1

executive power is strictly limited by the law, and is indeed a corner-stone of English liberty. It is applied even as against the dominant branch of the legislature. If the House of Commons should act in excess of the power which the law and custom of Parliament has secured to it, a private individual may resist the officers of the House and the courts will protect him by directing him to be acquitted if he is prosecuted, or, if he is plaintiff in a civil action, by giving judgment in his favour.

An obvious instance of the way in which rules or laws made by subordinate bodies are treated is afforded by the bye-laws made by an English railway company or municipal corporation under powers conferred by an Act of Parliament. So long as these bye-laws are within the scope of the authority which the Act of Parliament has given, they are good, i.e. they are laws, just as much as if enacted in the Act. If they go beyond it, they are bad, that is to say, they bind nobody and cannot be enforced. If a railway company which has received power to make bye-laws imposing fines up to the amount of forty shillings, makes a bye-law punishing any person who enters or quits a train in motion with a fine of fifty shillings or a week's imprisonment, that bye-law is invalid, that is to say, it is not law at all, and no magistrate can either imprison or impose a fine of fifty shillings on a person accused of contravening it. If a municipal corporation has been by statute empowered to enter into contracts for the letting of lands vested in it, and directed to make byelaws, for the purpose of letting, which shall provide, among other things, for the advertising of all lands intended to be let, and if it makes a bye-law in which no provision is made for advertising, and under that bye-law contracts for the letting of a piece of land, the letting made in pursuance of this bye-law is void, and conveys no title to the purchaser. All this is obvious to a lay as well as to a legal mind; and it is no less obvious that the question of the validity of the bye-law, and of what has been done under it, is one to be decided not by the municipal corporation or company, but by the courts of justice of the land.

Now, in the United States the position of Congress may for

1 See as to the different doctrine and practice of the European continent, and particularly as to the "administrative law" of France, the instructive remarks of Mr. Dicey in his Law of the Constitution. The view he there takes of the relation of the Federal Constitution to Congress coincides in most points with that presented in the present chapter, which, however, was written before his book appeared.

this purpose be compared to that of an English municipal corporation or railway company. The supreme law-making power is the People, that is, the qualified voters, acting in a prescribed way. The people have by their supreme law, the Constitution, given to Congress a delegated and limited power of legislation. Every statute passed under that power conformably to the Constitution has all the authority of the Constitution behind it. Any statute passed which goes beyond that power is invalid, and incapable of enforcement. It is in fact not a statute at all, because Congress in passing it was not really a law-making body, but a mere group of private persons.

There is of course this enormous difference between Congress and any subordinate law-making authority in England, that Congress is supreme within its proper sphere, the people having no higher permanent organ to override or repeal such statutes as Congress may pass within that sphere; whereas in England there exists in Parliament a constantly present supervising authority, which may at any moment cancel or modify what any subordinate body may have enacted, whether within or without the scope of its delegated powers. This is a momentous distinction. But it does not affect the special point which I desire to illustrate, viz. that a statute passed by Congress beyond the scope of its powers is of no more effect than a bye-law made ultra vires by an English municipality. There is no mystery so far: there is merely an application of the ordinary principles of the law of agency. But the question remains, How and by whom, in case of dispute, is the validity or invalidity of a statute to be determined?

Such determination is to be effected by setting the statute side by side with the Constitution, and considering whether there is any discrepancy between them. Is the purpose of the statute one of the purposes mentioned or implied in the Constitution? Does it in pursuing that purpose contain anything which violates any clause of the Constitution? Sometimes this is a simple question, which an intelligent layman may answer. More frequently it is a difficult one, which needs not only the subtlety of the trained lawyer, but a knowledge of former cases which have thrown light on the same or a similar point. In any event it is an important question, whose solution ought to proceed from a weighty authority. It is a question of interpretation, that is, of determining the true meaning both of the superior

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law and of the inferior law, so as to discover whether they are inconsistent.

Now the interpretation of laws belongs to courts of justice. A law implies a tribunal, not only in order to direct its enforcement against individuals, but to adjust it to the facts, i.e. to determine its precise meaning and apply that meaning to the circumstances of the particular case. The legislature, which can only speak generally, makes every law in reliance on this power of interpretation. It is therefore obvious that the question, whether a congressional statute offends against the Constitution, must be determined by the courts, not merely because it is a question of legal construction, but because there is nobody else to determine it. Congress cannot do so, because Congress is a party interested. If such a body as Congress were permitted to decide whether the acts it had passed were constitutional, it would of course decide in its own favour, and to allow it to decide would be to put the Constitution at its mercy. The President cannot, because he is not a lawyer, and he also may be personally interested. There remain only the courts, and these must be the National or Federal courts, because no other courts can be relied on in such cases. So far again there is no mystery about the matter.

