Page:Origin and Scope of the American Doctrine of Constitutional Law.djvu/18

146 with Lemuel Shaw, for the plaintiff, denied the existence or propriety of this rule. All such cases, he said (p. 442,) involve some doubt; it is not to be supposed that the legislature will pass an Act palpably unconstitutional. The correct ground is that the court will interfere when a case appearing to be doubtful is made out to be clear. Besides, he added, "imembers of the legislature sometimes vote for a law, of the constitutionality of wvhich they doubt, on the consideration that the question may be determined by the judges." This Act passed in the House of Representatives by a majority of

"We could show, if it were proper, that more than six members voted for it because the unconstitutionality of it was doubtful; leaving it to this court to determine the question. If the legislature is to pass a law because its unconstitutionality is doubtftul, and the judge is to hold it valid because its unconstitutionality is doubtful, in what a predicament is the citizen placed! The legislature pass it, de bene esse; if the question is not met and decided here on principle, responsibility rests nowhere. . . . It is the privilege of an American judge to decide on constitutional questions. Judicial tribunals are the only ones suitable for the investigation of difficult questions of private right."

But the court did not yield to this ingenious attempt to turn them into a board for answering legislative conundrums. Instead of deviating from the line of their duty for the purpose of correcting errors of the legislature, they held that body to its own duty and its own responsibility. "Such a declaration," said Mr. Justice Wilde in giving his opinion, "should never be made but when the case is clear and manifest to all intelligent miinds. We must assume that the legislature lhave done their duty, and we must respect their conistitutional rights and powers." Five years later, Lemue Shaw, who was Webster's associate counsel in the case last mentioned, being now Chief Justice of Massachusetts, in a case where Jeremiah Mason was one of the counsel, repeated with much emphasis " what has been so often suggested by courts of justice, that . . . courts will . . . never declare a statute void unless the nullity and invalidity are placed beyond reasonable doubt."

A rule thus powerfully attacked and thus explicitly maintained, must be treated as having been deliberately meant, both as regards its stubstance and its form. As to the form of it, it is the more calculated to strike the attention because it marks a familiar and important discrimination, of daily application in our courts,-