is cited here because of the importance of the language of Mr. Justice Strong when referring to the constitutional provision (p. 210):

"What was intended by the constitutional provision is free from doubt. In England, attainders of treason worked corruption of blood and perpetual forfeiture of the estate of the person attainted, to the disinherison of his heirs, or of those who would otherwise be his heirs. Thus innocent children were made to suffer because of the offense of their ancestor. When the Federal Constitution was framed, this was felt to be a great hardship, and even rank injustice. For this reason, it was ordained that no attainder of treason should work corruption of blood or forfeiture, except during the life of the person

consequence of such injustice, Congress can answer, 'Why did not your subject apply to the General Court, where the unequal and partial laws of a particular State would have had no force?'

"In two cases the Supreme Court has original jurisdiction-that affecting ambassadors, and when a State shall be a party. It is true it has appellate jurisdiction in more, but it will have it under such restrictions as the Congress shall ordain. I believe that any gentleman, possessed of experience or knowledge on this subject, will agree that it was impossible to go further with any safety or propriety, and that it was best left in the manner in which it now stands.

"In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact." The jurisdiction as to fact may be thought improper; but those possessed of information on this head see that it is necessary. We find it essentially necessary from the ample experience we have had in the courts of admiralty with regard to captures. Those gentlemen who, during the late war, had their vessels retaken, know well what a poor chance they would have had when those vessels were taken in their States and tried by juries, and in what a situation they would have been if the Court of Appeals had not been possessed of authority to reconsider and set aside the verdicts of those juries. Attempts were made by some of the States to destroy this power; but it has been confirmed in every instance.

There are other cases in which it will be necessary; and will not Congress better regulate them, as they arise from time to time, than could have been done by the Convention? Besides, if the regulations shall be attended with inconvenience, the Congress can alter them as soon as discovered. But anything done in Convention must remain unalterable but by the power of the citizens of the United States at large.

"I think these reasons will show that the powers given to the Supreme Court are not only safe, but constitute a wise and valuable part of the system." 2 Elliot, 486-494.

attainted. No one ever doubted that it was a provision introduced for the benefit of the children and heirs alone; a declaration that the children should not bear the iniquity of the fathers. Its purpose has never been thought to be a benefit to the traitor, by leaving in him a vested interest in the subject of forfeiture.

9981

81 In closing his consideration of the subject of judicial power the author desires to call attention to what seems to be a singular omission in this connection.

The power of the President to appoint members of the federal judiciary is practically without limit, except as to numbers.

Under the Constitution the President, senators and representatives must possess certain qualifications, but it is not so with members of the judiciary. No qualification is prescribed for them, not even age, character or citizenship. The statute establishing the federal courts provided that the attorney-general and the district attorneys shall be "learned in the law," but neither the Constitution nor the statute requires such qualifications for judges, not even the members of the Supreme Court. In selecting a judge the President is not even required to choose a member of the legal profession. He may appoint whom he pleases to the Federal bench. The unlimited power vested in the President in this matter has never been abused, but it may be, and should the Senate not possess the courage or disposition to meet the occasion and refuse to confirm the appointee an embarrassing condition might possibly arise.

CHAPTER XLIV.

JUDICIAL POWER OVER LEGISLATION.

The Constitution does not confer authority upon the courts to declare an act of Congress to be in conflict with that instrument, yet from the beginning of the Government the courts have exercised such power, and will continue to do so. If there is no direct authority in the Constitution for the exercise of this power by the courts, where do they get it? Much has been said and written upon the subject, from the date of the Constitutional Convention to the present, and publicists and authors are still unable to agree upon it, though the courts assert their right to do so with great confidence, and it is now the generally accepted opinion that they are right in exercising the power.

The English courts do not possess the right to pass upon the validity of legislative acts, and it is asserted by

1 See the very able and scholarly article of Prof. William Trickett, the learned Dean of the Law School at Carlisle, Pennsylvania, in the 40th vol. of the American Law Review, 356, and an able article by the same author, in the 41st American Law Review, 651, in which the power of the courts to declare legislation unconstitutional is challenged; also an able article in 40th American Law Review, 641, by William M. Meigs, sustaining the right of the courts to declare acts of legislation unconstitutional.

