way of deciding, there can be no error. But what be neficial result would there be produced by the decision of a State court in favor of a State law palpably unconstitutional? The injured party would have the judgment reversed by the court in the last resort, and the cause would come back with a mandate to decide differently, which the State court dare not disobey: so that nothing would eventually, be gained by the party claiming under the law of the State, but, on the contrary, he would be burdened with additional costs. I grant, however, that the State judiciary ought not to exercise the power except in cases free from all doubt, because, as a writ of error to the Supreme Court of the United States lies to correct an error only in favor of the constitutionality of the State law, an error in deciding against it would be irremediable. Anticipating those who think they perceive in this, exactly what I have censured in those who assume the existence of the same power in respect to laws that are repugnant to the Constitution of the State, but restrict the exercise of it to clear cases, I briefly remark that the instances are not parallel; an error in deciding against the validity of the law being irreparable in the one, and not so in the other.

Unless. then, the respective States are not bound by the engagement, which they have contracted by becoming parties to the Constitution of the United States, they are precluded from denying either the right or the duty of their judges, to declare their laws void when they are repugnant to that Constitution.

The preceding inquiry may perhaps appear foreign to the point immediately before the court; but, as the Act of 1815 may be thought repugnant to the Constitution of the State, an examination of the powers of the judiciary became not only proper but necessary.

Then, laying the Constitution of the State out of the case, what restriction on State sovereignty is violated by at once repealing any of the saving clauses in the Statute of Limitations? Those restrictions are contained in the first article and tenth section of the Constitution of the United States; and, as there is no pretence that a contract has been impaired, none of them can, even by the most strained construction, be supposed to be violated, except that which relates to ex post facto laws. But that was held, in Calder v. Bull, 3 Dall. 386, to be applicable only to penal laws. The law in question not only relates to civil rights, but is not even retrospective. . . . I am therefore of opinion that the judgment be affirmed.1

1 When this opinion was cited, in argument, in 1845, Chief Justice Gibson remarked to counsel: "I have changed that opinion, for two reasons. The late convention [for framing the Pennsylvania Constitution of 1838], by their silence, sanctioned the pretensions of the courts to deal freely with the Acts of the Legislature; and from experience of the necessity of the case." Norris v. Clymer, 2 Penn. St. 281. — Ed.

VOL. I. -10

NOTE.1

THE quotation from Bluntschli's Public Law, previously given,2 is authority for the proposition that, in 1863, in Germany, no judicial court could declare a law of its State to be void because conflicting with the written constitution of the State. That proposition was in 1883, and is since, equally true of the judiciaries of the several States of the German Empire. Between those two dates, however, two most interesting cases have been decided, in the first of which the truth of the proposition was denied with great ability by the Hanseatic Court of Upper Appeal at Lubeck. In the second case, the doctrine of the first was overruled by the Imperial Tribunal or Supreme Court of the German Empire. Thus, with the exception of a temporary recognition within the limited territories of the Hanseatic republics, the proposition in question has always been law in the different States of Germany possessing written constitutions, that is to say, in nearly every German State.

The first case was decided in 1875. It is that of Garbade v. The State of Bremen, and is reported in Seuffert's Archives for the Decisions of the Highest Courts of the German States, vol. 32, no. 101. The following is a translation of the decision of the Hanseatic Court of Upper Appeal, there given in the original:

"Positive directions like that of Article 106 of the Prussian constitutional charter sometimes prohibit an official testing of the legal validity of ordinances [of the sovereign] which have been authenticated in due form. When such directions do not exist, the judge has, according to general legal principles, both the authority and the duty of refusing to apply an ordinance of the sovereign (Landesherr), which, while its provisions are those of a law, has not been enacted according to the forms prescribed for making laws by the Constitution of the land. For this purpose, the judge must, of course, first of all examine whether, when the law in question was published it was then explicitly stated that the constitutionally prescribed forms were observed. (See case in Kierulff's Collection, vol. 5, p. 331.) The proper decision in such a case, however, depends only upon the question as to what evidence is sufficient to put the judge in a position of ascertaining with certainty that the constitutional forms for making laws were complied with. The decision itself, therefore, takes for granted that the judge must have no doubt as to the observance of the constitutionally prescribed forms in making the law in question, and when the decision has shown a condition of things, which prevents any such doubt, it goes no farther.

