The American Judiciary

S >> Simeon E. Baldwin, LLD >> The American Judiciary

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Our State constitutions generally guarantee the citizen against
deprivation of his rights without "due process of law" or "due
course of law." A similar provision was made for the United
States by the fifth amendment to their Constitution, and since
1868 the fourteenth amendment has established the same rule
inflexibly for every State. What is due process of law? It is
for the courts to say, and while they have cautiously refrained
from assuming to give any precise and exhaustive definition, they
have, in many instances, enforced the guaranty at the cost of
declaring some statute which they held incompatible with it to be
no law. They have also, and much more frequently, supported some
act of government claimed to contravene it, and which, according
to the ancient common law of England, would contravene it,
because in their opinion this ancient law had been outgrown.

Sir Edward Coke, whom no expounder of the English common law
outranks in authority, in his "Institutes," in treating of
_Magna Charta_, referred to the phrase _per legem
terrae_, as equivalent to "by the law of the land (that is, to
speak it once for all) by the due course and process of law." It
is incontestable that due course and process of law in England at
the time when the American colonies were planted was understood
to require the action of a grand jury before any one could be put
on trial for a felony. Some of our States have abolished grand
juries in whole or part. To review a capital sentence for murder
in one of these States, a writ of error was prayed out from the
Supreme Court of the United States in 1883. The
constitutionality of the State law was sustained. In disposing
of the case the court did not controvert the position that by the
English common law no man could be tried for murder unless on a
presentment or indictment proceeding from a grand jury. But,
said the opinion, while that is due process of law which had the
sanction of settled usage, both in England and in this country,
at the time when our early American constitutions were adopted in
the eighteenth century, it by no means follows that nothing else
can be. To hold that every feature of such procedure "is
essential to due process of law would be to deny every quality of
the law but its age, and to render it incapable of progress or
improvement. It would be to stamp upon our jurisprudence the
unchangeableness attributed to the laws of the Medes and
Persians.... It is most consonant to the true philosophy of our
historical legal institutions to say that the spirit of personal
liberty and individual right, which they embodied, was preserved
and developed by a progressive growth and wise adaptation to new
circumstances and situations of the forms and processes found fit
to give, from time to time, new expression and greater effect to
modern ideas of self-government.... It follows that any legal
proceeding enforced by public authority, whether sanctioned by
age and custom or newly devised in the discretion of the
legislative power in furtherance of the general public good,
which regards and preserves these principles of liberty and
justice, must be held to be due process of law."[Footnote:
Hurtado _v._ California, 110 United States Reports, 513,
528, 529, 530, 537.]

Many of our State Constitutions specify certain rights as
inherent and indefeasible, and among them that "of acquiring,
possessing, and protecting property." What is property?
American courts have said that it includes the right of every one
to work for others at such wages as he may choose to accept. One
of them, in supporting a decree for an injunction against
combined action by a labor union to deprive non-union men of a
chance to work, by force or intimidation, notwithstanding a
statute abrogating the common law rule making such acts a
criminal conspiracy, has put it thus:

The right to the free use of his hands is the workman's
property, as much as the rich man's right to the undisturbed
income from his factory, houses, and lands. By his work he
earns present subsistence for himself and family. His savings
may result in accumulations which will make him as rich in
houses and lands as his employer. This right of acquiring
property is an inherent, indefeasible right of the workman. To
exercise it, he must have the unrestricted privilege of working
for such employer as he chooses, at such wages as he chooses to
accept. This is one of the rights guaranteed to him by our
Declaration of Rights. It is a right of which the legislature
cannot deprive him, one which the law of no trades union can
take from him, and one which it is the bounden duty of the
courts to protect. The one most concerned in jealously
maintaining this freedom is the workman himself.[Footnote:
Erdman _v._ Mitchell, 207 Pennsylvania State Reports, 79;
56 Atlantic Reporter, 331.]

But, as already suggested in the preceding chapter, the judges
whose opinions have vitalized and enlarged our written law by
reading into it some new meaning or application have but echoed
the voice of the bar.

