laws are presumed to be constitutional, and the courts are not justified in holding that the legislative power has been exercised beyond constitutional limits, or in conflict with the restrictions imposed by that instrument, unless such conflict is clear. But if such conflict is clear, and if written constitutions are to be regarded as of value, it is the plain duty of the court to sustain the Constitution, though in so doing the legislative enactment must fall.57

Neither will an act be declared void, because it may seem to the court unwise, or unjust. Such elements of legislation are left wholly to the legislative department and the courts will refrain from expressing any opinion on its constitutionality for these reasons.

In McCrary v. United States,58 White, J., remarked, "Whilst, as a result of our written Constitution, it is axiomatic that the judicial department of the government is charged with the solemn duty of enforcing the Constitution, and therefore in cases properly presented, of determining whether a given manifestation of authority has exceeded the power conferred by that instrument, no instance is afforded from the foundation of the government where an act, which was within a power conferred, was declared to be repugnant to the Constitution, because it appeared to the judicial mind that the particular exertion of constitutional power was either unwise or unjust. To announce such a principle would amount to declaring that in our constitutional system the judiciary was not only charged with the duty of upholding the Constitution but also with the responsibility of correcting every possible abuse arising from

affect the constitutionality of the question, nor render it less clear that an act is unconstitutional if four of the nine justices think the act to be clearly constitutional. Can it be said that an act is a clear violation of the Constitution when five justices declare it to be so, and four declare with equal emphasis that it is clearly not so? All doubt must be resolved in favor of the constitutionality of the law, and it must be clear in the mind of the court that the law is unconstitutional. But can this condition exist when four of the justices are equally earnest, equally emphatic, equally persistent and equally contentious in their position that a law is clearly constitutional?

57 181 U. S. 283, 285, 286.

58 195 U. S. 27, 53, 54.

the exercise by the other departments of their conceded authority. So to hold would be to overthrow the entire distinction between the legislative, judicial and executive departments of the government, upon which our system is founded, and would be a mere act of judicial usurpation."

So eminent an authority as Judge Story said, the judiciary derives its authority to declare legislation unconstitutional from the supremacy of the Constitution and laws and treaties of the United States.59

From the numerous decisions of the Supreme Court sustaining their power to pass upon the constitutionality of Federal legislation there is no appeal. In such a country as the American republic it would be extremely hazardous if there was no body which could decide when national legislation transcended the national Constitution, and though that instrument does not expressly confer that power upon the judiciary, it does so by implication and the exercise of such power by the judicial department of the government meets the approval of the great body of the American people."

59 Story on the Constitution, vol. 2, 5th ed., sec. 1842.

60 It is somewhat strange that though Marshall's opinion in Marbury v. Madison established the authority of federal judges to pass upon the constitutionality of federal legislation, no subsequent opinion on this subject made any reference to that opinion until the opinion of Chief Justice Chase in Hepburn v. Griswold. Justice Wayne made no reference to it in Dodge v. Woolsey, neither did Chief Justice Taney in Ableman v. Booth make any reference either to Marbury v. Madison, or to Justice Wayne's opinion in Dodge v. Woolsey. Chief Justice Chase in Hepburn v. Griswold refers to Marbury v. Madison, but does not refer to either Dodge v. Woolsey, or Ableman v. Booth. Justice Harlan makes no reference to Marbury v. Madison, Dodge v. Woolsey, Ableman v. Booth, or Hepburn v. Griswold, in his opinion either in Lent v. Tillson, or Smythe v. Ames. Mr. Justice Brewer, in Fairbank v. United States refers to Marbury v. Madison, but to no other decisions on the subject. Mr. Justice White in McCray v. United States makes no reference to any preceding opinion on this subject.

Mr. Blackburn Esterline in an exceedingly interesting article published in The American Law Review in 1904, said that from the beginning of the government only nineteen acts of Congress had been declared unconstitutional by the United States Supreme Court. (Am. Law. Rev. vol. 38, 21.) The whole number must be less than twenty-five.

