Page:The Green Bag (1889–1914), Volume 06.pdf/114



CURRENT TOPICS. Prof. Thayer on American Constitutional Law. — Anything from the pen of this well-known author and instructor at Harvard University will be read with respect, and so we have been very much interested in perusing his paper on the above named subject read before the Congress of Jurisprudence and Law Reform at Chicago, last August, and now published in a pamphlet by Little, Brown and Com pany, of Boston. Mr. Thayer sets out with the in quiry : — "How did our American doctrine, which allows to the judiciary the power to declare legislative Acts unconstitu tional, and to treat them as null, come about, and what is the true scope of it?" As to how it " came about," Mr. Thayer contents himself, substantially, with the following theory : — "How came we then to adopt this remarkable practice? Mainly as a natural result of our political experience before the War of Independence, — as being colonists, governed under written charters of government proceeding from the English Crown. The terms and limitations of these char ters, so many written constitutions, were enforced by various means, — by forfeiture of the charters, by Act of I'arliamcnt, by the direct annulling of legislation by the Crown, by judicial proceedings and an ultimate appeal to the Privy Council. Our practice was a natural result of this; but it was by no means a necessary one. All this colonial restraint was only the usual and normal exercise of power. An external authority had imposed the terms of the charters, the authority of a paramount government, fully organized and equipped for every exigency of disobe dience, with a king and legislature and courts of its own. The superior right and authority of this government were fundamental here, and fully recognized; and it w as only a usual, orderly, necessary procedure when our own courts enforced the same rights that were enforced here by the appellate court in England. These charters were in the strict sense written law: as their restraints upon the colonial legislatures were enforced by the English court of last resort, so might they be enforced through the colonial courts, by disregarding as null what went counter to them." This theory the essayist by no means demonstrates, and it seems to us quite undemonstrable. Such an idea probably never occurred to any court in this country. If it had, the power in question would not

have been so long dented in highly respectable quarters. A colonial charter proceeding from the sovereign is a very different thing and is very differently inter preted from an Act proceeding from the Legislature. One is an institution of government, the other a privilege or right under that government. We ven ture to differ from Mr. Thayer, and to aver that a charter is not " law," but only an authority to certain persons to make laws and govern themselves by them. We doubt that any court ever recorded an opinion that this power was derived or derivable from the source to which the writer attributes it. But aside from this, Mr. Thayer's essay is of great interest, in the purpose to which it is mainly devoted, of showing the history and growth of this singular doctrine; and it will be instructive and interesting to every student of our constitutional history.

Lawyers' Tools. *— If our profession is degenerat ing into a trade, as many are apt to believe, it is at least a trade provided with extremely convenient tools. There has never been a time, certainly for half a century, when it was so easy to find out what has been decided — not to say, what the law is — as the present. We are but expressing a personal obli gation when we refer to some of the present vehicles of reporting the judicial decisions. In most of the leading States, notably in Massachusetts and New York, the official reports are now published with re markable intelligence and promptitude. Then for the omnivorous lawyer who will have every case, there is the West system of St. Paul, by which all the legal news is brought weekly to the practitioner's eyes, or to speak more accurately, probably, to his shelves. Then there is the great series of American State Reports, which skims the cream of the current de cisions in all the States, and offers the result, with most elaborate monographic notes, in comely vol umes, at the rate of some half dozen a year. This is a fine enterprise and is nobly prosecuted. It seems to us indispensable to a well equipped practitioner. And last, but not least, there is the series called Lawyer's Reports Annotated, published at Rochester, New York. This is issued in monthly parts. The