"It is thus true that, in cases of laws which are not organic ones altering the Constitution, the judge must be sure that the law, which he is to apply, has been made according to constitutional forms. Such being so, it must be equally true that the same requirement must be met in the case of organic laws altering the Constitution, for, either a part or the whole of their provisions may enlarge or diminish existing rights as hitherto corituted. For the judge is as much bound by the organic constitutional law of the land as by any other law. If therefore the observance of certain forms is constitutionally prescribed for changing a constitutional charter, it can only be altered or abolished by observing those forms. An ordinary law exists until it is abolished by way of legislation according to the forms prescribed for the enacting of laws. So too, a constitution exists until it is abolished by way of organic legisla tion according to the forms prescribed for changing the Constitution. These points do not include a further and a different question as to what are the conditions under which the judge must feel convinced that the requisite forms for altering the Constitu

1 The first part of this note is taken from Coxe's Jud. Power and Unconst. Legis. 95-102. I am indebted to William M. Meigs, Esq., the editor of this valuable work of the late Brinton Coxe, of Philadelphia, for obtaining permission from the owners of the copyright, and from the publishers (Messrs. Kay and Bro.), to quote these pages.ED.

2 Bluntschli, Gen. Pub. Law (ed. 1863), i. 550, 551.

tion have been observed. An answer to this question is not, however, necessary in the case before us.

"That case is as follows:

A constitution has been made in Bremen, the 19th article of which reads: “Property and other private rights are inviolable. Cession, surrender, or limitation of the same for the general good can only be required in the cases and forms prescribed by law and upon proper indemnification.'

"A law has been enacted in Bremen which is an ordinance relating to rural communities dated 28 December, 1870. It conflicts with the said Constitution and is not an organic constitutional law. Its 15th section reads thus:

"All hitherto existing exemptions from communal taxes, so far as not based on Federal laws or State treaties, are abolished without indemnification.'

"The last named law has been enacted according to the forms prescribed for ordinary legislation and therefore ought to be binding upon the judge. Nevertheless, if the forms prescribed for ordinary legislation are not sufficient for legislation altering the Constitution, such an Act of ordinary legislation leaves the Constitution intact. The latter continues to exist and, as long as it does so, the judge must hold it to be an existing law. Hereby arises a conflict of legal provisions. On account of the inequality of the conflicting laws, this conflict cannot be settled upon the principle of lex posterior derogat legi priori. It can only be settled by an application of the doctrine that ordinary laws conflicting with organic constitutional laws cannot be enacted. The judge is to be considered competent to make this decision, even without any authority having been explicitly given him by any special law; because he is obliged to apply the laws and because the application of two existing laws, conflicting with each other, is an impossibility. The recognition of the legal principle, that the judge is not to apply a law conflicting with the Constitution, includes therefore no assertion of a superiority of the judge over the lawgiver. So doing is merely an acknowledgment of his authority, in an actual case of conflict, to apply that law, which general legal principles require to be applied. In cases of conflict between laws of the Empire and laws of the land, there exists a written legal provision for the settlement thereof. In the case of a conflict between laws, which are of different import but emanate from the legislative power of the same State, there enters the legal principle that ordinary laws must not conflict with the provisions of the organic constitutional law. It may, perhaps, be objected that, when the legislative authorities have under forms of ordinary legislation, enacted a law, which the judge deems to be in contradiction to the provisions of the Constitution, those authorities have themselves previously considered the question whether such a contradiction exists. Granting this, however, the resulting obligation of the judge, in such a case, does not extend beyond weighing carefully the reasons on both sides of the question in a way like that which he must follow in another and similar case. This other case is that in which he is compelled to declare, in opposition to the legislative authorities of a particular State, that a law made by them contradicts the laws of the Empire.