The greatest achievements of Marshall in this direction were
really but a statement of his approbation of positions laid down
before him by Daniel Webster. In the early stages of the
Dartmouth College case, when it was before the State courts in
New Hampshire, it was Webster and his associates, Jeremiah Mason
and Jeremiah Smith, both lawyers of the highest rank, who first
put forward the doctrine that the charter of a private
corporation was a contract; and when the cause came before the
Supreme Court of the United States it fell to the lot of Webster
to bring it to the attention of the great Chief
Justice.[Footnote: "Works of Daniel Webster," V, 497.] So in the
Florida case it was he, in supporting the cause of the prevailing
party, who suggested that the Territory of Florida, though owned
by the United States, was no part of them. "By the law of
England," he went on to say, "when possession is taken of
territories, the king, _Jure Corona_, has the power of
legislation until parliament shall interfere. Congress have the
_Jus Corona_ in this case, and Florida was to be governed by
Congress as she thought proper."[Footnote: American Insurance
Co. _v._ Canter, 1 Peters' Reports, 611, 538.]

This argument did not spend its force in its effect on Marshall.
When, after the lapse of two generations, greater problems of the
relations of the United States to territory newly acquired from
Spain arose, it was, as has been said above, made one of the
cornerstones of the opinion of the same court which determined
what they were.[Footnote: Downes _v._ Bidwell, 182 United
States Reports, 244, 265.]

So in the Hurtado case, which has been described at length, no
description of due process of law was found better and none is
better than that given by Webster so many years before in the
Dartmouth College case. The Supreme Court of New Hampshire, from
whose judgment that cause came up by writ of error, had held--and
on that point its decision was final--that the change in the
college charter was no violation of the bill of rights embodied
in the Constitution of that state. This, following _Magna
Charta_, provided (Part I, Art. 15) that no subject should be
"despoiled or deprived of his property, immunities, or
privileges, put out of the protection of the law, exiled, or
deprived of his life, liberty or estate, but by the judgment of
his peers or the law of the land." _Magna Charta_ was wrung
from a tyrant king. So, said the State court, this article was
inserted to protect the citizens against the abuse of the
executive power. When it speaks of the law of the land it means
the law of New Hampshire, and that is whatever the legislature of
New Hampshire chooses to enact, so long as it contravenes no
other constitutional provision.

Webster, in paving the way toward his claim that the charter was
a contract, and, as a vested right of property, inviolable by a
State, alluded to the sacredness of all rights under the
guaranties to be found in our American system of constitutional
government. It was not surprising that the Constitution of the
United States should protect them in the way he asserted. All
the States, and New Hampshire among them, had done the same in
placing the great features of _Magna Charta_ in their bills
of rights. What, he asked, was this law of the land by which all
things were to be tried and judged? This was his answer: "By the
law of the land is most clearly intended the general law; a law
which hears before it condemns; which proceeds upon inquiry, and
renders judgment only after trial. The meaning is that every
citizen shall hold his life, liberty, property and immunities
under the protection of the general rules which govern society.
Everything which may pass under the form of an enactment is not
therefore to be considered the law of the land. If this were so,
acts of attainder, bills of pains and penalties, acts of
confiscation, acts reversing judgments, and acts directly
transferring one man's estate to another, legislative judgments,
decrees and forfeitures in all possible forms, would be the law
of the land."[Footnote: "Works of Daniel Webster," V, 486.]

In the opinion by Mr. Justice Mathews in Hurtado _v._
California he observes: "It is not every act, legislative in
form, that is law. Law is something more than mere will exerted
as an act of power. It must be not a special rule for a
particular person or a particular case, but, in the language of
Mr. Webster, in his familiar definition, 'the general law, a law
which hears before it condemns, which proceeds upon inquiry, and
renders judgment only after trial,' so 'that every citizen shall
hold his life, liberty, property and immunities under the
protection of the general rules which govern society.'"
[Footnote: Hurtado _v._ California, 110 United States
Reports, 516, 535.]

