In the year 1784 a decision was rendered in New York in the case of Rutgers v. Waddington. The Attorney-General appeared for the plaintiff and Alexander Hamilton for the defendant. This case, although tried and decided in the Mayor's Court, in the city of New York, was considered throughout the United States as of great Federal importance, and much litigation of the same character was pending at the time. It involved the construction of a recent statute of the State, which was thought to be in conflict with the recent Treaty of Peace, and in deciding the question and construing the law the court by interpretation sought to avoid a Federal crisis. Although New York had a written Constitution at the time, the court adopted Blackstone's 10th rule of construction, that "acts of Parliament that are impossible to be performed are of no validity; and if there arise out of them any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void;” (Blackst. 91) and it was held that "when a law is expressed in general words, and some collateral matter which happens to arise from those general words is unreasonable, there the judges are in decency to conclude that the consequences were not foreseen by the Legislature; and therefore they are at liberty to expound the statute by equity and only quoad hoc to disregard it." The effort of the court to avoid a Federal crisis by finding that collateral matter arose out of the general words of the statute, which was unreasonable and that such unreasonable consequence was not foreseen by the Legislature, seems not to have been well received, for on the 13th of September, 1784, in consequence of this decision a mass meeting was held and a committee appointed, who prepared and published an address to the People of the State of New York, in which the decision of the court was condemned as subversive of all law and good order and the sovereignty of the State and as leading to anarchy and confusion; and in November, 1784, the Legislature of the State of New York adopted a resolution to the same effect. (Dawson's Pamphlet, xxv, xlv.)

Another early case is that of Trevett v. Weeden, heard and adjudicated by the Supreme Court of Judicature of Rhode Island, at Newport, September 25, 26, 1786. Judge Cooley, in his work on

Constitutional Limitations (6th. ed., p. 193, note) says this case "is particularly interesting as being the first case in which a legislative enactment was declared unconstitutional and void on the ground of incompatibility with the State Constitution." Judge Cooley, in his note, refers to another case, but does not give its title, where a law was held unconstitutional by the court, and coupling that case with Trevett v. Weeden, he says: "There are at least two cases in American judicial history where judges have been impeached as criminals for refusing to enforce unconstitutional enactments.”

In the case of Trevett v. Weeden was involved the constitutionality of a law providing for the punishment, without trial by jury of any person refusing to accept in exchange for goods on sale certain paper money or bills of credit emitted by the State of Rhode Island. There is no record of the argument for the prosecution, but General James M. Varnum, member of the Federal Congress, was senior counsel for the defense, and he published his argument in pamphlet form in 1787. The obvious influence of this case upon the future action of courts is evident upon comparing it with the opinion in Marbury v. Madison. I will read two exceedingly interesting excerpts, one from Varnum's argument and the other from Chief Justice Marshall's opinion in the Marbury case, showing how closely the latter followed the former. Varnum says that laws made by the General Assembly under the powers thereof derived from the Constitution "become the laws of the land and as such, the court is sworn to execute them. But if the General Assembly attempt to make laws contrary hereunto, the court can not receive them." If the judges should do so, they would violate their oaths. "There is no middle line. The legislative hath power to go all lengths, or not to overleap the bounds of its appointment at all. So it is with the judiciary, it must reject all acts of the legislative that are contrary to the trust reposed in them by the people, or it must adopt all." (Varnum, pp. 28, 29.)

Compare with the foregoing the following paragraphs from Marshall's opinion in Marbury v. Madison: "Between these alternatives there is no middle ground. The Constitution is either superior, paramount law, unchangeable by ordinary means, or it

is on a level with ordinary legislative acts, and, like other acts, is alterable when the Legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.” (5 U. S. 176, 177. See p. 180 as to judge swearing to discharge his duties.)

The judgment of the court in Trevett v. Weeden was that the information was not cognizable by the court, and while not declaring in terms the law to be "unconstitutional and so void," the statute was plainly rejected and repelled. For this action on the part of the court there was some fear that the Legislature would impeach the judges who made the decision and some of the judges filed written protest against summary dismissal, which condemnatory action the Legislature then forbore taking; but it refused to reelect them at the end of the year when their terms expired, and in their places were put persons who were willing to enforce such laws as the Legislature might see fit to pass.