On April 27, 1906, Hon. Walter Clark, Chief Justice of North Carolina, delivered an address before the law department of the University of Pennsylvania, in which he asserted that the Constitution conferred no power on the courts to declare legislation invalid. Among other things he said: "The action of the Supreme Court in assuming the power to declare acts of Congress unconstitutional was without a line in the Constitution to authorize it, either expressly or by implication." Congressional Record, June 15, 1908, pp. 8063, 8065.

2 It is the understanding of the author, that in England a committee of eminent lawyers, called the Committee of Revision, examine all bills submitted to Parliament. If the committee approves a bill and it passes, its constitutionality is not questioned by the courts. This may in part account for the English courts not passing upon the validity of the legislation.

an authoritative writer on the Constitution that there is not a European court which has the authority to declare legislation void because it conflicts with the Constitution of the country. Prior to the English Revolution of 1688, the courts of England, at times, exercised the power, but since then have not done so. The doctrine in a modern sense is peculiar to the American courts and its exercise is the subject of special criticism in many countries of Europe. The laws of Hawaii have recently conferred upon courts of record the power to decide upon the constitutionality of legislation and this is, perhaps, the only instance where such authority is given by a constitution, or by a statute."

The Question in the State Courts before the adoption of the Constitution.-Several of the State courts, before the adoption of the Federal Constitution, decided they had the power to pass upon the validity of laws and declare them void if they conflicted with their State Constitutions. This doctrine was held by the Court of Appeals of Virginia in Commonwealth v. Caton," in 1782, where the court decided an act to be unconstitutional which took from the chief executive of the State the power of pardon which the Constitution of the State conferred upon him."

On the 27th of August, 1784, the mayor's court of New York, in Rutgers v. Waddington, held a statute of that State void. As the result of the decision, a public meeting was called and an address was issued complaining in a bitter manner of the decision. Among other things the address contained the following, "That there should be a power vested in courts of judicature, whereby they might control the supreme legislative power, we think is absurd in itself. Such power in courts would be de8 Black's Constitutional Law, 53.

4 Woodburn's American Republic, 328.

5 Laws of Hawaii, sec. 1622.

The following interesting note follows the report of this case: "It is said that this was the first case in the United States, where the question relative to the nullity of an unconstitutional law was ever discussed before a judicial tribunal; and the firmness of the judges (particularly of Mr. Wythe), was highly honorable to them, and will always be applauded, as having incidentally, fixed a precedent, whereon a general practice, which the people of this country think essential to their rights and liberty has been established."

74 Call's Reports, 20.

structive of liberty, and remove all security of property." The House of Assembly of the State passed a resolution on the subject "that the judgment was in its tendency subversive of all laws and good order and leads directly to anarchy and confusion.''8

In 1786, in the celebrated case of Trevitt v. Weedon, the superior court of Rhode Island decided that an act of the legislature of that State was void which made it an offense for anyone to refuse to receive the bills of a bank chartered by the State on the same terms as they received specie, or who should depreciate the value of the bank's bills. The act denied the right of jury trial to those accused of violating its provisions, although a jury trial was provided for in the colonial charter of the State.9 The following year the supreme court of North Carolina in Bayard v. Singleton, held an act void which deprived a person of a jury trial when the ownership of property was involved.10

The decision in each of these cases created great excitement in their respective States. Iredell, afterwards a justice of the Supreme Court of the United States, was of counsel in Bayard v. Singleton, and while the case was pending he published a letter written to a prominent citizen of the State in defense of the power of the court to deny the validity of legislation. This brought upon him much severe criticism.

The judges who decided the case of Trevitt v. Weedon were impeached as criminals, and though they were not removed on account of their impeachment they were not re-elected at the expiration of their term of office.11

8 For a full account of this decision and the feeling it created see Thayer's Constitutional Cases, 63, note.

Thayer's Constitutional Cases, 73. The following note on this case is found in Cooley's Constitutional Limitations, 7th edition, 55. "It is worthy of note that the first well authenticated case in which a legislative act was held void for incompatibility with the Constitution of a State, was Trevitt v. Weedon." Judge Cooley, however, fails to mention the case of Commonwealth v. Caton (supra).

10 1 Martin N. C., 42.

11 As late as 1807 Calvin Pease, a judge of the Court of Common Pleas in the State of Ohio, and Judges Huntington and Todd of the Supreme Court of that State, were impeached for declaring an act of the General Assembly of 1805 to be unconstitutional. The act in question gave justices of the peace jurisdiction to decide questions