Other instances might be mentioned, equally conspicuous, which
will entitle Webster to the name given him by his contemporaries
of "the expounder of the Constitution."[Footnote: See Article by
Everett P. Wheeler on Constitutional Law of the United States as
Moulded by Daniel Webster, in Yale Law Journal, Vol. XIII,
p. 366, and in the 27th Annual Report of the New York State Bar
Association.] No one American lawyer has done as much in that
direction, but there are few of the greater ones who have not
done something. As, however, the glory of a battle won is for
the commander of the victorious forces, so the glory of adding a
new meaning to a constitution at a vital point is, with the
public, always for the judge whose opinion is the first to
announce it. Who announced it to him they never know or soon
forget.

The acknowledged possession by the judiciary of the power to
interpret written law, and thus to delimit its effect, has led to
a serious abuse in our methods of legislation. Statutes are
often favorably reported and enacted, both in Congress and the
State legislatures, which are admitted to be either of doubtful
constitutionality or to contain expressions of doubtful meaning,
on the plea that those are questions for the courts to settle.
This has been aptly termed the method of the "_referendum_
to the courts in legislation."[Footnote: Thomas Thacher, Address
before the State Bar Association of New Jersey, 1903.] It is
unfair to them, so far as any question of the Constitution is
concerned, since as soon as the measure is enacted a presumption
arises that it is not unconstitutional. The courts will not hold
otherwise without strong grounds. It comes to them with the
benefit of a full legislative endorsement. It is unfair to the
people, both as to questions of constitutionality and of
interpretation. A statute can be so drawn as to need no
interpretation, or none the outcome of which can be a matter of
doubt to any competent lawyer. A legislature abandons its
function when it enacts what it does not understand.

The Sherman Anti-Trust Act is an instance of legislation of this
character. It forbids contracts "in restraint of trade or
commerce" between the States. When the bill was reported it was
objected in the House of Representatives that these terms were
vague and uncertain. The chairman of the committee himself
stated that just what contracts will be in restraint of such
commerce would not and could not be known until the courts had
construed and interpreted the phrase.

The real intent of those who inserted it was that it should not
embrace contracts which were reasonable and not contrary to
public policy. A similar term in the English Railway and Canals
Traffic Act had received that interpretation in the English
courts, and they supposed that our courts would follow those
precedents.[Footnote: George F. Hoar, "Autobiography," II, 364.]
The Supreme Court of the United States did construe it as
embracing all contracts in restraint of inter-State trade,
whether reasonable or unreasonable, fair or unfair.[Footnote:
United States _v._ Joint Traffic Association, 171 United
States Reports, 505, 570.] One of the justices who concurred in
that opinion, in a subsequent case arising under the same statute
intimated that on reconsideration he thought the view that had
been thus adopted was wrong.[Footnote: Northern Securities
Co. _v._ United States, 193 United States Reports, 197,
361.] The addition by those who drafted the bill of three or
four words to make their intended meaning clear would have
avoided a result unexpected by them and probably undesired, and
relieved the court from deciding questions of doubtful
construction involving important political considerations and
immense pecuniary interests.

* * * * *

CHAPTER VII

THE JUDICIAL POWER OF DECLARING WHAT HAS THE
FORM OF LAW NOT TO BE LAW

Government is a device for applying the power of all to secure
the rights of each. Any government is good in which they are
thus effectually secured. That government is best in which they
are so secured with the least show of force. It is not too much
to say that this result has been worked out in practice most
effectually by the American judiciary through its mode of
enforcing written constitutions. How far it has gone in
developing their meaning and building upon the foundations which
they furnish has been made the subject of discussion in the
preceding chapter. It remains to consider its office of
adjudging statutes which come in conflict with their meaning, as
thus determined, to be void.

The idea of a supreme authority exercising the function of
setting aside acts of legislative bodies which it deemed
inconsistent with a higher law was familiar to Americans from an
early period of our colonial history.[Footnote: See Chap. I;
Dicey, "Law of the Constitution," 152; "Two Centuries Growth of
American Law," 12, 19.] The charter of each colony served the
office of a constitution. The Lords of Trade and Plantations
exercised the power of enforcing its observance. They did in
effect what, as the colonies passed into independent States with
written Constitutions, naturally became the function of their own
courts of last resort. The Constitution, like the charter, was
the supreme law of the land. Whatever statutes the legislature
of a State might pass, it passed as the constitutional
representative of the people of that State. It was not made
their plenary representative. Every Constitution contained some
provisions restricting the legislative power. If any particular
legislative action transgressed these restrictions, it
necessarily went beyond the authority of the body from which it
emanated.