The case of Bayard v. Singleton (1 Mart. [N. C.] 48) was decided by the Superior Court of North Carolina in 1787. This case involved the constitutionality of an act providing for the dismissal of certain suits at law upon motion, without trial. President Battle in his history of the court has this to say: "These, our earliest judges, are entitled to the eminent distinction of contesting with Rhode Island the claim of being the first in the United States to decide that the courts have the power and duty to declare an act of the Legislature, which in their opinion is unconstitutional, to be null and void. The doctrine is so familiar to us, so universally acquiesced in, that it is difficult for us to realize that when it was first mooted, the judges who had the courage to declare it were fiercely denounced as usurpers of power. Spaight, afterward Governor, voiced a common notion when he declared that 'the State was subject to the three individuals, who united in their own persons the legislative and judicial power, which no monarch in England enjoys, which would be more despotic than the Roman triumvirate and equally insufferable.' The action of

the court was the foundation of one of the charges brought by Hay (in the Legislature). He accused them with dispensing with a law. opinion."

The judges were eventually sustained by public

There is another case, which is anonymous, that arose in Massachusetts in 1786 or 1787. J. B. Cutting, in a letter to Thomas Jefferson, dated July 11, 1788, refers to it, and says it "occurred in Massachusetts where, when the Legislature trespassed upon a barrier of the Constitution, the judges of the Supreme Court solemnly determined that the statute was unconstitutional. In the very next session, there was a formal and unanimous repeal of the law, which was perhaps not necessary." (See Bancroft's Hist. of the Const., II, 473.)

It will be observed that all these cases are older than the Constitution of the United States, and also that in some of the States from which I have drawn these illustrations, as for instance Rhode Island, there was in these early times no written Constitution. (For exhaustive historical commentary upon this subject see Coxe's "Judicial Power and Unconstitutional Legislation.") While this digression brings into view the only cases I have been able to find in which the question was either discussed or decided prior to Marbury v. Madison, the opinion in the latter case, although sometimes criticised as obiter so far as it discussed the constitutionality of the act of Congress under consideration, has ever since been regarded as settling the question; and from that day to this courts have, from time to time, set aside statutes of State Legislatures and acts of Congress because repugnant to the State or Federal Constitution, and of such work of the courts we can at least indorse the statement of that not too friendly critic Bryce. In his American Commonwealth he says: "Few American institutions are better worth studying than this intricate judicial machinery; few more deserve approbation for the smoothness of their working; few have more contributed to the peace and welfare of the country."

In 1868 the Fourteenth Amendment became a part of the Constitution, by which was incorporated therein the “due process of law" provision, to be found in most of the State Constitutions;

and this time not as a restraint upon the power of the Federal Government, as in the Fifth Amendment, but as a limitation upon the power of the States.

At no time in the history of this country could this amendment have been adopted prior to the so-called Reconstruction Period; and if it were not now a part of the Constitution it is not probable that it could be incorporated into that instrument. It is doubtful if it would have been adopted had it been then understood to confer upon Congress the power to enforce the restrictions on State powers contained in the amendment, and upon the Supreme Court power to set aside provisions of a State Constitution or statute which in the judgment of that court abridge the privileges or immunities of citizens of the United States, deprive any person of life, liberty, or property without due process of law, or deny to any person within the jurisdiction of the State equal protection of the laws-thereby placing the essential rights of life, liberty, and property under the ultimate protection of the National Government.

The ratification of the Federal Constitution in 1787 and 1788 was made possible only by pledges that amendments limiting the Federal power and protecting the States against the National Government should be submitted. Ten amendments were proposed by the first Congress in 1789, and were subsequently adopted, constituting a bill of rights in limitation of the Federal power. And no student of the history of that period can fail to realize the apprehension generally existing that the Federal power unresstrained might crush out self-government in the States. Nor was there evidence of such a change of public sentiment prior to the Fourteenth Amendment as would seem to indicate that the requisite number of States were prepared to submit the manner of their exercise of legislative, executive, and judicial functions, in any regard whatsoever, to the Federal Government to be tested by standards so elastic and so comprehensive as the provisions of the Fourteenth Amendment.

Beyond all question support was obtained for the adoption of that amendment upon the supposition that its sole purpose was to benefit and protect the colored race. Indeed, there is abundant