Now, however, we arrive at a feature which complicates the facts, though it introduces no new principle. The United States is a federation of commonwealths, each of which has its own constitution and laws. The Federal Constitution not only gives certain powers to Congress, as the national legislature, but recognizes certain powers in the States, in virtue whereof their respective peoples have enacted fundamental State laws (the State constitutions) and have enabled their respective legislatures to pass State statutes. However, as the nation takes precedence of the States, the Federal Constitution, which is the supreme law of the land everywhere, and the statutes duly made by Congress under it, are preferred to all State constitutions and statutes; and if any conflict arise between them, the latter must give way. The same phenomenon therefore occurs as in the case of an inconsistency between the Constitution and a congressional statute. Where it is shown that a State constitution or statute infringes either the Federal Constitution or a Federal (i.e. congressional) statute, the State constitution or statute must be held and declared invalid. And this declaration must, of

course, proceed from the courts, nor solely from the Federal courts; because when a State court decides against its own statutes or constitution in favour of a Federal law, its decision is final.1.

It will be observed that in all this there is no conflict between the law courts and any legislative body. The conflict is between different kinds of laws. The duty of the judges is as strictly confined to the interpretation of the laws cited to them as it is in England or France; and the only difference is that in America there are laws of four different degrees of authority, whereas in England all laws (excluding mere bye-laws, Privy Council ordinances, etc.) are equal because all proceed from Parliament. These four kinds of American laws are:

I. The Federal Constitution.

II. Federal statutes.

III. State constitutions.

IV. State statutes.2

The American law court therefore does not itself enter on any conflict with the legislature. It merely secures to each kind of law its due authority. It does not even preside over a conflict and decide it, for the relative strength of each kind of law has been settled already. All the court does is to point out that a conflict exists between two laws of different degrees of authority. Then the question is at an end, for the weaker law is extinct.

This is the abstract statement of the matter; but there is also an historical one. Many of the American colonies received charters from the British Crown, which created or recognized colonial assemblies, and endowed these with certain powers of making laws for the colony. Such powers were of course limited, partly by the charter, partly by usage, and were subject to the superior authority of the Crown or of the British Parliament. Questions sometimes arose in colonial days whether the statutes made by these assemblies were in excess of the powers conferred by the charter; and if the statutes were found to be in excess, 1 When the State court decides against the applicability of a Federal law the case may be removed to a Federal court. See above, p. 228.

Of these, the Federal Constitution prevails against all other laws. Federal statutes, if made in pursuance of and conformably to the Constitution, prevail against III. and IV. If in excess of the powers granted by the Constitution, they are wholly invalid. A State constitution yields to I. and II., but prevails against the statutes of the State.

they were held invalid by the courts, that is to say, in the first instance, by the colonial courts, or, if the matter was carried to England, by the Privy Council.1.

When the thirteen American colonies asserted their independence in 1776, they replaced these old charters by new constitutions, and by these constitutions entrusted their respective legislative assemblies with certain specified and limited legislative powers. The same question was then liable to recur with regard to a statute passed by one of these assemblies. If such a statute was in excess of the power which the State constitution conferred on the State legislature, or in any way transgressed the provisions of that constitution, it was invalid, and acts done under it were void. The question, like any other question of law, came for decision before the courts of the State. Thus, in 1786, the supreme court of Rhode Island held a statute of the legislature void, on the ground that it made a penalty collectible on summary conviction, without trial by jury; the colonial charter, which was then still in force as the constitution of the State, having secured the right of trial by jury in all cases.3 When the Constitution of the United States came into operation in 1789, and was declared to be paramount to all State constitutions and State statutes, no new principle was introduced; there was merely a new application, as between the nation and the States, of the old doctrine that a subordinate and limited legislature cannot pass beyond the limits fixed for it. It was clear, on general principles, that a State law incompatible with a Federal law must give way; the only question was: What courts are to pronounce upon the question whether such incompatibility exists? Who is to decide whether or no the authority given to Congress has been exceeded, and whether or no the Statc law contravenes the Federal Constitution or a Federal statute?

In 1789 the only pre-existing courts were the State courts.

1 The same thing happens even now as regards the British colonies. The question was lately argued before the Privy Council whether the legislature of the Dominion of Canada, created by the British North America Act of 1867 (an imperial statute), had power to extinguish the right of appeal from the supreme court of Canada to the British Queen in council.

2 Connecticut and Rhode Island, however, went on under the old charters, with which they were well content. See as to this whole subject, Chapter XXXVII., on State Constitutions.

3 See as to this interesting case (Trevett v. Weedon), the first in which a legisla tive act was declared unconstitutional for incompatibility with a State constitution, Cooley's Constitutional Limitations, p. 106 note.