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vingt-quatre manières différentes à la fois! Un pareil système est aussi contraire à la raison qu'aux leçons de l'expérience."1

One of the striking peculiarities of our system which is apparently wholly missed by DeTocqueville' is its flexibility. There is no hard and fast line dividing the jurisdiction of the federal courts from that of the state courts. "The full purpose of the federal jurisdiction is subserved if the case, though heard first in the state court, may be removed at the option of the parties for final determination in the courts of the United States. The legislation of Congress has, therefore, left the parties at liberty, with few exceptions, to bring their suits in the state courts irrespective of the questions involved, but has made provision for protecting the federal authority by a transfer to the Federal Courts either before or after judgment of the cases to which the federal judicial power extends."

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A lesson from experience was, as has already been pointed out, to be found in the history of the government under the Articles of Confederation, a lesson which came very near causing the Convention to rush to an opposite extreme by giving Congress the power to negative not only all the laws passed by the several states contravening, in its opinion, the Constitution, or any treaty subsisting under the authority of the Union, but, as was advocated by some of the foremost members, even to annul any law of a state which it should judge to be improper."

As the states may make laws as well as the federation, one of the chief services of a Constitution is to define, as nearly as may be, the bounds over which neither the central nor the state governments may pass. Thus, for

1 Democratie en Amerique, 1, 234.

'De Tocqueville himself confesses that "ce qu'un étranger comprend avec le plus de peine aux Etats-Unis, c'est l'organisation judiciare." "Democratie en Am., 1, 163. Cooley, Principles of Constitutional Law, p. 110.

For an account of the encroachments of the States on the federal Government, see Elliot, V, 208.

Elliot, V, 127.

6 Elliot, V, 170.

example, our Constitution provides that in certain specified cases the central government alone may take legislative action; in other cases the state legislature may act so long as Congress abstains from exercising its power; and there is still another class of laws which neither Congress nor the state legislatures may make. This fact of a division in the exercise of sovereign powers lies at the foundation of every federal power. It is an inherent weakness of our form of government, and can only be recognized as such. The line of separation between the powers of the states and of the central government, no matter how carefully it may be traced, is so indistinct in parts as to be easily transgressed unintentionally, not to say willfully disregarded. It is then incumbent upon those who frame a constitution for a compound government, to provide for violations of this character both by the central power and the state governments. This problem of how to prevent dangerous jarring between the federal and state governments was one of those which the Convention of 1789 was obliged in some way to solve. To the wisdom of their solution no one would refuse to bear testimony.

From the history of the Confederation, the delegates had learned many useful and interesting facts about government. A consciousness of this, perhaps, accounts for the patronizing manner in which Randolph refers to the Articles of Confederation, drawn up ten years before, as the best product which could be expected of a time when the science of constitutions and confederacies was in its infancy. Among other Among other discoveries, the danger of encroachments by the states on the central government had been amply illustrated. The means of defense which it was proposed to put in the hands of the national Congress was, as we have seen, the power to negative the state laws when they were in opposition to the provisions

1 "In speaking of the defects of the confederation, he [Randolph] professed a high respect for its authors, and considered them as having done all that patriots could do in the then infancy of the science of constitutions and confederacies." Elliot, V, 126.

of the Constitution. Pinckney moved, June 8th,1 "that the national legislature should have authority to negative all laws they should judge to be improper." He urged "that such a universality of the power was indispensably necessary to render it effectual; that the states must be kept in due subordination to the nation; that if the states were left to act of themselves in any case, it would be impossible to defend the national prerogatives, however extensive they might be, on paper; that the acts of Congress had been defeated by this means; nor had foreign treaties escaped repeated violations; that this universal negative was, in fact, the corner stone of our efficient national government, the negative of the crown had been found beneficial, and the states are more one nation now than the colonies were then." This reference to the former power of veto possessed by the English government on all colonial legislation shows that the force of habit was behind this seemingly radical proposal. Madison seconded the motion. "He could not but regard an indefinite power to negative legislative acts of the states as absolutely necessary to a perfect system. Experience had evinced a constant tendency in the states to encroach on the federal authority; to violate national treaties; to infringe each other's rights and interests; to oppress the weaker party within their respective jurisdictions. A negative was the mildest expedient that could be devised for preventing these mischiefs. The existence of such a check would prevent attempts to commit them. Should no such precaution be engrafted, the only remedy would be an appeal to coercion."

