than the associated resistance, and the example, of an intellectual and learned profession: powerful in influence, intimate and controlling in its necessary connection with every variety of human affairs, trained to vigorous and independent thought and effective speech? If it but dare assert its dignity and character, there is no social agent which has half its power to curb and reform society. But, to accomplish all this, we must be true, and brave as well. Not only must honor be the guide of our own conduct, but we must make no terms with dishonor-for demoralization often comes not so much from joining in the outright commission of sin, as from the halting, unmanly acquiescence by which we condone it.

The theme is pleasant, and the glow of excitement causes me to transgress.

I close with the testimony of those whose higher claims and greater achievements in the profession justify me in substituting their words for my own: "The influences of our profession are as wide as society; its duties are arduous, refined, delicate, and responsible; its honors and rewards, when fairly sought and earned, may fill the measure of a great ambition; we cannot be too wise, too learned, or too virtuous for it; we can make all knowledge tributary, and yet not transcend its compass." Still another witness: "I bear this testimony concerning our great profession,-- the more I have seen of it, the higher has risen my estimate of its dignity, usefulness, and importance. In it may

be found as pure, noble, truthful, and generous men as ever adorned the pulpit or the senate. Below either, it can never fall, so long as those who practice it are faithful to the trust committed to their hands by its great masters."†

* Hon. S. T. Wallis, of Baltimore.

† Hon. William A. Porter, of Philadelphia. Paper on "The Qualifications of the Adviser and the Advocate."

PAPER

READ BY

ROBERT G. STREET.

How far Questions of Public Policy may enter into
Judicial Decisions.

"In a government in which the departments are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. The Executive dispenses the honors; the Legislature commands the sword; the Judiciary has no influence over either the sword or the purse. It may truly be said to have neither force nor will, but merely judgment." Thus truly and beautifully wrote Mr. Hamilton with respect to the judiciary department of the grand design in government then proposed by the Constitution of the United States.

But it is questionable if the experience of nearly a hundred years has verified the prediction that the judiciary department of our government is the "least dangerous to the political rights of the Constitution." And yet, as will appear, it may not, in this respect, be necessary to impugn the wisdom of Mr. Hamilton's political philosophy.

From Marbury vs. Madison down to the present time, the judiciary department of the Federal Government has been the final resort of political parties on the greatest questions of public policy that have agitated the country.

The history of the origin and development of this superstitious belief in the omnipotence of the judiciary; its supposed power to annul acts of Congress-laws which have received the sanction of both of the other theoretically co-ordinate départments-to fix the limits of independent branches of the sovereign power, and say to them "Thus far and no farther," cannot fail to be both interesting and instructive to students of politico-legal science throughout the world, of whom, it should not be forgotten, a very large number still look on the government of these United States as experimental and phenomenal. Such inquiry would embrace an examination into the genius of our people, their conservatism and reverence for judicial authority, their revolt against the tyranny of political assemblies so luridly portrayed in the contemporaneous history of the French Republic, as well as the reactionary force incident to suecessful revolution against the then recent heritage of wrong set forth in the "Declaration of the Independence of these Colonies."

That the judiciary department should have the power, in "cases" of jurisdiction, to declare its opinion against the validity of statutes, because in conflict with what is deemed by the judges a true interpretation of the Constitution, and, on that ground, to disregard them, was forseen and intended by the framers of that instrument; but it may be confidently affirmed that at the time of the adoption of the Constitution there was no purpose to vest in the courts power to annul and set aside an act of Congress. No court ever before possessed a jurisdiction so pre-eminent over the political power of a state, and it is inconceivable that it was intended by the philosophers, statesmen, and jurists who framed the Constitution, that the first institution of this novel power on earth should be left to inference and conjecture against the express and fundamental theory of co-ordination in the legis

lative, executive, and judicial departments of the government. And while the debates on the adoption of the Constitution show that difference of opinion-whether the Constitution was to receive a strict or liberal construction-had its origin there, yet the effect on the other departments and the people of even the mere incidental expression of opinion by the judiciary on the constitutionality of laws in the course of the disposition of "cases" could not then have been anticipated, because the segregation of opposing political parties, so long to control the destinies of the country, on these conflicting theories of construction, was not itself appreciated.

The judiciary has become a factor in the political power of the government, never contemplated in its origin.

Neither Marshall, Kent, nor Story-though advocating with learning and eloquence this power in the courts to annul legislative acts-have ever sought to show the consistency of its existence in one of the departments with the theory of co-ordination in the three departments. They seem content to accept its devolution upon the judiciary as a "happy accident;" and it seems now generally to be thought that the wisdom and impartiality of the judges will always furnish a sufficient guarantee against its abuse, and, perhaps, even against error itself.

Happy the nation from whose history this a posteriori argument can be drawn, however obvious its fallacy! Happy the people whose experience shall justify the confidence supposed thus to have been reposed by the founders of the government in their practical sagacity, however hazardous the experiment!

A primitive and original method of exercising this power is said to have obtained at an early day in one of the most southern of our states, where, upon the adjournment of the legislature, and before the beginning of the succeeding terms of the courts at nisi prius, it was the custom, at the