The sun. [volume] (New York [N.Y.]) 1833-1916, 1905-04-02


had received a Majority Of the popular
votes we're compelled to exercise dis
erection a. 10 the candidate for whom their
choice should be expressed. II could not
have been commended for a moment that
votes thus cast should not be counted
for the person designated, although'he was
not the nominee Of the party Any sueh
general rules and principles, therefore,
though they may be loosely said to be
part Of the unwritten Constitution under
our form Of polity, are not, in legal sense
limitations on the powers Of government,
II il further pointed out by Justice Nc
Claim that from a constitutional point OF
view. the difference between the govern
mental system Of the United States and that
OF Great Britain "a not merely that in the
former case the principles Of constitutional
law are formally reduced to writ 'ng, while
n the lattor case they are recognized with
out being authortatively reduced TO dem
mite statement This further distinction -
noted that IN the United States there
is no unlimited sovereign power In either
the Federal or State governments, or in
any OF tho branches thereof, but ultimate
sovereignty, IL il is 70 he conceived as ex-
isting anywhere, rests with the people as
whole In Great Britain on the other hand,
"the ultimate sovereign power rests in the
Government. and is exercised by Parlia-
rnent, and no superior constitutional au-
thority il recognized Another marked
distinction between the British and the
American politics il that in Great Britain
the courts cannot question the validity OF
an act Of Parliament, regularly passed,
- hat IA IN Ni
Constitution. whereas in the United States
such power Ia frequently exercised by the
courts with reference to State OF Federal
statutes. II is an interesting fact. how
ever. that, although the power OF the courts
to declare legislative acts unconstitutional
and therefore Of no effect, has In tins
country been firmly established Cor more
than a century, and has been exercised IN
numberless cases in every State OF the
Union az we'll a. in the Supreme Court OF
the United States there is still a popular
tendency 10 call in question the propriety
OF its exercise, especially when the decision
seems 10 run counter 10 public opinion IN
favor Of the legislation which is thus an
nullcd. Our author recalls that In some
cases in tic English courts It was suggested
rather than decided that an act OF Parlia-
ment might be on its face so unreasonable
and unjust that the courts would refuse
to enforce IT, These sugge 'tions, howeve''
were not followed by tho English courts TO
the extent Of establishing any RUE by which
they would be authorized to question the
validity Of an act Of Parliament on such
grounds On the contrary, Il has become
| firmly established a. a principle OF the con-
| stitutional law OF Great Britain that the
courts cannot exercise that power. The
! courts Of Great Britain, nevertheless did
! exercise the power OF declaring invalid
/ certain acts OF colonial legislative bodies,
| on the ground that they transcribed the
power conferred by the colonial charters.
/ out OF this exercise OF power arose, no
! doubt. the notion that the acts Of legislative
! bodies possessing only a delegated and
/ limited authority could be held by British
| courts to 10 invalid.
Before the adoption Of the Federal Con-
! stitution such authority had been eIer'
oised in a few cases by the State courts
| in some Of the States with reference to the
! acts Of State Legislatures Not until 1903
however, was the power Of courts to annul
! legislation on the ground OF it's conflicting
with State OF Federal Constitutions FIJI mly
| established. In the case Of MaTbury vs.
Madison, in the Supreme Court Of the Unite
! States, Chief Justice Marshall delivered
] an opinion on the question which has since
| been almost uniformly followed in judicial
| decisions in the Federal and State courts.
! The point decided in that case was that an
! act of Congress by which an attempt was
made to give jurisdiction 10 the Supreme
! Court Of the United States over a class OF
cases not placed within it's jurisdiction by
! the language OF the Constitution was In
| valid. The reasoning however, sustained
! fully the authority OF a court to inquire
whether any legislative act is within the
/ scope Of the power conferred upon the
! Legislature OF in violation OF restrictions
/ imposed upon it. and to declare such act
| invalid and imperative, II IL he found "a
! be in excess OF the power granted, or in
! violation Of the limitations imposed. The
soundness. indeed, Of this decision was not
at once universally admitted 20 far as the
] application OF It 10 State courts was con-
cerned. In at least one State an effort
was made to impeach Judges for declaring
/ legislative acts TO be unconstitutional.