given, and that of the courts over the will of the legislature, can be but by construction and the exposition of the courts themselves. Can it exist but by courtesy? Can it be a duty, which carries with it official suicide? We may try a principle by enquiring, can it be carried into effect?

Yet

The structure of our state constitution is similar to that of the United States. there are arguments, in support of a similar power under the constitution of the Unit ed States, which do not exist under the state constitution.

By the constitution of the United States, the judicial power is limited to cases arising under the constitution, and the laws." In the debates in the conventions of the several states, on the adoption of the constitution, was not the power, of the judiciary, to test the laws by the constitution, considered as a principle of the system? Through the medium of the press, it was certainly the comment.

that they perform the The courts of the Unit

It was considered as a principle giving security, conferring stability; as, in itself, a bill of rights. Has not the legislature of the Union recognized the principle, in the law constituting the courts, and which prescribes the judicial oath, duties of their office, agreeably to the constitution and the laws." ted States have acted under this idea, and declared laws void. No protest on the part of the legislature of the Union: no dissent on the part of the states, by moving for an explanation by amendment to the constitution. It would seem, therefore, to be an authority expressly given or conceded,

Under the state constitution, there is nothing said of the extent of the judicial power, but in these words, The several courts, besides the powers heretofore usually exercised by them, shall have" &c. Was this a power usually exercised before the constitution; or is the power drawn by construction from the compact, under the idea, that the constitution is the first law, and that it is the province of the judge, to expound, and to execute the laws.

"Powers usually exercised," are terms which may not include the power in question but, it may be argued that it was not thought of; or, that a power of so high a nature would have been specially designated. Yet, to say that the constitution is directory to the law-makers only; and that courts and juries have no interposition against subor dinate law, in favour of constitutional right, is an imperfection, which nothing but the impracticability of a contrary principle, can reconcile with a wise ordination.

The protection of the judiciary, should it exercise the discretion, and risk this peril of setting itself in opposition to a particular law, must be in the understanding of the people.

Hence, it would seem that it must be no ordinary case, that will justify an interposition. It must be such a case, as, upon a fair investigation, will carry with it the sense of the great body of the community. It must be a case of such gross outrage upon the letter of the constitution, as, in moral probability, will reach the understanding of the mass, and induce the sovereign, the people themselves, to instruct their representatives in the legislature. The authority of opinion must govern; and on an appeal to a court and jury, by a party, from a constitutional violation, in a plain and simple case, I might deem it practicable to support the privilege.

In the case of a law of the United States, it will be found, that a power in the state courts, and in the courts of the United States, to resist the execution of a law on the ground of unconstitutionality, is necessary to individual, or state right. And the same power in the state courts, with regard to our state constitution, though it may be the spirit of the time to frown upon it, and to run it down, may come to be understood and acknowledged as an essential principle of freedom. This will depend somewhat upon the wisdom of the application. The exercise of this power, in a case of abstract deduction, and not immediately comprehensible by the common mind, may excite a prejudice, and set the public mind against it. That may be lost in practice, which exists in contem plation.

In the case of a law of general policy, there will be less reason for the application of this power; because, being felt by the whole community, and the operation found obnoxious, the majority can procure a repeal. But even in the case of a majority ap proving and persisting to support, the minority has still its rights, under the constitu tion; and an appeal may be contemplated. But it is in the case of a special law chiefly, that an appeal will be found necessary, or practicable; because a special law, affecting an individual, or corporate body, a particular district, or portion of the community, may more easily be pushed upon the legislature, by a party interested; and a repeal less ear sily procured. It would seem reasonable, therefore, that in the case of a special law, an appeal to the courts of justice should exist, where the party aggrieved can be heard by themselves or by counsel; and maintain a private right.

Under the constitution of the Union, the individual states will look to the judiciary of the Union, to be heard and protected from powers not given. They will look to their state judiciaries in the first instance, where the jurisdiction is concurrent. No state, or citizen of a state, will say that they have not the barrier of a judiciary between thes C 2

VOL, II. No, 1,

1812.

