The farmer and mechanic. [volume] (Raleigh, N.C.) 18??-19??, 1914-03-24

avs 1Tne clause was, d1leT all IL
lowance has been made, a reactlonary
one. tending TO the restoration or 1eu-
aal privileges and feudal Jurisdictions,
| inirnical alike to the Crown and to the
growth of really popular liberties.
! Prof. MctlWain in a very Illuminating
article on Due Process of Law III
Magma Charta'' in the Columbia Law
Review January. 1914. has discussed
| the subject so fully. with citation OF
all the best authorities, that 1t Is I'M
possible to q to it. He Well says
that Magma Carta is now regarded by
eminent historians not as q document
Of popular liberty, but rather as one
| of feuGal reaction. They consider II
a concession to the demands OF the
barons for a return to the feudal an
| archy of Stephens time d repeal
OF the great administrative measures
by which Henry II and his p~redcces-
scrs We're holding a national judicial
system IL thus preparing the way
for a common law.
These authorities further mo
strate that the words "nullus hpef
homo referred to those who held ny
military or knight service-that IS.
earls. barons. knights ana others who
held knights fees
As to the other words lex terTae
i. g. law Of the land" OF which we
have heard go much at the hands OF
courts which are bent upon setting up
their own economic views to destroy
or nullify progressive legislation IN
the interest of the masses, the phrase
meant merely the former law OF
feudal tenures which had prevailed
during the feudal anarchy in Ste
phen'S time, and the feudai barons
demanded thereby a repeal Of the
measures by which Henry Ii was pre-
pairing a national judicial system"
But ever if Magma Carta had III Il
rnE mnaniDp which has been read int
it by judges in later times III violation
Of all historical authority, it was at
most q restriction upon the poWer OF
the king. BY no sort Of logic could it
therefore be used, as some courts hay
, used it, as q restriction upon the peo-
pie of this day. speaking through their
& & agents in the Legislature and in Con
l gTess, in the enactment OF laws fOI
: the betterment of the masses.
: The Courts and the Lawmakers.
, A third myth is that the u have
the power to set aside an act Of Con
= 81 ess, or of a State Legislature, es
= Unconstitutional. Such power was VI
= known ii England and has been IN
. knCWn III all other countries, most O.
which nov have written coDStitu
tons. Whether an act IS constitu-
= tional OF not Is q matter fer the legiS-
= lative body which passes it. They ar
u TIE direct agents Of the people ant
always have in their ranks more intel
II licence than the highest court Of tn
state or nation. For the reason tina
9 the Legislative bodies are far NOR
numerous. The Legislators. whethe
III the State Legislature or IN Con
- sress, have not only an aggregate IN
= teiligence greater than that Of tn
;, court that assumes to nullify thei
n action, but they are equally sworn t
sc obey the constitution and are as pa
III tiiotic as the judges. Should the Leg
III iCJSfIjrH or (fn nUrnSJ di.Obox- 49, 49,
Oh date Of the constitution the power t
review n nullify their action ha
not been given by the constitution t
tn any court, but rests in the sovereig
a - the people themselves in electing
new law making body. The federe
Id constitution. and most Of the stat
II, constitutions. give the executive
IS veto. not absolute, but qualified b
er vesting authority in the law maxim
le body to 'overrule il.
It is inconceivabie that the vet
power should have been given til
10 Judiciary, when it had never existe
elsewhere, without any word or lin
at intimating the comforting such iud
in cial veto and with no provision for i,
ST tcing overruled, as in the case Of ii
no executive veto.
This power was first assumed by tn
bv Supreme Court Of the United Stat
nj in an obiter opinion in Marburv
ial Madison IN 1909. If it had require
Mt the execution Of any mandate til
~ court knew hat MI. jefferson woul
20 have disregarded it, as Jackson al
Ia later when the act of a State Legisle
cd ture, and not of Congress. was bel
is- unconstitutional in the matter OF II
Iazoo claims. We know, too. that
~ tho judges in that case had issued
80 writ TO set aside an act Of Conor..
-; they would at one have. been in
- peaChed, but as the court very S,reu7,
go ~ held. while setting forth the poyi
aT OK the court TO hold an act Of GO,
49, gfeSS unconstitutional. that il con
~ rot issue the nandamus which -
~ plaintiff asked, there was nothiI
upon which an impeachment won
~, lie. The court did not venture to no
lo any other act Of Congress unconsti4
tional for 54 years and then IN -
&c Dre0 Scott case IL 1857. which 49,
icy bTutum fuln1en.
~ There * not q line IN the Eao.,.
l'h Constitution, nor III the state Con-,
tuition. to authorize the ~assuInptioo
cl such power by the courts. II has