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Entered according to Act of Congress, in the Year nineteen hundred six, by
CHARLES Z. LINCOLN,
In the Office of the Librarian of Congress, at Washington, D. C.
E. R. ANDREWS PRINTING CO., Rochester, N. Y.
Judges have been making and writing constitutional history from the beginning. The provision in the first Constitution by which they were made members of the Council of Revision, which was given power to consider all bills passed by the legislature, before they could become laws, gave the judges substantial control of legislation, subject to the power of the legislature to pass a bill over the veto. The governor was a member of the council, but he had no more authority than any other member; this situation made it possible for the judges to exercise a predominant influence in determining the validity or propriety of proposed legislation. If a bill was not approved, it was customary for the council to designate the chancellor or one of the judges to prepare a statement of objections to it, for transmission to the legislature. These objections were quite like executive veto messages since the abolition of the council, and, omitting questions of policy, were in the usual form of decisions declaring an act invalid on constitutional grounds. The function of the judges as members of the council was essentially executive, for their power reached beyond the determination of constitutional questions, and they might reject a bill on questions of policy. By the abolition of the council the function of the judge became purely judicial, and the executive power of the council was vested solely in the governor. This changed the relation of the judge to legislation. Under the first Constitution vetoes by the council were treated as executive only, and not as final judicial adjudications; we therefore find that, in numer.
ous instances, the legislature passed bills over the veto, even where the objections were on constitutional grounds. It should be remembered, however, that, under these conditions, the judges had the last word as to the constitutionality of a law, for they still had the power to declare laws unconstitutional even if passed over their veto while acting as members of the Council of Revision.
I have already pointed out in previous volumes that the power possessed by the courts to declare laws unconstitutional is, in effect, a veto power, and since the abolition of the Council of Revision the exercise of this power by the courts may be characterized as a judicial veto, as distinguished from an executive veto, but with the important difference that the judicial veto is final, while the executive veto may be overruled by the legislature.
Judicial decisions have had a significant influence in shaping our constitutional system, for, by a process of interpretation, the principles of the Constitution are elucidated and applied to the varying conditions of modern social, political, and commercial life. A history of the Constitution would be incomplete without some note of these decisions. On great constitutional questions the judges usually bestow special and elaborate attention to the inception and evolution of the particular constitutional provision under consideration, and in many instances many decisions might be cited in which the judges have made history, not only by sustaining or rejecting statutes which have affected great public interests, but, by the construction given to the Constitution, have pointed out the proper course to be pursued by the various departments of the government, and have prescribed the extent and limitations of the rights of citizens as members of the state. It is not too much to say that a history of a large part of the Constitution might be written from judicial decisions.
From the abundance of rich material I have tried to select cases which are most likely to aid the reader, lay as well as professional, in obtaining a clear view of the problems presented to the court, and the reasons for the decision. An effort has been made to state the essential facts in each case, and I have often quoted freely from the opinions, for the purpose of presenting a complete view of the questions involved, thus showing the development resulting in the policies formulated in the written instrument, and which policies have been described in the first three volumes.
I have included several historical notes which seem more appropriate here than in previous volumes. This is in accordance with the plan already pointed out of placing the historical notes where they would best elucidate the subject. It is hoped that this volume will be useful to the lawyer in searching for precedents relating to particular provisions, and in discovering and applying the proper principles of construction. But it has not been written for lawyers only: it has been my purpose so to present the history and discussion of constitutional principles that every citizen may readily ascertain and appreciate the policies outlined in the Constitution, and which so vitally affect his personal and political rights.
So far as practicable, judicial notes have been brought down to the date of publication of this work.
AMENDMENTS OF 1905.
The legislature of 1903 finally adopted four amendments, and the legislature of 1905 three. All of them were to be submitted to the people at the general election in November, 1905. These amendments include article 6, sections 1 and 2; article 7, amending section 4, and adding two new sections, II and 12; article 8, section 10, and article 12, section I. The text of these amendments will
be found in the notes to the articles so amended. My historical record, so far as the Constitution is concerned, closes with the legislative session which ended May 5, 1905; I am, therefore, unable to state the result of the submission of these amendments. Assuming that they may be approved, they are given in full. If approved, or if not approved, this volume will contain the Constitution as in force on the last day of December, 1906, and until other amendments are adopted. After the result of the election is known, the reader may make the book complete, as to the form of the Constitution, by noting the approval or rejection of each amendment on the margin thereof.