The Judicial Committee of the Privy Council, which now exercises
the functions formerly belonging to the Lords of Trade and
Plantations, and is in fact the same body, deals in a similar way
today with questions of a constitutional character. If one of
the provinces included in the Dominion of Canada should in its
local legislation infringe upon a field belonging to the Dominion
Parliament, this committee can "humbly advise the king" that the
act in question is for that reason void.[Footnote: In July, 1903,
for instance, an Act of the Province of Ontario, entitled the
"Lord's Day Profanation Act," was thus declared _ultra
vires_.]

The Revolution found the new-made States of the Union without
this safeguard against a statute repugnant to a higher law. They
had enjoyed as colonies the advantage which Burke declared was an
ideal in government. "The supreme authority," he said, "ought to
make its judicature, as it were, something exterior to the
State." The supreme judicature for America had been in England.
There was now no King in Council with power to set a statute
aside forthwith by an executive order. But the other function of
the King in Council, that of acting as a court of appeal from
colonial judgments, had been simply transferred to new hands.
The State into which the colony had been converted now exercised
it for itself and through her judiciary.

The judgment of a court is the legal conclusion from certain
facts. Unless it is a legal conclusion from the facts on which
it purports to rest it is erroneous, and, if there is any higher
court of appeal, can be reversed. If such a judgment depends
upon a statute which justifies or forbids the act or omission
which constituted the cause of action, it is legal or illegal
according as this statute is or is not law. It cannot be law if
its provisions contravene rules laid down by the Constitution of
the State to restrict the legislative power. The court which
tries the cause must meet this question whenever it arises like
any other and decide it. A court of law must be governed by law.
What has the form of law is not law, in a country governed by a
written constitution, unless it is consistent with all which that
instrument provides.

The first decision of an American court bottomed on these
principles was probably rendered as early as 1780, and in New
Jersey.[Footnote: Holmes _v._ Walton, IV _American
Historical Review_, 456.] One of her greatest statesmen, who
after taking a distinguished part in framing the federal
Constitution became a justice of the Supreme Court of the United
States, vigorously enforced the same doctrine on the circuit
fifteen years later in trying a cause turning on the
unconstitutionally of a confirming act passed by the legislature
of Pennsylvania. "I take it," Justice Patterson said in charging
the jury, "to be a clear position that if a legislative act
oppugns a constitutional principle the former must give way and
be rejected on the score of repugnance. I hold it to be a
position equally clear and sound that in such case it will be the
duty of the court to adhere to the Constitution, and to declare
the act null and void."[Footnote: Vanhorne's Lessee _v._
Dorrance, 2 Dallas' Reports, 304, 309, 316.]

The accession of the Republicans to power in 1801, only to find
the courts of the country controlled by judges appointed from the
ranks of the Federalists, was the occasion of new attacks upon
the doctrine thus laid down. It was vigorously denied by Senator
Breckenridge of Kentucky, afterward Attorney-General of the
United States, in the debates preceding the repeal of the
Judiciary Act of 1801.[Footnote: Elliot's Debates, IV, 444.] A
year later (in 1803) the question came for the first time before
the Supreme Court of the United States, and the same positions
advanced by Patterson were taken in what is known as the leading
case upon this subject by Chief Justice Marshall.[Footnote:
Marbury _v._ Madison, I Cranch's Reports, 137. See
Willoughby, "The American Constitutional System," 39.] It was
unfortunate that the action was one involving a matter of
practical politics, in which the plaintiff sought the benefit of
a commission the issue of which had been directed by President
Adams at the close of his term, but which was withheld by the
Secretary of State under President Jefferson. Party feeling ran
high at this time. The views of Breckenridge were shared by
many, and the supremacy of the judicial department, which this
prerogative, if it possessed it, seemed to imply, was distasteful
to a large part of the people.

