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up in the commonwealth during the intervening hundred and fifteen years; for the first Henry's charter defined the limits of royal authority, and formally recognized the freedom of the people of England. Magna Charta was solemnly confirmed no less than thirty-seven times by various kings of England down to the second year of Henry VI., 1423.

The portion of the Great Charter with which we are here concerned is contained in the thirty-ninth chapter. This chapter reads as follows: (I quote from Stubbs' "Select Charters.") "No freeman shall be taken or imprisoned or disseized or be outlawed or exiled or anywise destroyed, but by the lawful judgment of his peers or by the law of the land." The last clause is, as we have already seen, synonymous with due process of law and had for centuries formed part of the basic structure of the law of Teutonic peoples. It is said to have probably been adopted from the laws in vogue under the old Franconian and Saxon kings, whose people in early times colonized Normandy and France, many of them undoubtedly finding their way into the near-lying British islands. The words of the chapter quoted, "the judgment of his peers"-in the original Latin "judicium parium suorum -indicate the existence at that time of trial by jury even as conducted in our own times. The supreme importance of this little chapter of Magna Charta was recognized to such a degree by Blackstone that in the fourth book of his Commentaries (p. 424) he says it is sufficient alone to entitle the instrument to its designation of "Great."

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I might say in passing that at the foot of page 424 of the fourth volume of the Commentaries, a note by Christian incorrectly numbers this chapter of Magna Charta the twenty-ninth, instead of the thirty-ninth, and this error is to be found in modern editions of the Commentaries and in late text-books and legal dictionaries.

In a work upon the Fourteenth Amendment of the Constitution of the United States, published but a few years ago, it is stated that the words "due process of law" were probably first used in the Petition of Right of Charles I, A.D. 1628, whereas the fact is that in chapter 3 of the Statutes of 28 Edward III, passed 274

years before the Petition, and entitled, "None shall be condemned without Trial," we find that no man "shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death, without being brought to Answer by due Process of Law."

Those provisions that I have cited from the Great Charter were in the beginning designed to restrain only the King in council, wherein, however, originally reposed the government's coordinate branches the executive, the legislative, and the judicial. Through construction, necessitated by the growth of population, the advance of civilization and the imperative demands of our highly artificial society in its multifarious interrelations, the provisions have become potential in the direction of every department of our government, to an extent as surprising as it must have been unexpected by the authors, as we shall presently see.

The phrase does not appear in the first Constitution of the United States, adopted on the 17th day of September, 1787, but was first embodied in the Constitution with Article 5 of the amendments to the original Constitution, proposed by the United States Congress held at the city of New York on Wednesday, March 4, 1789. The words are found in the Constitutions of most of the States of the Union. In paragraph 3 of the Constitution of the State of Georgia, your own great State, we find: "no person shall be deprived of life, liberty, or property without due process of law." Here the phrase is identical with that found in the Constitution of the United States. In some of the States these words are not used, the framers of the Constitution of those States having more closely followed the phraseology of Magna Charta. For instance, Article 23 of the Constitution of Maryland reads as follows: "No man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed or deprived of his life, liberty or property, but by the judgment of his peers, or by the law of the land." This is a fair translation of the Latin of the celebrated thirty-ninth chapter of the Great Charter. But however closely State Constitutions may follow the phraseology of Magna Charta, or widely depart from it, we find that the Constitution of every State in the

Union has religiously preserved and retained the essential meaning of the document that is the original source of them all.

The phrase was incorporated into the Fifth Amendment to the Constitution of the United States; the purpose of that amendment, however, was not to limit the power of the States, but to restrain the Federal Government, and it was so held by the Supreme Court of the United States in the opinion of Chief Justice Marshall in Barron v. Baltimore (32 U. S. 243).

While the phrase came to us from England it is far more potential under our system of government than it is or ever was in England. There it restrained the King, not Parliament. Here it operates upon every department of Federal and State government-executive, legislative, and judicial. It may well be that, when it became part of the Constitution of each State of the original thirteen and part of the Fifth Amendment to the Federal Constitution, it was not expected by many who participated in the framing and adoption of such Constitutions that the scope of the phrase would be wider in this country than in England. No provision was inserted in any Constitution that in express terms conferred upon the courts the power to set aside a statute on the ground that it offended against any provision of such Constitution.

