federal court was instituted in imitation of ours, some points of law are reserved for an authority not judicial but political, and the Federal legislature is made the sole judge of its own powers.'

However, our Supreme Court has exercised this power to declare a law unconstitutional and to set it aside, and in doing so it has described its exercise to be an essential characteristic of a government under a written constitution. The written constitutions of those European countries that do not recognize this power in the courts have developed on different historical lines than ours. They have come into use after the functions of the courts and their relation to the legislative powers were fixed by usage. In America, under a new Constitution, this important power of the Judiciary became a part of our system, 1 Bryce, vol. i., p. 260.