But in order to give the negative efficacy it must extend to all cases. "A discrimination would only be a fresh source of contention between the two authorities." Wilson said, however novel the proposed power might appear,

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"the principle of it, when viewed with a close and steady eye," was right. On the other hand, it was urged that such an idea as this would never be acceded to. "It has never been suggested or conceived among the people," said Gerry. "No speculative projector-and there are enough of that character among us in politics as well as in other things—has in any pamphlet or newspaper thrown out the idea." Lansing set forth the impracticability and danger of the plan as follows: "It is proposed that the general legislature shall have a negative on the laws of the states. Is it conceivable that there will be leisure for such a task? There will, on the most moderate calculation, be as many laws sent up from the states as there are days in the year. Will the members of the general legislature be competent judges? Will a gentleman from Georgia be a judge of the expediency of a law which is to operate in New Hampshire? Such a negative would be more injurious than that of Great Britain heretofore was."" Gouverneur Morris thought that the proposal of such a measure would disgust all the states. "A law that ought to be negatived will be set aside in the judiciary department, and if that security should fail, may be repealed by a national law." Sherman pertinently urged the objection "Such a power involves a wrong principle, to wit: that a law of a state, contrary to the Articles of the Union, would, if not negatived, be valid and operative."

To what extent the adoption of this clause would have modified the constitutional and political development of the Union would be a most interesting subject of speculation in the department of what-might-have-been. But, although it must be admitted that the Supreme Court has on several occasions proved unequal to its task, it may still be safely asserted that from the standpoint of to-day, Madison and Wilson were here misled, while Luther Mar

1 Ibid., V, 172.

2 Ibid., V, 215.

Elliot, V, 321. For Hamilton's ideas on this subject, see Elliot, V, 205.
Elliot, V. 321.

tin, Lansing and others of a party to which we seldom look with gratitude, did good service on this occasion in working against the insertion in the Constitution of a clause at once superfluous and dangerous.

The action and scope of the Federal Courts is two-fold in two senses. I. In respect to law, they deal with the interpretation of the Constitution, on the one hand, and of the laws made by Congress, on the other. II. As a constitutional intermediary, the courts, in the first place, destroy the force of unconstitutional action on the part of Congress, and so protect the people, as well as the other branches of government, from the encroachment of the legislative body. Again, they keep the state governments from usurping powers which are either denied them or are vested by the Constitution solely in the central government. The Federal Courts, like other courts, decide cases according to the law of the land. The Constitution is a part of the law of the land. A so-called unconstitutional law is no more to be considered in deciding a case than the wishes or commands of an individual. The proceedings in Congress have failed simply from want of power to alter the condition of the body of the law upon which decisions must be based. Thus, the courts exercise no extraordinary power in the so-called decisions on constitutional matters. In all their activity they must determine what the law is, as well with regard to the common law as to the federal legislation. This complete assimilation of the laws of the Union to the body of the law of the land is the underlying principle of our federal judiciary.1

All direct and uncalled-for criticism of the action of states and of Congress by the judicial power is prevented by the method of adjudication, which Sir Henry Maine points out to be distinctly English. "No general proposition is laid down by the English tribunal unless it arises on the facts of the actual dispute submitted to it for adjudication." The judges hold their offices during good

1 See Marshall, Elliot, III, 553, and Federalist, No. 78.
Popular Government, p. 219.

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