Any dissent from a judgment setting aside a statute greatly weakens its force. It has also much less claim to public confidence if all the judges on the bench did not participate in it. In 1825, the Court of Appeals of Kentucky declined to follow a decision of the Supreme Court of the United States, which held certain statutes of Kentucky to be contrary to the Constitution of the United States.[Footnote: Green v. Biddle, 8 Wheaton's Reports, 1.] The reason stated for this was that the decision was not concurred in by a majority of the court. It had been made by a majority of a quorum, but not by a majority of the whole court.[Footnote: Bodley v. Gaither, 3 Monroe's Kentucky Reports, 57.] After this it became the practice of the Supreme Court under Chief Justice Marshall not to give judgment in any case involving constitutional questions, unless a majority of the court concurred in opinion in regard to these.[Footnote: New York v. Miln, 8 Peters' Reports, 118, 122.]
Several American courts have asserted the doctrine that the judiciary can disregard a statute which plainly violates the fundamental principles of natural justice, although it may not contravene any particular constitutional provisions. The English courts now claim no such power, although Sir Edward Coke, in one of his discursive opinions, very little of which was necessary for the determination of the cause, asserted that an act of Parliament "against common right and reason" could be adjudged void at common law.[Footnote: Dr. Bonham's Case, 8 Coke's Reports, 114, 118.] So far as there was any previous judicial authority for this position, however, it is believed that it can only be found in decisions made before the Reformation, on questions arising from interference by Parliament with rights claimed under the Church of Rome. Such questions were of the nature of those arising under a written Constitution. The law of the church within its province was then accepted as a supreme law.[Footnote: Coxe, "Judicial Power and Unconstitutional Legislation,"' 147, et seq.]
The rule laid down by Sir Edward Coke was accepted by the Supreme Court of South Carolina in two early cases,[Footnote: Ham v. M'Claws, 1 Bay's Reports, 98; Bowman v. Middleton, Ibid., 252.] and has been substantially repeated in some judicial opinions in other States.[Footnote: See Goshen v. Stonington, 4 Connecticut Reports, 209, 225, and Regents v. Williams, 9 Gill & Johnson's Reports, 365, 31 American Decisions, 72.] In the Supreme Court of the United States its authority was emphatically denied by Mr. Justice Iredell, near the close of the eighteenth century,[Footnote: Calder v. Bull, 3 Dallas' Reports, 386, 399.] but in 1874 the full court only one member dissenting, held a State statute void which authorized cities to issue bonds in aid of private manufacturing enterprises, because they could only be discharged by taxation, and to tax for such a purpose would be taking property from all for the good of one. That, said Mr. Justice Miller in delivering the opinion, "is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative form."[Footnote: Loan Association v. Topeka, 20 Wallace's Reports, 655, 664; approved in Parkersburg v. Brown, 106 U. S. Reports, 487, 501.]
This view of the law had been forcibly, though tentatively, put shortly after he came to the bench by Chief Justice Marshall in a leading case,[Footnote: Fletcher v. Peck, 6 Cranch's Reports, 87.] but one in which it was not necessary to decide whether the doctrine was sound. "It may well be doubted," he observed, "whether the nature of society and of government does not prescribe some limits to the legislative power; and, if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation? To the legislature all legislative power is granted; but the question whether the act of transferring the property of an individual to the public be in the nature of the legislative power is well worthy of serious reflection."
The weight of American authority is in favor of the position taken by Iredell.[Footnote: Cooley's "Constitutional Limitations," Chap, VII; State v. Travelers' Insurance Co., 73 Connecticut Reports, 255, 283; 47 Atlantic Reporter, 299; 57 Lawyers' Reports Annotated, 481.] Time has made it safer to stand upon it, for since he spoke not only have our State constitutions been generally expanded by adding important restrictions on the legislative power, but the fourteenth amendment has added to the Constitution of the United States a prohibition of State laws depriving any person of life, liberty, or property without due process of law. "Due process of law" is an elastic term. Requiring it certainly imports that no one is to be made to suffer in person or property unless he has had an opportunity to claim before an impartial tribunal the protection of his rights by the settled law of the land.
The principle of Roman law that, as custom can make law, so disuse can destroy it has never been adopted in the United States. No court, therefore, will pronounce a statute not to have the force of law on the ground that it is obsolete.[Footnote: Chief Justice Mason of Iowa, in 1840, undertook to import the doctrine into American jurisprudence, but without effect. Hill v. Smith, Morris' Reports, 70; explained and limited in Pearson v. International Distillery, 72 Iowa Reports, 357.]
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PART II
THE ORGANIZATION AND PRACTICAL WORKING OF AMERICAN COURTS
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