"Now the constitutional charter of Bremen, dated February 21, 1854, in its Article 67, establishes certain formalities, by observing which, alterations of the Constitution can alone be made. The observance of these formalities in enacting the law of December 28, 1870, would have been considered sufficient for the adoption of any law altering the Constitution. According to the documents before us, it can, however, by no means be admitted that this was done; there being no indication that, in the case of the law of December 28, 1870, anything other than an Act of ordinary legislation was in question. This being so, the result arrived at in the reasons given for the previous part of this judgment, including likewise the consequences deduced therefrom, directly follow as a matter of course.'

In concluding this account of the judgment of the Hanseatic Court of Upper Appeal, it ought to be added that it seems probable that that tribunal was greatly influenced by the whole of Von Mohl's treatise on "Unconstitutional Laws" and especially by its pages 79 and 80. See his Monographie ueber die rechtliche Bedeutung verfassungswidriger Gesetze in his work entitled, Staatsrecht, Voelkerrecht und Politik

(Tuebingen. 1860), vol. 1, pp. 66-95. Von Mohl was undoubtedly influenced by American ideas and writings, as pages 69 and 71 of the above work prove. He expressly mentions the authors of the Federalist, Story and Kent. He does not name Marshall, but must have been influenced by his views. Elsewhere he expresses great admiration for the Chief Justice.

THE case of Garbade v. The State of Bremen was expressly overruled, some eight years later, by the Imperial Tribunal. This was done in the case of K. v. The Duke Board of Niedervieland, which was also a Bremen case. It is reported in the Decisions of the Reichsgericht in Civil Causes, vol. 9, p. 233. From the original report the following is partially abstracted and partially translated.

The suit was originally brought in the Land Court of Bremen by K. and other interested parties against the Dyke Board of Niedervieland in the State of Bremen.. Thence an appeal was taken to the Superior Land Court of Hamburg in second instance. Recourse in third and final instance was then had to the Reichsgericht or Supreme Court of the German Empire. The original plaintiffs, who were finally defendants, claimed that their well-acquired rights, as commoners of a swine pasture, had been violated by the Dyke Board proceeding under section 29 of the dyke ordinance of Bremen, a State of the German Empire. That ordinance was an Act of ordinary legislation and its section 29 was alleged to be in conflict with the provisions of the written Constitution of Bremen, which prohibited legislation impairing wellacquired rights of property.

On behalf of K. and the other commoners it was contended, inter alia, that the said section of the dyke ordinance was an invalid law because it conflicted with the Constitution as aforesaid. All the questions raised in the case were decided in favor of the Dyke Board. The constitutional questions are, however, the only ones requiring mention here. The following extracts are translated from the portion of the decision, which relates to the constitutional branch of the case. This final judgment in third instance was given on February 17, 1883. In it the Court of Second Instance is alluded to as the Court of Appeal:

"The principle is maintained by the Court of Appeal that, when two interpretations of a law appear possible to a judge, one conflicting and the other not conflicting with the Constitution, the former is simply to be rejected: and this is laid down universally and without limitation (as is indicated by the court's use of the words schon deshalb). So laid down, this principle cannot be recognized as correct.

