Page:Origin and Scope of the American Doctrine of Constitutional Law.djvu/12

140 cant rule of administration, — one which corrected their operation, and brought into play large considerations not adverted to in the reasoning so far mentioned. In 1811, Chief Justice Tilghman, of Pennsylvania, while asserting the power of the court to hold laws unconstitutional, but declining to exercise it in a particular case, stated this rule as follows:—

"For weighty reasons, it has been assumed as a principle in constitutional construction by the Supreme Court of the United States, by this court, and every other court of reputation in the United States, that an Act of the legislature is not to be declared void unless the violation of the constitution is so manifest as to leave no room for reasonable doubt."

When did this rule of administration begin? Very early. We observe that it is referred to as thoroughly established in 1811. In the earliest judicial consideration of the power of the judiciary over this subject, of which any report is preserved, — an obiter discussion in Virginia in 1782, — While the general power of the court is declared byother judges with histrionic emphasis,Pendleton, the president of the court, in declining to pass upon it, foreshadowed the reasons of this rule, in remarking,—

"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, imiiportant, and, I will add, a tremendous question, the decision of which would involve consequences to which gentlemen may not . . . have extended their ideas."

There is no occasion, he added, to consider it here. In 1793, when the General Court of Virginia held a law unconstitutional, Tyler, Justice, remarked,