CHAPTER XLV.

FULL FAITH AND CREDIT.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

We now have to consider those provisions of the Constitution which impose certain reciprocal duties or obligations upon the States in their relations to each other.

Mr. Justice Brown, in his dissenting opinion in Haddock v. Haddock, said the object of this clause was to supersede the old doctrine of comity.1

This is a very old provision in the legislative and constitutional development of the United States. The second Colonial Congress in 1777 passed a resolution that, "Full faith and credit shall be given in each of the States, to the records, acts and judicial proceedings of the courts and magistrates of every other State."2

This was followed by a provision in the Articles of Confederation that, "Full faith and credit shall be given, in each of these States, to the records, acts, and judicial proceedings of the Courts and magistrates of every other State.''3

The provision, as found in the Constitution, is attributable to Gouverneur Morris, but it undoubtedly had its origin in the provisions already cited.

Mr. Madison, in writing of this provision, said: "The power of prescribing, by general laws, the manner in which the public acts, records and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on

1 201 U. S., 628.

22 Journals of Congress.

3 Articles of Confederation, Art. 4.

the clause relating to this subject in the Articles of Confederation. The meaning of the latter is extremely indeterminate; and can be of little importance under any interpretation which it will bear. The power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process within a foreign jursisdiction."

When the Committee of Detail reported its plan for a constitution to the Convention the sixteenth article of the report read: "Full faith and credit shall be given in each State to the acts of the Legislatures, and to the records and judicial proceedings of the courts and magistrates of every other State."

Mr. Williamson moved in the Convention to substitute the clause contained in the Articles of Confederation for the report made by the Committee of Detail.

Mr. Madison said he wished the Legislature might be authorized to provide for the execution of judgments in other States, under such regulations as might be expedient. He thought this might be safely done, and would be justified by the nature of the nation.

Mr. Randolph said there was no instance of one nation executing judgments of the courts of another nation, and moved the following proposition: "Whenever the act of any State whether legislative, executive, or judiciary, shall be attested and exemplified under the seal thereof, such attestation and exemplification shall be deemed in other States as full proof of the existence of that act; and its operation shall be binding in every other State, in all cases for which it may relate, and which are within the cognizance and jurisdiction of the State wherein the said act was done."

Mr. Gouverneur Morris moved the following: "Full faith ought to be given in each State, to the public acts, records, and judicial proceedings of every other State. And the Legislature shall, by general laws, determine the proof and effect of such acts, records and proceedings."

4 The Federalist No. 42.

Journal, 460.

• Journal, 625.

The resolution of Mr. Randolph and that of Mr. Gouverneur Morris, together with the article as reported by the Committee of Detail, were then referred to a special committee to consider the question and report their conclusions to the Convention.'

Mr. Rutledge, as chairman of the latter committee, reported: "Full faith and credit ought to be given in each State to the public acts, records and judicial proceedings of every other State. And the Legislature shall, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect which judgments obtained in one State shall have in another."

118

On the following day Mr. Gouverneur Morris moved to amend the report of the special committee by striking out the words "judgments obtained in one State shall have in another," and to insert the word "thereof" after the word "effect," and after a short debate this amendment was carried by a vote of six States to three.

On motion of Mr. Madison the words "ought to," were struck out and "shall" was inserted; and "shall" between "Legislatures" and "by general laws," was struck out, and "may" inserted, nem con. As thus amended, the report read: "Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State, and the Legislature may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved and the effect thereof." These changes were agreed to without objection."

The resolution then went with the rest of the Constitution to the Committee on Style, and after substituting the word "Congress" for the word "Legislature," that committee reported the resolution as it received it from the special committee, and it was then adopted as part of the Constitution.

This section states the faith and credit which shall attach to the public acts, records and judicial proceedings

7 The committee consisted of Mr. Rutledge, Mr. Randolph, Mr. Gorham, Mr. Wilson and Mr. Johnson.

a Journal, 649.

• Journal, 649, 650.