The case of

JOHN

TOWERS.

1812.

The case of

JOHN

TOWERS.

and the encroachments of the Union. The judiciary of the Union must have these pow ers, or they cannot afford the protection.

Under the constitution of the state, there must be the same rights to the parties to the compact. For, in the one case specified powers are given, in the other rights are reserved But an individual of the state commonwealth, has not the same power to assert his right; for the body politic of a state has more strength with regard to the Union, than a citizen with regard to a state, The legislature of the Union will not dare to question the right of a state, or of the citizens of a state, to an appeal from a law to tribunals of law: but the law-making power of a state can bear down this privilege, and it may be, that a law of the administration, for the time-being, cannot be resisted. But speaking of the constitutional power abstractedly, there can be no doubt.

Taking it for granted, then, that a power of this nature in the courts of justice springs from the constitution, and is necessary for its preservation, it is evident that it must be a clear case that will justify the use of it; a transgression of an express provision of the constitution; an infraction obvious to every one, like the light of the sun, it must strike every observer. The judge who shall undertake to pronounce a law unconstitu tional, must himself be well persuaded of it; he must have no doubt; he must have such reasons before him as will carry with them unanswerable evidence, and will force general conviction; he must consider, that what he undertakes, is to set aside an act of the legislature, and that for this, he, in fact puts himself upon the country.

-NOTES.

The English lawyers admit that an act of parliament against law and reason is therefore void, [4th Rep. 13.] That, in many cases, the common law will controul 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 controul it, and adjudge such act to be void. Some statutes are made against law and right, which those who made them perceiving, would not put them in execution, [8. Rep. 118]. That an act of Parliament made against natural equity, as to make a man a judge in his own cause, is void in itself; for jura naturae sunt îmmutabilia, and they are leges legum, [Hob, 87]. And "it is a very reasonable and true "sying, that if an act of Parliament should ordain, that the same person should be a "party and a Judge, or, which is the same thing, judge in his own cause, it would be a "void act of Parliament; for it it impossible that one should be judge and party; for the "judge is to determine between party and party or between the government and the par"ty; and an act of parliament can do no wrong; though it may do several things, that look 66 'pretty odd" [12 Mod. 687, 688]. And "If there arise out of acts of parliament, collat"erally any absurd consequences, manifestly contradictory to common reason; they " are, with regard to those collateral consequences, void." I lay down the rule with these restrictions, although I know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done, which is unreasonable, I know of no power that can controul it; and the examples, usually alledged in support of this sense of the rule, do none of them prov 8, that where the main object of a statute is unreasonable, the judges are at liberty to reject it for that were to set the judicial power above that of the legislature, which would be subversive of all government." "No court has power to defeat the intent of the legislature, when couched in such evident and express words, as to leave no doubt concerning its intention" [1. Bl. Com. 91.] And "we cannot expect that all acts of legislatures will be ethically perfect; but if their proceedings are to be decided upon by their subjects, government and subordination cease." [El. jur. 48.]

"An act of Parliament, in England, can never be unconstitutional in the strict and proper acceptation of the term; in a lower sense it may, viz. When it militates with the spirit, contradicts the analogy, or defeats the provision of other laws, made to regulate the form of government." [Paley, 350.]

And "the parliament may, unquestionably be controuled by natural or revealed law proceeding from divine authority. Is not this authority superior to any thing that can be enacted by parliament? Is not this superior authority binding on the courts of jus. tice? [1. Wilson, Lec, 460.]

But, in England, is there not an inconsistency in the judicial power undertaking to declare an act void, when the judicial power in the last resort is a branch of the parliament?

Would the house of Commons not impeach the judiciary who would undertake to declare an act of parliament void; especially that house of commons who enacted the law? [Cambden, Pol. tr.]

Has there been any instance of the judicial power in England, undertaking to declare an act of parliament void?

