Page:The Green Bag (1889–1914), Volume 18.pdf/444

 EDITORIAL DEPARTMENT branch to do this than it would be for the executive itself. The author also contends that the assumption of this right is unfortu nate since it compels citizens to act under legislation which may later be declared un constitutional, nor does he believe that in the long run the judges are any more likely to interpret the Constitution correctly than are the legislators. CONSTITUTIONAL LAW (Due Process). In the June Columbia Law Review (V. vi, p. 423) William Cullen Dennis writes of " Jury Trial and the Federal Constitution." After briefly summarizing the cases that show that "in no case does the Federal Constitution se cure to any man a trial in a state court," he shows that " anything enacted by the legis lature or established by judicial decision which is not so unreasonable as to convince the court that it is outrageous is ' due process of law." "The ' equal protection of the laws ' does not mean that all shall be treated alike; it does not forbid reasonable classification but forbids arbitrary discrimination." A state may regulate trial by jury so long as the regulations are not outrageous and do not unduly discriminate between persons and classes. The fourteenth amendment applies to state action, not to individual action, but it applies to state action in any form, execu tive and judicial as well as legislative. As an illustration of this he refers to the remarkable case of Caleb Powers of Kentucky who has contended that by the exclusion from juries of members of his own political party he had been convicted without due process of law. "Of course if the state law as construed or administered by the state courts results in a situation which amounts in itself to a denial of ' due process ' or ' equal protection ' the Supreme Court will reverse the decision even though it be of the opinion that the state court erred in construing the local law, and that, if properly construed, it would have violated no federal right." In the decision in the Powers case the author finds coupled with a reiteration of the orthodox statement that error in construing the state law cannot avail the objector, a statement in which there may perhaps lurk

413

the suggestion that an outrageously wrong decision departing from the settled law of the state might be such an unexplained discrim ination as would amount to a denial of the equal protection of the laws even though the new rule itself were not outrageous. The author submits that due process of law is a question of degree and that if the ruling of the state court be outrageous federal courts have jurisdiction to review it under the four teenth amendment even as to interlocutory questions of fact. CONSTITUTIONAL LAW (Interstate Judg ments, Divorce). Joseph H. Beale, Jr., sharply criticises the recent decision of the Supreme Court in Haddock v. Haddock in an article in the June Harvard Law Review (V. xix, p. 586) entitled " Constittitional Protection for Divorce." He summarizes the reasoning of the court as follows: "It is now time to examine in detail the reasoning of the court. This may be summar ized thus: For a valid divorce it is necessary that the libellant should be domiciled in the state which grants the divorce; it is also neces sary that there should be personal jurisdiction over the libellee in order that it should be enforceable under the ' full faith and credit ' clause of the Constitution; but if there is no such jurisdiction over the libellee, the divorce will be valid where granted. I propose to show that either the first or the third proposition is absolutely inconsistent with the second, and with the decision of the court." The author shows that the admitted re quirement of domicile of the libellant is proof that a proceeding for divorce is in rent. The res is intangible just as in the case of an administration of an estate. "Jurisdiction does not involve the power of continuing rights in existence, but of creating rights; its operation is positive, not negative. Both New York and Connecticut, having ju risdiction over the status of marriage, can affect it by dissolving it; but once it has been dissolved nothing is left for either to affect. The same criticism might be brought against allowing the status of a woman in New York to be affected by a marriage in Connecticut." "It has been heretofore believed that the full faith and credit clause required a state to