supposed to be equally understood by all."' 43 And as Mr. Justice Gray in a well-considered case said: 44 "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of those, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is."

43-Rose v. Himely, 4 Cranch 241,

277.

44-The Paquette Habana, 175 U. S. 677.

For examples of important decisions of the Supreme Court involv

ing principles of international law, see The Mereide, 9 Cranch 388; The Prize Cases, 2 Black 635; The Springbok, 5 Wall. 1; The Peterhoff, 5 Wall. 28.

CHAPTER II

GENERAL SCOPE OF JUDICIAL POWER

§ 14. Definition and nature of the judicial power.

15. Power of the courts to declare statutes unconstitutional.

§ 16. Views of the constitutional convention on the subject.

§ 17. View of Alexander Hamilton.

§ 18. View of John Marshall.

19. How the power has been exercised by the Supreme Court.

§ 14. Definition and nature of the judicial power. The judicial power is clearly differentiated in the Constitution from the executive and legislative powers. As defined by Mr. Justice Miller, "Judicial power is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision." It is not the function of a court to make laws, but rather to ascertain and apply the law in the settlement of an actual controversy between the parties before it. Incidentally, of course, the court exerts a very active and important influence in the making of law, for whatever the court in the settlement of a controversy declares to be the law for the case has practically the force of law.

The federal court has been very careful to exercise only judicial functions. Thus the Supreme Court justices at the beginning declined as judges to discharge administrative duties.2 Moreover, the court will not take cog

1-Miller, Constitution, p. 314, quoted in Muskrat v. United States, 219 U. S. 340. The opinion in this case contains an extensive discussion of the nature of the judicial power. 2-Carson, History of Supreme Court, 162; Hayburn's Case, 2 Dall.

409; United States v. Yale Todd, 13 How. 52 note; United States v. Fereira, 13 How. 40. These cases are sometimes cited as holding acts of Congress unconstitutional (see Appendix to 131 U. S. p. ccxxxv), but the validity of acts of Congress was,

nizance of merely moot questions, but will act only in a litigated case properly brought before it. And the Supreme Court has declined to render advisory opinions,* although this is done by several state courts under constitutions providing for such opinions.

The judicial power extends to the settlement of disputes justiciable in their nature, and in particular the courts will not undertake to settle political questions.5 Nor can the court control the exercise of official discretion. Inferior executive officers may be compelled by mandamus to perform ministerial acts. It would seem that the President of the United States is not subject to compulsory judicial process of any kind; certainly he can neither be compelled to enforce the laws, nor restrained from enforcing them.10 The members of his cabinet, however, may be controlled by the court in matters not involving discretion.11

in fact, not directly passed upon. See, also, United States v. Evans, 213 U. S. 297.

3-Muskrat v. United States, 219 U. S. 346; Stearns v. Wood, 236 U. S. 75; United States v. HamburgAmerican Co., 239 U. S. 466.

4-Carson, History of Supreme Court, 164; Thayer, Legal Essays, 53, citing Marshall, Life of Washington, vol. 5, p. 441.

5-Luther v. Borden, 7 How. 1; State of Georgia v. Stanton, Secretary of War, 6 Wall. 50; Taylor v. Beckham, 178 U. S. 548; Neeley v. Henkel, 180 U. S. 109; Pacific States Telephone, etc., Co. v. Oregon, 223 U. S. 118.

6-Decatur v. Paulding, Secretary of the Navy, 14 Pet. 497; State of Mississippi v. President Johnson, 4 Wall. 475; State of Louisiana v. McAdoo, Secretary of the Treasury, 234 U. S. 627.

7-Marbury v. Madison, Secre

8

tary of State, 1 Cranch 137; Kendall, Postmaster General v. Stockton & Stokes, 12 Pet. 527.

8-Upon the trial of Aaron Burr for treason Chief Justice Marshall issued a subpoena duces tecum summoning President Jefferson to produce certain documents as evidence for Burr. Jefferson, who was personally hostile to both Marshall and Burr, refused to recognize the jurisdiction of the court to summon the executive, but the documents were nevertheless furnished. Marshall, however, while holding it to be his duty to issue the writ did not claim power to enforce obedience. Magruder, Life of Marshall, 216-225.

9-See State of Mississippi v. President Johnson, 4 Wall. 475, 499. 10-State of Mississippi v. President Johnson, 4 Wall. 475.

11-See cases cited in note 7, supra.

§ 15. Power of the courts to declare statutes unconstitutional. One of the most important functions of the federal courts consists in their exercise of a restraining influence on Congress by refusing to enforce statutes which they deem unconstitutional. The power of the courts to declare acts of the legislature unconstitutional exists inevitably under our constitutional system. With a written Constitution defining the limits of legislative power, the courts must choose between the Constitution and a statute where they conflict. For the court to enforce a statute which is in conflict with the Constitution would be to violate the judicial oath to support the Constitution, and to accept an act of Congress as superior to the Constitution. When, therefore, a court is asked to enforce a statute it has a right, and is under the duty, to determine whether the statute conflicts with the Constitution, and if it finds that such is the case, it must refuse to enforce the statute.

These propositions seem almost self-evident, but, as a remarkable instance of intellectual eccentricity, we find that, especially in the last few years, they have been vigorously combatted by a few persons who have exerted an influence on the public mind far out of proportion to the ability and fairness with which they have dealt with the subject. This influence has now waned and the real facts in the case are better understood and the public mind has turned to other matters, but nevertheless the subject is of such importance that it may be well to present it briefly.

Among the charges that have been made is that, until the Supreme Court under John Marshall declared a statute unconstitutional such a thing had never been done, or if done at all, had been done under such conditions and with such results as tó demonstrate that such action was indefensible. Also it is asserted that in no other country in the world would a court presume to take such a liberty with a statute, the work of a co-ordinate branch

of government. The charge of novelty and uniqueness is not quite accurate, but is also completely answered by a reminder that written constitutions imposing limitations on legislative power are also novel and unique. Another, and still more inexcusable charge is that the framers of the Constitution and the ratifying conventions never intended or contemplated that the courts should declare acts of Congress unconstitutional and void, and even that a proposition to confer such power on the courts was presented to the Constitutional Convention and rejected. This charge is so absolutely in conflict with the notorious facts in the case, that it is difficult to understand how it could be seriously made. The evidence against it is overwhelming as will be seen from some extracts presented in the sections immediately following.1

12

It

§ 16. Views of the Constitutional Convention on this subject. Considerable prominence has been given to the alleged rejection by the Convention of a proposition to submit the question of the constitutionality of legislation to the judges. No such proposition was ever made. was, indeed, proposed that a certain number of the judges should be associated with the executive in the exercise of a revisionary power over legislation passed by Congress practically identical with the power exercised by the executive alone under the Constitution as adopted. This arrangement would, of course, have given the judges a part, though a negative part, in the making of laws. In the exercise of the revisionary power they would consider

12-The original evidence on the subject will be found largely in Elliot's Debates and Farrand's Records of the Federal Convention. The case is well summarized in Prof. Charles A. Beard's small but very valuable and readable book, "The Supreme Court and the Constitution."' J. Hampden Dougherty's

"Power of Federal Judiciary Over Legislation" is also an excellent small work. Either of these books may be read in an evening or two and with the evidence so easy to examine it is inexcusable that certain persons should still publicly misrepresent the facts.