But we have a written constitution; a law inconsistent with this must be void. who shall determine whether it is inconsistent? This is the difficulty.

But

"It is emphatically the province and duty of the judicial department, to say what the law is. If two laws conflict with each other, the court must decide on the operation of each. So if a law be in opposition to the constitution: both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. If then the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary acts, must govern the case to which they both apply.”

"The oath of office imposed by the legislature, is demonstrative of the legislative opinion on this subject." [1. Cranch. 180. Chief Jus. Marshal.}

It will be noticed that the oath of office to the state judges is different in Pennsylvania. The like argument cannot therefore serve them in the exercise of this power.

I have seen this point canvassed in a report of a decision in a superior court of Virginia, where the judges, three to two, determined in favour of the exercise of this power, in case of the law of the state, conflicting with the state constitution; but I have not the report. My impression is, that it was the best discussion of the subject I have seen, and my judgment was with the minority at the time.

"If any act of Congress or the Legislature of a State violates constitutional provisions, it is unquestionably void, though I admit, that, as the authority to declare it vaid, is of a delicate and awful nature, the court will never resort to that authority but in a clear and urgent case." [3 Dall. 399 1

"The more minute the transgression, the more to be resisted, as being more likely to elude vigilance.”

[Strictures in the gazette by Judge Cooper.] The quotation is from memory.

"It is an unpopular act only, then, that might be declared unconstitutional.” [Anonym. Pamph. observing on the position I had laid down on this point.]

Judge Wilson [Sec. 456.] stiles this "a delicate and embarassing subject." And this, even though it is with regard to the judicial power under the constitution of the United States, that he speaks; in which case, I think there is less doubt. The inclination of his mind appears to be in favour of the judicial power, exercising the authority to deelare void, an act which is manifestly repugnant to the constitution.

Judge Patterson, in the Circuit Court, United States, [2 Dall. 308.] lays it down, that in England the authority of the Parliament runs without limits, and was above control." Some of the Judges there, had the boldness to assert, that an act of parliament made against natural equity is void; but this opinion contravenes the general position, that the validity of an act of parliament cannot be drawn into question by the judiciary department: it cannot be disputed, and must be obeyed. But in England there is no written constitution, by which a statute can be tested. Here the case is widely dif ferent."

I take it, the English lawyers will not admit this; and I am not sure but that the constitution there, is as fixed in principle and usage, and can be ascertained from documents as well as here.

But to notice farther the authority of judge Patterson, he takes it to be "a elear position, that if a legislative act oppugns a constitutional principle, the former must give way, and be rejected on the score of repugnance. The judiciary in this country is not a subordinate, but co-ordinate, branch of the government. But I take it, the judiciary is just

as much so in England.

In the case of Horns lessee against Dorance, the judge exercised the power, of declaring an act void. I do not know that it can affect the principle; but there was greater reason for the exercise of this power, which was in the case of an act under the constitution of '76, where the whole power was in a single house.

I have seen a short report of a case in the hands of the Attorney General, (present) in which the then Chief Justice, the late governor M'Kean, seemed to take it, pro concesso, that the Judiciary had a right to exercise this power; and I think the act in that ease, was under the constitution of '76. Nevertheless, notwithstanding this, the last, though not the least authority, I do not know that I can distinguish the power under one constitution, from that, in point of principle; yet, I consider it still, as very delicate ground to tread upon; and, unless in a very outrageous case, not perfectly safe, for at least a state judge who is within striking distance of the legislative body, to attempt it. He must be sure that the feelings of the public mind are with him, and will bear him out.

I have enquired of a leading member of the State convention which framed the constitution, how it came to pass that, as this was a vexed question in the theory of government, even under the written constitutions of the States, the power had not been ex. pressly assigned to the judiciary, of testing a statute by the constitution; his answer was, that it was thought that if the principle had been brought broadly in view, it would have been rejected, and it was thought more advisable to leave it to be collected by construction.

1812.