"When both the form of a law and the procedure of its enactment are not those prescribed for an alteration of the [written] Constitution, it may happen that a particular interpretation thereof may according to the judge's view be in conflict with a principle of the Constitution. Properly, this circumstance must be considered only one of the reasons determining the interpretation of the law. It can only be a decisive one when, exclusive of it, the grounds for one or other of the two contradicting interpretations are equally balanced. The Court of Appeal contented itself with mentioning that the interpretation given in first instance by the Land Court to section 29 of the dyke ordinance was not one of actual necessity, although its view of the constitutional repugnancy of the section was based upon that interpretation. The Court of Appeal, therefore, attributed too great weight and significance to the interpretation made by the Land Court, while not holding the same merely in itself to be fully satisfactory. In so doing, the Court of Appeal overlooked weighty considerations, proper in seeking to ascertain the legislative will. Among these was, especially, that of the question as to what was the purpose of the law, and what value according thereto one interpretation had when compared with the other. The omis sion to consider that question further involved the loss of an available means of assistance which would otherwise have been obtainable

"... There remains to be considered only the question left undecided by the Appellate Court, namely, whether section 29 of the dyke ordinance shall be denied the force of binding law, because it is only an Act of ordinary legislation, while the Constitution is a law of a higher order. In a similar case, such denial was made by

the formerly existing Court of Upper Appeal at Lubeck. (See Seuffert's Archives, vol. 32, no. 101.1) This view, however, cannot be acceded to. On the contrary, the correct view on this head is that which was taken by the same court in another case only a few years before. (See Kierulff's Collection, vol. 7, p. 234.) This correct view is as follows: the constitutional provision that well-acquired rights must not be injured, is to be understood only as a rule for the legislative power itself to interpret, and does not signify that a command given by the legislative power should be left disregarded by the judge because it injures well-acquired rights. This is said without affecting the question whether the State may or may not be bound to grant damages; a matter not here brought into consideration. There is, therefore, no occasion to investigate whether well-acquired rights have been violated or not. The question is not whether a particular principle of the Constitution has been altered or not; but whether the law could have been enacted without an alteration of the Constitution itself, and therefore without applying the forms prescribed for such alteration. This last question, however, is one which cannot be examined by the judiciary."

The case above mentioned in Kierulff's Collection, vol. 7, p. 234, is, that of Krieger v. The State of Bremen, decided by the Hanseatic Court of Upper Appeal on June 15, 1872. On the page cited, the court declares it to be law that the constitutional principle, which prohibits the injury of well-acquired rights by legislation, is to be understood only as a rule for the legislative power itself: that it does not signify that a command, which is given by the legislative power, is to be disregarded by the judiciary because it injures well-acquired rights. This is said with a saving as to whether the State may or may not be bound to grant remuneration for the injury. - COXE, Jud. Power and Unconst. Legis. 95-102.

So far as the grounds for this remarkable power are found in the mere fact of a constitution being in writing, or in judges being sworn to support it, they are quite inadequate. Neither the written form nor the oath of the judges necessarily involves the right of reversing, displacing, or disregarding any action of the legislature or the executive which those departments are constitutionally authorized to take, or the determination of those departments that they are so authorized. It is enough, in confirmation of this, to refer to the fact that other countries, as France, Germany, and Switzerland, have written constitutions, and that such a power is not recognized there. "The restrictions," says Dicey, in his admirable Law of the Constitution, "placed on the action of the legislature under the French Constitution are not in reality laws, since they are not rules which in the last resort will be enforced by the courts. Their true character is that of maxims of political morality, which derive whatever strength they possess from being formally inscribed in the Constitution, and from the resulting support of public opinion." 2

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 charters, so many written constitutions, were enforced by various means, - by forfeiture of the charters, by Act of Parliament, 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

1 The case of Garbade v. The State of Bremen, previously given.

2 Ch. ii. p. 127, 3d ed. President Rogers, in the Preface to a valuable collection of papers on the "Constitutional History of the United States, as seen in the Development of American Law," 11, remarks that "there is not in Europe to this day a court with authority to pass on the constitutionality of national laws. But in Germany and Switzerland, while the Federal courts cannot annul a Federal law, they may, in either country, declare a cantonal or State law invalid when it conflicts with the Federal law." Compare Dicey, ubi supra, and Bryce, Am. Com., i. 430, note (1st ed.), as to possible qualifications of this statement.