That phrase, however, proved to be a limitation on legislation on that day in 1803 when the Supreme Court of the United States handed down its decision, supported by an opinion of Chief Justice Marshall, in Marbury v. Madison (5 U. S. 137), declaring an act of Congress which attempted to confer original jurisdiction on the Supreme Court under the Judiciary Act, null and void, on the ground that it was repugnant to the provisions of the Constitution distributing original and appellate authority.

This famous decision, asserting for the first time a principle which lies at the very foundation of our constitutional jurisprudence, was in hostility to the views of many of our famous statesmen, among them Jefferson and Hamilton. Hamilton, fifteen years before the rendering of the decision, declared that such a doctrine was "not deducible from any circumstances peculiar to the plan of the convention," and that not a syllable "directly em

powers the national courts to construe laws according to the spirit of the Constitution." (No. 81 of the Federalist.) And Jefferson, thirteen years after the decision, declared that "not a word in the Constitution has given that power to the judges more than to the executive or legislative branches." (Jefferson's Works, Vol. VI., p. 464.)

We find also that Edmund Jennings Randolph, the first Attorney-General of both Virginia and the United States, delegate to the Continental Congress and to the convention that formed the Federal Constitution and the successor of Thomas Jefferson as Secretary of State, in the case of The Commonwealth v. Caton (4 Call's Rep. 5), declared that the act of the Assembly in question in that case, "pursued the spirit of the Constitution; but that whether it did or not, the courts were not authorized to declare it void.’ Chancellor Wythe, of Virginia, one of the most eminent of the statesmen and jurists of his time, who was one of the signers of the Declaration of Independence and whose pupil Jefferson was. pronounces in favor of the opposite view in an obiter dictum in his opinion in the same case. Judge Pendleton, also writing in the same case, says: "How far this court, in whom the judiciary powers may in some sort be said to be concentrated, shall have power to declare the nullity of a law passed in its forms by the legislative power, without exercising the power of that branch, contrary to the plain terms of that Constitution, is indeed a deep, important, and I will add, a tremendous question, the decision of which might involve consequences to which gentlemen may not have extended their ideas." In this case Chancellor Blair and the rest of the judges of the Court of Appeals of Virginia were of the opinion. that the court had the power to declare any resolution or act of the Legislature, or of either branch of it, to be unconstitutional and void.

It has been asserted that this is the very first case in the United States where the question as to the nullity of an unconstitutional law was discussed before a judicial tribunal.

What may be the earliest case that actually involved this question is the case of Josiah Philips, against whom a bill of attainder was passed by the Assembly of Virginia in May, 1778, for devas

tating and marauding in that State. In that year he was captured, indicted, tried, and convicted of highway robbery, but the act of attainder was not enforced or acted upon in any way. In a paper on the "Relation of the Judiciary to the Constitution," published by Mr. Meigs, of Philadelphia, in 1885, it is said in referring to the action of the court in ignoring the bill of attainder, "Unfortunately it seems now impossible to ascertain whether the court declined to recognize the act and directed the prisoner to be tried, as is intimated by Professor Tucker. (Tucker's Blackstone, Appendix, Vol. I, p. 293.) If the latter, the case is undoubtedly the first of the kind in the country."

One of the earliest cases of which I have found trace, sustaining the principle of "a judicial veto of a legislative act," is Holmes v. Walton, cited and commented upon in State v. Parkhurst (4 Halstead, 444. See MSS. Writ and Docket and Minutes of Supreme Court, Trenton). This case was brought by writ of certiorari before the Supreme Court of New Jersey September 9th, and argued on constitutional grounds November 11, 1779. The decision held that an act providing that trial by jury should be by a jury of six men was unconstitutional. The law thus declared unconstitutional was amended by the Legislature, and Judge Kirkpatrick, who cites the case in State v. Parkhurst, says: "This then is not only a judicial decision, but a decision recognized and acquiesced in by the legislative body of the State." Regarding this decision we find in 1785 Gouverneur Morris writing to the Legislature of Pennsylvania as follows: "In New Jersey the judges pronounced a law unconstitutional and void. Surely no good citizen can wish to see this point decided in the tribunals of Pennsylvania. Such power in judges is dangerous, but unless it somewhere exists, the time employed in framing a bill of rights and form of government was merely thrown away. (Sparks' Morris, III, 438.)

Judge Kirkpatrick, in the opinion referred to above, cites also the case of Taylor v. Reading, wherein an act of the Legislature passed in March, 1795, was declared to be an ex post facto law and as such unconstitutional, and this decision was also acquiesced in and sanctioned by the Legislature.

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