An eminent judge of a State court, Chief Justice Gibson of
Pennsylvania, as late as 1825, in a dissenting opinion, combated
at length the reasoning of Marshall as weak and inconclusive.
If, he said, the judiciary had the power claimed, it would be a
political power. Our judicial system was patterned after that of
England. Our judges had, as such, no power not given by the
common law. It was conceded that English judges could not hold
an act of Parliament void because it departed from the British
constitution. No more could American judges hold an act of a
State legislature void because it departed from the State
Constitution, unless that Constitution in plain terms gave them
such a power. The Constitution of the United States did give it,
political though it was, to all judges (Art. XI, Sec. 2), and a
State statute which was contrary to that Constitution might
therefore properly be declared void by the courts.[Footnote:
Eakin _v._ Raub, 12 Sergeant and Rawle's Reports, 330.]
Later in his judicial career Gibson abandoned this position,
[Footnote: Norris _v._ Clymer, 2 Pennsylvania State Reports,
281.] and the ground taken by Marshall has been since 1845
universally accepted.

The last official attack upon it was made in 1831, at the time
when the feeling against protective tariffs was strong in the
South, and South Carolina was known to be meditating opposition
to their enforcement. The judiciary committee of the House of
Representatives reported a bill to repeal the section of the
Judiciary Act which gave the Supreme Court of the United States
the right to reverse judgments of State courts that it might deem
contrary to the Constitution of the United States. The report
said that such a grant was unwarranted by the Constitution and "a
much greater outrage upon the fundamental principles of
theoretical and practical liberty as established here than the
odious writ of _quo warranto_ as it was used in England by a
tyrannical king to destroy the right of corporations." The
House, however, rejected the bill by a very large majority.

A proper regard for the coordination of the departments of
government forbids courts to declare that a statute is
inconsistent with the Constitution unless the inconsistency is
plain. It has been judicially asserted that it must be plain
beyond a reasonable doubt, thus applying a rule of evidence which
governs the disposition of a criminal cause. As judgments
declaring a statute inconsistent are often rendered by a divided
court, this position seems practically untenable. The majority
must concede that there is a reasonable doubt whether the statute
may not be consistent with the Constitution, since some of their
associates either must have such a doubt, or go further and hold
that there is no inconsistency between the two documents.

This right of a court to set itself up against a legislature, and
of a court of one sovereign to set itself up against the
legislature of another sovereign, is something which no other
country in the world would tolerate. It rests on solid reason,
but as the Due de Noailles has said, "Un semblable raisonnement
ne ferait pas fortune aupres des republicans d'Europe, fort
chatouilleux sur le chapitre de la puissance legislative. C'est
que la notion de l'Etat differe d'une facon essentielle sur les
deux rives de l'Atlantique."[Footnote: Cent Ans de Republique aux
Etats-Unis, II, 145.]

Our people have been satisfied with the interposition of the
courts to defend their Constitutions from executive or
legislative attack, because these Constitutions stand for
something in which they thoroughly believe. President Hadley has
well said that "a written Constitution serves much the same
purpose in public law which a fence serves in the definition and
protection of private rights to real estate. A fence does not
make a boundary; it marks one. If it is set where a boundary
line has previously existed by tradition and agreement, it forms
an exceedingly convenient means of defending it against
encroachments. If it is set near the boundary and allowed to
stay there unchallenged, it may in time become itself the
accepted boundary. But if the attempt is made to establish a
factitious boundary by the mere act of setting up a fence the
effort fails."[Footnote: Freedom and Responsibility, 30.]
Americans took principles and institutions with which they had
become familiar in colonial days and made their Constitutions out
of them. Their attachment to what the Constitution provides goes
behind the Constitution to the rock of ancient custom and
precedent on which it rests, the common heritage of all the
States.

There is an obvious reason for the unwillingness of the judiciary
to exercise the power under consideration unless in case of
necessity. The legislature presumably does only what the public
sentiment of the day justifies or demands. One branch of it, at
least, is the direct representative of the people. To defeat the
operation of a statute is therefore always presumably an
unpopular thing to do, and if in any case there is known to be
truth behind the presumption, it requires, as the Federalist
[Footnote: No. LXXVIII.] put it, "an uncommon portion of
fortitude in the judges to do their duty as faithful guardians of
the constitution."

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