tion whether such incompatibility exists? Who is to decide whether or no the authority given to Congress has been exceeded, and whether or no the State law contravenes the Federal Constitution or a Federal statute?

In 1789 the only pre-existing courts were the State courts. If a case coming before them raised the point whether a State constitution or statute was inconsistent with the Federal Constitution or a statute of Congress, it was their duty to decide it, like any other point of law. But their decision could not safely be accepted as final, because, being themselves the offspring of, and amenable to the State governments, they would naturally tend to uphold State laws against the Federal Constitution or statutes. Hence it became necessary to call in courts created by the central Federal authority and coextensive with it-that is to say, those Federal courts which have been already described. The matter seems complicated, because we have to consider not only the superiority of the Federal Constitution to the Federal Congress, but also the superiority of both the Federal Constitution and Federal statutes to all State laws. But the principle is the same and equally simple in both sets of cases. Both are merely instances of the doctrine, that a law-making body must not exceed its powers, and that when it has attempted to exceed its powers, its so-called statutes are not laws at all, and cannot be enforced.

In America the supreme law-making power resides in the people. Whatever they enact binds all courts whatsoever. All other law-making bodies are subordinate, and the enactments of such bodies must conform to the supreme law, else they will perish at its touch, as a fishing smack goes down before an ocean steamer. And

these subordinate enactments, if at variance with the supreme law, are invalid from the first, although their invalidity may remain for years unnoticed or unproved. It can be proved only by the decision of a court in a case which raises the point for determination. The phenomenon cannot arise in a country whose legislature is omnipotent, but naturally' arises wherever we find a legislature limited by a superior authority, such as a constitution which the legislature cannot alter

In England the judges interpret Acts of Parliament exactly as American judges interpret statutes coming before them. If they find an Act conflicting with a decided case, they prefer the Act to the case, as being of higher authority. As between two conflicting Acts, they prefer the later, because it is the last expression of the mind of Parliament. If they misinterpret the mind of Parliament, i.e. if they construe an Act in a sense which Parliament did not really intend, their decision is nevertheless valid, and will be followed by other courts 2 until Parliament speaks its mind again by another Act. The only difference between their position and that of their American brethren is that they have never to distinguish between the authority of one enactment and of another, otherwise than by looking to the date, and that they have therefore never to inquire whether an Act of Parliament was invalid when first passed. In

1 I do not say "necessarily," because there are countries on the European continent where, although there exists a constitution superior to the legislature, the courts are not allowed to hold a legislative act invalid, because the legislature is deemed to have the right of taking its own view of the constitution. This seems to be the case both in France and in Switzerland.

2 That is, by other courts of the same or a lower degree of authority. A court of the same authority will, however, sometimes differ from a decision it thinks erroneous, and a higher court will not hesitate to do so.

valid it could not have been, because Parliament is omnipotent, and Parliament is omnipotent because Parliament is deemed to be the people. Parliament is not a body with delegated or limited authority. The whole fulness of popular power dwells in it. The whole nation is supposed to be present within its walls.' Its will is law; or, as Dante says in a famous line, "its will is power."

There is a story told of an intelligent Englishman who, having heard that the Supreme Federal Court was created to protect the Constitution, and had authority given it to annul bad laws, spent two days in hunting up and down the Federal Constitution for the provisions he had been told to admire. No wonder he did not find them, for there is not a word in the Constitution on the subject. The powers of the Federal courts are the same as those of all other courts in civilized countries, or rather they differ from those of other courts by defect and not by excess, being limited to certain classes of cases. The so-called " power of annulling an unconstitutional statute" is a duty rather than a power, and a duty incumbent on the humblest State court when a case raising the point comes before it no less than on the Supreme Federal Court at Washington. When therefore people talk, as they

1 The old writers say that the reason why an Act of Parliament requires no public notification in the country is because it is deemed to be made by the whole nation, so that every person is present at the making of it. It is certainly true that the orthodox legal view of Parliament never regards it as exercising powers that can in any sense be called delegated. A remarkable example of the power which Parliament can exert as an ultimately and completely sovereign body is afforded by the Septennial Act (1 Geo. I. st. 2, cap. 38). By this statute a Parliament in which the House of Commons had been elected for three years only, under the Triennial Act then in force, prolonged not only the possible duration of future Parliaments but its own term to seven years, taking to itself four years of power which the electors had not given it.

sometimes do, even in the United States, of the Supreme court as "the guardian of the Constitution," they mean nothing more than that it is the final court of appeal, before which suits involving constitutional questions may be brought up by the parties for decision. In so far the phrase is legitimate. But the functions of the Supreme court are the same in kind as those of all other courts, State as well as Federal. Its duty and theirs is simply to declare and apply the law; and where any court, be it a State court of first instance, or the Federal court of last instance, finds a law of lower authority clashing with a law of higher authority, it must reject the former, as being really no law, and enforce the latter.

It is therefore no mere technicality to point out that the American judges do not, as Europeans are apt to say, "control the legislature," but simply interpret the law. The word "control" is misleading, because it implies that the person or body of whom it is used possesses and exerts discretionary personal Will. Now the American judges have no will in the matter any more than has an English court when it interprets an Act of Parliament. The will that prevails is the will of the people, expressed in the Constitution which they have enacted. All that the judges have to do is to discover from the enactments before them what the will of the people is, and apply that will to the facts of a given case. The more general or ambiguous the language which the people have used, so much the more difficult is the task of interpretation, so much greater the need for ability and integrity in the judges. But the task is always the same in its nature. The judges have no concern with the motives or the results of an enactment, otherwise than as these may throw light

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on the sense in which the enacting authority intended it. It would be a breach of duty for them to express, I might almost say a breach of duty to entertain, an opinion on its policy except so far as its policy explains its meaning. They may think a statute excellent in purpose and working, but if they cannot find in the Constitution a power for Congress to pass it, they must brush it aside as invalid. They may deem another statute pernicious, but if it is within the powers of Congress, they must enforce it. To construe the law, that is, to elucidate the will of the people as supreme lawgiver, is the beginning and end of their duty.1

To press this point is not to minimize the importance of the functions exercised by the judiciary of the United States, but to indicate their true nature. The importance of those functions can hardly be exaggerated. It arises from two facts. One is that as the Constitution cannot easily be changed, a bad decision on its meaning. i.e. a decision which the general opinion of the profession condemns, may go uncorrected. In England, if a court has construed a statute in a way unintended or unexpected, Parliament sets things right next session by amending the statute, and so prevents future decisions to the same effect. But American history shows only one instance in which an unwelcome decision on the meaning of the Constitution has been thus dealt with, viz. the decision, that a State could be sued by a private

1 "Suppose, however," some one may say, "that the court should go beyond its duty and import its own views of what ought to be the law into its decision as to what is the law. This would be an exercise of judicial will." Doubtless it would, but it would be a breach of duty, would expose the court to the distrust of the people, and might, if repeated or persisted in in a serious matter, provoke resistance to the law as laid down by the court. See Chapter XXXIII. post.