The Case of
JOHN

TOWERS.

It must certainly shock the public mind a little, to have it thought, that, after an act solemnly enacted by two bodies, deliberating apart, and the review of a governor, the only immediate representative of the whole people, three perhaps out of four individuals who constitute the supreme court, or a circuit judge of the United States, or the supreme court itself of the Union, should declare the Statute void.

Judge Tucker in his Blackstone, seems to lear in support of the principle, as founded in rational theory, and as a desideratum in practice: and under the constitution of Virginia he takes notice, that "more than one instance might be adduced, where the judiciary department have doubted, or denied the obligation of an act of the legislature, because contrary to the constitution." He refers to the case of district court clerks, in the court of appeals, May 12, 1783: and of Thamter against Hanokins in the general court November 11, 1793, [1. vol. append, 81, and 95.] where he gives the argument of Judge Wilson in this case, and observes that nothing can be more couclusive;" and remarks, that both the judiciary, and the legislature, have on several occasions recog nized this power. The legislature have repealed laws, assigning as a reason, the being contrary to the constitution and it now seems settled in all the superior courts, "that wherever the constitution, and an act of the legislature are in opposition and cannot exist together, the former must controul the latter." But Quere, have the legislature recognized the power of the judiciary to repeal, by declaring void? It would seem so, in that State, by the acquiesence. It has never yet been tried in Pennsylvania. The power of impeachment or removal by address, does not seem consistent with it. In Virginia, the trial of an impeachment is differently constituted.

If with us it is the duty of the judiciary to examine the constitutionality of a law, it may very plausibly be said, with Judge Cooper, that the minutest transgressions are to be the most watched. As the Physicians say, obsta principiis; and Vattel may be quoted "It is very uncommon to see the laws and constitution of a State, openly and boldly opposed. It is against silent and slow attacks, that a nation ought to be particularly on its guard." (Law of Nat. B. 1, 3. act. 30.]

The Federalist, a publication of great merit, applies the law of a "delegated authority acting under a commission" to the case of a legislature under a constitution, and as in the one case, so in the other, a transgression must be void. And if it be said that the legislative body are themselves the constitutional Judges of their own powers, it may be answered that this cannot be the natural presumption, when it is not to be collected from any provision in the constitution." But neither is it to be collected that the judiciary are, but by inference, on the ground that they are expositors of laws; and that the constitution is a law paramount. But supposing it to be exercised, I take it, that it must be a matter of discretion with the courts, to say in what cases; and that they must be answerable for the abuse of it; and this proves, that it cannot be in ordinary cases, that they will exercise it. It must be clear, that there is a principium, before the obsta principiis can be applicable. An apparent slight deviation from the right line, which is not observable to the optics of all without glasses, will not justify an interference with the march of the legislative body.]

CASES

IN THE

Court of Common Pleas,

OF THE

NINTH JUDICIAL DISTRICT.

ADAMS COUNTY, APRIL TERM, 1810.

N

COMMONWEALTH against LINDSEY STURGEON.

fare on

full age, binding himself apprentice, to learn

a trade,

is not subject to the pro

TEGRO HENRY, being a free man about twenty-four A person of years of age, bound himself to the defendant by indenture of apprenticeship, to learn the tanner's trade. The indentures were unexceptionable in point of form, and regularly executed. The only question which came before the Court, was, whether a free person of full age can bind himself an apprentice, so as to be held to personal servitude, and subject bly giving to the provisions of the act of Assembly, giving summary summary jurisdiction in disputes between master and apprentice.

Cassett and Maxwell, for the master.

It is admitted that by the common law, persons capable of contracting, can be compelled to fulfil their undertaking, only by an action on the covenant or promise; but it is at the same time assumed, that the Legislature can by law enable men to bind themselves, so as to be subjected to summary proceedings and personal servitude. This is the case with indented servants, who, though bound voluntarily, are

visions of the

act of assem

jurisdiction in disputes between masters and apprentices.